Mrs Gemma Warren v City of York Council and Governing Body of Joseph Rowntree School: 1800325/2019
EMPLOYMENT TRIBUNALS
Case No 1800325/2019
Between
Mrs Gemma WarrenClaimant(1) City of York CouncilRespondent
Before
Employment Judge R S DrakeDate 4 June 2019
REASONS
[1]I noted that this hearing was listed to consider a preliminary issue as to jurisdiction as specified by REJ Robertson in his Order dated 5 March 2019. The claim relates to an alleged protected disclosure for the purposes of Section 47B Employment Rights Act 1996 as amended (“ERA”). The Respondents assert that the claim was issued outside of the time limit specified by Section 48(3)(a) ERA (the “Primary Period”) for issuing such claims based on common ground that the last event complained of was dismissal., and that the Claimant cannot show it was not reasonably practicable to issue within the Primary Period as defined 1 of 6 by S48(3)(b) ERA and nor that she issued within a time the Tribunal could find reasonable thereafter.[2]After hearing unsworn and only oral (not written statement) evidence from the Claimant and oral submissions from both sides, I gave my decision but reserved full reasons to this written version of the Judgement and Reasons which takes precedence over the oral version.[3]I have concluded that I do not find that the Claimant’s arguments are sufficiently persuasive to discharge the onus upon her as set out by the law outlined below, but that indeed the Respondent’s arguments in response are more than persuasive and are compelling to the extent that I find myself bound by the Court of Appeal’s decision in Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 Facts[4]I find the following: - a The Claimant was dismissed on 21 September 2018 from which date time started running and was only interrupted on 19 November 2018 by her submission to ACAS for consideration of Early Conciliation; b The Early Conciliation process ended on 19 December 2018 from which date the limitation period for issuing proceedings started running again and expired thus on 19 January 2019 – the claim was presented to the Tribunal on 23 January 2019 and was thus clearly four days out of time; c The Claimant was taking advice throughout both before termination of her employment and the full period thereafter unto today by Unison her Union. d She had been thus taking advice from well before the date she issued her claim, so she cannot establish ignorance of her rights or the time limits for exercising those rights; e She says he was suffering from emotional stress which is understandable but experienced by virtually all litigants even those who are fully represented. She was not suffering at any time from any physical or mental impairment of disability affecting her practical ability to make decisions and take action on her own behalf. Her Union advised her of time limits but accept that taking account of the Early Conciliation process they now accept that they were in error despite trying to contact her on or about 19 January 2019 to advise her to issue promptly; f The Claimant didn’t produce any evidence from a Doctor to confirm her medical state or that the emotional state she suffered went so far as to make taking advice and taking proceedings difficult (let alone not reasonably practicable) in any way and indeed if anything the opposite is clear from here own evidence since she did take advice; g The Claimant contacted ACAS on 19 November 2018 (prior to expiry of the Primary Limitation Period prescribed by Section 48(3)(a) ERA) receiving certification of completion of submission to Early Conciliation dated 19 December 2018 but only lodged her claim in this Tribunal on 23 January 2019; the Claimant’s claim was lodged just four outside of the extended Primary Limitation Period; 2 of 6 e The Claimant sought to argue that she was advised by her Union on 22 January 2019 that the time for issuing expired a full two weeks thereafter, thus in effect that time had started running but this time from afresh which I cannot find to be advice likely to have been given as there is no evidence to support so erroneous and advice to support the Claimants assertion – I find she was mistaken about the advice he received; f No satisfactory explanation was advanced by the Claimant as to why she didn’t issue for a full further two months other than he thought he had three months to do so and in what way they were relevant; g The Claimant is a sophisticated intelligent person and he faced no physical or medical barriers (such as, non-exhaustively, hospitalised absence from normal life) to issuing his claim and certainly nothing put in his way imposed upon him by the Respondents so as to prevent him being able to take advice and act upon it within due time; h She does seek to argue she was misinformed as to time limits and compliance therewith or that may have been mistaken in this respect having been in receipt of advice throughout all relevant times; i If the claims proceeded, the Respondent would have to call many witnesses and require them to recall events and oral statements after a long passage of time in relation to the matters complained of, and would face greater difficulty in defending the Claimant’s testimony than the Claimant himself would face if the claims proceeded; j No explanation was given by the Claimant as to why it took him a further just less than two month time period after expiry to issue his claims sufficient to show such delay was not unreasonable.
