Mr D P Hayes v The Commissioners for HM Revenue and Customs: 1404005/2023

EMPLOYMENT TRIBUNALS

Case No 1404005/2023

Between

Mr David Patrick HayesClaimant

The Commissioners For His Majesty’s Revenue And CustomsRespondent

Before

Employment Judge David Hughes

Mr A Roberts (instructed by counsel) for claimant

Mr T Perry (instructed by counsel) for respondent

Date 31 May 2024

JUDGMENT

[1]The Claimant’s complaints of unfair dismissal and breach of contract were not presented within the applicable time limit. It was reasonably practicable to do so. The complaints of unfair dismissal and breach of contract are therefore dismissed.

[2]The Claimant was disabled by reason of anxiety (including social anxiety disorder), depression, long covid, ADHD and OCD, at the time of the events about which he complains.

REASONS

[1]This case comes before me for a preliminary hearing, originally ordered by Employment Judge Rayner on 04.01.2024.

[2]At the hearing, I gave oral reasons for finding that the Claimant was disabled by reason of certain conditions, for finding that his claim in respect of unfair dismissal and breach of contract had not been presented in the time limit provided for by the Employment Rights Act 1996 (“ERA”)1, and that it was reasonably practicable for him to have presented it within that time limit.

[3]Counsel for the Claimant having indicated that written reasons were 1 And Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623. sought, with the parties’ agreement I indicated that I would provide those written reasons together with my judgment. I do so now.

[4]As originally ordered the preliminary hearing was to determine whether or not the Claimant was a disabled person at the times material to his case, and to determine whether the Claimant’s claims in respect of unfair dismissal and breach of contract were brought within the time limit provided for by s111 of the ERA 1996.

[5]Originally listed for 2 days, the hearing’s listing was reduced to one day, as a large measure of disagreement regarding disability has disappeared from the case. The position now is that the Respondent concedes that the Claimant has the conditions of anxiety (including social anxiety disorder), depression, and long covid. The Respondent has not conceded obsessive compulsive disorder, ADHD, or dyspraxia. The Respondent has conceded the effects and symptoms relied upon, including those identified in impact statement. The Respondent has also conceded that the effects are such that any of the conditions I find the Claimant to have had, would qualify as a disability under s6 of the Equality Act 2010 (“EA”). What the Respondent says is, all of the effects relied upon are capable of flowing from the admitted impairments, and the Respondent is neutral on whether disputed impairments are ones that he has, and whether the effects flow from them.

[6]The time point remains live between the parties, and is the more substantial dispute.

[7]For the sake of openness, I disclosed to the parties that I have dyspraxia, and long covid. Neither party raised any issue with me hearing the preliminary hearing.

[8]At the hearing, I amended the directions in the case management order made by Employment Judge Raynor on 04.01.2024. Facts The Claimant’s conditions

[9]As noted above, the Respondent admits that the Claimant was disabled, because of certain conditions. As to the non-admitted conditions, I accept the Claimant’s evidence that he was told by his GP that he had “scored high” on a test for ADHD. I accept his evidence that his doctor told him that he suffered from OCD. I find as a fact that he suffered from these impairments.

[10]Moving on to dyspraxia, I must be cautious here, as someone who has that condition. I need to be careful about assessing the Claimant based on how the condition impacts on me. In his statement, the Claimant describes symptoms that may be attributable to dyspraxia. In the notes of a meeting of 07.10.2022, the Claimant is noted as saying that he believes he has the condition, but hasn’t had a diagnosis.

[11]On the material I have before me, I would not think it appropriate to reach a finding that he does not have dyspraxia, but prefer to leave that question for determination at the final hearing.

[12]I accept that the Claimant received help and support from his partner in administrative matters in his day-to-day life, and in relation to his claim before this tribunal. The Claimant’s dismissal

[13]The Claimant was employed by the Respondent from 17.10.1997 until 16.02.2023. It does not appear to be in dispute – and to the extent that it may be in dispute, it is not necessary for me to resolve any dispute – that the Claimant took what appears to be a significant amount of time off during his employment due to ill-health.

[14]On 07.10.2022, a meeting took place with the Respondent. I understand this to have taken place on-line. The Claimant attended, and was assisted by a trade union representative, one Wendy Hawkins. In that meeting, the Claimant was noted as saying:(a) That he was awaiting treatment for ADHD, had been waiting on an ADHD clinic for 4 years;

(b) That he was suffering more than ever, with poor organisational skills, forgetfulness, impulsiveness, continuous starting new tasks, inability to handle stress and mood swings;

(d) He described family difficulties. His partner lost her job, and struggled to find a new one. Their children had been struggling and had missed lots of school. He was concerned about a possible prosecution for the children missing school.

