Mr O'Connor v Shrewsbury and Telford Hospital NHS Trust: 1308584/2022
EMPLOYMENT TRIBUNALS
Case No 1308584/2022
Between
Mr O'ConnorClaimantShrewsbury and Telford Hospital NHS TrustRespondent
Before
Employment Judge FitzgeraldIn person for claimantMs Keogh (instructed by Counsel) for respondentDate 21 April 2023
JUDGMENT
[1]The name of the Respondent is amended by consent to Shrewsbury and Telford Hospital NHS Trust.[2]The Tribunal does not have jurisdiction to hear the Claimant’s claim of unfair dismissal as it was presented out of time. It was reasonably practicable for the Claimant to have lodged his claim in time.[3]Therefore the Claimant’s claim is struck out and the proceedings against the Respondent are dismissed.
REASONS
[1]The Respondent makes a preliminary application that the claim should be struck out as being out of time. The hearing is convened to consider that issue.[2]The Claimant’s claim is for unfair dismissal, therefore the relevant issues are:a. What was the effective date of termination;b. Was the Claimant’s claim brought within the ordinary time limit?c. If not: i. Was it reasonably practicable for the Claimant to have brought his claim in time? ii. If not, did he present it within such further time period as was reasonable? Procedure, documents and evidence heard[3]I had before me two bundles of documents – the first was a joint and agreed bundle running to 117 pages and the second was a bundle prepared by the Claimant running to 236 pages. I reviewed the agreed bundle prior to the case starting today and the Claimant directed me to specific key pages of his additional bundle. I also had a skeleton argument presented on the preliminary issues submitted by the Respondent.[4]I heard oral evidence from the Claimant and the Respondent chose not to call any witness evidence on the preliminary issue. I heard submissions from both parties.
Facts
[5]The Claimant worked for the Respondent as a consultant haematologist from 1 August 1989 until his dismissal by the Respondent for gross misconduct.[6]The date of the Claimant’s dismissal/ the effective date of termination is in dispute.[7]The Respondent wrote to the Claimant by letter dated 28 April 2022 regarding the outcome of the disciplinary hearing. On page 54 that letter says: ‘In those circumstances I have decided that summary dismissal for gross misconduct is the appropriate sanction. Your employment will therefore end from today’s date as I understand that you will receive this letter today….You are not entitled to any notice or payment in lieu of notice.’[8]The letter went on to outline the Claimant’s right of appeal.[9]The Claimant attended a meeting on 28 April 2022 at which that letter was handed to him and he became aware of its contents. I therefore find that the decision to dismiss the Claimant was communicated to him on 28 April 2022 and was effective on that day. It has been highlighted that in some cases an employer has an internal process whereby employment continues while an appeal is on-going. There has been no evidence before me that that was the case here and the Claimant confirms that as of 28 April 2022 he stopped being paid. I find that the effective date of termination was 28 April 2022.[10]At the meeting on 28 April the Claimant indicated his intention to appeal and a full appeal was submitted by his barrister on 11 May 2022.[11]The appeal was to take place before a panel in line with the Respondent’s processes. The panel included a Medical Director from a different region and therefore was comprised of internal and external individuals. However in the ordinary sense of the word this was an internal appeal in the sense that it was in line with the Respondent’s internal processes.[12]There was an unfortunate delay in agreeing dates for the appeal hearing due to the number of individuals’ diaries that needed to be co-ordinated. I accept that whilst there were a couple of dates that the Claimant’s barrister could not do, the delay was more on the side of the Respondent who had a large number of people to co-ordinate.[13]Potential outcomes from the appeal were either to affirm the outcome of the disciplinary panel, or to re-instate the Claimant.[14]The appeal took place on 5 September 2022 and there was an agreement, albeit a reluctant one from the Claimant, that the Panel would just sit for one day and the second day – 7 September 2022 would be for their deliberations.[15]The appeal outcome was set out in a letter of 20 September 2022 which was sent to the Claimant that day. The Claimant’s appeal failed and the original decision was upheld.[16]On 21 Sep 2022 the Claimant sent a further appeal to Dr McMahon who was Chair of the hospital. This was not part of the formal appeals process. Dr McMahon replied to the Claimant on 1 October 2022 saying that nothing further would be done.[17]On 3 October 2022 the Claimant contacted the Care Quality Commission. They replied to him on 18 October 2022 saying that this matter was not within their remit but suggesting that the Claimant contact ACAS.[18]On 24 October 2022 the Claimant started ACAS Early Conciliation. This ended on 26 October 2022.[19]The Claimant submitted his claim form to the Tribunal on 1 November 2022.[20]During the disciplinary and appeal process the Claimant was represented at his choice by a barrister Mr Welch and Mr Welch was also assisted by a pupil barrister at the disciplinary hearing (but not appeal).[21]Prior to Mr Welch’s involvement the Claimant received some support from the BMA, of which he has been a member throughout and remains so to this day. However the BMA stepped back from supporting on the disciplinary and appeal process once the Claimant instructed Mr Welch.[22]The Claimant was not aware of the time limits that applied in the Employment Tribunal and did not discuss this or question Mr Welch or his pupil about it during the process. The Claimant did not speak to the BMA about time limits or do any of his own research about time limits either on the internet or more specifically through the ACAS or BMA websites which were available to him. The Claimant was focussed on the sequential process of the disciplinary hearing and the appeal and only explored his options as regards making a claim for unfair dismissal once that process was complete.
