Miss S Collins v Solair Ltd (in Voluntary Liquidation) and Secretary of State for Business and Trade: 1303020/2024
JUDGMENT
[1]The Judgment dated 21 March 2025 in respect of Case Number 1306640/2024 and others, including this claim 1303020/2024, is varied on reconsideration.[2]Miss Collins did not present her claim within the applicable time limit, but it was not reasonably practicable for her to do so. The claim was presented within a further reasonable period. The Judgment dated 21 March 2025 is therefore varied so that Miss Collins’ claim is no longer dismissed for being out of time and so that it succeeds as set out below.[3]For all the reasons set out in the Judgment and Reasons dated 21 March 2025 in relation to the other claimants in these joined proceedings (which apply equally to Miss Collins), Miss Collins’ claim (1303020/2024) succeeds.[4]The Tribunal makes a protective award that the respondent shall pay remuneration to the claimant for the protected period specified in paragraph 5 below.[5]The protected period is 90 days from 25 September 2023.[6]The Recoupment Regulations apply to the award.[7]This Judgment does not affect the Judgment dated 21 March 2025 in relation to any other claimant.REASONS
[1]This reconsideration applies to one claim which forms part of a set of joined proceedings (listed under claim 1306640/2023). The claims all concern the seeking of a protective award. At a hearing on the papers on 21 March 2025, I held that the claims were well-founded, save that in Miss Collins’ case she had not presented her claim within the required time limits and as such I dismissed her claim.[2]Following receipt of the Judgment dated 21 March she wrote to the Tribunal seeking reconsideration of that decision on 1 April 2025. In her application she submitted that the Judgment in respect of her claim should be reconsidered on the basis that:a. Immediately after her dismissal she was in shock, her head was all over the place and she did not take in everything that was said to her. She said her partner was worried because she had previously had a nervous breakdown and he was concerned that she might have another one because of this.b. Her partner’s health had prevented her from presenting her claim on time. She said that shortly after her dismissal her long-term partner of over 50 years was taken ill and she spent a number of months going to medical appointments with him. He had major surgery in November 2023 and was hospitalised for a month, coming home on Christmas Eve. She became his carer and he was initially bedbound following his return from hospital, and he could not be left alone. She explained that he ultimately passed away in September 2024. She said that she did not have the time to think about anything other than getting him well again during the period in which her claim should have been submitted.c. She did not realise that she could claim for a protective award until a colleague mentioned this to her in February 2024.d. She then researched this and presented her claim, but thought that the time limit was six months. Having received an acknowledgement of her claim from the Tribunal and being included on all future correspondence, she did not appreciate that her claim was out of time until she received the Tribunal’s Judgment dated 21 March 2025.[3]Rule 68 of the Employment Tribunal Procedure Rules 2024 states that:(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.(2) A judgment under reconsideration may be confirmed, varied or revoked.(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion.[4]Rule 70 of the Employment Tribunal Procedure Rules 2024 states:(1) The Tribunal must consider any application made under rule 69 (application for reconsideration).(2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.(3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application.(4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice.(5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.[5]Having considered her application I decided that this raised new information which was not known at the time I decided to dismiss Miss Collins’ claim and therefore that there was some reasonable prospect of her application being successful. Accordingly I wrote to the parties and asked their views on whether a hearing was necessary in the interests of justice and seeking written representations.[6]Miss Collins responded by letter dated 13 May 2025 confirming that she did not consider a hearing was required. Neither respondent replied (it is relevant to note that the Tribunal omitted to send the correspondence to the second respondent initially, but having then done so there was no response).[7]I decided that a hearing was not necessary in the interests of justice, and wrote to all parties (including the second respondent) invited them to make any representations. The claimant submitted various documentary evidence to support her application by email dated 17 June 2025; the respondents have not submitted any representations.[8]Having reviewed the grounds for reconsideration and the evidence provided by the claimant, I have found as follows:a. I saw documentary evidence showing that the claimant’s partner attended hospital on 6 November 2023 and the discharge note records that he had been suffering from ill health for a four week period. This therefore means that he had been ill from only a couple of weeks after the claimant’s dismissal;b. It is clear from the evidence that whilst initially he was discharged from hospital he had further outpatient appointments and further tests in the weeks that followed and that his ill health was significant;c. He was again admitted to hospital on 1 December 2023 where he remained until 24 December 2023;d. Further medical appointments followed in 2024 and I was provided with a death certificate showing that he had died of pancreatic cancer alongside frailty of old age on 11 September 2024;e. I was also provided with print outs from unknown and undated websites that the claimant had printed off when she was researching time limits, to support her assertion that she thought she had six months to bring her claim. The first said “While there isn’t a strict time limit to apply after the notice period, it’s best to apply as soon as possible to ensure you receive your payment promptly”. Based on the content of the document, I find that this was some kind of guidance note on how to apply to the Redundancy Payments Service (rather than the Employment Tribunals). The second print out said “The deadline for submitting an RP2 claim (claim for loss of notice pay). The deadline is strictly 6 months minus 1 day from the date your employment ended, according to Citizens Advice and Acas. You must submit the RP2 claim after the notice period has ended”. This again appears to relate to the Redundancy Payments Service and not the Employment Tribunal.