The Employment Appeal Tribunal (EAT) has overturned an employment tribunal's finding that it was not reasonably practicable for an employee to present his unfair dismissal claim in time because of dyslexia and mental health problems, combined with ignorance of the time limit, in Cygnet Behavioural Health Ltd v Britton.
The claimant was employed by Cygnet Behavioural Health Ltd (CBH Ltd) as a physiotherapist, but was dismissed during his probationary period. CBH Ltd referred him to the statutory regulator of health care professionals due to concerns about his fitness to practice, and the investigation which followed took up a lot of his time. He presented his claim form (after the Acas early conciliation process), 62 days late. At a preliminary hearing the tribunal found that his failure to comply with the time limit was due to poor mental health, dyslexia and ignorance of the time limits. The combination of the investigation into his fitness to practice, the deterioration of his mental health and the impact of his dyslexia meant that it was not reasonably practicable for him to have presented his claim on time. The tribunal concluded that the claim was presented within a reasonable time thereafter.
On appeal the EAT noted that, although the test for perversity involves surmounting a "very high hurdle", the test was met in this case. The EAT found that, notwithstanding his conditions, the claimant had been able to do a great deal during the period between his dismissal and the expiry of the time limit. This included appealing against his dismissal, contacting Acas about his potential claims, working as a locum, moving house, and engaging with the investigation into his fitness to practice. The EAT concluded that it flew in the face of reason to find that he was able to do all of this and yet was not able to find out the time limits for a tribunal claim, and so it overturned the decision on grounds of perversity and the claimant's claim was dismissed for being out of time.
Take note: It is possible for the time limit for presentation of an unfair dismissal claim to be extended where it is found to be not reasonably practicable for the complaint to be presented in time. Here, however, there was ample evidence, despite the claimant's deteriorating mental health and dyslexia, that he had been able to find out about the time limits and submit his claim on time.
