Miss C Collins v Rotherham Metropolitan Borough Council: 1803625/2021

EMPLOYMENT TRIBUNALS

Case No 1803625/2021

Between

Miss C CollinsClaimant

Rotherham Metropolitan Borough CouncilRespondent

Before

Employment Judge C H O’Rourke

Ms Goodman - counsel for claimant

Date 19 April 2022

JUDGMENT

The Claimant’s claims of unfair dismissal and automatic unfair dismissal and detriment in respect of a protected disclosure are dismissed, for want of jurisdiction.

REASONS

[1]The Claimant was employed by the Respondent as a social worker, until her dismissal, with immediate effect, on 16 November 2020. There is no dispute that the primary limitation period for presenting her claims expired on 15 February 2021. The Claimant entered into early conciliation with ACAS on 24 April and the certificate was issued on 3 June 2021. The claims were presented on 2 July 2021, so some four and half months out of time.

[2]This hearing was therefore listed to determine, as a preliminary issue, whether or not the Tribunal had jurisdiction to consider these claims.

The Law

[3]It was agreed that the same statutory test applied to all claims, as set out in ss.48(3) and (4) and 111(2) of the Employment Rights Act 1996, namely: (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.

[4]I was referred by both parties to the guidance in the cases of Wall’s Meat Co Ltd v Khan

[1979] ICR 52

, EWCA, as to the Tribunal’s discretion in such matters and also that as stated in Porter v Bandridge Ltd

[1978] ICR 943

, EWCA., the burden of proof is upon the Claimant. Mr Flood’s skeleton argument also referred to various authorities, to which I shall in turn refer (as I consider relevant) below.

The Facts

[5]I heard evidence from the Claimant and both counsel made submissions. 6. ‘Not Reasonably Practicable’. I summarise the Claimant’s evidence on this point as follows:a. She had been in a long-running dispute with the Respondent, which culminated in disciplinary proceedings against her and her summary dismissal on 16 November 2020. The subject matter of the dispute is not something I need to consider.

b. She had been represented by her union, until Christmas 2019, but she was not satisfied, on the death of her then union representative, that his or her replacement was capable of representing her.

c. She had approached a firm of solicitors for advice, in or about October 2019, but could not recall the detail as to what issues she sought advice in respect of, but agreed that the ‘gist was where I stood and what he (the solicitor) could do’. She stated that she may have had consultations with that firm on five occasions in 2020.

d. As to her own knowledge of her rights, she stated that as an experienced social worker she ‘was quite clued up on employment rights and human rights and know where to get the information from’. She agreed that she knew both of her rights to bring her claims and that she needed to do so within three months. She also stated that she had previously brought an unfair dismissal claim to the Employment Tribunal, she thought perhaps ten years ago.

e. Following her dismissal, she was ‘incensed’ that she had been treated unfairly and wrote to the Council Leader and the Chief Executive the next day and brought an appeal on 20 November 2020.

f. The appeal hearing was subsequently arranged for 2 February 2021. In an email from her of 31 December 2020, chasing the fixing of this date, she stated that, as part of her urgency that ‘I am currently receiving no pay whilst awaiting this appeal.’ [65]. She stated in evidence that she was convinced that her appeal would be upheld, as it was to be heard by three independent councillors and thus, by implication, it seemed to me that she felt that she would be re-instated, with her salary backdated. She also said that because of this belief, she had decided that she would not take a Tribunal claim until after the outcome of her appeal, if unsuccessful, but would first give the Respondent ‘a chance’.

g. In or about mid-October 2020, the Claimant’s mother became seriously ill and was diagnosed with cancer. In November, the Claimant was heavily involved in home care for her mother, until she was hospitalized at the end of that month. Her mother’s last days in hospital were very distressing for both her and the Claimant, exacerbated by COVID restrictions. All of this took, the Claimant said, a severe toll on her physical and mental health, although she did not, at that point, seek medical care, but just ‘coped and carried on’. Her mother sadly passed away on 8 January 2021 and the funeral was on 23 January.

h. The appeal hearing took place on 2 February 2021, at which the Claimant attended and which lasted approximately six hours. She was informed of the decision not to uphold her appeal at the hearing’s conclusion and received the written confirmation of that decision, as well as the rationale, on 10 February.

i. She was shocked at that outcome and said that following the hearing, for the first time it ‘began to dawn on me that not only had I lost my mother without having had the opportunity to grieve properly’ but now she had also lost her job. She said these realisations hit her ‘like a tonne of bricks’ and that thereafter ‘it was as if my brain began to shut down. I lost concentration, went into a deep depression …’ and was ‘going into a breakdown’ and her ‘brain was closing down’. She couldn’t ‘tackle the things I wanted to tackle – I wanted to run away’. At the stage that the primary limitation period was reached, on 15 February 2021, she was not cognisant of it, being ‘deep into it (her depression) at that point’.

j. She consulted with her GP, by telephone, on 8 and 22 February 2021. She accepted that the contents of his notes [71] did not reflect the true severity of her condition, as she had stated in her witness evidence. He recorded a depressed mood, low motivation, but that she was ‘chatty, lucid’ and had no reported thoughts of DSH (deliberate self-harm)’. On 22 February, it was recorded that the prescribed medication had assisted with sleeping and appetite, but that she still felt ‘down’, although her mood was no worse than before. She said that these notes were just providing the ‘bare facts’ and didn’t mention her loss of consciousness and focus. She accepted that the notes were accurate, to the extent they went, but were not the whole picture. She said that her concentration was ‘still not there. I couldn’t boil and egg.’

