Ms K O’Shaughnessy v The Secretary of State for Justice: 1403266/2022
JUDGMENT
[1]The Respondent is amended to The Secretary of State for Justice.[2]The Claimant’s claim for unfair dismissal is dismissed as being out of time, it not being reasonably practicable to have made the claim within the time limit, the claim was not made within a reasonable period thereafter.REASONS
[1]The Claimant was employed by the Respondent as a Prison Officer. She commenced employment on 17 September 2007. Her employment was terminated by dismissal on 8 September 2020.[2]The Claimant presented a claim for unfair dismissal to the Employment Tribunal by way of a claim form dated 13 October 2022.The Law
[3]Section 111 of the Employment Rights Act 1996 requires a claim to be made within three months (plus early conciliation extension) of the effective date of termination. The Claimant’s claim was made over two years after her dismissal.[4]The time for making a claim can be extended where it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, provided it was made within a reasonable time thereafter. Commencing the Claim in Time[5]The Claimant’s GP confirmed that the Claimant was previously diagnosed with PTSD in 2010 but following her dismissal and the breakdown of her marriage, her symptoms were exacerbated. Consequently, the Claimant was diagnosed with stress, anxiety, and depression at that time. The Claimant was prescribed medication and attended counselling, which she fully engaged with. She was not sectioned under the Mental Health Act and there is no suggestion that she lacked capacity.[6]The Claimant initially approached ACAS for early conciliation within the time limit but did not commence a claim with the tribunal at that time, due to the deterioration in her mental health. Accordingly, the Claimant intended to bring her claim in time but because of the deterioration in her mental health, albeit that it is not said that she lacked capacity, it was not reasonably practicable for her to have done so. Reasonable Time[7]During 2021 and 2022, the Claimant was involved in Family Court proceedings in relation to both custody arrangements for her children with her ex-partner and their divorce. During those proceedings the Claimant was legally represented by both a solicitor and counsel. The Claimant provided her legal representatives with instructions, in email, over the telephone and in person, including at court. A statement for those proceedings was prepared by her legal representatives from her instructions, which she understood and signed to confirm was true. The Claimant also attended a number of court hearings including the final hearing.[8]The Claimant’s divorce was finalised on 14 February 2022 and the family proceedings in relation to her children were completed in June and July 2022.[9]Additionally, from September 2021 to June 2022 the Claimant also attended a college course one day a week to reattain her previous qualification as a Personal Trainer. She successfully completed this course.[10]Following her divorce on 14 February 2022, the Claimant approached her solicitor in the family proceedings, in relation to commencing her employment claim. She was informed that her claim was now potentially out of time and therefore that it needed to be presented in a reasonable time. The Claimant was unable to afford legal representation before the Tribunal due to her financial difficulties for which she has subsequently been made bankrupt. The Claimant was also made aware by ACAS following her initial contact with them, of the time limit and the need to present her claim promptly.[11]The Claimant said that she was not able to make her claim to the Tribunal until the family proceedings were completed, as she did not have the capacity to focus on further proceedings and she was also not legally represented. However, the divorce proceedings were concluded on 14 February 2022, providing her with time and capacity to commence the Tribunal proceedings, yet despite receiving legal advice and being aware of the urgency, it was some eight months before she presented her claim. The contact arrangements concluded by July 2022, so that all family proceedings were now complete, but again despite the urgency, it was a further two to three months before she presented her claim.[12]The presenting of her claim involved only the completion and submission of the claim form. There was no reason why the Claimant could not have done this shortly after the divorce proceedings concluded in February 2022, especially when she was aware of the urgency as she had received legal advice that her claim was already over 12 months outside the time limit.[13]Employment Tribunal proceedings are designed to be undertaken by parties without legal representation. Indeed, in this case the Claimant was able to contact ACAS within the time limit, and was subsequently able to completed her claim form and presented it to the Tribunal without legal representation as well as attending the hearing today without legal representation. That the Claimant was without legal representation is not an acceptable explanation for why she has taken so long to present her claim.[14]Despite her mental health difficulties, the Claimant was taking her medication and fully engaging with counselling, such that during 2021 and 2022 she was able to attend family court proceedings and provide her legal representatives with instructions. She was also able to attend college and complete a Personal Training course. Additionally, the Claimant was also aware from her original approach to ACAS and in her discussions with her solicitor around February 2022 of the importance of the time limit and the need to present her claim promptly. Despite that, she chose not to seek early conciliation again with ACAS until 27 September 2022 and did not present her claim until 13 October 2022.[15]Her GP letter of 16 January 2023, states that the Claimant would previously have struggled in a Tribunal, however, the letter does not state what period this applied to and crucially the GP does not say that even during this period the Claimant could not have taken part in a Tribunal. Plainly, this must be correct as in 2021 and 2022 the Claimant could take part in family proceedings and undertake a college course.[16]Although due to the Claimant’s mental health difficulties it was not reasonably practicable for her to present her claim within the time limit, she failed to present her claim within a reasonable period thereafter, as during 2021 and 2022, having commenced medication and counselling, her mental health had improved such that she was able to engage in the family court proceedings and to also complete a college course. There was no reason why the Claimant could not have presented her claim during this period. The Claimant was aware of the need for urgency having received legal advice in February 2022 that her claim was potentially out of time and that there was a need to present the claim within a reasonable time. Despite this, she did not do so for another 8 months, after her divorce proceedings concluded on 14 February 2022.[17]Accordingly, whilst it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, it was not made in a reasonable period thereafter. The claim for unfair dismissal is therefore dismissed.