The Law
[23]The claim brought by the Claimant is one of ordinary unfair dismissal under section 98 of the Employment Rights Act 1996. Such a claim is subject to the time limits in section 111(2) Employment Rights Act 1996 which provides, “… 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.“[24]That has now been updated so that ACAS Early Conciliation now needs to be commenced within 3 months of the effective date of termination (section 207B Employment Rights Act 1996). Section 207B states: “…(2) In this section—(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this subsection expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.”[25]Where the primary time limit expires before notification to ACAS then no extension under section 207B applies.[26]Under section 111(2)(a) time runs from the ‘effective date of termination’. This is defined in section 97 of the Employment Rights Act 1996 as follows: “(1) Subject to the following provisions of this section, in this Part “the effective date of termination” —(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect…”[27]The burden of proving that it was not reasonably practicable to present his claim in time falls on the Claimant.[28]As part of my deliberations I have also reviewed relevant case law and case law to which I was referred including Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470, Inchcape Retail Ltd v Shelton (UKEAT/0142/19/JOJ), Trevelyans (Birmingham) Ltd v Norton [1991]ICR 488, Kauser v Asda Stores Ltd [2007] All ER (D) 195 EAT, Theobald v The Royal Bank of Scotland plc [2007] All ER (D) 04.[29]The Claimant has referenced the judgments of Lord Denning and encouraged me to feel able to make the ‘right decision’ regardless of other case authority. However I am a Judge of the Employment Tribunal and am bound by higher case authorities and the statute wording – which I have carefully followed in the making of my decision.[30]The Claimant also referenced the Presidential Guidance and upon reviewing the excerpt he refers to, this relates to an amendment of a claim which has already been lodged which is a different situation to the current one. The relevant test for extending time is as I have outlined at s111 of the Employment Rights Act as interpreted by the case authorities.
Conclusions
[31]Going back to the issues I identified:[32]Firstly the effective date of termination. I have found as a matter of fact that this was 28 April 2022 for the reasons stated above, primarily that the letter of dismissal clearly states this to be the case and the Claimant accepts that this was communicated to him on that day.[33]Secondly was the Claimant’s claim brought within the ordinary time limit? A termination date of 28 April 2022 means that the 3 month time limit expired on 27 July 2022 and ACAS Early Conciliation should have been started by that date. The Claimant did not do so until 24 October 2022 and the ordinary time limit was missed by 89 days.[34]Thirdly then was it reasonably practicable for the Claimant to have brought his case in time?[35]The Claimant’s position is that he was following the internal appeals process and that he was ignorant as to the time limits. The Claimant has also spent some time outlining the strengths of his case as he sees it and believes that the case merits being heard.[36]Firstly in respect of the internal appeal. In the case of Inchcape referenced above the Employment Appeal Tribunal said that a mistaken belief that an unfair dismissal claim need not be brought until after an internal appeal procedure has been exhausted cannot of itself render it not reasonably practicable to commence proceedings. It will depend what enquiries the Claimant ought to have made and what knowledge he ought to have acquired.[37]They went on to say: “Whether it is reasonable for a claimant to make enquiries and to what extent will be case specific. Claimants in ETs vary enormously. On the one hand there are claimants with a good education and command of English and ready access to the Internet and sources of advice. It will generally be reasonably practicable for them to find out about the enforcement of their rights, not least by using the Internet. It is not difficult for an educated person to find out from official websites that there is a strict time limit for bringing a complaint of unfair dismissal… On the other hand, there are many claimants with very limited education and English, health difficulties and disabilities, and virtually no access to the Internet and sources of advice. It may be much more difficult for them to obtain advice.”[38]In this case I find it very relevant that the Claimant is a highly intelligent consultant haematologist. He was operating in a professional environment where use of computers, accessing the internet, and researching matters were all very familiar to him. I accept the Claimant’s evidence that given his age he was not very comfortable with technology or the internet, but during cross examination he accepted that he did have access to such tools, but did not use them because he was not aware that time limits applied. Essentially here the Claimant did not try to find out about the time limits.