Mr P C Dey v Biplobs Restaurant: 1405038/2020
JUDGMENT
The judgement of the Tribunal is that the Claimant’s claim was issued outside the statutory time limit for such claims under s. 111 of the Employment Rights Act 1996 and it was reasonably practicable for it to have been issued in time and it is therefore dismissed.REASONS
[1]This matter was listed for a preliminary hearing to determine the following issues: 1.1. Whether or not the claim was presented within the statutory limit prescribed by Section 111 of the Employment Rights ACT 1996; and 1.2. If it were whether the claim should be struck out as having no reasonable prospect of success; and 1.3. If the Respondent’s amended response should be accepted.[2]The hearing was held remotely by Video on the Video Hearing Service with the consent of the parties. I heard evidence from the claimant with the assistance of an interpreter, had written submission from the parties and was referred to documentation during the hearing contained in the paginated bundle (97 pages).[3]As I have concluded that the claim is out of time, it has not been necessary to consider whether to accept the Respondent’s amended response or whether the Respondent’s strike out application should succeed.[4]The claimant relies on the following factors to explain the delay in issuing proceedings:4.1 the impact of the pandemic;4.2 he has type 2 diabetes and was required to shield;4.3 he was unable to obtain legal advice;4.4 he only felt well enough to lodge a claim in September;4.5 losing his job impacted on his mental health.Findings of Fact
[5]I find the following relevant facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to any factual and legal submissions made by and on behalf of the respective parties.[6]The claimant was dismissed from his employment at Biplob’s restaurant on 28 February 2020 when he failed to return to work after an agreed period of leave.[7]The claimant returned to the UK from Bangladesh in or around end of February/beginning of March 2020.[8]A national lockdown due to the COVID-19 pandemic was announced on 23 March 2020 and implemented from 26 March 2020.[9]Although I was not provided with any medical evidence, I find that the claimant suffers from Type 2 diabetes and although he was not advised to shield, he did receive medical advice to be careful. The claimant was also distressed at the loss of his job and by the pandemic generally and this impacted to some extent on his mental health. I find that during this initial lockdown period the claimant was not in a materially different position from anyone else as no-one was able to leave their homes other than for permitted exceptions. No medical evidence was provided that his health was impacted to the extent that he could not submit a claim.[10]The claimant has access to the internet and although he is not an expert, family members are available to assist him and he does have a smartphone.[11]The claimant did not make any attempt to telephone a solicitor or to establish if he potentially had a claim and if so how this could be brought.[12]I find that there was no medical or other reason that prevented him from making reasonable efforts to establish if he had a claim and what the time limits were for bringing that claim.[13]The claimant’s effective date of termination of employment was 28 February 2020. The three month time limit therefore expired at midnight on 27 May 2020.[14]The claimant provided no documentary evidence of relevant dates and struggled in his oral evidence to provide consistent evidence but was clear and I accept that he was first advised that he might have a claim when he visited his doctor. I find that this occurred in or around June 2020 and as stated by the claimant in his evidence I further find that at this point he became aware that a three month time limit applied to bring a claim.[15]Lockdown restrictions lifted (in part) in June 2020.[16]The claimant was unclear when he approached a solicitor, but after a brief adjournment the claimant’s solicitor, Ms Burke, and Mr Parkin of Counsel were able to confirm that the claimant first approached the solicitors representing him on 1 August 2020, The claimant was advised that he could approach the Citizens Advice Bureau or instruct solicitors to proceed with the claim and he instructed them on 14 August 2020. A letter before action was sent to the respondent on 28 August 2020 to which no response was received. ACAS were contacted on 22 September 2020 and a conciliation certificate was issued the same day and proceedings were issued on 23 September 2020.[17]Having established the above facts, I now apply the law.The Law
[18]Section 111(2) of the Employment Rights Act 1996 (“the Act”) provides that an employment tribunal shall not consider a complaint of unfair dismissal unless it is presented 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 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.[19]A prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings and Section111(2A) provides for an extension if a time limit would apply during or after early conciliation.[20]I have been referred to and have considered the following cases, namely: Palmer and Saunders v Southend-on-Sea BC [1984] ICR 372; Porter v Bandridge Ltd [1978] IRLR 271 CA; Wall’s Meat Co v Khan [1978] IRLR 499; London Underground Ltd v Noel [1999] IRLR 621; Dedman v British Building and Engineering Appliances [1974] 1 All ER 520; Cullinane v Balfour Beattie Engineering Services Ltd UKEAT/0537/10; Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT; Bodha v Hampshire Area Health Authority [1 ICR. Schultz v Esso Petroleum Ltd [1999] IRLR 488; Benton v Give 2 Give ET 2302156/2017; Miller v Community Links Trust Limited (UK EAT/0486/07); Norbert Dentressangle Limited v Mr Hutton 2013 (Scottish EAT); John Lewis Partnership v Charman UKEAT/0079/11/Z; Marks and Spencer plc v William-Ryan and Remploy v Brain (UKEAT/0465/10).[21]Where a claim is presented outside the period of three months it is necessary to ask firstly whether it was not reasonably practicable to present the claim in time and, only if it was not, go on to consider whether it was presented in a reasonable time thereafter. The two questions should not be conflated. There is no general discretion to extend time and the burden of proof is on the claimant to establish that both parts of the test are satisfied (Benton and Miller).[22]The question of whether or not it was reasonably practicable for the claimant to have presented his claim in time is to be considered having regard to the following authorities. In Wall’s Meat Co v Khan Lord Denning, (quoting himself in Dedman v British Building and Engineering Appliances) stated "it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?" The burden of proof is on the claimant, see Porter v Bandridge Ltd. In addition, the Tribunal must have regard to the entire period of the time limit (Elbeltagi).