[15]It is not necessary for me to set out the entirety of the minutes of that meeting.

[16]Following the meeting, on 13.10.2022, the Respondent wrote to the Claimant, and told him that a decision had been made to recommend that he be dismissed.

[17]On 15.12.2022, the Respondent wrote to the Claimant, to advise him that he was being dismissed. He was told that his last day of service would be 16.03.2023. He was advised of his right to appeal the decision to dismiss, and told that he had to submit any appeal within 10 working days of receipt of the letter.

[18]In the same letter, the Claimant was told that his HR director was considering whether to award him compensation under a civil service compensation scheme. He was told that he had a right to appeal against the decision on the level of compensation on receipt, but also, perhaps somewhat confusingly, that “you have the right to appeal to the Civil Service Appeals Board against the level of compensation awarded. If you plan to appeal… you will need to notify…your intentional to appeal within 21 days of the effective date of your dismissal, which is your last day of service”.

[19]In fact, the Claimant was not told how much compensation he would be awarded until 26.06.2023 – although the money was paid into his bank account before that date.

[20]On 10.03.2023, the Claimant sent in an appeal against the decision to dismiss him. His reasoning extends over slightly more than 3 pages.

[21]On 20.03.2023, the Respondent wrote to the Claimant, to tell him that he had been awarded a compensation award of 50%. He was told that he could raise an internal appeal by writing to his Appeal Manager.

[22]The following day, C emailed R. He expressed confusion as to what stage of the process he was in. He referred to an Appeal Manager, one Jasprit Gandhi, giving him a deadline of 10.03.2023. Ms Gandhi was the person to whom his appeal against the dismissal had been addressed. The Claimant said: The main reason for my confusion is that my new Appeal Manager, Jasprit Gndhi (sic) (cc’d) gave me a deadline of 10 March 2023. I met this deadline by submitting an appeal on that date. I have heard nothing from anyone in the department since, until now. Does that mean that my appeal has been rejected?

[23]Looking at matters now, it is fairly clear that the Claimant was confusing the appeal against the decision to dismiss him, with an appeal against the compensation award.

[24]An appeal meeting took place on 20.04.2023. The Claimant attended, the meeting taking place remotely. He was not assisted by Ms Hawkins at this stage, or any other trade union rep. He told me that the last time he had tried to contact Ms Hawkins was in January 2023.

[25]On 03.05.2022, the Respondent wrote to the Claimant, informing him of the outcome of the appeal meeting. It confirmed the decision to dismiss him, and expressly told him that his last day of service was 16.03.20223

[26]The bundle included an email from the Claimant to Brendan Ricketts of the Respondent on 01.06.2023. I will not set out the email in full, but in it the Claimant refers to getting the outcome of his appeal on 04.05.2023, having been told that his employment would end in March and, in another letter, that he would get 50% compensation. He expressly asked if his end of service date remained the same, notwithstanding the delays in the appeal process.

[27]The following day, Mr Ricketts advised him that his dismissal date did indeed remain the same. Mr Ricketts also advised that normally, any appeal against compensation level would be at the same time as the appeal against dismissal. Mr Ricketts added, “if you feel that you could not do this due to delays by HMRC and would like to appeal the level of compensation I would submit you appeal giving reasons for the late appeal and your reason why you do not agree with the level of compensation”. C’s personal circumstances

[28]In March 2023, the Claimant had sold his family home in Bristol. Intending to move to Swansea, he had arranged a rental property in Swansea, into which he and his family could move. He paid a deposit. However, on 01.04.2023, he was advised that the owner of the rental property had sold it, meaning that the Claimant could not take up occupation. Suddenly homeless, the Claimant and his family moved in with the Claimant’s parents for 3 months. They obtained alternative accommodation in June, although they did not, in fact, move in until July 2023.

[29]The Claimant had to try and arrange schooling for his children, whose difficulties I have touched on above. He had to liaise with those responsible for admissions to schools. Whilst doing so, the children were at home with the Claimant. He also had to chase up a referral from the Families in Focus social work team in Bristol, to the equivalent in Swansea.

