Mr S Robinson v BT Openreach Ltd: 1401276/2019
JUDGMENT
The Claimant’s claim of unfair dismissal is struck out, for want of jurisdiction.REASONS
[1]The Claimant was employed as a field engineer by the Respondent (correctly named, by agreement, now, as BT Openreach Limited), for approximately twenty years, until his summary dismissal on 17 December 2018, for gross misconduct.[2]He brought a claim of unfair dismissal on 15 April 2019, so thirty days in excess of the statutory time limit of 16 March 2019.[3]The Respondent contends, therefore that the Tribunal does not have jurisdiction to consider his claim, as it is out of time. The Claimant contends that applying s.111(2) of the Employment Rights Act 1996 (ERA), it was not reasonably practicable for him to bring the claim within time and that when it was practicable to do so, he brought the claim within such further time as was reasonable, which the Respondent disputes.The Law
[4]I referred myself and the parties to s.111(2) ERA.[5]I referred myself and the parties to the case of Dedman v British Building & Engineering Appliances Limited [1974] ICR 53 CA, as to the general guidance in such a matter.[6]I identified at the outset of the Hearing the factors that may apply in this case, as follows:a. Ignorance of rights and time limit – if, however, it was the case that a claimant was aware of his rights to bring a claim to the employment tribunal, then there is an assumption that he would also be aware of the time limits for doing so.b. Reliance on incorrect advice – the Claimant contends that he was wrongly advised by his trade union representative (who case law indicates would be regarded as a ‘legal advisor’ for these purposes) that he was obliged to await the outcome of an internal appeal before bringing his claim. He also contends that his trade union representative never advised him as to the existence or nature of tribunal time limits. The case law indicates that in that event, if true, his recourse lies against his union.c. Medical incapacity – compelling medical evidence would be needed as to such incapacity.d. Awaiting the outcome of an internal appeal – the case law indicates that this factor alone would be insufficient to render it not reasonably practicable for him to bring a claim.The Facts
[7]I heard evidence from the Claimant. That evidence can be summarised as follows:a. He felt ‘completely let down’ by his union representative, who gave him the impression that he had to await the outcome of the internal appeal, before bringing a claim (although, in fact, he was aware of that outcome on 18 February 2019, but still did not bring the claim until some fifty days later).b. It was undisputed evidence that he suffers from depression, possibly related to Post-Traumatic Stress Disorder (PTSD) and this condition meant that, as described in an OH report of October 2018 [19] ‘he has quite severe sleep disturbance and this is associated with daytime fatigue. In addition, his ability to concentrate and focus on tasks is impaired …’. The Claimant stated that this meant that he ‘was in a dark place’ and considered suicide and the possibility of bringing a claim was ‘not on my mind’.c. His trade union representative attended with him at both the disciplinary and appeal procedures, but gave him little useful advice. He engaged in a series of text and voice calls with the representative, in the period 21 December 2018 to 28 February 2019 [set out in his statement], enquiring as to the arrangements for and outcome of his appeal hearing, held on 14 January 2019. He was challenged as to what he was referring to on 17 February, when he said he needed to know ‘the guidelines on timings etc. … and need to know my rights’. He said that this was in relation to the outcome of his appeal. Although he referred, in the same text, to getting legal advice, he did not in fact do so, due to the expense.d. At no point, prior to 9 April 2019, did he, or Ms Holly (who began to assist him at some point in January) enquire of either ACAS or the CAB, or carry out an internet search as to the existence and nature of Tribunal time limits. Both of them, however, were generally aware of an employee’s right to bring a claim to an employment tribunal, in such situations. He said that it was only when ACAS were contacted on 9 April that he was aware of the time limit.e. He was challenged as to why, having discovered on 9 April that the claim was out of time, he still further delayed six days in filing the claim and said that it had taken this time to complete the claim form, particularly as there was more than one potential respondent.f. He started a new job on 11 February, in a similar role, having applied for it about two weeks earlier.Conclusions
[8]There is no dispute that the claim is thirty days out of time.[9]Dealing with each of the potentially relevant factors from the Dedman (and related) case law, I find the following:a. Ignorance of the law – the Claimant accepted that he was aware that he might have the right to bring a claim to the Tribunal in relation to his dismissal. Subsequent case law (Trevelyans (Birmingham) Limited v Norton [1991] ICR 488 EAT indicates that were a claimant knows of his right to claim to a tribunal that he is under an obligation to find out how to enforce that right and the relevant time limits and that a failure to do so will usually lead to a tribunal rejecting his claim. In the 21st Century, with widespread access to internet-based advice, it is not plausible that neither he nor Ms Holly could not have done so, before speaking to ACAS on 9 April. I take judicial notice of the fact that a search for ‘time limits employment tribunal’ reveals a plethora of appropriate advice.b. Awaiting the appeal outcome – this cannot be a legitimate factor in this case, as, despite having received the appeal outcome on 18 February, there was still a further fifty days delay before the claim was brought. I don’t consider, therefore, this issue relevant.c. Medical condition – there is no dispute about the Claimant’s medical condition and its medically-recorded effects upon him. While there is general medical evidence as to the effect of his condition, much of it predates his dismissal and does not therefore specifically address the effect his condition would have had on his ability, in a three-month time frame, to bring a tribunal claim. The small amount of evidence from the relevant time frame (December to April) [37-39] says, in a consultant psychiatrist’s report of 21 January that ‘Mr Robinson was calm and well composed. He made good eye contact and his mood reactivity appeared reasonable. He did not disclose suicidal thoughts and is future orientated. He is keen to see further improvement in his mental health and start working.’ Indeed, in the same time frame, he engaged in extensive and concerned communication with his trade union representative and applied for and obtained a new job. I don’t consider therefore that his medical condition was such as to justify the extensive delay in this case.d. Finally, reliance on poor advice – it does appear, from the Claimant’s evidence that he was poorly advised by his union. There was no evidence of the union ever informing him of the time limit, or, indeed, in the particular circumstances of his case, bearing in mind his undisputed medical condition that he may also potentially have had a claim for disability discrimination. If true, his union will have been potentially negligent and accordingly potentially liable to him for the consequences of such lack of, or poor, advice. They are classed as ‘legal advisors’ and owed him a duty, as a no-doubt long-standing member, paying his dues over the years, to properly advise him, which is their function in such cases (Friend v Institution of Professional Managers and Specialists [1999] IRLR 173 QBD).[10]I consider therefore that the Claimant cannot rely on the exceptions set out above and that accordingly it was reasonably practicable for him to bring a claim within time, but he did not do so. Accordingly, therefore, the claim is struck out for want of jurisdiction.