Mr L A Edwards v Severn Trent Water Ltd: 1401082/2023
EMPLOYMENT TRIBUNALS
Case No 1401082/2023Venue CHAMBERS AT PlymouthHearing 14 February 2024
Between
Mr L A EdwardsClaimantSevern Trent Water LtdRespondent
Before
Employment Judge N J RoperDate 4 January 2024
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The judgment of the tribunal is that the claimant’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.
REASONS
[1]The claimant has applied for a reconsideration of the judgment with reserved reasons dated 4 January 2024 which was sent to the parties on 22 January 2024 (“the Judgment”). The grounds are set out in his undated letter which was received at the tribunal office by email on 2 February 2024.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[3]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[4]The grounds relied upon by the claimant in short are these:(i) the fact that there was an internal appeal was not taken into account;(ii) the probability of success of the claim was not taken into account;(iii) the fact that the claimant had no legal representation was not taken into account;(iv) there was good reason to exercise discretion and the emphasis should have been on whether the delay had affected the tribunal’s ability to conduct a fair hearing;(v) the claimant was suffering from mental health issues; and(vi) the respondent failed to provide sufficient information for the claimant notified to the respondent.[5]Judicial discretion as to reconsideration should be exercised having regard to the interests of both parties and the public interest in finality in litigation (Outasight VB Ltd v Brown UKEAT/0253/14/LA).[6]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[7]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[8]In Ebury Partners UK Ltd v Davis EAT [2023] the EAT held that while it may be appropriate to reconsider a decision where there has been some procedural mishap, the jurisdiction should not be invoked to correct a supposed error made by the tribunal after the parties have had a fair opportunity to present their case on the relevant issue. This is particularly the case where the error alleges one of law, which is more appropriately corrected by the EAT.[9]In this case I am satisfied that the claimant had every opportunity to present his case on the relevant issues and the matters raised by the claimant were considered in the light of all of the evidence presented to the tribunal before it reached its decision.[10]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked.[1]This is the judgment following a Preliminary Hearing which was listed to determine(i) whether or not the claimant’s unfair dismissal claim was presented in time; and(ii) only in the event that the claim survives this jurisdictional challenge, to consider the claimant’s later application to amend the claim.[2]This has been a remote hearing which has been consented to by the parties. The form ofremote hearing was by CVP Video. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle provided by the parties, the contents of which I have recorded. The order made is described at the end of these reasons.[3]I have heard from the claimant. I have heard from Miss Smith 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 any factual and legal submissions made by and on behalf of the respective parties.[5]The respondent company provides water, sewage and waste-water services as part of theSevern Trent Group which serves households and businesses throughout the West Midlands and Wales. The claimant Mr Lee Anthony Edwards was employed by the respondent as a Metering Technician from 5 July 2022 until his dismissal which took effect on 6 October 2022.[6]The claimant asserts that he was given no health and safety training and no effectiveinduction when he commenced employment. The respondent disputes this, and he says that because its intranet was not working on the first day of the claimant’s employment, his line manager went through all of the relevant policies with the claimant personally, including the relevant health and safety policies.[7]The claimant had a poor sickness and attendance record and did not survive hisprobationary period. At a probation review meeting on 6 October 2022 the claimant’s employment was terminated with immediate effect. It was noted that he had been absent for 56 of the previous 93 working days.[8]The claimant appealed against the decision to terminate his employment, and an appealmeeting took place on 24 October 2022. This process was delayed by the sickness of the claimant’s line manager, from whom the appeal panel wished to receive more information. On 19 January 2023 the appeal panel reconvened, and it decided to offer the claimant the possibility of reinstatement. However, this was subject to certain stipulations and requirements by way of the claimant’s attendance and reporting procedures. The claimant refused to accept these requirements, and he declined to accept the offer of reinstatement. The original decision to dismiss the claimant therefore remained in place.[9]The claimant’s effective date of termination of employment was therefore on 6 October2022. The claimant commenced the Early Conciliation process with ACAS on 21 February 2023 (“Day A”), and ACAS issued the Early Conciliation Certificate on 24 February 2023 (“Day B”). The claimant then presented this claim on 2 March 2023.[10]The claim as presented was for unfair dismissal only. The claimant made passing referencein his originating application to an alleged failure by the respondent to offer him relevant health and safety training. There were no other claims.