Mr L Sutopo v A Mead and K Hawke Farming: 1404045/2022

EMPLOYMENT TRIBUNALS

Case No 1404045/2022

Between

Mr L SutopoClaimant

A Mead and K Hawke FarmingRespondent

Before

Employment Judge Murdoch

Ms R Chinnadurai (instructed by counsel) for respondent

Date 18 April 2023

JUDGMENT

The complaint of unfair dismissal under Part X Employment Rights Act 1996, breach of contract in relation to notice pay, unauthorised deductions in respect of holiday pay, and unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 were all brought out of time, time is not extended and the claims are dismissed for lack of jurisdiction.

REASONS

JUDGMENT having been sent to the parties 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:

Introduction

[1]This was a two-hour preliminary hearing to determine whether the claims were brought in time and, if not, whether the claimant was entitled to the benefit of an extension under any of the applicable statutory provisions. The claims were for unfair dismissal, notice pay, holiday pay and unpaid wages. The hearing and the request for written reasons

[2]The hearing was heard remotely. I took into account the oral evidence of the claimant, oral submissions of both parties, the hearing bundle, witness statements of the claimant and of Alistair Mead for the respondent (although I attached little weight to the latter given that the statement maker was not cross-examined), and the respondent’s skeleton argument (filed shortly before the hearing commenced), before I reached my decision. I promulgated my oral judgment with reasons at the end of the hearing, followed by a written judgment without reasons, which was dated 18 April 2023, and sent to the parties on 2 May 2023. The parties therefore had until the 16 May 2023 to request written reasons.

[3]The claimant requested written reasons on 18 May 2023, which is two days out of time. The claimant’s reasons for this were as follows: a) he submitted appeal documents on 16 May 2023, but was informed by tribunal staff that he needed written reasons first; b) he erroneously thought that the judgment he received on 2 May was written reasons; c) having realised his mistake, he then requested written reasons. Given the claimant’s reason, and that the delay is short, I have decided to extend the 14 day time limit to provide written reasons in accordance with my power to do so under Rule 5 of the Employment Tribunals Rules of Procedure 2013. Issues for the Tribunal to decide

[4]The parties agreed at the outset of the hearing that there were four substantive claims, all of which were set out in the ET1, as follows: a) Unfair dismissal by way of redundancy; b) Notice pay; c) Holiday pay; and d) Unpaid wages.

[5]The claimant ticked the box claiming redundancy pay on the claim form. The claimant did not tick the box claiming discrimination on the claim form, but he did tick the box seeking a recommendation. The claimant also made passing reference to allegations of harassment and whistleblowing. I specifically asked about these potential additional claims at the outset of the hearing. The claimant clarified that his claim was limited to the four claims set out above.

[6]The parties agreed that the key issue to be decided in the preliminary hearing was whether these claims were extendable by the ‘not reasonably practicable’ formula. The parties further agreed that the relevant date for the last act alleged (or, in other words, the date that the clock started ticking) was 29 July 2022 for all four of the claims.

Findings of fact

[7]The respondent is a family partnership, which was originally a pig farming entity but has since sold all of its stock, and is run by siblings Alistair Mead and Katherine Hawke. The claimant worked for the respondent in a general maintenance role and was initially employed by Alistair Mead and Katherine Hawkes’ father, D R Mead from 2009 through to D R Mead’s passing in 2017. Following this, the claimant’s employment was transferred to the respondent under the same terms and conditions and with continuity of service. This included the provision of accommodation on site, for which the parties had entered into a separate Assured Shorthold Tenancy (AST).

[8]Towards the end of 2021, the respondent assessed the needs of the business, which had changed since the passing of D R Mead. The respondent commenced a consultation process for redundancy in January 2022. There followed a series of meetings between the respondent and claimant, which culminated in a letter, dated 6 May 2022, setting out the respondent’s decision to terminate the claimant’s employment by reason of redundancy. The letter set out a 12-week notice period and the termination date of 29 July 2022. An appeal meeting took place on 14 June 2022. The respondent sent a letter to the claimant on 23 June 2022 confirming their decision to terminate the claimant’s employment by reason of redundancy. The claimant was paid his statutory redundancy payment on 1 August 2022.

[9]With regards to the AST, the claimant was first served notice to vacate the property on 8 May 2022. There were additional requests to vacate the property thereafter. The claimant did not vacate the property as requested. Under separate legal action, the claimant was ordered to vacate the property on 26 December 2022. The claimant vacated the property on 27 December 2022.

