Mrs P Horsnall v Staffordshire County Council: 1300418/2019

EMPLOYMENT TRIBUNALS

Case No 1300418/2019

Between

Mrs P HorsnallClaimant

Staffordshire County CouncilRespondent

Before

Employment Judge Miller

Mr C Benn - solicitor for claimant

Mr P Starcevic - counsel for respondent

Date 2 October 2019

JUDGMENT

The judgment of the Employment Tribunal is as follows:

[1]The Claimant’s clam of unfair dismissal claim was presented out of time and it was reasonably practicable for the claim to have been presented in time. The Claimant’s claim of unfair dismissal is dismissed

REASONS

[1]The claimant was employed by the respondent as a Family Education and Engagement Worker until her dismissal with effect from 11 October 2018 following a long period of absence due to her ill-health.

[2]After her dismissal the claimant contacted ACAS on 17 January 2019 to commence a period of early conciliation and the relevant certificate was issued by ACAS on 22 January 2019. The claimant then submitted an ET1 to the employment tribunal which was received on 31 January 2019 and which identified that she wanted to make a claim for unfair dismissal and disability discrimination. The claimant also attached a document to that claim setting out a narrative version of events leading up to her dismissal and continuing after.

[3]The respondent submitted a response to the claim on 11 March 2019. That response identified that potentially some or all of the claimant’s claims for unfair dismissal and disability discrimination were out of time. Consequently, on 4 April 2019 employment Judge Woffenden directed that there be a preliminary hearing to determine the following issues:a. whether, having regard to the effective date of termination of the claimant’s employment and the time-limit contained in section 111(2) of the Employment Rights Act 1996 (three months), the tribunal has jurisdiction to consider the claimant’s complaint of unfair dismissal; and

b. whether, having regard to the time-limit contained in section 123 of the Equality Act 2010 (three months), a tribunal has jurisdiction to consider the claimant’s discrimination complaint(s)

[4]Thus, the purpose of today’s hearing was to determine these two matters. At the start of the hearing Mr Starcevic requested that, before going on to consider whether the claimant’s discrimination claims were in time and/or whether time should be extended, I should take the time to identify the claimant’s claims from her claim form and any matters that require an amendment application.

[5]Mr Benn had very helpfully set out in his written submissions a list of issues relating to the claimant’s claims, but it was not immediately clear which of those claims had been pleaded in the claimant’s ET1. It was therefore agreed that further case management orders would be made in respect of the claimant’s claims for disability discrimination and the determination of those claims is the subject of separate order.

[6]Therefore, the only matter for me to determine today is that set out at paragraph 3 a above in relation to the claimant’s claim of unfair dismissal.

The facts

[7]I was provided with a statement of agreed facts and, as far as is relevant, they are as follows.a. The claimant’s employment commenced with the respondent on 19 April 2010.

b. The claimant was on sick leave from 26 October 2016 to 11 January 2017.

c. The claimant was on sick leave from 17 July 2017 and did not return to work.

d. On 9 March 2018 the claimant attended a well-being meeting the outcome of which was that the claimant would be added to the redeployment register.

e. On 18 May 2018 claimant attended a “potential minded-to-dismiss” meeting. Dave Bates informed the claimant that he was minded to dismiss the claimant for her continued absence. The respondent put the claimant forward to be considered for ill-health retirement (IHR).

f. On 21 May 2018 the claimant received a letter from Dave Bates stating that he was minded to dismiss the claimant if she did not confirm to Linda Ball that she could return to work imminently (by 6 June 2018). Then there would be no alternative but to terminate the claimant’s services with the respondent on eight weeks’ notice.

g. On 25 May 2018 claimant underwent an operation in respect of her bowel condition.

h. On 8 June 2018 Dave Bates notify the claimant that his decision on the claimant’s continued employment would be adjourned until 6 July 2018.

i. On 2 July 2018 claimant wrote to the respondent setting out her position on her capability of returning to Rollin Stafford not her substantive post in Codsall. In this letter the claimant explained to the respondent that she understood the IHR process would be followed prior to being dismissed (based on the meeting of 18 May 2018). The claimant also sent a without prejudice letter to the respondent on this date putting forward an offer of settlement to put an end to the dispute between the parties.

j. On 18 July 2018 claimant’s GP provided a medical report about the claimant’s health.

k. On 23 July 2018 the claimant attended a meeting with Chris Healy and Rachel Green at which she was dismissed with eight weeks’ notice (to 20 September 2018). The claimant was informed that she would be put forward for IHR.

l. On 18 September Dave Bates extended the claimant’s notice so that her date of dismissal was 11 October 2018.