[7]Conclusion on ‘not reasonably practicable’ test. I heard submissions from both counsel, summarised as follows:a. Respondent. Mr Flood referred to his skeleton argument and submitted that it was reasonably practicable for the Claimant to submit her claim by 15 February 2021. He made the following submissions: i. Following her dismissal the Claimant was quite clear, in her own mind that she had been unfairly dismissed. She knew she could bring a claim and the time limit for doing so. ii. Despite her mother’s ill-health, the Claimant was able to pursue her appeal, write to both the Respondent and individual councillors and attend a lengthy hearing and was therefore ‘able to fight her corner’. iii. The medical evidence does not reflect the Claimant’s evidence as to the severity of her condition. It is a matter for the Tribunal as to what weight is given to the Claimant’s account. iv. In the absence, for some time, of a fixed date for her appeal hearing, it was not reasonable of her to simply await the outcome of the appeal, before bringing any claim. v. On the Claimant’s evidence, the point at which the greatest difficulty arises for her is almost at the point of expiry of the time limit.

b. Claimant. Ms Goodman made the following submissions, as to why it was not reasonably practicable for the Claimant to bring her claim: i. The mere fact that the Claimant may have been able to do other things (such as chase her appeal hearing date) is not enough to render it reasonably practicable for her submit her claim in time, if her mental health was poor (University Hospitals Bristol NHS Foundation Trust v Williams

UKEAT/0291/12

). ii. While waiting for an appeal outcome would not, of itself, meet the test, it is a factor that can be taken into account. The Claimant wanted to exhaust the internal procedure, as she trusted in it and asked for the process to be sped up. She saw it as the end of the process. Confirmation of the hearing was only received seventeen days in advance of the limitation date. iii. The Claimant’s evidence is that while her mother was dying, all other considerations, to include an ET claim, ‘went out the window’. Her evidence at this hearing was honest and straightforward and she did her best to remember events, stating so if she couldn’t. iv. Between 16 November and 2 February there were only fleeting moments when she may have an opportunity to consider her claim, but after the appeal outcome, her depression descended and as she said, her ‘brain closed down’. As in the Williams case, she did what she could, but it wasn’t enough.

c. Finding. I find that it was not reasonably practicable for the Claimant to present her claim by 15 February 2021, for the following reasons: i. The combination of events of the Claimant’s mother’s relatively sudden death (particularly taking into account COVID restrictions on hospital visits and contact), her dismissal and her failed appeal, did, I accept, have the effect upon her she described. I found her evidence on this point compelling and entirely credible. ii. It is true that the medical evidence does not match the severity of what the Claimant described in respect of her mental state, but I consider that due to, firstly, the consultation being over the phone, rather than face to face and secondly to what I perceive to be a degree of selfcontainment on her part, of ‘coping’, when in fact she couldn’t and therefore she perhaps failed to fully communicate her mental state to the doctor. Looking at the history of her dispute with her employer she is clearly quite a determined person and perhaps therefore only belatedly willing to admit to herself her frailty at that time. iii. I’m also satisfied that she did genuinely consider that the appeal would exonerate her and that there would be no need, therefore, for any tribunal claim. While, of itself, waiting for an appeal outcome would not justify delay, it is nonetheless a factor I can consider in the overall assessment.

[8]Within such further period as was reasonable. I reiterate the evidence above that is also relevant to this issue – the extent of legal advice the Claimant had already had and also her own knowledge of her rights and her experience of a previous unfair dismissal claim. In addition, the Claimant’s further evidence on this point was as follows:a. She continued twice-weekly appointments with her GP, until April 2021 and continued to take medication (all dates hereafter 2021, unless otherwise stated). She stated that during this time her condition remained much as it had in Mid-February, resulting in her being unable to give any consideration to her tribunal claim.

b. From mid-April she began to feel more psychologically stable and in the week commencing 20 April contacted solicitors. She agreed, in cross-examination that she knew, at this point that she’d not met the time limit, by some two months. She rang round a number of solicitors (not the firm that she had instructed in October 2019, as she considered that they may have had too strong a link with the Respondent). The first firm she spoke to confirmed to her that her claim was out of time and that she should instead consider bringing a civil claim/application for judicial review. The second firm she spoke to told her that she had mitigating circumstances as to the late presentation of a tribunal claim and that she should contact ACAS immediately. A third firm advised that she should see if a resolution could be reached with the Respondent, but did not advise her to immediately commence early conciliation.