The Law
[7]S.48 ERA 1996 provides as follows: (1A) An employee may present a complaint to an Employment Tribunal that he/she has been subjected to a detriment in contravention of section 47B (protected disclosure) (2) An Employment Tribunal shall not (my emphasis) consider a complaint under this section unless it is presented—(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. Section 207B ERA dealing with extension of time periods to facilitate conciliation before issuing proceedings provides that:- 3 of 6 (3) In working when a time limit set by a relevant provision expires the period beginning with Day A (when conciliation is sought) and ends with Day B (when ACAS certifies completion of this process) such period is not to be counted – (4) if a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending with Day B, the time limit expires instead at the end of that period “ The Claimant seeks to argue on application of the findings in Luton BC v Haque [2017] EAT/0180/2017, but I find that case is distinguishable for the reasons set out below.[8]The burden of proving that it was not reasonably practicable to present a claim in time is an high threshold and rests firmly on the Claimant Porter v Bandridge Ltd [1978] ICR 943).[9]In Palmer v Southend BC [1984] ICR 472 the Court of Appeal held that “reasonably practicable” does not mean reasonable, and does not mean physically possible, but means something like “reasonably feasible” . This is later elaborated by the EAT in Asda Stores Plc v Kauser [2007] EAT 0165/07 by saying “the relevant 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”[10]I accept that it is trite law that where a Claimant is misadvised on limitation by a skilled advisor, the Claimant will be fixed with his advisor’s default. As Lord Denning expressed in Dedman v British Building and Engineering Appliances Ltd [ 1974] ICR 53 at para 18, authoritatively approved most recently as a proposition of law by Lord Phillips MR in Marks & Spencer Plc v Williams-Ryan [2005] ICR1293 (with emphasis added): “ … What is the position if he goes to skilled advisers and they make a mistake? The English Court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It was held that it was ‘practicable’ for it to have been posted in time. He was not entitled to the benefit of the escape clause. [See Hammond v Haigh Castle & Co Ltd [1973] IRLR 91]. I think that was right. If a man engages skilled advisers to act for or advise him – and they mistake the time limit and it is presented too late – he is out. His remedy is against them … ”[11]I am aware of the following paragraph from Williams-Ryan, where at Paragraph 47, Lord Justice Keene said (again emphasis added) referring to the CAB but which I infer could just as appropriately be said of Unison in the present case: “ … I would emphasise the importance of recognising that this is not a case … where the employee received advice from the CAB to await the outcome of the internal appeal procedures before making a complaint to an Employment Tribunal. The Employment Tribunal, in its Extended Reasons, records that in the short telephone conversation Ms Williams-Ryan had with someone at the CAB, there was, so far as she could remember, no discussion about taking a complaint to an Employment Tribunal. Nor does one know what questions the CAB staff member was asked during the course of that conversation. This, therefore, is not one of those cases where an employee has been wrongly advised by a skilled adviser, nor one where it seems likely that the employee had a remedy against that adviser”. 4 of 6[12]By contrast, Claimant in the present case was advised at a relevant time, i.e. on 9 August 2018. Williams-Ryan does not therefore support the Claimant’s arguments that it was not reasonably practicable to advance his claim in time. If the Claimant was wrongly advised by ACAS, then his claim rests there in the words of Denning MR in Dedman.
Conclusions
[13]The Effective Date of termination of employment and thus the starting point for the running of time for the purposes of Section 48(3) was 21 September 2018. This is common ground for both parties. The Primary Time Limit expired 20 December 2018 but in this case was extended by Early Conciliation sought via ACAS commencing on 19 November 2018 and ending on 19 December 2018 (outside the period bounded by commencement and conclusion of the Early Conciliation Period) thus causing the expiry date of the Primary Period to extend to 19 January 2019. The Haque case is distinguishable in that in Haque the Primary period expired within the Early Conciliation period, the dates defined in S2017B(3) and (4) as Days A and B, but in the present case it expired after, so that period doesn’t count in the calculation of the running of time.[14]Further, I find that an unexplained or at best an unsatisfactorily explained delay occurred after the 21 September 2018. All the Claimant can say is that she understood she was advised that he had three months from 21 September which would be extended by the Early Conciliation period. This was wrong (as it doesn’t count in this case on its facts for the purposes of Section 207(B) ERA. I do not find that this was indeed the advice she received but rather that she misunderstood it. I am supported in this finding in that she doesn’t say she was told a specific date for expiry of the Primary Period which I would have expected if ACAS had indeed advised that time had started running afresh. It cannot do so in Law.[15]There is no other explanation given by the Claimant and no change in circumstance which made ability to take action, advice and act for herself into an inability to do so such that it was not reasonably feasible to issue proceedings before 23 January 2019. Al she says is that she couldn’t act outside Union advice or seek legal advice other than through the Union, so she relied heavily on their skill and expertise. No evidence is available to show that a further delay of several days meant that issuing on 23 January 2019 was within a reasonable time after 19 January 2019. 14. The Claimant’s claim is clearly out of time, about which there can be no argument at all. Her case today, notably absent sworn evidence, does not sufficiently explain why and doesn’t go anywhere near establishing it was not reasonably practice able to issue in time. It is clear from the authorities referred to in all the relevant submissions before me that her error of judgment as to time limits was no more than that, despite access to a skilled adviser, and is insufficient to show that it was not reasonably practicable for her to have brought her claims in time. 15. The case of Willams-Ryan supports the Respondents’ arguments today: that the Claimant had a skilled adviser and that it was therefore reasonably practicable for her to lodge her claim in time. Though the Claimant in Williams-Ryan (where she had CAB advisors) succeeded, the facts in that case are clearly distinguishable from the present case (Unison). In any event I am still bound by Dedman on ordinary principles of the law of precedent.[16]The Claimant’s undoubted domestic distress causing a diversion of attention from the time limits is not supported by evidence and is therefore also insufficient to render possible to find that it was not reasonably practicable for her to have lodged his claim in time. She is further handicapped in this respect by an absence of cogent medical evidence. 5 of 6[17]I judge the balance of prejudice to favour the Respondents as is clear from my factual finding above.[18]The Claimant faces the burden of proof and she must(1) prove to the Tribunal that it was not reasonably practicable for her to have brought her claim in time; and(2) persuade the Tribunal that there are exceptional reasons justifying the extension of the time limit for bringing the claims. I find there is no valid basis for the Tribunal to accede to any of these applications for the reasons given above having taken all evidence and submissions into account.[19]The claim is time-barred and is therefore struck out for want of jurisdiction.