[30]The Claimant’s family also suffered the loss of his partner’s aunt on 16.06.2023. She died of cancer, having been given an all-clear in 2022 but fallen ill again in 2023. Her funeral took place on 30.06.2023. The Claimant’s partner was close to her aunt, and I was told, was unexpectedly required to give a eulogy at the funeral. This bereavement was understandably very upsetting for the Claimant’s family, and in particular for his partner. Presenting the claim

[31]The Claimant contacted ACAS to start the Early Conciliation (“EC”) process on 22.06.2023. The EC Cert was issued on 26.06.2023. Because the process was started after the primary period in which to present a claim had expired, the parties agreed that there is no extension for the EC period. That said, it was not possible for the Claimant to issue a claim between 22nd and 26th June.

[32]The Claimant said that he had been aware of the existence of the Employment Tribunal from general knowledge. Although he had been aware of the possibility of being dismissed from October 2022, he did not think of a claim for himself at that time, due to the impact of his conditions and stressful events at home. He emphasised the impact of covid lockdowns on his family, mentioning that, with 3 children in the same school, his family were told to isolate at different periods when a child or teacher in one of their children’s classes had covid. He says he was also optimistic that the Respondent would look upon his position favourably, taking into account the impact of the pandemic.

[33]The Claimant said that he took legal advice a week or two before contacting ACAS on 22.06.2023. He says the occasion when he spoke to his solicitors was the first time he had spoken to them. He says he didn’t seek advice sooner because of the confusion over the date of the appeal, he’d appealed promptly and it had been accepted, then described getting a letter “out of the blue” telling him he had been awarded 50% compensation. He says he was very confused about the dismissal date being in March, when the appeal was in April.

[34]The Claimant struck me as an honest witness, and indeed the contrary was not suggested in cross-examination. However, taking due account of the impact of his conditions and of the stressful circumstances in which he found himself, I have to find that he took an unreasonably optimistic approach to the position in which he found himself. Despite being aware from October that dismissal was an option, he told me that he did not discuss with his union rep the possibility of a claim to the tribunal. I accept his evidence on that. It is consistent with his evidence that he hoped his employer would look favourably upon his position, due to the pandemic.

[35]That was honest evidence. But it was not reasonable behaviour. Dismissal as a very real possibility was on the cards from October, and clearly so. Not to have discussed the possibilities with his union rep was not the approach of a reasonable employee.

[36]The Claimant’s approach thereafter included believing that the effective date of termination would change. He was given no reason to believe that it would change. To hope for that to change, when there was no objective reason to think it would, was not reasonable. Law and submissions ERA

[37]S98 provides as follows: 98.— General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In subsection (2)(a)— (a) “capability” , in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications” , in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. (6) Subsection (4)4 is5 subject to— (a) sections 98A to 107 of this Act, and (b) sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).

[38]S111(1) and (2) provides as follows: 111.— Complaints to employment tribunal.(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) 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. … Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623 (“EOJO”)

[39]Article 3 of EOJO provides that: Proceedings may be brought before an [employment tribunal]1 in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if-(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies2; and

[40]Article 7 of EOJO provides as follows: 2 It was not contended that this was relevant. Subject to article 8B3, an employment tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented-(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution)Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b).

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

[41]It was not in dispute that the claim was presented outside the period provided for by s111(2) and Art 7(a). In argument before me, this was referred to as the first limb. Mr Perry for the Respondent did not contend seriously that, if I found that it was not reasonably practicable to have presented the claim within that time limit, the second limb – whether it was presented within such further period as the Tribunal considers reasonable - could not be met by the Claimant. The contentious issue was, whether it was reasonably practicable to present the claim by 15.06.2022.

[42]It is for the Claimant show that not reasonably practicable – see Porter v Bandridge Ltd4.

[43]When looking at the time, attention should focus on the closing rather than early stages – see Schultz -v- Esso5 – but the parties did not contend that time even before dismissal was irrelevant and could not be considered.

[44]The Respondent referred to Cygnet Behavioural Health Ltd v Britton6, in which Cavanagh J held that it had been perverse to accept as reasonable the ignorance of a severely dyslexic claimant suffering from mental health issues given that his ability to function in other respects (continuing to work, submitting an appeal against dismissal and engaging with his regulator) showed no evidence of his being unable to type a short sentence into a search engine and to seek information about unfair dismissal time limits, or to ask an acquaintance by email to search for that information' adding that 'it would be the work of a moment to ask somebody about time limits or to ask a search engine'.

[45]The mere fact of an internal appeal does not justify a failure to present a claim in time – see Palmer & Saunders -v- Southend-on-Sea Borough 3 Dealing with the extension of the relevant period for EC. 4

[1978] 1 WLR 1145

[1999] ICR 1202

[2022] IRLR 906

Council7.