m. On 8 October 2018 respondent emailed the claimant to confirm that if IHR was awarded the respondent would change the claimant’s reason for leaving her employment to IHR.

n. On 11 October the claimant’s employment with the respondent ended.

o. On 15 October Dr Pandy made an assessment about the claimant’s ill-health for the purposes of IHR.

p. On 31 October 2018 the claimant received a letter from Vonni Gordon setting out the respondent’s decision that the claimant did not meet the criteria for IHR was therefore not eligible for IHR.

q. On 13 December 2018 claimant commenced an informal appeal against the IHR decision in accordance with the procedure set out by the respondent.

r. On 28 December 2018 claimant met with friends and it was suggested that the claimant speak with ACAS about her circumstances.

s. On 9 January 2019 the claimant received a response to the IHR informal appeal from Vonni Gordon stating that the IHR decision remained the same and the claimant was not eligible for IHR.

t. On 15 January 2019 the claimant contacted ACAS.

u. On 16 January 2019 the claimant contacted an organisation called “signpost” who advised the claimant contact Staffordshire University to make an appointment for advice.

v. On 17 January 2019 claimant completed an early conciliation notification form

w. On 22 January 2019 the claimant emailed Paul Birch (of Staffordshire County Council pension services) regarding the claimant commencing a formal appeal against the IHR decision.

x. On 22 January 2019 the claimant received her early conciliation certificate.

y. On 29 January 2019 the claimant attended a meeting with law students at Staffordshire University.

z. On 30 January 2019 the supervising solicitor at Staffordshire University wrote to the claimant confirming the advice she received on 29 January 2019. aa. On 31 January 2019 the claimant submitted her ET1 claim form to the tribunal

[8]I also read the claimant’s witness statement, which referred to a number of documents in the bundle, and the claimant was cross examined by Mr Starcevic. I therefore also make the following findings of fact.

[9]It was put to the claimant that she had knowledge of the potential dismissal from at least July 2018. She agreed that she knew that dismissal was a possibility at the meeting on 23 July 2018. In fact, the claimant went further and said that she believed the decision to dismiss her had been made in advance of that meeting. She said that she believed it was always going to be the inevitable outcome of that meeting. In her witness statement the claimant says, at paragraph 13, that she was concerned that Dave Bates was going to dismiss her before she had an operation on 25 May 2018 and before the assessment of IHR.

[10]In light of this clear statement by the claimant, I find that the claimant was aware by the time of the meeting on 18 May 2018 that it was possible that she would be dismissed.

[11]The claimant confirmed in cross examination that she sought advice from a solicitor after that meeting of 18 May 2018. The claimant said that the purpose of the advice was to find out how best to deal with the impending sickness absence process. At this time, the claimant was receiving support from her son who is a qualified solicitor and is representing her today, although I accept as both the claimant and Mr Benn were careful to point out, Mr Benn is not an employment solicitor. In submissions Mr Benn said that in reality the purpose of obtaining advice from a solicitor was to support him in supporting the claimant.

[12]It was put to the claimant in cross examination that she had the opportunity to obtain advice from that solicitor about potential dismissal. The claimant said that at the time she was just seeking advice to ensure that her appeal submissions were correct and about her correspondence with Dave Bates.

[13]I find it inherently improbable that a solicitor whose advice was sought about a sickness absence management process, the outcome of which was, in the mind of the claimant, likely to be dismissal, would not broach the topic of unfair dismissal in taking instructions and providing advice. The content of the advice, however, was not addressed in either the claimant’s witness statement or in cross examination beyond the claimant’s assertion that she was seeking advice about her appeal submissions (by which I take the claimant to mean submissions to the sickness meetings) and correspondence with Dave Bates and it is unlikely to have been appropriate to have explored that in detail.

[14]The letter sent to Dave Bates from the claimant dated 2 July 2018 at pages 202 to 204 of the bundle as referred to in the claimant’s witness statement certainly seems to confirm that the claimant had had legal advice by that date. The letter is in tone, structure and use of language of an entirely different character to the claimant’s ET1. I do not intend any disrespect to the claimant in making this observation but the letter of 2 July 2018 reads in exactly the way a letter drafted by a solicitor would be likely to read, compared to the document provided by the claimant as part of her ET1 which, albeit that it is clear and lucid, lacks the focus and attention to detail that one would expect from a solicitor.

[15]While I am not, therefore, able to find that the claimant was advised about the existence of the possibility of a claim for unfair dismissal, or even about the existence of Employment Tribunals by her solicitor, I do find that the claimant had the opportunity to obtain such advice from a specialist employment solicitor in or around May or June 2018 and that if she was not advised about potential employment tribunal claims arising from the potential termination of her employment it would have been reasonable for her to have been so advised.

