Mr M Hastings v Hotel Du Vin Ltd: 1800224/2021
JUDGMENT
[1]The Claim of unfair dismissal was presented outside the period required by section 111 of the Employment Rights Act 1996 and the Employment Tribunal does not have jurisdiction to hear the claim.[2]Accordingly, the claim of unfair dismissal is dismissed.REASONS
JUDGMENT having been sent to the parties on 21 May 2021 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:[1]On 14 May 2021, the Tribunal dismissed the Claimant’s claim of unfair dismissal. Reasons for that decision were provided orally at the conclusion of the hearing. The Claimant has made written request for the detailed reasons decision. These reasons are provided pursuant that request.The Claim
[2]The Claimant was formerly employed by the Respondent. The Respondent terminated the relationship for reasons of alleged misconduct. The resultant claim form was lodged with the Tribunal on 11 January 2021.[3]Section 111 of the Employment Rights Act 1996 provides that the Employment Tribunal shall not entertain a claim of unfair dismissal unless the claim is 1 of 4 presented not later than three months following the effective date of termination of the employment relationship. The provision must now be read as being subject to extension as a result of the ACAS conciliation and certification procedure.[4]It is the Respondent's position that the Claimant was dismissed with effect of 4 October 2020 on grounds of gross misconduct. It is said that whilst there was an appeal hearing held on 23 October 2020, the effective date of termination was and remained 4 October 2020; with the result that the limitation period - that is to say the three-month period in which the claim was required to be lodged with the Tribunal - expired on 3 January 2021. The Issue[5]Accordingly, by paragraph 4 of its Response, the Respondent raised the issue of whether the claim had been lodged in time. A hearing was convened for determination of this jurisdictional question. Insofar as the Tribunal is minded to exercise its discretion to receive and determine the claim, it was the intention that it would hereafter make case management directions for the consolidation of this claim with claims advanced by two of Mr Hastings former colleagues: Mr Marshall and Mr Hollowed.[6]There is no dispute that the Claimant has been made aware of the nature of the issue and the fact it would be subject of determination during today’s hearing.[7]In relation to the timing of the Claim, Mr Hastings himself has provided an explanation by email of 11 April 2021. It includes the suggestion that it was his intention that his claim would be filed together with the claims of his colleagues as a joint claim. Evidence[8]In order to resolve the preliminary issue, the Claimant was invited to give evidence and did so. He was questioned by the Tribunal and by Mr Keogh on behalf of the Respondent.[9]Those questions were raised in order that the Tribunal might understand the matters which prompted the filing of his claim, the Claimant’s understanding at the time of contacting ACAS and his own personal circumstances in the period between 4 October 2020 and the date the claim was received by the Tribunal.Findings
[10]Upon the balance of probabilities, the Tribunal has, having considered the evidence, reached the following conclusions:10.1 The Claimant was employed by the Respondent as a maintenance manager. There is no dispute that the terms of employment are contained within the document at page 40 of the bundle. That document has been signed and dated by the Claimant; 2 of 410.2 The contract makes express provision for the right of the company to dismiss by way of summary dismissal (i.e. without notice). The Claimant confirmed he was familiar with the concept of summary dismissal as a decision on the part of an employer to terminate the employment relationship with immediate effect;10.3 There is nothing within the document to indicate -as may be found elsewhere - that the contract of employment would, in the event of dismissal, be continued pending determination of any appeal;10.4 The Claimant was dismissed on 4 October 2020 and exercised his right of appeal. This culminated in an appeal hearing on 23 October 2020. An appeal outcome letter was produced and transmitted to the claimant on 30 October 2020. The P45 issued to the claimant (page 57 of the bundle) includes the date of 4 October 2020 as the last day of employment or leaving date;10.5 The question therefore arises as to why it was that the claimant presented his claim when he did and the circumstances which prompted him to do so? The Claimant stated in evidence that he gave primary focus to his search for employment in the period October 2022 January 2021. Within the course of the email lodged with the Tribunal, the Claimant alluded to the stresses of being dismissed and in particular the stress of seeking alternative employment following a dismissal. However, he candidly disclosed that whatever else may be said there was no medical condition operating upon him of sufficient seriousness as to require his attendance upon, or consultation with, his general practitioner or for that matter the prescribing of medication. In short, there was no medical reason which impeded the lodging of his claim or accessing advice in relation to it;10.6 During the early part of November 2020, the Claimant had formed the view that he would, together with his colleagues Mr Marshall and Mr Hollowed, pursue claims before the Tribunal. There was discussion between them on this issue. However, at that time the Claimant was in total ignorance of either the need to consult with ACAS or for that matter the need to lodge a claim with the Tribunal within any timeframe. The term “total ignorance” is used without conveying any disrespect to the Claimant. Many claimants are unaware of the time limits in which to bring claims of this kind. There are however multiple means by which information can be sought out (e.g. particularly by means of recourse to web-based searches and enquiries);10.7 The claimant's position is that he first became aware of the three-month issue as a result of his conversations with ACAS during January 2021. There is no evidence to support the suggestion that he considered time would begin to run from the appeal outcome letter. The Tribunal is unable to accept that explanation and does not do so; and10.8 The only reason for the failure to lodge the claim in time was ignorance of the relevant period. The Claimant was unaware of any obligation to do so. 3 of 4 Reasonable Practicability and Discretion[11]As Mr Keogh has observed in the course of his submissions, section 111 of the Employment Rights Act 1996 is expressed in mandatory terms. It requires the Tribunal to act in a particular way (i.e. it prevents the Tribunal from receiving a claim and beyond the three-month limitation) unless the relevant statutory test is satisfied. That test is one of “reasonable practicability”.[12]Reasonable practicability is not the same as reasonable. It requires the identification of some form of impediment which rendered it not reasonably practicable for a Claimant to lodge the claim within the time allowed.[13]The Tribunal must take notice of the fact that it is open to prospective claimants to gain information from the Internet, to consult with colleagues and to contact ACAS and so on. There are other agencies including not-for-profit organisations who are prepared to give advice in respect of matters of this kind. The Claimant accepts that it did not occur to him to seek out any such advice or guidance. That is not, however, the same as being unable to do so.[14]As a result, the Tribunal cannot be satisfied that it was not reasonably practical for the Claimant to lodge the claim within the period required. In these circumstances, the Tribunal enjoys no discretion.[15]For these reasons including the reference to the case of Reed to which Mr Keogh referred, the Tribunal is obliged to conclude that the claim has been lodged out of time.[16]Accordingly, the claim of unfair dismissal is dismissed.[17]That is the only claim identified in the claim form. It thus brings an end to these proceedings.