Mr S Morrison v Royal Mail Group Ltd: 1403249/2018
JUDGMENT
The Tribunal has no jurisdiction to consider the claimant’s claim for unfair dismissal. The claim was presented outside the time- limit contained in section 111(2) of the Employment Rights Act 1996 and the grounds for extending time, that it was not reasonably practicable for the claim to be made in time, are not met. The claim in respect of unfair dismissal is dismissed. JUDGMENT having been sent to the parties on 30/01/19 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]Evidence 1.1. The Tribunal heard from Mr Morrison and read the documents referred to.[2]Issues 2.1. The claimant claims unfair dismissal. 2.2. The preliminary issue before the Tribunal to decide was whether the claim was brought in time and if not whether it was not reasonably practicable for the claim to be brought in time such that the time limit might be extended.[3]Findings of Fact 3.1. Mr Morrison had a serious road traffic accident on the motorway on 4/01/18. He has very limited recollection of the accident, in which he was helped from the burning vehicle by other motorists, the vehicle having traversed the motorway from the outside lane to the central reservation, hit it and then traversed the motorway back, by which time the trailer was on its side and the fuel tank ruptured. There was no other vehicle directly involved. 3.2. Another driver had reported concerns about and refused to drive the vehicle because of the tyres, but they were re-inspected and cleared as legal and safe. That driver’s report was voided on further inspection (48) before Mr Morrison took the vehicle out. 3.3. Mr Morrison had thought the tyres were all right but that one had failed when the accident took place. There had been strong winds that day. 3.4. He was hospitalised and discharged after four days. He was diagnosed with post-concussion syndrome. He had no obvious head injury but had wordfinding difficulties and some communication difficulties. He was seen by a clinical psychologist from the Gloucestershire brain injury team several times, in March, May, June and September 2018 and again in December 2018. 3.5. A misconduct investigation was launched. In the meantime, he was suspended from driving for work 3.6. In April he was able to return to part-time work but Royal Mail had little work for him because he was suspended from driving. 3.7. On 31/01/18, there was a fact finding meeting. 3.8. There had been a severe weather brief on the date of the accident. due to the strong winds, but according to the managers the CCTV shows the vehicle drifting for 100 yards towards the soft verge and eventually on to it, pointing to a loss of concentration by the driver as the cause of the accident rather than high winds or the condition of the tyres. That was their explanation for the loss of control of the vehicle. 3.9. The misconduct interview was held on 14/5/18, after some delays primarily due to Mr Morrison’s health. His GP for example wrote on 9/04/18 that, “The above 59 year old patient of mine is currently undergoing treatment for post-concussion syndrome and I gather he’s due to attend a disciplinary hearing this week. In my medical opinion I think it unlikely that he would be fit to represent himself properly for this sort of meeting for at least 2 – 4 weeks. He is improving, albeit it slowly. 3.10. At the hearing in May, he was able to participate and to comment cogently on the evidence (37-38). 3.11. After investigation, the quality of which Mr Morrison challenges robustly, the decision to dismiss him was given to him in person on 5/06/18. The Leavers Pack gave the date of termination as 6/06/18. That was misleading. 3.12. He was summarily dismissed for gross misconduct. Dismissal was because he was held to have lost control of his vehicle which then overturned. 3.13. He appealed. The appeal hearing was held on 12/07/18. This was a full rehearing. 3.14. The appeal was dismissed, notwithstanding detailed further contributions from Mr Morrison. The decision letter is dated 24th August 2018 and Mr Morrison recalls receiving it about the time of the bank holiday weekend at the end of August. The late summer bank holiday in 2018 was on Monday 27/08/18, so by inference he had it by 28/08/18. 3.15. He was devastated by the outcome, having expected with some confidence to win the appeal. He saw his GP again on 29/08/18 to support a claim for Universal Credit and was again given a note signing him off work. 3.16. He had also during that year had the stress of a family bereavement and the real difficulties of losing the income that he relied on for the support of his family, including the loss of overtime even once he had gone back to work. 3.17. He had union assistance throughout the disciplinary and appeal process. 3.18. He had not made any enquiries about time limits for a claim before losing the appeal, “I had not looked into it at all.” “I had no idea what the process was.” (oral evidence) 3.19. He reports that he did not consult about the next steps to take until after he lost his appeal. At that point, his wife texted the union representative. They were referred on. The union representative to whom he was referred was not available until the very day of his ACAS application. “My wife was trying to get advice. She got the number of the area representative. He deals with tribunal cases, and as such we needed to speak to him. She could not get hold of him until 6/09” 3.20. His wife made enquiries on his behalf and did research for him under his prompting, using the internet to do so. They found, for example, the ACAS code in that way. 3.21. She is Slovak and does not have the usual intimate knowledge of British institutions that would help in an internet search for information. 3.22. She spoke to the Union representative on 6/09/18 and they learned the time limits for this claim. 3.23. ACAS were notified of the potential claim on 6/09/18. 3.24. The ACAS certificate was issued on 7/09/18. 3.25. The claim was brought on 07/09/18. 3.26. The psychologist who saw Mr Morrison on several occasions between March 2018 and September reports that initially, in March, he suffered fatigue with word-finding difficulties and signs pointing to potential cognitive communication difficulties. There was some recovery by May, in spite of the stress of events at work, and greater improvement by June in relation to fatigue, and with sleep. He no longer needed referral to Speech and Language Therapists. By September he was again experiencing fatigue and low mood and he attended a four week group programme. He resumed work elsewhere in December 2018, three days per week.[4]Law 4.1. The time limit for bringing an unfair dismissal claim is set out in section 111 of the Employment Rights Act 1996. The claim must be brought 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 where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the time limit expired. 4.2. Time Limits in the Employment Tribunal are strictly applied. 4.3. Where an employee is summarily dismissed, the effective date of termination is the date of dismissal (Employment Rights Act s97(1)). 4.4. The time limit for bringing a claim runs from the date of the original dismissal, even where there is an internal appeal. The appeal does not extend the time limit. 4.5. With the passage of time since unfair dismissal legislation was introduced and the publicity given to unfair dismissal cases, a claimant is unlikely to be able to show that it was not reasonably practicable for him to present a complaint because of ignorance of the right to claim (Porter v Bandridge Ltd 1978 IC$ 943). Where an employee has knowledge of the right to claim, there is an obligation on him to seek information or advice about the enforcement of those rights, and so ignorance of time limits may not be reasonable in the absence of enquiry (Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488).