Case No 1401234/2019Venue PlymouthHearing 2 July 2019
Between
Mr Adam RowlandsClaimantEE LtdRespondent
Before
Employment Judge N J RoperIn person for claimantMiss A Beale (instructed by Counsel) for respondentDate 2 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 unfair dismissal claim was presented in time.[2]I have heard from the claimant, and I have heard from Miss Beale of Counsel 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 Mr Adam Rowlands was employed by the respondent as a customer service representative from 15 February 2016 until he was dismissed by reason of gross misconduct with effect from 10 January 2019. He submitted an appeal against his dismissal on 17 January 2019, and attended an appeal meeting on 12 March 2019. The appeal was dismissed and the claimant was informed of the appeal outcome on 6 April 2019.[4]The claimant commenced the Early Conciliation process with ACAS on 11 April 2019 (Day A). ACAS issued the Early Conciliation certificate on the same day, namely 11 April 2019 (Day B). Upon receipt of the certificate the claimant then issued these proceedings on the same day, namely 11 April 2019.[5]Throughout this process the claimant has had the benefit of advice and assistance from his trade union representative. The claimant was assisted in preparing detailed grounds of appeal which were submitted by email on 17 January 2019. The claimant’s trade union representative also attended the appeal hearing with the claimant on 12 March 2019. The claimant discussed the possibility of Tribunal proceedings with his trade union representative and they awaited the outcome of the appeal decision, which as noted above was communicated on 6 April 2016. They discussed the reasons for the rejection of the appeal, and discussed the possibility of issuing these Tribunal proceedings. This was on either 7 April or 8 April 2019. The claimant was aware of ACAS and that they were likely to have a website with information. The claimant did not research the position with ACAS personally beforehand, but then did so on 9 April 2019. Having obtained the Early Conciliation certificate on 11 April 2019, the claimant prepared and issued these Tribunal proceedings himself, which set out in detail his alleged grounds of unfairness. In short these relate to procedural deficiencies and alleged bias on the part of his line manager. During the period from his dismissal until the expiry of the time limit some three months later the claimant was not absent at any stage on certified sickness absence, and when he needed to attend hospital he did so as a day patient.[6]In an email to this Tribunal dated 6 June 2019 the claimant set out his reasons why this claim was filed out of time, as earlier directed by the Tribunal. This email stated: “Since late October last year I have been under the care of my GP in various departments at Derriford NHS trust in Plymouth. The nature of this care was to investigate numerous marks/moles on my scalp and body. During these tests and examinations, a lump was discovered on my right temple. Since early January I have been under the care of the ENT Maxillofacial Department at Derriford Hospital. I have undergone various procedures including an MRI scan and various biopsies. These procedures confirm that I have a tumour in the area of the cranial nerve. Due to the potentially critical location my consultant carried out additional tests to pinpoint the tumour’s location as this determines the nature of surgery I will undergo. I am currently waiting for confirmation of the date to have the tumour removed. The biopsies have been inconclusive so further treatment will only be decided on once we know if the tumour is malignant or benign. Whilst I do not in any way wish to trivialise the importance of the Court’s deadlines, I am sure that you will appreciate my need to deal with and process the fact that I have a potentially serious health [condition]. The result of this has been that I have been unable to process information and concentrate as efficiently as usual and was simply unaware that the deadline was approaching and had passed. I’m sincerely sorry that I missed this deadline and can assure you that had I been in a better place emotionally and mentally, I would not have missed this deadline. I am able to bring details of my care and consultant to the preliminary hearing. I hope you will allow me to proceed with [this claim] as I believe I have a very strong case.”[7]The claimant had also requested his medical notes from his surgery, but these have not been produced in time for this hearing, and the claimant was unable to adduce any further medical evidence, other than a copy of his consent form to the proposed procedure, namely the excision of a lesion in the right pre-auricular region. The claimant also confirmed in his evidence that physically he was capable of submitting his claim, but that he was struggling emotionally with the bad news of possible cancer and the potential consequences, and particularly after the rejection of the appeal he was unable to concentrate sufficiently on submitting the claim.[8]Having established the above facts, I now apply the law.[9]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.[10]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; and Schultz v Esso Petroleum Co Ltd [1999] ICR 1202 CA.[11]In this case the claimant’s effective date of termination of employment was 10 January 2019. The three month time limit therefore expired at midnight on 9 April 2019. The claimant did not make contact with ACAS under the Early Conciliation Provisions until 11 April 2019 (Day A). The Early Conciliation Certificate was issued that same day 11 April 2019 (Day B). The claimant does not enjoy the benefit of any extension of time under the Early Conciliation provisions because the normal three month time limit had already expired on 9 April 2009 before the Early Conciliation process was commenced. This claim was therefore presented two days out of time.[12]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 he was precluded or prevented from doing so because of his illness, as described in more detail above.[13]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).[14]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:-[15]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.[16]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".[17]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).[18]In this case I found the claimant to be a genuine and credible witness and I have no doubt that the investigation and subsequent diagnosis of a potentially cancerous lesion was extremely upsetting and on occasions would have affected his concentration and focus on other non-health-related matters.[19]However, to the extent (which is by no means clear) the claimant was ever advised that the time limit did not commence running until the conclusion of the appeal process, such advice is clearly wrong in law. I have to consider the whole of the three month limitation period between 10 January 2019 and 9 April 2019. The claimant was not at any stage absent on certified sick leave during this period, and had access to advice and assistance from his trade union representative throughout this period. He was able to prepare detailed grounds of appeal, and to discuss these with his trade union representative. He was able to attend the appeal hearing and to argue his case with the assistance of his representative at that stage. He was advised by his trade union representative to consider Tribunal proceedings following the rejection of his appeal on 7 or 8 April 2019 within the limitation period. He was able to prepare and issue these proceedings shortly thereafter.[20]The burden of proof is on the claimant, and he has not discharged that burden. I am not satisfied that it was not reasonably practicable for the claimant to have issued these Tribunal proceedings at some stage at least during the three month limitation period. There is no medical evidence to suggest that he was precluded or prevented from so doing. In short, I find that it was reasonably practicable for the claimant to have issued these Tribunal proceedings at some stage within the three month limitation period, particularly given that he had advice and assistance from his trade union throughout.[21]Accordingly, I find that this claim was submitted out of time and the claimant’s unfair dismissal claim is hereby dismissed.[22]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 7; 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 to 21.