1. By section 111 ERA 1996 it is, relevantly, provided that:

"111. Complaints to employment tribunal

(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

1. A body of case law has developed in respect of the test of reasonable practicability laid down by section 111(2)(b) (and the earlier provisions to like effect), the most relevant of which were referenced by the ET in its reasoning. The principles that may be extracted from the authorities were considered and helpfully summarised by the then President of the Employment Appeal Tribunal, Underhill J (as he then was) in Entwhistle. Extracting that which is relevant to the present appeal from that summary, I note as follows:

"5. …

(1) Section 111 (2) (b) should be given "a liberal construction in favour of the employee". This was first established in Dedman. There have been some changes to the legislation since but this principle has remained: see, most recently, paragraph 20 in the judgment of Lord Phillips MR in Williams-Ryan, at page 1300.

(2) In accordance with that approach it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time limit if he was, reasonably, in ignorance of that time limit. This was first clearly established in the decision of the Court of Appeal in the Walls case, but see most recently paragraph 21 of Lord Phillips' judgment in Williams-Ryan and, in particular, the passage from the judgment of Brandon LJ in Walls there quoted, at pages 1300 to 1301.

(3) In Dedman the Court of Appeal appeared to hold categorically that an applicant could not claim to be in reasonable ignorance of the time limit if he had consulted a skilled adviser, even if that adviser had failed to advise him correctly. Lord Denning MR said this at page 61 E-G:

"But what is the position if he goes to skilled advisers and they make a mistake? The English court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It was held that it was 'practicable' for it to have been posted in time. He was not entitled to the benefit of the escape clause: see Hammond v Haigh Castle & Co Ltd [1973] ICR 148. I think that was right. If a man engages skilled advisers to act for him, and they mistake the time limit and present it too late, he is out. His remedy is against them. Summing up, I would suggest that in every case the Tribunal should inquire into the circumstances and ask themselves whether the man or his advisers were at fault in allowing the four weeks to pass by without presenting the complaint. If he was not at fault, nor his advisers, so that he had just cause or excuse for not presenting his complaint [within] the four weeks then it was not practicable for him to present it within that time. A court has then a discretion to allow it to be presented out of time if it thinks it right to do so, but if he was at fault, or his advisers were at fault in allowing the four weeks to slip by, he must take the consequences. By exercising reasonable diligence the complaint could and should have been presented in time."

…

(5) However, in Williams-Ryan Lord Phillips reviewed the relevant authorities in some detail with a view to identifying whether it was a correct proposition of law that, as he put it at paragraph 24 (page 1301):

"… if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the Employment Tribunal in due time. The fault on the part of the adviser is attributed to the employee."

He concluded squarely at paragraph 31 (page 1303):

"What proposition of law is established by these authorities? The passage I quoted from Lord Denning's judgment in Dedman was part of the ratio. There the employee had retained a solicitor to act for him and failed to meet the time limit because of the solicitor's negligence. In such circumstances it is clear that the adviser's fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal."

The passage from Dedman there referred to is part of the passage which I have set out at (3) above. I think it is clear that Lord Phillips was intending to confirm that what he elsewhere called "the principle in Dedman" is a proposition of law …

(6) Subject to the Dedman point, the trend of the authorities is to emphasise that the question of reasonable practicability is one of fact for the Tribunal and falls to be decided by close attention to the particular circumstances of the particular case …"

1. In Entwhistle the ET had taken the view that it would be an error to read Lord Phillips' endorsement of Dedman too literally. On hearing the appeal against the ET's Judgment in Entwhistle Underhill J did not disagree with that statement of principle, holding:

"9. In my judgment the Judge was right not to read Lord Phillips' endorsement of the Dedman principle in Williams-Ryan as meaning that in no case where a claimant has consulted a skilled adviser and received wrong advice about the time limit can he claim that it was not reasonably practicable for him to present his claim in time. It is perfectly possible to conceive of circumstances where the adviser's failure to give the correct advice is itself reasonable. … The paradigm case, though not the only example, of such circumstances would be where both the claimant and the adviser had been misled by the employer as to some material factual matter (for example something bearing on the date of dismissal, which is not always straightforward). …"

1. Moreover, when the adviser is from an organisation such as a Citizens Advice Bureau, in Marks & Spencer Lord Phillips indicated that it might be relevant to know something of the status of the advice and the adviser.

