Ms H Jones v Jockey Club Racecourses Ltd: 1308061/2023
EMPLOYMENT TRIBUNALS
Case No 1308061/2023
Between
Ms H JonesClaimantJockey Club Racecourses LtdRespondent
Before
Employment Judge ChildeIn person for claimantMr Crammond (instructed by counsel) for respondentDate 1 July 2024
JUDGMENT
[1]The complaint of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of unfair dismissal is therefore dismissed. Employment Judge Childe 1 July 2024 Claim Number: 1308061 2023 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
REASONS
[1]This is a claim for unfair dismissal only.[2]I spent some time at the outset of the hearing confirming the issues in dispute. Those issues are as follows:a. It is accepted by the claimant that her claim for unfair dismissal was lodged out of time.b. Was it reasonably practicable for the claim to be made to the Tribunal within the time limit?c. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[3]I had access to an agreed tribunal bundle which ran to 156 pages.[4]Witness evidence was provided by the claimant herself and from her sister, Alessandra Grenar. From the respondent, I was provided with witness statements from Helene Sharrock, Chief People Officer.[5]The respondent’s representative had uploaded multiple versions of the same witness statement to the tribunal’s document upload system. The respondent’s solicitor was able to join the hearing to confirm this and it was agreed which statements we would refer to, at the outset of the hearing.[6]The claimant was informed that she had the opportunity to cross examine Helene Sharrock. Once it became clear to the claimant what the issues in dispute were, she decided not to cross examine Helene Sharrock as the claimant considered her evidence to be relevant to an allegation of libel, rather than whether it was reasonably practicable for the claimant to submit her claim for unfair dismissal in time.[7]During the cross examination of Alessandra Grenar, the claimant (who was in the same room) attempted to correct answers given by Alessandra Grenar. The claimant was given a warning not to do so, and the claimant then went on to do so again. The claimant was told a second time that she should not correct the answers given by Alessandra Grenar.
Findings of fact
[8]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point.[9]The claimant was employed as an Information Security Manager and Data Protection Officer for the respondent from 12 March 2016. The claimant was paid £64,668 gross in this role.[10]The claimant raised a grievance on 27 June 2023. The grievance letter raised concerns about salary, workload, bonus and the claimant’s objectives (“the Grievance”).[11]The claimant’s effective date of termination with the respondent was agreed as 11 August 2023.[12]The claimant started new employment, earning £72,000 gross a year, on 23 August 2023. Other than the three days referred to in paragraph 17, the claimant had no time absent from this new role due to sickness.[13]In both her role with the respondent and her new role, the claimant was used to carrying out a simple internet search on google, or another search engine, to understand what time limits might be relevant to a particular legal matter. The claimant accepted this in evidence.[14]The deadline for contacting ACAS before submitting the claimant’s claim of unfair dismissal was therefore 10 November 2023 (three months less one day from the effective date of termination).[15]The claimant did not contact ACAS until 20 November 2023 and the claim was not submitted until 23 November 2023, thirteen days out of time.[16]The claimant gave evidence that after she was dismissed, she felt she had been in an abusive relationship and did not want to engage at all with the fairness of the respondent’s decision to dismiss her. I’ve accepted this evidence.[17]The claimant and her sister gave evidence, which I have accepted, that she had become ill in late October 2023 and had three days off work due to sickness. This illness significantly impacted a walking holiday that the family had planned for the half term holiday in late October 2023.[18]However, by 1 November 2023 when, in the claimant’s own words, she felt close to normal and better, the claimant decided that the respondent had unfairly dismissed her, and she thought that the respondent should be accountable for their actions.[19]The claimant accepts that she knew of her right to bring an unfair dismissal claim and knew of the existence of the employment tribunal to enforce those rights.[20]On 1 November 2023 the claimant sent an email to Helene Sharrock in which she requested that the Grievance was followed up appropriately and stated that she was raising a Subject Access Request.[21]On 2 November 2023 Helene Sharrock sent the claimant a reply to her 1 November 2023 email and said I find that your grievance was dealt with informally in line with the Company’s policy and the approach agreed with you. I will therefore not be taking this matter any further.[22]On 3 November 2023 the claimant emailed Helen Sharrock and said OK, I will contact my lawyer, the ico and potentially the police on that matter if you're not going to even address it.[23]I find that by 3 November 2023 at the latest the claimant knew of her right to bring an unfair dismissal claim and knew that the employment tribunal existed to enable her to enforce her claim of unfair dismissal. The claimant accepted this in evidence and is evidenced by her suggestion that she would contact her lawyer, in her email of 3 November 2023. Relevant Law, Analysis and conclusion[24]The relevant section of the Employment Rights Act 1996 is as follows: 111Complaints to the employment tribunal. (1)A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (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.[25]I consider that the following authorities are relevant:a. Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA, where a claimant pleads ignorance as to his or her rights, the tribunal must ask further questions: ‘What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?’b. Porter v Bandridge Ltd 1978 ICR 943, CA, the majority of the Court of Appeal, having referred to Dedman, ruled that the correct test is not whether the claimant knew of his or her rights but whether he or she ought to have known of them. Was it reasonably practicable for the claim to be made to the Tribunal within the time limit?[26]The focus of my analysis is on the latter part of the time limit period from 3 November 2023 onwards. As I have said at paragraphs 16 and 17 above, I have accepted that the claimant did not feel well enough to contemplate the fairness of the respondent’s decision to dismiss her prior to then.[27]As I have said in paragraph 23 above, the claimant was aware of her right to bring an unfair dismissal claim and knew that the employment tribunal existed to enable her to enforce her claim of unfair dismissal from 3 November 2023 at the latest.[28]The claimant’s case was that whilst she was aware of her right to bring an unfair dismissal claim and knew that the employment tribunal existed to enable her to enforce her claim of unfair dismissal, she didn’t know about the threemonth time limit period in which to bring her claim.[29]The question for me, following the authorities which I have identified, is whether ignorance of time limits was reasonable in the circumstances. I must ask myself what opportunities did the claimant have for finding out about the relevant time? Did she take them? If not, why not? Was she misled or deceived?[30]The claimant is an intelligent person and accomplished individual, working in a well-paid, demanding and technical role where time limits are commonplace (for example in connection with making a DSAR).[31]I’ve found at paragraph 13 that the claimant was able to carry out an internet search to understand what time limits might be relevant to a particular legal matter. I find the claimant was quite capable of doing a simple google search on 3 November 2023 to find out about time limits in employment tribunal cases. The claimant was working in her new role at this time. I find the opportunities were there and the claimant has given no good reason why she didn’t take them after 3 November 2023.[32]Had the claimant taken the steps I have identified in paragraph 31 she would have understood the time limit in her unfair dismissal case and contacted ACAS before 10 November 2023 to start early conciliation as she was required to do in this case. I find it was reasonably practicable to contact ACAS by 10 November 2023 and then file her complaint in the employment tribunal by 13 November 2023. If it was, was it presented within such period as reasonable[33]If I’m wrong on my finding at paragraph 32, it became reasonably practicable for the claimant to file her complaint in the employment tribunal on 19 November 2023 when she first contacted ACAS.[34]The claimant has provided no explanation for why she did not lodge her complaint in the employment tribunal until 23 November 2023, four days later.[35]I therefore find in the alternative that the claim was not lodged within a reasonable period after it became reasonably practicable to do so.