The law

[10]The relevant section of the Employment Rights Act 1996 (“ERA”) in relation to the unfair dismissal claim is section 111, which states:(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) …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.

[11]This ‘reasonably practicable’ test is effectively the same for the other claims.

[12]When a claimant attempts to excuse late presentation of a claim on the ground that it was not reasonably practicable to present the claim within the time limit, it is worth keeping in mind the following: a) There is a public interest in applying time limits strictly. They are there for a reason. b) Section 111(2)(b) ERA (and its equivalents in other applicable legislation) should be given a ‘liberal construction in favour of the employee’ (Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA). c) What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. d) The onus of proving that presentation in time was not reasonably practicable rests on the claimant. ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ (Porter v Bandridge Ltd

1978 ICR 943

, CA). Accordingly, if the claimant fails to argue that it was not reasonably practicable to present the claim in time, the tribunal will find that it was reasonably practicable (Sterling v United Learning Trust EAT 0439/14). e) The ‘reasonably practical’ test is ‘not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’ (Asda Stores Ltd v Kauser EAT 0165/07).

Conclusions

[13]It was not disputed that the claimant submitted his claim out of time by 35 days on the following basis: a) The date of termination of employment was 29 July 2022; b) The claimant commenced the early conciliation process with ACAS on 1 August 2022; c) The early conciliation certificate was issued on 3 August 2022; d) The deadline for submitting the claim to the employment tribunal was 30 October 2022; and e) The claim form was received by the employment tribunal on 4 December 2022.

[14]The claimant’s position was that it was not reasonably practicable to submit his claim form within the time limit because he was dealing with eviction proceedings. The claimant said that the ongoing eviction process had a material impact on his state of mind. He distinguished the facts of his case to other employment cases by way of the fact that the eviction proceedings were linked to his employment contract. He argued that he submitted his claim in a reasonable time thereafter because the eviction hearing took place on 27 November and the ET1 was submitted a week later. The claimant stated he did not have legal advice until after he submitted his ET1 in December and that he had previously relied on advice from friends.

[15]I accept that the employment tribunal claim and the eviction proceedings were very loosely related in the sense that the claimant’s accommodation was provided by his employer. However, the two sets of proceedings were clearly separate issues. The claimant should not have waited to see what happened in the eviction proceedings before deciding whether to commence an employment tribunal claim. The claimant had sufficient notice to vacate the property (he was first given notice under the AST on 8 May 2022) and he was lawfully evicted from the property some seven months later in December 2022. I accept that the claimant was stressed by his pending eviction, and that he preferred to focus on one legal claim, and then after that one had come to an end, turn his focus to another legal claim. But it was the claimant’s choice to wait until the eviction proceedings had been completed before switching his focus to his employment tribunal claim. While I understand and appreciate the difficulties faced by the claimant, it remained reasonably practicable for him to fill out an employment tribunal claim form whilst he was also dealing with separate eviction proceedings.

[16]Furthermore, I find that the claimant either knew, or ought to have known, about his right to complaint to the employment tribunal. The claimant referred in oral and written evidence to advice from representatives in correspondence as early as May 2022. He made contact with ACAS in August 2022 a few days after his contract of employment had been terminated. He had access to the internet. He was represented in separate legal proceedings at his eviction hearing by the Citizens Advice Bureau. I accept he did not instruct those representing him at the hearing until December 2022, after he submitted his claim form, but it does not follow that the claimant could not have researched the relevant deadlines or sought advice beforehand.

[17]In relation to other suggested mitigating factors, I accept that English was not the claimant’s first language. However, the claimant speaks English and has lived and worked in England for over 13 years, so this cannot be a reason in itself for failure to comply with timelines.

[18]I find that it was not only possible for the claimant to have submitted his claim within the three-month time limit, but on the facts of the case, it was also reasonable to have expected him to have done so.

[19]I find that the claimant failed to show that it was not reasonably practicable to present the claim in time. Even if I am wrong and it was not reasonably practical for the claimant to submit his ET1 by 30 October 2022, I note that the ET1 was not submitted until 4 December 2022. This period of delay is not insignificant. For the same reasons given above, I find that the delay of five weeks means that the ET1 was not submitted within a reasonable period.

[20]Accordingly, I find that the claims were submitted out of time, and the employment tribunal has no jurisdiction to hear this claim.

[21]These claims are therefore dismissed.