Wrong advice from counsel: constructive dismissal claim dismissed as out of time
A former employee's constructive dismissal claim was dismissed because she submitted her claim by email on the final day, following incorrect advice from her barrister. The tribunal held it was reasonably practicable to present in time, so it had no jurisdiction.
1 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #protected-disclosure
- #health-and-safety
- #time-limitation
- #counsel-error
Key facts
- The claimant's effective date of termination was 28 May 2021.
- The last date to present the claim in time was 26 September 2021.
- The claimant emailed her ET1 to Watford Employment Tribunal on 26 September 2021, but the tribunal rejected it because new claims cannot be submitted by email.
- The claimant submitted the claim online on 8 October 2021, which was out of time.
- The claimant acted on the advice of counsel Ms Ismail, who later admitted she gave wrong advice.
- The tribunal found it was reasonably practicable to present the claim in time, so it had no jurisdiction.
Timeline
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Effective date of termination
The claimant's employment ended on this date.
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ACAS Early Conciliation started
The claimant commenced ACAS Early Conciliation.
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ACAS certificate issued
The ACAS Early Conciliation certificate was issued.
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Last date to present claim in time
The deadline for presenting the claim was 26 September 2021.
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Claim emailed to tribunal
The claimant emailed her ET1 to Watford Employment Tribunal, but this method was not accepted.
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Tribunal notified claimant of email rejection
The tribunal informed the claimant that new claims cannot be submitted by email and instructed her to resubmit online.
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Claim submitted online
The claimant submitted her claim online, which was out of time.
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Respondent filed response
The respondent filed its response, raising the time limitation issue.
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Preliminary hearing
The tribunal held a preliminary hearing to determine jurisdiction on time limitation.
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Judgment issued
The tribunal issued its judgment dismissing the claims as out of time.
The legal issue
The tribunal had to decide whether it had jurisdiction to hear claims for constructive unfair dismissal and detriments, given that they were presented after the three-month time limit. The key question was whether it was 'reasonably practicable' for the claimant to have submitted her claim on time.
The outcome
The tribunal dismissed all claims as out of time. The effective date of termination was 28 May 2021, making 26 September 2021 the last day to present the claim. The claimant emailed her ET1 on that day, but the tribunal rejected it because new claims cannot be submitted by email. She resubmitted online on 8 October 2021, which was out of time.
The claimant had acted on the advice of her barrister, who later admitted giving wrong advice. However, the tribunal applied the principle from Dedman and Marks & Spencer: if a skilled adviser is at fault, that fault is visited on the claimant. Since it was reasonably practicable to present the claim in time, the tribunal had no jurisdiction.
No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- Check the tribunal's accepted methods of filing before the deadline — email is not accepted for new claims.
- If you rely on professional advice that turns out to be wrong, you may still be held responsible for missing the deadline.
- The 'reasonably practicable' test is strict: if you could have filed correctly in time, you must do so, even if your adviser gave bad advice.
- Act promptly if you realise a mistake — the tribunal rejected the email on 7 October, but the online claim was not filed until 8 October, which was already too late.
A costly mistake: wrong filing method sinks claim
This case shows how a simple procedural error, compounded by incorrect legal advice, can derail an otherwise potentially valid claim. The former employee, who alleged constructive dismissal after raising health and safety concerns and making protected disclosures, missed the deadline by just 12 days because she followed her barrister's advice to email the claim form. The tribunal made clear that the fault of a skilled adviser is attributed to the claimant, so it was 'reasonably practicable' to have filed correctly in time.
What the employer did right
Network Rail Infrastructure Limited raised the time limitation point in its response, and the tribunal agreed. The employer was not required to show any prejudice from the delay — the strict legal test was applied. This outcome underscores that employers can rely on limitation periods even when the claimant has a strong substantive case.
Why this matters for similar claims
For anyone considering an employment tribunal claim, the key lesson is to file correctly and on time. The three-month deadline (including ACAS Early Conciliation) is unforgiving. If you use a solicitor or barrister, double-check their advice against the tribunal's official guidance. A mistake by your adviser will not usually extend the time limit — your remedy is to sue the adviser for negligence, not to pursue the original claim. This case is a stark reminder that procedural compliance is just as important as the merits of your case.
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