[46]Mr Roberts for the Claimant referred me to Wall’s Meat Co Ltd v Khan8, in which it was said that it would not be reasonably practicable to present a claim in time it there was “some impediment which reasonably prevents, or interferes with, or inhibits”9 the performance of the obligation in time.

[47]Mr Roberts subjected the Cygnet decision to criticism. He says that it was per incuriam, in that cases such as Marks and Spencer plc v WilliamsRyan10, Dedman v British Building and Engineering Appliances Ltd11 and Lowri Beck Services Ltd v Brophy12 had not been cited to it, and supported a liberal approach in favour of employees.

[48]Mr Perry for the Respondent posed the question, what stopped the Claimant from presenting his claim in time? Mr Roberts contended forcefully that that formulation looked only at the “prevent”, rather than “interfere with” or “inhibit” formulations in Wall’s Meat -v- Khan. EA

[49]I was referred to s6 of the EA. As identified above, the only issue for me to determine on this was, whether or not the Claimant had the disputed conditions. Conclusions on the issues Time

[50]With some regret, I find that it was reasonably practicable for the Claimant to have presented his claim in time.

[51]The Claimant undoubtedly had a lot on his plate in the period between December 2022 and June 2023. I have little difficulty accepting that he and his family were in a difficult position. His conditions and the difficulties he and his family were experiencing in life could be said to constitute something of an interference with his ability to present his claim in time.

[52]I am not satisfied that they prevented him from doing so. He was, despite everything going on in his life, able to engage in the disciplinary and appeal process. I do not blame him for prioritising other matters in life, but he was able to attend to employment-related matters.

[53]I have said that the Claimant’s circumstances did constitute something of an interference with his ability to present the claim in time. The question is, did they reasonably do so? Here, even with a liberal interpretation of the relevant test in the Claimant’s favour, I have to find that they did not. He was aware of the existence of the tribunal. He was aware that he had 7

[1984] 1 WLR 1129

[1979] ICR 52

9 Per Brandon LJ 10

[2005] EWCA Civ 470

[2005] ICR 1293

[1974] 1 WLR 171

[2019] EWCA Civ 2490

been dismissed. He also had, for a time, Ms Hawkins’ assistance. Although her involvement does not appear to have carried on beyond October, the Claimant did have access to a trade union rep at a time when he knew that dismissal was a possibility.

[54]Even with everything else going on in his life, it would have been a simple matter to look into the tribunal and the time period for presenting a claim. That he did not do so was, I find, not reasonable. It is one thing to prioritise other matters in his life, quite another to ignore totally the possibility of a claim in respect of a dismissal that he knew was a possibility, and which then materialised. He did not have to prioritise his claim above the other pressing calls on his time, merely devote a small amount of time to looking into the time limit for pursuing a claim before a tribunal of whose existence he was aware.

[55]The Claimant had taken an optimistic approach to matters from October, and that continued. He made assumptions favourable to his position, as to the likelihood of a benevolent attitude from the Respondent and the possibility of a change in his EDT, which were not reasonable.

[56]If anything inhibited the Claimant from presenting his claim in time, it was that unreasonably optimistic approach. Disability

[57]In the light of my findings on the Claimant’s conditions, and the Respondent’s concessions, I find that the Claimant was disabled by reason of anxiety (including social anxiety disorder), depression, long covid, ADHD and OCD, at the time of the events about which he complains. The question of whether he was disabled by reason of dyspraxia will be determined at the final hearing.