[23]In Palmer and Saunders v Southend-on-Sea BC the headnote suggests: "As the authorities also make clear, the answer to that question is pre-eminently an issue of fact for the Industrial Tribunal taking all the circumstances of the given case into account, and it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, in determining whether or not it was reasonably practicable to present the complaint in time, an Industrial Tribunal may wish to consider the substantial cause of the employee’s failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Tribunal to investigate whether, at the time of dismissal, and if not when thereafter, the employee knew that he had the right to complain of unfair dismissal; in some cases the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom; the extent of the advisor’s knowledge of the facts of the employee's case; and of the nature of any advice which they may have given him. It will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there was any substantial failure on the part of the employee or his adviser which led to the failure to comply with the time limit. The Industrial Tribunal may also wish to consider the manner in which and the reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery had been used.[24]To this end the Tribunal should consider:(1) the substantial cause of the claimant's failure to comply with the time limit;(2) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;(3) whether, and if so when, the claimant knew of his rights;(4) whether the employer had misrepresented any relevant matter to the employee; and(5) whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[25]In addition, in Palmer and Saunders v Southend-on-Sea BC, and following its general review of the authorities, the Court of Appeal (per May LJ) concluded that "reasonably practicable" does not mean reasonable (which would be too favourable to employees) and does not mean physically possible (which would be too favourable to employers) but means something like "reasonably feasible". See also Schultz v Esso Petroleum Ltd.[26]Subsequently in London Underground Ltd v Noel, Judge LJ stated at paragraph 24 "The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, "in all the circumstances", nor when it is "just and reasonable", nor even where the Tribunal "considers that there is a good reason" for doing so. As Browne Wilkinson J (as he then was) observed: "The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done" (Bodha v Hampshire Area Health Authority [1982] ICR 200 at p 204).[27]Underhill P as he then was considered the period after the expiry of the primary time limit in Cullinane v Balfour Beattie Engineering Services Ltd (in the context of the time limit under section 139 of the Trade Union & Labour Relations (Consolidation) Act 1992, which is the same test as in section 111 of the Act) at paragraph 16: “The question at “stage 2” is what period - that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.[28]I have been referred in written submissions made on behalf of the claimant to the cases of John Lewis Partnership v Charman, Marks and Spencer plc v William-Ryan and Remploy v Brain in support of the contention that the claimant could not comply with time limits of which he was not aware. However, each of these cases dealt with materially different circumstances where internal appeal processes were being followed. I prefer the reasoning of Scarman LJ in Dedman, “Does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion no. It would be necessary to pay regards to his circumstances and the course of events, what were his opportunities for finding out that he had rights? Did he take them?”[29]I have also been referred to the case of Norbert Dentressangle Limited v Mr Hutton. In this case the claim was allowed out of time on the basis that the claimant was completely incapacitated. However, the claimant has not submitted any evidence that he did not have capacity to submit a claim so the situation in this case is materially different.Conclusions
[30]The grounds referred to by the claimant in his evidence for suggesting that it was not reasonably practicable to have issued proceedings within the relevant time limit are that the pandemic made it not practical given the stress caused by losing his job and his diabetes, that he could not take legal advice and fact that he is not an expert on the internet. Although asked on a number of occasions to clarify further how this prevented him from bringing a claim within the three months’ time limit, or subsequently in the period from June until September, the Claimant did not provide any further explanation as to why these factors in the context of the pandemic meant it was not reasonably feasible for him to submit a claim. In particular I have found that he took no actions to establish what if any claim he could bring or how this could be done or the time limits for bringing a claim. The claimant submitted no medical evidence either in relation to his medical conditions or specifically to confirm that such medical conditions prevented him from issuing proceedings and I have found that neither his diabetes nor his mental health precluded him from acting. I do not find that the pandemic in itself explains or justifies the claimant’s failure to make reasonable enquiries about pursuing a claim or the relevant time limits for doing so.[31]The claimant has not put before me evidence as to the substantial cause of his failure to comply with the time limit. I am satisfied that there was no physical impediment preventing him and he was not misled either by the respondent or by an advisor as he did not seek advice until after the three month limitation period had expired, I accept that he did not know a time limit did apply, but I conclude that it would have been reasonably feasible for him to establish this fact and likewise reasonably feasible for him to issue a claim within the three month time limit had he done so.[32]The claim is therefore out of time as it was not submitted within the period of three months of the termination of employment in circumstances where it was reasonably practicable to do so.[33]Although I do not need to consider the second stage of the test, were I to be wrong in relation to the first three months, I am also satisfied that the claim was not in any event submitted within a further reasonable period under section 111(2)(b) ERA given that the claimant was advised he had a claim in or around June 2020 and did not submit his claim until 23 September 2020. There was unreasonable delay between him understanding he had a claim in or around June 2020 and his approach to a solicitor on 1 August 2020 and further unreasonable delay in him instructing the solicitor on 14 August 2020.[34]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 5 to 17; a concise identification of the relevant law is at paragraphs 18 to 29; how that law has been applied to those findings in order to decide the issues is at paragraphs 30 to 33.