UK News

Employee who filed her claim for breach of contract 3 months too late is allowed to proceed with her claim

July 2012

The EAT has decided that an employee who was wrongly advised by her employer about the timeframe for bringing a claim could proceed with that claim despite filing it three months after the Employment Tribunal’s deadline had expired.

Background

Mrs Andrews became a part-time nurse for Kings College Hospital in 1982 at a time when part-time workers were excluded from the relevant pension scheme. The rules changed in 1991. When she joined the scheme in 2006 she asked for her entitlement to be backdated to 1991 but this request was refused.

Mr Peacock, head of payroll and pension services, innocently but incorrectly told Mrs Andrews that she could bring a claim in the Employment Tribunal within 6 months after her employment terminated relating to the failure to backdate her membership to 1991. He was thinking of the time-limit for part-time pension claims under the Equal Pay Act 1970. The failure to backdate her membership was a breach of contract claim for which there is a 3 month time limit for bringing a claim. The Employment Tribunal struck out the breach of contract claim as Mrs Andrews had not filed it within the correct time frame.

The EAT disagreed. It decided that, as Mr Peacock was in a position of authority, in charge of pensions and payroll matters and dealing with Mrs Andrew’s internal grievance about the same matter, Mrs Andrews was entitled to rely on Mr Peacock’s advice. The delay in filing her claim was justified and reasonable and she was allowed to proceed with the breach of contract claim.

Commentary

The courts look at who advised the employee of the incorrect time limit. If a lawyer relays the wrong information to the employee then the courts will not sympathise with the employee. If the employer is at fault then the courts tend to look carefully at the facts and decide if the employee was misled (albeit as part of an honest mistake) as she was in this case.

The sensible solution is for employers to avoid commenting on an employee’s right to bring a claim or comment on the time limit for filing any claim. If an employer is trying to advise an employee about an internal company appeal process then, to avoid a similar tribunal claim to the one brought against Marks & Spencer plc in 2005, the employer should only refer to the relevant internal appeal process and not muddy the waters by making reference to Employment Tribunal deadlines. The employer must avoid the employee mistakenly thinking that it is referring to an Employment Tribunal timeframe.

Resources

Mrs G Andrews v Kings College Hospital NHS Foundation Trust and Secretary of State for Health

Marks & Spencer plc v Miss S Williams Ryan

For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 20 3051 5711.