[60]The management of a reconsideration application is a little more complicated if there is also an issue about whether it has been submitted in time (”the time point”). There will be a question at to whether the rule 72(1) decision should be taken before or after the time point. In some circumstances it might be necessary to consider the time point at a hearing. It would be open to an employment judge to take the rule 72(1) decision and then fix a hearing to determine the time point and, if appropriate, to take the rule 72(2) decision. Alternatively, an employment judge could determine the time point before taking the rule 72(1) decision. What is not open to an employment judge is to list a hearing to determine the time point and take the rule 72(2) decision, if the rule 72(1) decision (on the papers) has not yet been taken. 6 @ para 57. 12. Rule 2 of the Rules provides for the overriding objective. It provides as follows: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. 13. The Respondent has drawn my attention to Rules 86 and 91, which read as follows: 86.— Delivery to parties (1) Documents may be delivered to a party (whether by the Tribunal or by another party)— (a) by post; (b) by direct delivery to that party's address (including delivery by a courier or messenger service); (c) by electronic communication; or (d) by being handed personally to that party, if an individual and if no representative has been named in the claim form or response; or to any individual representative named in the claim form or response; or, on the occasion of a hearing, to any person identified by the party as representing that party at that hearing. (2) For the purposes of sub-paragraphs (a) to (c) of paragraph (1), the document shall be delivered to the address given in the claim form or response (which shall be the address of the party's representative, if one is named) or to a different address as notified in writing by the party in question. (3) If a party has given both a postal address and one or more electronic addresses, any of them may be used unless the party has indicated in writing that a particular address should or should not be used. (4) Paragraph (2) does not prevent the Tribunal also sending a copy of the claim form to a respondent at an address that differs from that provided on the claim form. 91. Irregular service A Tribunal may treat any document as delivered to a person, notwithstanding any non-compliance with rules 86 to 88, if satisfied that the document in question, or its substance, has in fact come to the attention of that person. Time or Rule 72(1) to be considered first? 14. Applying the above, I have to decide whether to determine the r72(1) point – whether there is a reasonable prospect of the original decision being varied or revoked – before I consider the time point, or whether I should consider the time point before determining the r72(1) point. 15. It seems to me that the just starting point is whether or not the application was made in time and, if not, the exercise of my discretion whether or not to extend time.The caselaw referred to above indicates that a structured approach to decision making is to be adopted, that one cannot merge the r72(1) and r72(2) exercises. Although the caselaw says that it is open to me to consider whether to determine time or the r72(1) point first, it seems to me that it is more just to consider the time issue first. The r72(1) point only arises if the time point can be determined in the Claimant’s favour. Original decision 16. I gave my decision on a preliminary hearing on 23.05.2024. I determined that; (a) The Claimant’s complaints of unfair dismissal and breach of contract were not presented within the applicable time limit, that it was reasonably practicable to have presented them in time, and those complaints were therefore dismissed, and; (b) The Claimant was disabled by reason of anxiety (including social anxiety disorder), depression, long covid, ADHD and OCD at the time of the events about which he complains. Decision sent to the parties 17. When I gave my decision, counsel appearing for the Claimant asked for written reasons. With the parties’ agreement, I indicated that I would provide written reasons with my judgment. My judgment and written reasons were sent to the parties on 20.06.2024. Application for reconsideration 18. The Claimant’s partner sent in written representations on his behalf, asking that I reconsider my decision. I deal with the date of these representations below. 19. In an email dated 17.07.2024, the Respondent contended that the Claimant’s application was out of time. The Respondent did not make substantive representations on the application, but indicated that it could do so if the Tribunal sought them. 20. On 18.07.2024, the Claimant’s partner emailed the Tribunal. She explained that she had received the Tribunal’s written reasons and judgment on 24.06.2024. She said that she sent in the request for reconsideration on 07.07.2024, believing it to be within the 14 day time limit. 21. She further eplained that the Claimant had had to stand down the solicitors who had been acting for him, and that, between 04.06.2024 and 11.06.2024, the Tribunal had been told this. 22. The Claimant’s partner accepted that his then solicitor did forward the Tribunal’s judgment to her on 20.06.2024, but says that she did not see the email. She did see an email direct from the Tribunal, dated 24.06.2024, sending her the judgment and reasons. Direction for submissions on time point 23. On 21.06.2024, the Tribunal emailed the parties, at my direction. I directed that, by no later than 26.07.2024, they should send in any submissions they wished to make on the following issues: (a) as to whether it is open to the Tribunal to extend the period for seeking reconsideration, and; (b) if so, how I should exercise that discretion. The parties’ submissions on time and discretion 24. On 26.07.2024, the Claimant’s partner wrote to the Tribunal, indicating that she had (on his behalf) no further representations to make. 25. On the same date (but slightly before the Claimant’s partner sent in her submissions), the Respondent emailed to the Tribunal written submissions dealing with the questions on which I invited representations. 