Adams v British Telecommunications Plc UKEAT/0342/15/LA

Appeal against the rejection of the Claimant's claim because it was submitted out of time, having being returned to her because of an incorrect EC certificate number on the ET1. Appeal allowed.

The Claimant submitted her ET1 just in time but entered an incorrect EC certificate number - the claim was rejected but by the time a new corrected ET1 was lodged with the ET, it was 2 days out of time. The EJ ruled that it was reasonably practicable for the claim form to have been presented in time saying that there was no reason at all why the claim form delivered on that date could not have contained the correct EC certificate number. The EJ refused to extend time saying that the delay was wholly attributable to the carelessness and sloppiness of the Claimant and her solicitor. The Claimant appealed on the basis that the EJ had incorrectly focused on the first claim, which the Tribunal concluded could and should have been presented in time, and failed altogether to address the second claim. The correct focus should have been on the second claim and the question whether in relation to that claim it was reasonably practicable to present that claim in time.

The EAT allowed the appeal on both the reasonably practicable and extension of time grounds. On the reasonably practicable test, the question for the Tribunal, in those circumstances, was not whether the mistake she originally made was a reasonable one but whether her mistaken belief that she had correctly presented the first claim on time and did not therefore need to put in a second claim was reasonable having regard to all the facts and all the circumstances. Having lodged the first claim believing it to be complete and correct, the Claimant would have had no reason to lodge the second claim on that date. The Claimant cannot have been aware of the mistake she made in transposing the certificate number until after the limitation period expired because had she become aware of it, for example when she was in the process of presenting the complaint, she would have corrected it. The Claimant did nothing between submitting the first and second ET1 only because she was under the mistaken belief that the first claim had been correctly presented without any defect. For all these reasons it must be assumed that the Claimant's error was genuine and unintentional. On the extension of time issue, the balance of prejudice is plainly a material factor and was a significant factor in this case but it was not a factor to which the EJ had regard.

Published: 21/08/2017 16:16

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