1. Ultimately, however, the language of the statute must prevail; the question of reasonable practicability is - as section 111(2)(b) provides - largely one of fact for the ET and will fall to be determined on the particular circumstances of the case. An ET's decision in this regard will therefore only rarely be susceptible to challenge on appeal, although the case law certainly provides examples where successful challenges have occurred.

1. The starting point in the ET's reasoning cannot be faulted: the fact that the Claimant did not know of her rights under section 104 ERA did not mean it was not reasonably practicable for her to lodge her claim in time; she was aware of the relevant facts - this was not a case of concealment or representation by the employer - and could be expected to take reasonable steps to obtain advice.

1. The ET found that the Claimant did, indeed, make prompt efforts to obtain advice, initially from the CAB but also from ACAS and from her trade union. It is right to acknowledge that this case is somewhat unusual in that the Claimant made efforts to obtain advice from three appropriate sources, all of whom advised her that she did not have sufficient continuity of employment to bring a claim of unfair dismissal. Given that the Claimant's complaint was that she was dismissed for asserting her statutory right to written terms and conditions, that advice was incorrect. The question for the ET was whether - per Underhill J in Entwhistle - the failure of the advisers to give the correct advice was itself reasonable.

1. The ET apparently saw a distinction between a CAB adviser and a skilled legal adviser such as a solicitor. At paragraph 16, it allowed that the latter might be expected to make greater enquiry as to the circumstances leading up to a dismissal such as to give rise to a possible exception to the usual rules as to qualifying periods of employment, but considered that such a duty may not exist in relation to a CAB adviser. In drawing that distinction, the ET was relying on Lord Phillips' observation at paragraph 32 of Marks & Spencer. That was an entirely appropriate course, but Lord Phillips had suggested that the relevance of the CAB advice might depend on "who it was who gave the advice and in what circumstances". In the present case, the ET made no specific finding as to the status of the CAB adviser, although it had earlier found that delays might arise in obtaining an appointment with a CAB adviser with knowledge of employment law. That was quite possibly because the Claimant herself did not know (see her witness statement at paragraph 74, where she volunteered she was not aware whether the adviser she saw was a qualified lawyer or not). It equally made no finding as to the status of the advisers from ACAS (albeit that would seem to have been simply advice from the helpline) or the Claimant's trade union (the Claimant had volunteered that she had seen the GMB "local employment law adviser", see paragraph 84 of her statement).

1. What the ET did appear to consider material was the extent of the obligation upon the adviser to make further enquiries of the Claimant. I infer it saw that as relevant to the question of whether the failure to give the correct advice was itself reasonable. The ET had found that the Claimant's principal concern when she approached the CAB was as to how she might recover the sums that she believed were due to her as wages. To the extent that it made findings as to her instructions to the CAB adviser, the ET records simply that the Claimant explained that she believed that she was owed money and that she had no written contract of employment (see paragraph 3 of the ET's Reasons).

1. If that was all the Claimant indicated to those from whom she sought advice, I can see why the ET might conclude that the failure to advise of a potential right to pursue a claim of automatic unfair dismissal for asserting a statutory right was not of itself unreasonable. The difficulty with that, however, is that whilst the failure to give fuller advice might not have been unreasonable that might simply be because the Claimant had unreasonably failed to seek advice on the factual matrix upon which she subsequently sought to rely as establishing her right to complain of unfair dismissal under section 104 ERA. If the circumstances in which the advice was given - the status of the adviser; the context in which the advice was given; the information provided by the Claimant; the questions asked of her - were relevant to the issue of reasonable practicability, the ET needed to make clear precisely what it had found had occurred.