26. The substance of these representations was that: (a) The Tribunal does have a discretion to extend the time period provided for by Rule 71, but; (b) It would not be appropriate to extend the time period in this case. 27. The Respondent does not admit that the Tribunal’s judgment and reasons only came to the attention of the Claimant’s partner on 24.06.2024, and seeks to put the Claimant to proof of that. Whilst I can understand the Respondent taking that position, it strikes me as likely to be true. At the hearing, I found the Claimant to be an honest witness, and I have no reason to think his partner is anything other than honest in the representations that she makes. I also note that the Claimant’s partner frankly admits that the judgment and reasons were sent to her by the Claimant’s former solicitor on 20.06.2024. 28. The Respondent also does not admit that the Claimant’s solicitors ceased to act for him. There is, on the file, an email dated 04.06.2024, in which the Claimant’s former solicitor advised the Tribunal that her firm was no longer acting for him. She asked that any communications should be sent directly to the Claimant, copying in his partner. 29. Despite that, the judgment and reasons were sent to her, rather than the Claimant and his partner, on 20.06.2024. For this error, I apologise, and thank Ms Pring for forwarding them to the Claimant and his partner. 30. The letter accompanying the judgment and reasons is clearly dated 20.06.2024. It also clearly states that the time limit for seeking reconsideration is “14 days (in bold) from the date the judgment is sent” or “14 days (again in bold) from the date the separate reasons are sent if you ask for them”. The Claimant and his partner would have been aware, from these documents, that the date on which the judgment and reasons were sent out was 20.06.2024, and that the 14 day period for seeking reconsideration ran from that date. 31. The email sending in the request for reconsideration shows it to have been sent on 08.07.2024 at 11:49pm. I therefore proceed on the basis that the representations were sent in on that date, not on 07.07.2024 as the Claimant’s partner has contended. 32. The Respondent’s representations focus, in large part, on the question of when the judgment and reasons were received by the Claimant. Indeed, the Respondent said in terms that; If … the Tribunal were notified of the need to contact the Claimant or his partner directly, rather than via Barcan Kilby, then it may be that the judgment was not sent to the Claimant until 24 June (or such other time as the Tribunal’s records disclose). But for the application of ET Rule 91 (for which, see below), time for the purpose of ET Rule 71 would not start running until that date. Decision on time 33. I do not agree. I do not consider the Respondent’s representations on when the judgment and reasons actually came to the attention of the Claimant, or his partner, to be germane to the question of whether there has been compliance with r71. 34. The wording of r71 establishes a time limit which starts with the date on which the judgment and reasons were sent to the parties, not when they are received by the parties. It may well be that, in an appropriate case, the date when they are received is highly relevant to the question of whether the Tribunal should exercise its discretion to extend the time limit, but it does not go to the question of whether the time limit needs to be extended. 35. On application of r71 to the facts of this case, the time limit for seeking reconsideration of the original decision started on 20.06.2024. Therefore, whether or not the application was sent on 08.07.2024 (as I think more probable) or on 07.07.2024, it was out of time. 36. I therefore do not think it is necessary to consider r91, in order to determine whether there has been compliance with r71. However, I do consider the Respondent’s submissions on r91, as they appear to me to be relevant to the exercise of my discretion. Discretion 37. The Claimant chose to make no representations as to either the existance of a discretion to extend time, or how I should exercise any such discretion. 38. It seems to me that r5, referred to above, does provide for a discretion to extent the time period. The Respondent, as already noted, recognises that such discretion exists. It seems to me that that discretion is one that I should exercise in accordance with the overriding objective provided for by r2. 39. The Respondent has made the following observations; (a) It is accepted that the judgment and reasons were sent to the Claimant by his former solicitor on 20.06.2024; (b) It submits that the judgment and reasons had in fact come to the attention of the Claimant on that date; (c) A requirement that a document come to the attention of the parties is, it submits, not the same as a requirement that the party in fact see it; (d) It would be appropriate, if necessary, to shorten the time period in the event that I found that the judgment and reasons were delivered on 24.06.2024, because, i) the documents having been sent to the Claimant’s former solicitor, and forwarded to the Claimant on 20.06.2024, that would treat the Claimant and the Respondent equally; ii) 14 days from 20.06.2024 would still give the Claimant a significant time period in which to apply for reconsideration; iii) In any event, the Claimant and his partner put compliance in jeopardy by waiting until late on 08.07.2024 to make the application; iv) To treat the time period as starting on 24.06.2024 would grant the Claimant a ‘procedural windfall’ and would be inconsistent with the avoidance of delay; (the above points are made not expressly with reference to discretion, but seem to me to be relevant to it) v) There is a final hearing listed to start on 02.09.2024. If I extend time, and then permit a substantive reconsideration beyond the r72(1) exercise, the scope of the final hering will be unclear in the weeks leading up to it; vi) No reason has been given for the delay in presenting the application for reconsideration after 20.06.2024; Decision on discretion 40. I approach this exercise on the basis that the Claimant and his partner did not, in fact, read the judgment and reasons, or the letter accompanying them, until 24.06.2024. Although I do not accept the Claimant’s partner’s assertion that she sent in the application for reconsideration on 07.07.2024, it seems to me that little turns on whether the judgment and reasons were read on 24.06.2024, or 4 days earlier. 