[16]Further, the claimant was assisted by a trade union representative during her employment – certainly during March 2018 at a “well-being” meeting and at the meeting on 18 May 2018 following which the claimant dispensed with the services of her trade union representative. The claimant said that her trade union representative did not advise her about the possibility of a claim for unfair dismissal in any of her discussions with her. Again, whether or not the possibility of a claim to the Employment Tribunal was actually discussed, it is clear that the claimant had the opportunity to ask her trade union representative what she could do if the ultimate decision was to dismiss her and it would have been reasonable for her to have asked that question.

[17]It was put to the claimant that throughout the period she had the support of her husband and son to assist her with these matters. The claimant said that in fact her son provided a great deal of support and he had done a significant amount of work involved in submitting the appeal against the IHR decision. The claimant said that she had a number of difficulties as the result of her surgery and depression. This was not disputed. This is a slightly unusual set of circumstances, in that the claimant did have the benefit the support of her husband but also that of a legally qualified family member (accepting, of course, that Mr Benn is not an employment lawyer). However, it is clearly a material factor. It appears that Mr Benn has been conscientious and diligent in seeking to support the claimant, going as far as to obtain specialist legal advice apparently on his mother’s behalf. It is a fact that Mr Benn was assisting the claimant with her employment including attending the meeting with her on 23 July 2018 at which the claimant was dismissed. The claimant confirmed as much when she said that was in fact her son who was predominantly dealing with their solicitors.

[18]I therefore find that the claimant was able to ask for assistance from her son at the very latest from the date of dismissal and that, given his assistance to her, it would have been reasonable for the claimant to have made those inquiries.

[19]The claimant was asked about her knowledge of unfair dismissal and employment tribunals generally. She said that, effectively, she was unfamiliar with the existence of employment tribunals at all and had never heard of the concept of unfair dismissal prior to the conversation with a friend on 28th of December 2018. This seems very unlikely, given the numerous previous conversations she had had with trade union representative, a solicitor and her son who had been assisting her with her employment issues. Further, the claimant said in cross examination that she had discussed to some extent the issue of going to court with her son and she found that prospect frightening or overwhelming. In her witness statement the claimant says that this conversation took place around June or July 2018. I find, therefore, that the claimant was aware that there was a possibility of taking legal action in respect of her dismissal.

[20]In any event, even if the claimant was not aware of the existence of employment tribunals or the possibility of a claim for unfair dismissal before 28 December 2018 in all the circumstances, she ought reasonably to have been so aware.

[21]In respect of the issues relating to the claimant’s application for ill-health retirement, I asked the claimant to explain the link between awaiting the outcome of her application for ill-health retirement and the delay in submitting a claim of unfair dismissal. The claimant said that she felt she had been misled by the respondent to the extent that she believed that she would be entitled to a tier of ill-health retirement. The claimant accepted that she might not necessarily qualify for the highest level of ill-health retirement but that she believed the respondent would give her something. The claimant was first made aware of the respondent’s refusal of her claim for ill-health retirement on 31 October 2018. She said that she believed, however, that the informal appeal would remedy this as the respondent had not had regard to her GP evidence. However, when she received the outcome on 9 January 2019, she was very angry and upset and this motivated her to put in her employment tribunal claim. She said that she didn’t understand the apparent contradiction between Chris Heeley saying she was not fit for work and the refusal of ill-health retirement which, at least in part, she understood depended on her not being fit for work.

Law

[22]The relevant statutory provision relating to the time for the presentation of unfair dismissal claims, is set out in section 111 ERA which provides as follows: (2)... 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

[23]The burden of proof is on the claimant to show that it was not reasonably practicable to present the claim in time (Porter v Bandridge Ltd

[1978] IRLR 271

CA).

[24]The meaning of “not reasonably practicable” was explained in Asda Stores Ltd v Kauser EAT 0165/07 in the following way: ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’. It is therefore, as explained in Palmer and another v Southend-on-Sea Borough Council

[1984] IRLR 119

something between reasonable and physically possible.

[25]The question whether the period between expiry of the time limit and the presentation of the claim is reasonable requires an objective consideration of factors causing the delay and what period would be reasonable in those circumstances (Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10). This assessment must be made in light of the primary time limit and the strong public interest in claims being brought promptly.

[26]Mr Benn cited a number of cases which suggested that the delay in internal procedures is a material factor (see for example, Marks & Spencer Plc v Williams-Ryan

[2005] EWCA Civ 470

). However, those cases deal with the exhausting of internal procedures relating to the dismissal. The procedures that the claimant relies on were separate procedures unconnected with the dismissal relating to the award of IHR. I do not, therefore, consider those cases to be directly relevant.