1. For the Claimant, it is submitted that this was properly to be seen as an exceptional case: the ET was entitled to conclude that most people would have been unaware of the right to bring a claim of unfair dismissal under section 104 and that the Claimant herself was ignorant of that entitlement. Moreover, the nature of the right was such that simply stating the bare facts of the complaint might not alert an adviser who was not professionally qualified to the need to advise of the possible entitlement. Here, the Claimant had referred to the absence of a written contract and her continued requests of the Respondent in this respect (see paragraphs 22 to 25 of the grounds attached to her ET1), but the advisers from the CAB, ACAS and her trade union had - not unreasonably - not picked up that this might found a claim of automatic unfair dismissal for asserting a statutory right to written terms and conditions, and, given the more general advice she was given by three separate sources as to the need for two years' service to bring a claim of unfair dismissal in the ET, the Claimant would not have been alerted to the need to provide any further information or to investigate the point in more detail.

1. I see all of those points and can allow that - given the particular circumstances of this particular case - it might well have been open to the ET to find it was not reasonably practicable for the Claimant to lodge her claim in time. I would also accept that, if the ET had made clear findings on the points relevant to reasonable practicability in these circumstances, it would not be for this court to interfere with that conclusion. What I cannot accept, however, is that the ET's Reasons demonstrate that it did make the necessary findings or, at least, that the Reasons adequately explain the findings relevant to its conclusion in this case.

1. Allowing that the advice given to the Claimant might have been reasonable in the particular circumstances of this case and, at the same time, that the information provided by the Claimant and specific questions raised by her might also have been reasonable, I consider that the ET could only arrive at a final conclusion on these issues once it had made findings as to the instructions given and questions asked, and as to the status of the advisers and the advice received. Allowing that this is a Judgment of an ET, which is to be viewed as a whole and which cannot be expected to be drafted to the highest standards of legal draftsmanship, I am not satisfied there is sufficient explanation for the conclusion on reasonable practicability, which ultimately comes down to a statement at paragraph 16 as to what may have been the duty of care in respect of a CAB adviser.

1. Having taken the view that the absence of adequate findings and explanation renders the ET's conclusion unsafe, I do not consider that it is open to me to reach my own view on this point. I have allowed that the particular circumstances of this case may, as the Claimant urges, be sufficiently exceptional as to mean that it was not reasonably practicable for her to lodge her claim in time. Whether, however, that is in fact the case will depend upon an assessment of the actual nature and status of the advice given and the context in which it was given, what the Claimant is found to have provided by way of information and what advice she actually sought. As I have stated, I do not consider that the ET has made sufficient findings on those crucial points, although I have been taken to material that was before the ET - including the ET1 and the Claimant's witness statement - that would seem to provide more relevant detail in that regard. It is a matter of assessment for an ET as to whether this really is an exceptional case such as would satisfy that ET it was not reasonably practicable for the claim to have been presented in time. I therefore allow the appeal but remit this matter to the ET.

1. Given my Judgment, the Respondent submits that this matter should be remitted to a new ET, not least as the Employment Judge had previously had the opportunity to reconsider the matter but had chosen not to do so. For the Claimant, on the other hand, it is urged that I remit to the same Judge, who would have the opportunity to revisit this matter in the light of the guidance given in my Judgment and that was the proportionate course.

1. In considering this question I take into account the factors laid down in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763 EAT. At least a year will have passed before the matter returns to the ET and it is unlikely that the Employment Judge will have a very clear recollection of this case. Moreover, the hearing was and is likely to remain short and is unlikely to take substantially more time whether remitted to the same or a different ET. On the other hand, I do not consider that the decision was fundamentally flawed and there is no question as to the professionalism of the Employment Judge, who - if faced with this case on remission - could approach this matter impartially with the assistance of the guidance laid down in this Judgment.

1. In the circumstances, it seems to me that this matter can be remitted to any ET. That may, if convenient, be the same Employment Judge but it need not be. I leave that entirely to the discretion of the Regional Employment Judge, bearing in mind the need to get the matter back before an ET as soon as is practicable.