41. Little turns on that for the following reasons: from, at the latest, 24.06.2024, the Claimant and his partner knew that the judgment and reasons had been sent out on 20.06.2024, knew that the time period for seeking reconsideration ran from that date, and knew that the time period for seeking reconsideration was 14 days. 42. They were not left with a decision that needed to be made in a hurry. They still had the larger part of the time period provided for by r71 in which to decide whether or not to seek reconsideration. Despite knowing full well about that time limit, it was not complied with. 43. I have referred to the overriding objective provided for by r2 above. Considering the factors expressly identified in r2; (a) I do not consider that an extension of time is necessary to put the parties on an equal footing. The Claimant was represented – indeed, ably represented - at the preliminary hearing before me. He and his partner were aware of the judgment and written reasons, and the time limit for seeking reconsideration, well before that time limit ended. To extend time would be to deviate from ensuring the parties are on an equal footing; (b) I think that an extension of time would not be proportionate to the complexity and importance of the issues. The issues are obviously important to the parties – and I do not think it is unrealistic of me to think they are probably more important to the Claimant, an individual, than to the Respondent. But the issues had a day-long preliminary hearing, and the remaining issues have a final hearing a short time into the future. I am mindful that the final hearing may be jeopardised if an extension of time is allowed. I do not think it would be proportionate to extend time, where there is, I consider, no good reason why the request for reconsideration was not made in time; (c) Avoiding unnecessary formality and seeking flexibility in the proceedings – I do not consider that an extension of time is required in order to avoid unnecessary formality. Not all formality is unnecessary, and compliance with the rules is not unnecessary formality. The rules are to be complied with, and there is no good reason why the timescale was not complied with in this case; (d) Avoiding delay insofar as is compatible with proper consideration of the issues, to my mind clearly points, in this case, to refusing an extension of time. The issues in the preliminary hearing were properly consdiered, with both parties being represented; (e) Saving expense: if an extension of time were granted, and the r71(1) exercise concluded in the Claimant’s favour, it is inevitable that expense would result, as representations on the substance of the application and on whether an oral hearing is required, would be needed. That expense does not weigh particularly heavily in my consideration, as it would have happened had the application for reconsideration been made in time. But to allow the extension of time would not save expense. Rule 71(1) 44. In case the Claimant wishes to contend that I am wrong to refuse an extension of time, I will consider the r72(1) exercise. 45. As r70 provides, the only ground for reconsidering a judgmnent is where it is necessary in the interests of justice 46. The Claimant’s first point is that he was not told of the hearing, or that he would be cross-examined, until 24hrs before the hearing. The Claimant’s partner, who prepared the submissions seeking reconsideration on his behalf, says that they intend to cast no aspersions on either the solicitor who acted for him, or counsel who appeared before him. But the effect of the late notice was that if was difficult for him to five evidence. She says that, had he been given more notice, and more information about the proceedings, he would have been a better-informed and stronger witness. 47. I am mindful that giving evidence before a Tribunal is likely to prove stressful to someone unused to doing so, such as the Claimant. No complaint is made that the Tribunal was unwelcoming to the Claimant, and the Claimant’s submissions acknowledge that I found him to be an honest witness. A generalised complaint that he did not give his answers as fully as he might, had he had more time to prepare, does not cause me to think that there is a reasonable prospect of the decision being varied or revoked. 48. The Claimant’s second point refers, perhaps a little confusingly, to “points 55 and 55 of the judgement”. I take this to be intended to mean paragraphs 55 and 56 of the reasons I gave following the preliminary hearing. I will not set out those reasons again here. 49. The Claimant’s submission says that: The Claimant had previously understood HMRC’s policy to be that dismissal was likely if an employee had been off sick for 12months or more. However,after the global pandemic of Covid 19, during which a number of special leave-related policies were enacted by HMRC, the Claimant did think it possible that a case such as his may not result in dismissal. 50. I do not see that this submission takes matters further. In my reasons given after the preliminary hearing, I set out that the Claimant was told in October 2022 that it had been decided to recommend his dismissal, he was advised that he was being dismissed in December 2022, his effective date of termination was 16.02.2023, but he did not present his claim until 10.07.2023. I found that the Claimant had taken an unreasonably optimistic approach to the position in which he found himself. 