Before contemplating or initiating an employment tribunal claim a dismissed employee should exhaust their right of appeal with the employer to see if this can be resolved without recourse to litigation. That advice is not, in itself, contentious.
Although the ACAS Code of Practice on Disciplinary and Grievance Procedures does not refer to the right to pursue an employment tribunal complaint its advice in not inconsistent with this:
Where an employee feels that disciplinary action taken against them is wrong or unjust, they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.
ACAS Code of Practice, paragraph 26.
Litigation should be, we are told, a last resort. In part, that is the reason for the adage that is not infrequently heard from trade union representatives that once a case progresses to an employment tribunal then the case has already been lost. I do not agree with that assessment, but I understand why it is said since the power of the trade union is so much more than sometime legal representative.
However generally good and accurate the advice is that internal routes of appeal should be exhausted first, it comes with one major health warning: the time limit for submitting an employment tribunal claim does starts at the date of dismissal (or rather the effective date of dismissal) and not the date the appeal process has been concluded. Delaying litigation because you are trying to resolve a dispute through established dispute resolution methods first is not, the wise judges of the Court of Appeal assure us, a reasonable reason for not pressing on and litigating in the meantime. This time limit is harshly applied and is set out at section 111 of the Employment Rights Act 1996. The failure to appreciate that point is the reason why hundreds (and probably thousands) of people who believe they were unfairly dismissed never have the chance to challenge their dismissal as claims are struck out because they made an employment tribunal claim too late by doing what a common-sense interpretation of “last resort” would say is a reasonable attempt to exhaust non-legal appeal routes first.
So, the generally good advice with which this post started has a major caveat: Before contemplating or initiating an employment tribunal claim a dismissed employee should exhaust their right of appeals before initiating a claim to see if this can be resolved without recourse to litigation unless this appeal process has not been completed within three months.
This state of affairs and law is ludicrous. At a time when employment tribunals are buckling under resource pressures, how is it reasonable to mandate cases enter the employment tribunal process and add to backlogs prematurely (a fact that hardens both party’s positions) when there is a prospect the dispute could be resolved without recourse to litigation by following to conclusion the appeal process first? This is all the more perverse when you consider the conduct of the appeal process is itself part of the factual matrix that will determine whether a dismissal is fair, and one that can make or break a case (Adivihalli v Export Credits Guarantee Department); so, the law means claimants are being mandated to commence litigation before all the primary relevant facts to be considered are even known, or maybe even have not even happened yet and won’t during the limitation period (which is hardly consistent with litigation being a last resort or access to justice for all!). Be that as it may, that is the position our esteemed Parliamentarians have chosen to establish and perpetuate. They must have their reasons, right?
Ignorance or Reliance on incorrect advice from Skilled Adviser
For the employee caught in the crosshairs of this damned if you do, damned if you don’t scenario, a common scenario is to allege that the reason a claim was not made in time is because a claimant was wrongly advised by an adviser (such as union representative, lawyer, or CAB adviser). For example, in Begum v Ministry of Justice (2020) the claimant explained that she was not aware of tribunal deadlines and that her PCS union representative had told her that “she could not bring a claim for disability discrimination against the respondent until after she had exhausted the internal grievance process” (7) and that it was “it was a PCS rule that until internal process had concluded there was no access to full time union staff or the PCS legal team.” (14).
In ruling that, even if these statements were true (and I assure you the second is not), the claimant’s claim was still out of time and claims would be struck out the ET judge relied on a 1973 judgment of the Court of Appeal – Dedman v British Building & Engineering Appliances Ltd (1973). In Dedman the Lord Denning said that “if a man engages skilled advisors to act for him – and they mistake the time limit and present it too late – he is out. His remedy is against them.” The effect is that except in cases where the adviser has been given wrong information it will be very difficult for an out of time claim to proceed on the basis of being mis-advised by a skilled adviser – although since every tribunal must make a decision on particular facts under s.111(2) of the Employment Rights Act 1996 it is still possible.
There is a certain logic in a solicitor being a skilled adviser but what about an ordinary union shop steward? There are undoubtedly many (and probably most) trade union representatives who know their subject well and can be described as skilled advisers but is it really right, for example, that a person is elected to represent a workforce one day, is asked for advice the next and that advise even if wrong prevents the worker pursuing an ET? In the Begum case (which was an Employment Tribunal judgment, so not binding on other tribunals) the answer given is affirmative:
The claimant says that her adviser is an unskilled colleague, and so should not be treated as a “skilled adviser”. He was an accredited union representative from the PCS union. I make no finding of fact that he was or is incompetent or unskilled, for he is not here to put his point of view, but taking the claimant’s case at its highest, if so that does not assist her. Some solicitors or CAB representatives are not competent. They are still regarded as skilled advisers. It is the category of person advising that is the criterion, and there is no additional individual assessment of the capability (or otherwise) of that individual. A trade union official counts as a skilled adviser.
Begum v MOJ – paragraph 13.
In 1979 the EAT found that a CAB adviser was a skilled adviser – Riley v Tesco Stores (1979) and a decade later the EAT confirmed the same applied to a trade union official in London Borough of Islington v Brown (2008).* So, although Brown was not cited in Begum the analysis in the judgment seems legally correct (but not ‘right’ in any normal sense) – similar findings have been made about ACAS advisers. A later judgment of the Court of Appeal is sometimes interpretated as relaxing the harshness of the rule set out in Dedham but I do not think that is correct, although the claimant did get a positive outcome but for reasons related to ambiguity of employer communications – London International College Ltd v Sen (1993).
From a Trade Union perspective that places a particular burden on representatives that, in my experience, is generally not conveyed well to them. If you give advice on time limits or recommend that a member pursues an appeal or grievance process to the end (which is almost always good advice) before considering ET challenge the health warning about time limits possibly expiring sooner must also be communicated.
If that person goes on to make an ET claim out of time and claims they received wrong advice from their union representative, then that is unlikely to be enough to save the position (the judgment in Paczkowski v Sieradzka (2016) which allows “exceptional” circumstances related to the request for advice does provide some wriggle room). So, for the union representative, I think the takeaway is while you may want to be helpful, if you’re asked for advice and are not sure of the answer do not try to give it your best guess but refer the member to another more experienced representative or legal department – you will save yourself embarrassment but may also be doing a great service to the member’s future prospects of challenging an employer’s decision in the future. Also, where a member has a possibility of legal claim you should tell them that (as distinct from telling them that has any merit) as a failing to do that is a failing of a skilled adviser.
The other aspect of this issue worth noting is if an employee is indeed stopped from pursuing an ET because they relied on the wrong advice of a skilled adviser the law recognises that that puts the employee at a great injustice; however, it justifies this with the fact that that person does have a remedy against that skilled adviser for the losses arising from that wrong advice. In a union context, this would mean a member (probably) suing their union for professional negligence. Clearly not a good position for a union member, or union to be in.
* It seems this point was also established earlier in Syed v Ford Motor Co (1979 – EAT) but I have not been able to read this judgment to check the accuracy of this.
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