Mr C D R Aggett v Stagecoach Devon Ltd T/a Stagecoach South West: 1400988/2019

EMPLOYMENT TRIBUNALS

Case No 1400988/2019

Venue Exeter

Hearing 1 July 2019

Between

Mr C D R AggettClaimant

Stagecoach Devon Ltd T/a Stagecoach South WestRespondent

Before

Employment Judge N J Roper

In person for claimant

Miss S Hornblower (instructed by Counsel) for respondent

Date 1 July 2019

JUDGMENT

The judgment of the tribunal is that the claimant’s unfair dismissal claim was presented out of time and is hereby dismissed.

REASONS

[1]This is the judgment following a Preliminary Hearing to determine whether or not the claimant’s claim was presented in time.

[2]I have heard from the claimant, and I have heard from Miss Hornblower of Counsel who made submissions on behalf of the respondent. I find the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.

[3]The claimant was employed by the respondent as a bus driver from 10 October 2016 until his dismissal by reason of capability (ill-health). By letter dated 12 November 2018 the respondent terminated the claimant’s employment on notice with effect from 26 November 2018.

[4]The claimant was familiar with the Employment Tribunal process because he had issued proceedings against this same respondent in a previous claim (under reference number 1403963/2018) for unlawful deduction from wages (“the First Proceedings”). That claim was heard and dismissed on 8 February 2019. Full written reasons were eventually provided on 6 April 2019.

[5]The claimant was a member of a recognised trade union. His union provided him with advice and assistance, and he was represented by Counsel at the hearing of the First Proceedings on 8 February 2019. In the meantime, he also received advice and assistance from his trade union in connection with an appeal against his dismissal, which the claimant presented on about 14 November 2018. There was an appeal hearing on 4 December 2018 and the respondent’s decision by which it dismissed the claimant’s appeal was communicated to the claimant on 12 December 2018. At that time the claimant still had the benefit of advice and assistance from his trade union. The claimant has been inconsistent in his evidence with regard to his advice and assistance from his union. He first suggested that their relationship ended when the rejection of his appeal was communicated on 12 December 2018, but when challenged that he was represented during the hearing of the First Proceedings on 8 February 2019, the claimant then suggested that he had the benefit of their advice and assistance up until that later date. He now says that his union declined to represent him further following the dismissal of the First Proceedings.

[6]In any event the claimant took no further action in connection with this claim until he made contact with ACAS under the Early Conciliation provisions on 7 January 2019 (Day A). The Early Conciliation Certificate was issued some 17 days later on 24 January 2019 (Day B). The claimant says that he was abroad in Spain from 7 March until 21 March 2019. He says that he was advised by his union that the three month time limit would run from the rejection of his appeal, and not from the date of termination of his employment. The claimant says that he now knows that this advice was wrong, but relied upon it, and calculated the limitation period to expire on 27 March 2019 (allowing for the 17 day extension of time under the Early Conciliation provisions). He presented these proceedings on 26 March 2019, which he now claims he thought be one day within time.

[7]Having established the above facts, I now apply the law.

[8]The relevant statute is the Employment Rights Act 1996 (“the Act”). Section 111(2) of the Act provides that an employment tribunal shall not consider a complaint of unfair dismissal unless it is presented before the end of the period of three months beginning with the effective date of termination, or 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.

[9]I have been referred to and have considered the following cases, namely: Palmer and Saunders v Southend-on-Sea BC

[1984] ICR 372

; Porter v Bandridge Ltd

[1978] IRLR 271

CA; Wall’s Meat Co v Khan

[1978] IRLR 499

; London Underground Ltd v Noel

[1999] IRLR 621

; Dedman v British Building and Engineering Appliances

[1974] 1 All ER 520

; Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT; Riley v Tesco Stores

[1980] ICR 323

; Croydon HA v Jaufurally

[1986] ICR 4

EAT; Marks & Spencers plc v Williams-Ryan

2005 ICR 1293

CA, and Northamptonshire County Council v Entwistle

2010 IRLR 740

EAT.

[10]In this case the claimant’s effective date of termination of employment was 26 November 2018. The normal three month time limit would therefore have expired at midnight on 25 February 2019. The clock was stopped during the ACAS Early Conciliation process between 7 January and 24 January 2019, a period of 17 days. The time limit was therefore extended to 14 March 2019. The claimant issued these proceedings on 26 March 2019 some 12 days out of time.

[11]The grounds relied upon by the claimant for suggesting that it was not reasonably practicable to have issued proceedings within the relevant time limit are that (despite being aware that there was a three month time limit) he was advised by his union that this ran from the date of dismissal of his appeal, and not from the date of termination of his employment. Relying on that advice he submitted this claim on 26 March 2019 which would have been one day within time had that advice been correct.

[12]The question of whether or not it was reasonably practicable for the claimant to have presented his claim in time is to be considered having regard to the following authorities. In Wall’s Meat Co v Khan Lord Denning, (quoting himself in Dedman v British Building and Engineering Appliances) stated "it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?" The burden of proof is on the claimant, see Porter v Bandridge Ltd. In addition, the Tribunal must have regard to the entire period of the time limit (Elbeltagi).

[13]In Palmer and Saunders v Southend-on-Sea BC the headnote suggests: "As the authorities also make clear, the answer to that question is pre-eminently an issue of fact for the Industrial Tribunal taking all the circumstances of the given case into account, and it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, in determining whether or not it was reasonably practicable to present the complaint in time, an Industrial Tribunal may wish to consider the substantial cause of the employee’s failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Tribunal to investigate whether, at the time of dismissal, and if not when thereafter, the employee knew that he had the right to complain of unfair dismissal; in some cases the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom; the extent of the advisor’s knowledge of the facts of the employee's case; and of the nature of any advice which they may have given him. It will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there was any substantial failure on the part of the employee or his adviser which led to the failure to comply with the time limit. The Industrial Tribunal may also wish to consider the manner in which and the reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery had been used. Contrary to the argument advanced on behalf of the appellants in the present case and the obiter dictum of Kilner Brown J in Crown Agents for Overseas Governments and Administrations v Lawal

[1978] IRLR542

, however, the mere fact that an employee was pursuing an appeal through the internal machinery does not mean that it was not reasonably practicable for the unfair dismissal application to be made in time. The views expressed by the EAT in Bodha v Hampshire Area Health Authority on this point were preferred to those expressed in Lawal:-

[14]To this end the Tribunal should consider:(1) the substantial cause of the claimant's failure to comply with the time limit;

(2) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;

(3) whether, and if so when, the claimant knew of his rights;

(4) whether the employer had misrepresented any relevant matter to the employee; and

(5) whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.

[15]In addition, in Palmer and Saunders v Southend-on-Sea BC, and following its general review of the authorities, the Court of Appeal (per May LJ) concluded that "reasonably practicable" does not mean reasonable (which would be too favourable to employees), and does not mean physically possible (which would be too favourable to employers) but means something like "reasonably feasible".

[16]Subsequently in London Underground Ltd v Noel, Judge LJ stated at paragraph 24 "The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, "in all the circumstances", nor when it is "just and reasonable", nor even where the Tribunal "considers that there is a good reason" for doing so. As Browne Wilkinson J (as he then was) observed: "The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done" (Bodha v Hampshire Area Health Authority

[1982] ICR 200

at p 204).

[17]As confirmed in Dedman if the claimant puts his case into the hands of professional advisers he cannot plead ignorance if the professional advisers are wrong. This principle was discussed further by the Court of Appeal in Marks & Spencers plc v Williams-Ryan and by the EAT in Northamptonshire County Council v Entwistle. There is no hard and fast principle to the effect that reliance upon wrong advice cannot avail the claimant under any circumstances. The question of reasonable practicability is one of fact for the tribunal that falls to be decided on the particular circumstances of the case.

[18]In this case I find that during the relevant limitation period for these proceedings, the claimant was aware of the Employment Tribunal process; he was aware of the three month time limit; he was aware of the ACAS Early Conciliation provisions; and during the majority at least of the limitation period had access to skilled professional advisers including trade union representatives and Counsel (who was instructed by the same union to represent him at the hearing of the First Proceedings). The claimant had access throughout to skilled professional advisers in the context of (then) current and (these) prospective Employment Tribunal proceedings. In my judgment it was reasonably practicable for the claimant to have issued these proceedings within the relevant limitation period, as extended by the ACAS Early Conciliation provisions.

[19]The suggestion that the time-limit did not start running until promulgation of the conclusion of an internal appeal is wrong in law. If that advice was given to the claimant, and he issued these proceedings out of time in reliance upon that advice, then he may well have recourse against those advisers, depending of course upon the advice actually given. However, that is different from concluding that simply because of the suggested wrong advice that it was not reasonably practicable for the claimant to have issued these proceedings within time. The claimant was not precluded from issuing these proceedings within time, and he could have done so, even when abroad, because he was aware of the on-line process to do so.

[20]In conclusion therefore I dismiss the claimant’s unfair dismissal claim because it was presented out of time.

[21]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 3 to 6; a concise identification of the relevant law is at paragraphs 8 to 17; how that law has been applied to those findings in order to decide the issues is at paragraphs 18 and 20.