[39]A claimant's ignorance will not be reasonable if they ought reasonably to have made enquiries about how to bring a tribunal claim before the relevant time limit expired. In addition to having access to the internet, there were also a number of other key avenues here that the Claimant could have explored to inform himself of time limits. Firstly he could have spoken to his barrister or his pupil at the time of disciplinary hearing to explore his options and I find it surprising that such a conversation did not take place. Secondly the Claimant was a member of the BMA. Whilst I accept the BMA stepped back once the Claimant appointed his own barrister, the Claimant remained a member and could have still enquired with them as regards the mechanics around bringing an employment tribunal claim or sought to explore any materials that they had available which would have provided relevant information on time limits.[40]I do not think that this Claimant was in the position of some claimants with limited education/ access to internet/ sources of advice. In fact the Claimant was very well supported here. I find that it would have been reasonable for the Claimant to take active steps to inform himself of any relevant requirements around bringing a claim and he had easy access in the period before the time limit expired to do so.[41]The Claimant has argued before me today that it would have been perverse to explore other options before hearing the outcome of the appeal. I do not agree. Once the Claimant was dismissed I find it would have been reasonable for someone in his position to envisage that (despite being confident about the appeal prospects) there was at least a chance that it could be unsuccessful thus requiring him to inform himself of the details of a Tribunal process and any relevant time limits.[42]I have noted that in some of the case law it has been relevant that the Claimant has been misled, either by the Respondent or an advisor. That is not the case here.[43]I have also considered the delay in arranging the appeal dates. Whilst the delay was unfortunate there is no evidence before me that this was a deliberate attempt on the Respondent’s part to ensure the Claimant was out of time for bringing an Employment Tribunal claim. Whilst an expedient appeal would have been preferable this does not change my view, as stated above, that the Claimant should have informed himself of the Tribunal process after his dismissal and before the original time limit expired.[44]I have also considered the Claimant’s contention that the facts of his case are such that it is important that it is heard. Upon reviewing the case law I have noted that the apparent merits of the claim is sometimes relevant in extending time in discrimination cases, but that is a different legal test. I am also mindful that whilst the Claimant has taken me through his position that he believes the dismissal was unfair -this is a matter that would have to fully explored at any final hearing with evidence being given by both sides. Also the Tribunal would not be revisiting the decision and substituting its own view, rather there would be an assessment of whether the Respondent had a reasonable belief in the Claimant’s misconduct, whether this was based on reasonable grounds, whether a reasonable investigation was undertaken, a fair process and ultimately whether the decision to dismiss was within the band of reasonable responses. That is something which, quite rightly, I have not heard evidence on today and so it cannot, and has not, formed part of my decision as to whether to extend time.[45]So my conclusion is that it was reasonably practicable for the Claimant to have complied with the Tribunal time limits and to have started his ACAS Conciliation by 27 July 2022.[46]For the sake of completeness I will also add that even if I had found that it was reasonably practicable to extend time to the outcome of the appeal I do not find that the Claimant lodged his claim within such further time as was reasonable. This is because it took over a further month for the Claimant to contact ACAS from the point of receiving his appeal outcome. At that point it was clear to the Claimant that his appeal had failed and so, given his circumstances and the resources available to him I would have expected him to very quickly research his options, or indeed speak to his barrister who he was in close communication with at the time. Indeed the Claimant has described a long walk with his barrister around the time of the appeal during which the option of taking if further was referenced – the barrister advising it may not be worth it, but the Claimant disagreed. This was a clear opportunity to seek legal advice on the Tribunal process and then to act quickly in contacting ACAS. Whereas in fact ACAS contact was not made for over a month.[47]I fully understand that this was an extremely distressing process for the Claimant and has had significant repercussions for his career, however in the circumstances I do not find that this excuses the late submission of this claim.[48]Therefore my Judgment is that the claim is out of time and cannot proceed.[49]The Claimant’s claim of unfair dismissal is therefore struck out as the Tribunal does not have jurisdiction to hear it.[50]It is noted that the Respondent wished to reserve its position on making a costs application.