[11]There were two potential jurisdictional problems with this claim. In the first place it appearedto have been presented out of time. Secondly, the claimant had less than two years’ service and therefore did not have sufficient continuity of service for this tribunal to hear a claim of “general” unfair dismissal. By letter dated 17 March 2023 the Tribunal wrote to the claimant threatening to strike out his unfair dismissal claim because he lacked the necessary continuity of service. The claimant did not respond. By letter dated 25 March 2020 Employment Judge Cadney directed that the claimant should confirm(i) whether he was seeking to rely on an exception for the “two-year rule” for his unfair dismissal claim, and if so, which one; and(ii) given that the claim had been presented out of time, whether the claimant intended to argue that an extension of time should be granted.[12]By letter dated 31 May 2023, the claimant confirmed that his claim was(i) “dismissal of anemployee observing health and safety rules, as no health and safety training was provided and this would be an exception” and(ii) “disability discrimination as I am a type I diabetic and the time spent absent with this condition was not taken into account”. The claimant also suggested that time limit for presenting his claim should start running from 23 January 2023, the date of the appeal.[13]By letter dated 6 June 2023 the respondent complained to the effect that it was still unclearexactly what statutory exception to the two-year rule the claimant was seeking to rely upon, and that there was no extant claim for disability discrimination. This was an entirely new claim, and any such claim would require a formal application to amend the current claim, to which the respondent strongly objected.[14]By letter dated 25 September 2023 the Tribunal listed this matter for hearing to determineas a preliminary issue whether this Tribunal has jurisdiction to hear the claimant’s unfair dismissal claim, because it may have been presented out of time, and secondly, and only to the extent that the claim survived that first jurisdictional challenge, to determine the disputed application to amend the claim.[15]The claimant subsequently gave some further detail to the effect that his unfair dismissalclaim relied upon section 100(1)(c)(ii) of the Employment Rights Act 1996, and that the proposed claim for disability discrimination related to a failure to make reasonable adjustments during his sickness absence. The respondent complains that the claimant has still failed to particularise these claims properly, despite orders to do so.[16]Finally, some further relevant facts about the claimant’s knowledge of the relevantprocedure are as follows. At the time of his dismissal the claimant was aware of the existence of both the Employment Tribunals and ACAS, and he knew that the Employment Tribunals dealt with employment related claims. He was not a member of a trade union whilst employed by the respondent, but he had previously been an employee of a trade union, which he recalls was probably Unison. He knew about the existence of Citizens Advice. He had access to the Internet, and he was aware of how to research matters on the Internet. He says he was not aware of the exact process of how to submit a claim to the Employment Tribunal until after his dismissal, and that it took him some time to do the relevant research before he then made contact with ACAS to commence the Early Conciliation process.[17]The Tribunal also takes judicial knowledge of the Employment Tribunals website and theACAS website which give clear information on how to present claims and the relevant time limits.[18]Having established the above facts, I now apply the law.[19]The Law:[20]The relevant statute is the Employment Rights Act 1996 (“the Act”). The claimant hasconfirmed that he pursues a claim of unfair dismissal for health and safety related reasons, relying upon section 100(1)(c) of the Act.[21]Section 111(2) of the Act provides that an employment tribunal shall not consider acomplaint 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.[22]With effect from 6 May 2014 a prospective claimant must obtain an early conciliationcertificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings.[23]Section 207B of the Act provides:(1) This section applies where this Act provides for it toapply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(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.[24]The relevant law relating to Early Conciliation (“EC”) and EC certificates, and thejurisdiction of the Employment Tribunal to hear relevant proceedings is as follows. Section 18 of the Employment Tribunals Act 1996 defines “relevant proceedings” for these purposes. This includes in subsection 18(1) the discrimination at work provisions under section 20 of the EqA. Section 140B EqA sets out how the EC process is taken into account. Where the EC process applies, the limitation date should always be extended first by section 140B(3) or its equivalent. However, where this date as extended by section 140B(3) or its equivalent is within one month of the date when the claimant receives (or is deemed to receive) the EC certificate, time to present the claim is further extended under section 140B(4) for a period of one month (applying Luton Borough Council v Haque [2018] ICR 1388 EAT). In other words, it is necessary first to calculate the primary limitation period, and then add the EC period. Having reached that date, it is necessary to ask whether it is before or after one month after Day B (the date of issue of the EC certificate). If it is before then the limitation date is extended to one month after Day B. Otherwise, if it is after one month after Day B, then limitation will be extended to that later date.[25]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; London International College v Sen [1993] IRLR 333 CA; Cullinane v Balfour Beattie Engineering Services Ltd UKEAT/0537/10; and Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT.[26]The Normal Time Limit:[27]In this case the claimant’s effective date of termination of employment was 6 October 2022. The normal time limit of three months for the unfair dismissal claim therefore expired at midnight on 5 January 2023. The claimant commenced the Early Conciliation process with ACAS on 21 February 2023 (“Day A”), and ACAS issued the Early Conciliation Certificate on 24 February 2023 (“Day B”). The normal time limit of three months had therefore expired approximately seven weeks before the Early Conciliation process, and the claimant does not enjoy any extension of time under the Early Conciliation provisions. This claim was then presented on 2 March 2023, approximately two months out of time.[28]Unfair Dismissal[29]The grounds relied upon by the claimant for suggesting that it was not reasonablypracticable to have issued proceedings within the relevant time limit are that he was not fully aware of the appropriate procedure required to commence Tribunal proceedings because he was not legally qualified, and when he subsequently did some research he assumed that the time limit would run from the decision on his appeal, and no one gave him any indication to the contrary.[30]The question of whether or not it was reasonably practicable for the claimant to havepresented 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).[31]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:-[32]To this end the Tribunal should consider:(1) the substantial cause of the claimant's failureto 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.[33]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".[34]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).[35]The Employment Tribunal must make clear findings about why the claimant failed topresent his originating application in time, and then assess whether he has demonstrated that it was not reasonably practicable to have presented it in time (London International College v Sen.[36]If the claimant professes ignorance of his right to make a claim and/or the legal regime inrespect of time limits, the overarching question for the tribunal is whether that state of mind (that is the ignorance or the mistake) was itself reasonable. It is not likely to be reasonable if it arises from a failure to make such enquiries as ought to have been made in all the circumstances (Wall’s Meat Co Ltd v Khan).[37]Underhill P as he then was considered the period after the expiry of the primary time limitin Cullinane v Balfour Beattie Engineering Services Ltd (in the context of the time limit under section 139 of the Trade Union & Labour Relations (Consolidation) Act 1992, which is the same test as in section 111 of the Act) at paragraph 16: “The question at “stage 2” is what period - that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.”[38]Applying the above legal principles to this case, my judgment is as follows. There was nophysical impediment which prevented the claimant from complying with the relevant time limits, such as illness or a postal strike. There is no suggestion that the respondent misrepresented the position to the claimant, nor that there was any fault on the part of any adviser. The reason relied upon by the claimant is that he was not aware of the relevant Tribunal and ACAS procedure and that it took some time for him to do the relevant research before he was then a position to present his claim. However, at the time of his dismissal, the claimant was aware of both ACAS and the Employment Tribunals. He had access to the Internet and was aware of how to undertake any necessary research. The relevant websites give clear advice as to the procedures to be adopted and the relevant time limits. It is clear that the claimant was able to do the necessary research, and to obtain an Early Conciliation Certificate, and to issue these proceedings. To the extent that the claimant not know about the relevant time limits, any such lack of knowledge is not reasonable because it has arisen from a failure to make such enquiries as ought to have been made in all the circumstances (applying Wall’s Meat Co Ltd v Khan). In addition, the relevant time limits arenot held in abeyance where there is an appeal process underway (applying Palmer and Bodha).[39]For these reasons in my judgment it was reasonably practicable for the claimant to havepresented his unfair dismissal claim in time.[40]In any event, even if it were not reasonably practicable for the claimant to have done so,he still fails at “Stage 2”, the second limb of the statutory test in s 111(2) of the Act, because these proceedings were not presented within such further period of time as was reasonable. He was aware of the decision regarding his appeal on 24 January 2023, and despite having done the relevant research at about that time, he still delayed for a further period of a month before commencing the ACAS Early Conciliation process which then led to these proceedings.[41]I therefore conclude that the claimant’s unfair dismissal claim was presented out of time,and it is hereby dismissed.[42]Subsequent Amendment Application[43]For the reasons set out above this Tribunal does not have jurisdiction to hear the claimant’sclaim and it has already been dismissed. His application to amend the claim to include a claim of failure by the respondent to make reasonable adjustments under the Equality Act 2010 is therefore dismissed because there is no extant claimant which stands to be amended, or otherwise.[44]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, theissues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 5 to 17; a concise identification of the relevant law is at paragraphs 19 to 25; and how that law has been applied to those findings in order to decide the issues is at paragraphs 27 to 41.