51. The Respondent’s second point does nothing to make me conclude that there is any reasonable prospect of my conclusion that it was reasonably practicable for the Claimant to have presented his claim for unfair dismissal in time, being varied or revoked. 52. The Claimant’s 3rd point is headed “Optimism, Attending the hearing at short notice and ill-health”. The submissions reads, in part, as follows: …During the exchange about his reasons for not researching the ACAS deadlines, it was pu tto the Claimant that as he was well enough to attend the October meeting with the Respondent, it was unreasonable that he was not also able to investigate ACAS processes. In fact, the Claimant was extremely unwell during that period. He was not well enough to attend the meeting with the Respondent in October 2022 in person, so conducted it by telephone. Nor was he well enough to attend the meeting in December 2022. The purpose of this second meeting was for the Claimant to put his case forward for being allowed to keep his job. He fully understood its importance, but was so unwell, he accepted the Respondent’s offer of the option of him sending a written submission, rather than attending the meeting. During late 2022 the Claimant was still very unwell with Long Covid (in addition to his other health conditions and the stresses he was experiencing). The effects of this illness are now welldocumented: brain fog, extreme fatigue and respiratory difficulties, to name but a few. With more time to prepare for the hearing on 23 May, he could have explained this point. 53. Counsel for the Claimant referred to the Claimant’s ill health before me. Rather than identifying a new point of relevance, or seeking to correct a mistake of fact or law I may have made, it seems to me that the Claimant’s submissions here seek to re-argue points I heard and on which I have made a determination. Again, there is nothing here that causes me to conclude that there is any reasonable prospect of my conclusion that it was reasonably practicable for the Claimant to have presented his claim for unfair dismissal in time, being varied or revoked. 54. The fourth point is headed, “Unreasonable optimism,or the Claimant’s trust in his employer(the Respondent), meaning thathe did not necessarily anticipate needing to appeal against the Respondent, even if he were dismissed?” The submissions start off by saying: The Claimant does not dispute that the Respondent made it clear to him that his dismissal was a very real possibility. He does not, however, accept that, faced with the prospect of dismissal, he should have immediately taken steps to gain knowledge of ACAS / appeal processes. Would a dismissal definitely have necessitated him getting ACAS involved?Is that a given, set in stone for all dismissal cases? We say that it is not… … We also ask that any reconsideration would note the Respondent’s confusing communication and timings during this period. Point 23 of the judgement states that:“Looking at matters now, it is fairly clear that the Claimant was confusing the appeal against the decision to dismiss him, with an appeal against the compensation award”. If he was confused on this point –though we do not accept unequivocally that he was -no one from the Respondent’s side checked this or clarified it with him. 55. There are two points here, which must be considered separately. 56. The first point – that just because it was made clear to the Claimant that dismissal was a real possibility, that does not mean that he should have taken steps to familiarise himself with the ACAS early conciliation procedure. 57. The submission that ACAS’s involvement was not a given – in the event that his wished to bring a claim for unfair dismissal – is at odds with what was argued by counsel before me. His submissions included – correctly – that the Claimant could not have presented a claim for unfair dismissal, without an ACAS certificate7. The Claimant’s submissions seeking reconsideration do not explain why he now appears to contend that counsel’s submission below was wrong. 58. It seems to me that the first of the points made in point 4 of the Claimant’s submissions would only have force if the Claimant had attempted to present a claim without an ACAS certificate, and delay were caused by that and by the time taken to obtain the certificate. But that is not the case. 59. Given the findings I made - that the Claimant knew of the existence of this Tribunal, that he knew that he was at risk of being dismissed in October 2022, at which time he had the assistance of a trade union representative, that he took legal advice a week or two before he contacted ACAS, which was on 22.06.2023 – I see nothing here that causes me to believe that there is any reasonable prospect of my conclusion that it was reasonably practicable for the Claimant to have presented his claim for unfair dismissal in time, being varied or revoked. 60. The second point in Claimant’s point 4 – about the Respondent’s confusing communication – ignores that it was clear to the Claimant that he was being dismissed. It does not address my finding that for the Claimant not to have discusssed the possibilities with his trade union representative, when he had acccess to one and knew that dismissal was on the cards, was not reasonable. 7 See para 14 of counsel’s skeleton argument.

[61]The Claimant’s final point is headed “The tribunal made a mistake in the way it reached its decision (ET page www.gov.uk)”. The submissions relate to a delay in the agreed bundle finding its way to me.

[62]This point does not identify any reason why it might be said that it is necessary, in the interests of justice, to reconsider the original decision. It says nothing that causes me to believe that there is any reasonable prospect of the original decision being varied or revoked.

[63]Accordingly I refuse the application for reconsideration, because it is made outside the time period provided for by Rule 70. If I were wrong on that, I would refuse the application pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked.