Ms Caoilfhionn Warne v Rochdale Borough Council — 2020

Ms Warne brought a breach of contract complaint arising from a conditional offer of employment by Rochdale Borough Council for a percussion tutor post in the Council's music service. The offer was made on 29 August 2019 and was subject to successful DBS checks. The claimant accepted the offer and said she would need her start date to follow receipt of DBS clearance. The Council withdrew the offer on 4 September 2019 because she would not be in post in time to meet service needs, and the claimant did not hand in her notice with her existing employer.

The tribunal held that 4 September 2019 was the relevant date for limitation purposes and that the three-month time limit expired on 4 December 2019. Early Conciliation and the claim were not started until 21 January 2020, so the claim was about seven weeks late. Applying the 'reasonably practicable' test under Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, and referring to Palmer and Saunders and Wall's Meat Co Ltd v Khan, the tribunal found there was no impediment to presenting the claim in time. It noted that the claimant was working throughout, was aware of the withdrawal, and had already threatened legal action in her email of 4 September 2019.

In the alternative, the tribunal said it would have struck the claim out under Rule 37 as having no reasonable prospect of success, relying on Ezsias v North Glamorgan NHS Trust, Balls v Downham Market High School & College, and Ahir v British Airways plc. It held that the respondent was lawfully permitted to withdraw the offer because the claimant had not been DBS cleared and had not met the conditions attached to the offer. The tribunal also said the damages position discussed with the claimant was misconceived because it could see no contractual loss and had no jurisdiction to award the remedy sought.