[9]As she was dismissed on 25 September 2023, in reality she should have commenced ACAS early conciliation no later than 24 December 2023 (the actual time limit being three months less one day). She in fact did so on 15 February 2024, so she was approximately seven and a half weeks late in doing so.[10]Section 189(5) of the Trade Union & Labour Relations (Consolidation) Act 1992 states, in relation to time limits for protective award claims: “An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal –(a) Before the date on which the last of the dismissals to which the complaint relates takes effect, or(b) During the period of three months beginning with that date, or(c) Where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented during the period of three months, within such further period as it considers reasonable.[11]The question is therefore whether:a. It was not reasonably practicable for Miss Collins to have presented her claim in time; andb. If so, whether she presented it in such further period as the Tribunal considers reasonable.[12]What is reasonably practicable is a question of fact for the Tribunal to decide, depending on all the circumstances, and the burden of proof rests on the claimant. It is a more stringent test than simply what is reasonable, but it does not go as far as to mean what is physically possible: it is more akin to what is reasonably feasible (Palmer and anor v Southend-onSea Borough Council 1984 ICR 372, CA).[13]I accept that the claimant was ignorant of her right to bring a protective award claim until after the point at which ACAS early conciliation should have started. That is not however the end of the matter: the question is then whether that ignorance was reasonable i.e. whether the claimant ought to have known of her rights (Dedman v British Building and Engineering Applicances Ltd 1974 ICR 53, CA and Porter v Bandridge Ltd 1978 ICR 943, CA). Whilst I understand that the concept of a protective award is somewhat legalistic and I find that it is reasonable for a person not to know about it without doing any research, I must consider whether the claimant could reasonably have been expected to research her rights and discover the right to bring a protective award claim sooner.[14]In relation to the claimant’s own mental state, whilst I accept her explanation that initially she was in a daze and shock at the situation, that alone would not render it reasonable not to investigate her rights in the three month period following her dismissal. However, I do consider that her husband’s health is highly relevant. Only a couple of weeks after her dismissal, her partner became ill. I find that it was reasonable for her not to have researched her rights in that short period. Having seen various medical evidence relating to that, I can understand why his health became her focus after he was taken ill and accept that this took priority over other matters. In those circumstances, I find that it was reasonable for her not to spend time investigating her ability to bring Tribunal proceedings at that stage. He was discharged from hospital on the exact same day that she would have needed to start ACAS early conciliation by. In addition, he was not being discharged in good health, but as a bed-bound patient requiring constant care. In those circumstances, I consider that it remained reasonable for his care and ill health to take priority, and therefore that her continued ignorance of the ability to bring a claim and time limits remained reasonable.[15]Therefore I conclude that it was not reasonably practicable for the claimant to present her claim on time.[16]The next question is whether she presented her claim within such period as the Tribunal considers reasonable thereafter. Again this is a matter of fact for the Tribunal to decide depending on all the circumstances. This requires an objective consideration both of the reasons for the delay and of what period should reasonably be allowed for proceedings to be commenced (Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10).[17]During January 2024 I find that the claimant’s focus continued to be her husband’s health (bearing in mind my findings above about him requiring constant care) and that her continued ignorance remained reasonable. It was in February 2024 (exact date unknown) that the claimant’s colleague mentioned to her about the possibility of a protective award claim. The claimant contacted ACAS on 15 February 2024. She also researched time limits herself: she found incorrect information and appears to have confused the time limits for the Redundancy Payments Service with those for Tribunal claims, but I accept that she was genuinely confused about this (and whilst ordinarily I might question whether that confusion was reasonable, in circumstances where she is caring for her sick husband to the extent that she was, I find that confusion also to be reasonable).[18]In any event, even if it was on 1 February 2024 that she found out about the right to bring a claim, it was only two weeks later that she commenced that conciliation process. In my view this was a reasonable period of time. ACAS conciliation ended on 26 February 2024 and the claimant presented her claim to the Tribunal on that same date. She acted promptly in that regard.[19]I conclude that the claimant did present her claim within a reasonable further period.[20]For those reasons, I conclude that time should be extended in this case to 26 February 2024, being the date on which the claimant presented her claim to this Tribunal. I therefore reconsider the Judgment dated 21 March 2024 so as to no longer dismiss the claimant’s claim as being out of time.[21]The facts and circumstances surrounding the claimant’s claim are otherwise the same as the others in the joined proceedings. Therefore, for the reasons set out in my Judgment and Reasons dated 21 March 2025 in relation to the other claimants in these proceedings, I conclude that the claimant is entitled to a protective award for a period of 90 days. Date 26 September 2025 Approved by