07 September 2018
In North East London NHS Foundation Trust v Zhou, the EAT has decided that it may not necessarily be unreasonable conduct for solicitors to have filed an incomplete claim form.
Ms Zhou had instructed solicitors to assist with her whistleblowing and unfair dismissal claims, but to keep down her costs had filled in the formal parts of the form herself. However, she did not write in the full ACAS EC number, leaving off the last two digits by mistake.
This mistake was not spotted or rectified by the solicitors, who submitted the claim form on the last day of the limitation period. It was rejected by the tribunal, and the new, accurate claim form was resubmitted the following day, after the limitation period had expired.
The case concerned whether the Tribunal had jurisdiction to hear the claim, and to decide this they had to address whether the solicitors had acted reasonably in failing to put the claim in on time. If they had acted unreasonably, then Ms Zhou would be bound by this conduct, meaning her claim would be struck out for being out of time.
The EAT agreed with the decision in the ET that the solicitors were “unquestioningly at fault” for not spotting the incomplete number on the claim form, but also held that this did not automatically make their conduct unreasonable.
Whether the solicitors had acted unreasonably or not was a matter to be weighed up by a Tribunal. The question of whether it was reasonable for the solicitors to have made this mistake had not been properly addressed by the ET or, if it had been addressed, they had not properly explained their reasoning.
The EAT sent the case back to the same ET for further discussion and a decision on the matter. The result of this case may give clearer guidance on what could be regarded as unreasonable conduct in terms of lodging a claim in time.