[27]Ignorance of the right to bring a claim is not of itself sufficient to justify an extension of time. In Porter v Bandridge, it was held that “… If the complainant in those three months does not know his rights, or the time limit, and ought not to have known of them because there was nothing to put him on inquiry, he is not at fault and the industrial tribunal should be satisfied that it was not reasonably practicable. But if he is at fault, or he goes to solicitors who are at fault, in allowing the three months go by, the industrial tribunal should not be satisfied. He is not necessarily excused from presenting his complaint in time by ignorance of his rights. The tribunal must look at all the circumstances, the opportunities he had for finding out his rights, whether he was discouraged or impeded or misled or deceived, what explanation he can give for his ignorance of them; and it may be that the longer the act is in force - and the statutory right goes back to 1972 when the industrial relations act 1971 came into force – the more difficulty an industrial tribunal find in being satisfied that it was not reasonably practicable for a dismissed employee to claim in time on the plea that he did not know of his right to claim compensation or of the time in which his claim must be made…”

[28]Finally, the claimant relies on the decision in First West Yorkshire Ltd v Haight

(2007) UKEAT 0246

as authority for the proposition that an employer should give proper consideration to an ill-health retirement scheme before dismissing the employee from long-term sickness. In that case, however, the EAT were considering the relevance of IHR to the fairness of a dismissal, there is no suggestion in that case that a failure to consider or determine an IHR application alters the effective date of termination. Mr Benn confirmed that he was not seeking to argue that the effective date of termination was in fact a later date than 11 October 2018 - either 31 October 2018 or 9 January 2019. Analysis and conclusion

[29]In my view, it was reasonably practicable for the claimant to have brought her claim within three months from the effective date of termination.

[30]I have found that the claimant was aware of the possibility of dismissal on the grounds of ill-health from, at the latest, May 2018. Since March 2018 the claimant has had the benefit of access to a number of sources of advice and support. Those were her trade union representative, a solicitor, her son and her husband. I find it very unlikely that none of those people would at any time have mentioned the possibility of a claim to an employment tribunal or a claim for unfair dismissal. I am also surprised by the claimant’s clear assertion that she was unaware of the existence of such a thing as a claim for unfair dismissal.

[31]Having regard to Porter v Bandridge, it is clear that, notwithstanding the knowledge of the claimant, she had numerous opportunities from March 2018 until the expiry of the time limit for presenting her claim on 10 January 2019 for finding out about her rights in the event of her dismissal.

[32]In fact, the claimant must have had some contemplation that she had the right to some legal recourse because it was agreed fact that the claimant put a without prejudice offer to settle the dispute to the respondent on 2 July 2018 and the claimant had discussed the prospect of going to court with her son around the same time.

[33]The claimant said that she finally found out about ACAS on 28 December 2018. The only explanation the claimant provided as to why she did not immediately contact ACAS (which would have been within the primary time limit) was because she was awaiting the outcome of her appeal against the IHR decision. It is clear from Marks & Spencer Plc v Williams-Ryan that awaiting the outcome of internal procedures will not necessarily be a sound basis for the grant of an extension of time. However, in this case, the internal procedures on which the claimant was waiting were not directly relevant to her dismissal in any event. Even if, despite my findings above, it was not reasonably practicable for the claimant to submit her claim prior to the date she said she found out about ACAS, there was no good reason to delay for a further month from that date. It was, therefore, reasonably practicable for the claimant to submit her claim before 10 January 2019.

[34]Although it is not necessary for me to make a decision, even if I had found that it was not reasonably practicable for the claimant to bring her claim for 10 January 2019, the claimant still did not bring a claim within such further period as I consider reasonable.

[35]This is because the claimant’s reason for delaying a claim was that she was waiting for the outcome of the IHR appeal. She was provided with this on 9 January 2019. She was aware of ACAS on 28 December 2018, yet she did not finally submit a claim until 31 January 2019. The claimant says this was because she was seeking advice from Staffordshire University. I accept that the claimant was seeking this advice, and I accept her explanations for the delays between the initial contact and obtaining that advice. However, the claimant has failed to explain why following receipt of the IHR appeal outcome and her resolution to then claim unfair dismissal she did not immediately contact ACAS. In my view, a delay of two weeks and five days between resolving to bring a claim for unfair dismissal and contacting ACAS in circumstances where the claimant had known about her dismissal for over five months was not reasonable.

[36]The claimant’s claim for unfair dismissal is therefore dismissed as the tribunal has no jurisdiction to hear the claim because it was not presented in time.