c. When questioned on this contact with the various firms of solicitors, she could not remember if she had told them that she wished to bring a claim, but had missed the deadline. In contradiction of that however, she later said that she had told the third firm that her claim was already out of time, but that they had advised that she should nonetheless attempt ACAS conciliation and if that was not successful, to get a certificate. She said also that the ACAS conciliator had not been impartial and had subsequently changed her mind on the issue of ‘the clock stopping’ as to extending time to bring a claim.

d. She contacted ACAS on 23 April, entering into early conciliation and the relevant certificate was issued on 3 June. She was asked why the conciliation period had been so long and said that she’d been advised by the third firm to attempt conciliation. She said that ‘when the mediator told me on 28 April that I should be bringing a claim now, I told (the third firm) and they advised I should request talks (presumably with the Respondent, via ACAS).’ On issue of the certificate, she then immediately returned to the third firm with it and stated that she instructed them to present her claim. That was subsequently done on 2 July. She was asked as to why it took another month, from the issue of the certificate, to bring the claim and she said that she did what the third firm said and that they assured her that ‘there would be no problem going forward’.

e. She agreed that she had also done her own research as to time limits, as well as being advised on this issue by the third firm. She denied that her own research would have clarified for her that in fact entering conciliation after the expiry of the primary limitation period provided no extension to the time limit, stating that she was relying on advice from the third firm and also from the Citizens’ Advice Bureau.

f. When asked why, bearing in mind her own knowledge of the procedure and past experience, she had not simply brought the claim herself as soon as possible, after her recovery in mid-April, she said it was because she had been advised by solicitors to attempt conciliation.

[9]Conclusion on ‘such further period as was reasonable’. Further submissions were made, as follows:a. Respondent. i. The Claimant’s health was no longer a significant factor by, at the latest, the third week in April. Allowing time to consult with solicitors and any short conciliation period, her claim should have been presented by the end of that month. ii. The picture the Claimant presents for this period of time is confused and it is far from clear what she was telling her solicitor(s). iii. In any event, however, applying the ‘Dedman principle’ (Dedman v British Building and Engineering Appliances

[1973] IRLR 379

EWCA), per Lord Denning MR, namely that ‘If a man engages skilled advisers to act for him — and they mistake the time limit and present [the claim] too late — he is out. His remedy is against them’, whatever fault there may have been of any of the solicitors advising the Claimant will not be a relevant factor in the exercise of the Tribunal’s discretion to extend time. That principle, in relation to the consideration of ‘such further period as was reasonable’ was affirmed in Cullinane v Balfour Beatty Engineering Services Ltd

UKEAT/0537/10

, per Underhill J (as he then was), who rejected the submission that the Dedman principle should apply only in respect of the primary limitation period. iv. Taking into account the Claimant’s or her advisors’ delay from her instigating action in late April, to the presentation of the claim over two months later, on 2 July, she has not presented it in such further period as was reasonable.

b. Claimant. Ms Goodman made brief submissions to the effect that the Claimant was not in a position to deal with the claim until late April and that she had thereafter instructed solicitors. Misunderstandings arose, however, resulting in some delay but which was, nonetheless, within such further period as was reasonable.

c. Finding. I am in no doubt that while it was not reasonably practicable for the Claimant to have presented her claim within the initial three-month time limit that she failed, however, to thereafter present it within such further period as was reasonable. I find that for the following reasons: i. Even accepting her evidence that she was not mentally capable of engaging with the issue until late April, there was still, thereafter, a further two months or so of additional and unreasonable delay. ii. She herself accepted that she was quite capable of researching her employment rights and she is clearly a more experienced litigant-in-person than the average, but nonetheless wrongly concluded that entering into ACAS conciliation would extend the time limit. iii. Applying the Dedman principle, she cannot rely on any incorrect advice that may have been given to her by her solicitors. iv. Even if such advice/her own research had been correct on the conciliation point (which it obviously wasn’t), there is still the inordinate and inexplicable final period of a month’s delay from issue of the ACAS certificate to presentation of her claim. v. There is a strong public interest in claims being brought promptly, against a background where the primary time limit is three months (Cullinane v Balfour Beatty).

Conclusion

[10]For these reasons, therefore, the Claimant’s claims are dismissed, for want of jurisdiction.

Conclusion

[1]Introduction. The Claimant has applied for a reconsideration of the preliminary hearing judgment dated 4 February 2022, which was sent to the parties on 8 February 2022 (“the Judgment”). That Judgment dismissed the Claimant’s claims of ‘ordinary’ and automatic unfair dismissal and protected disclosure detriment, for want of jurisdiction, as they were out of time and the Tribunal declined to exercise its discretion to extend time. While the Tribunal found that it was not reasonably practicable for the Claimant to have presented her claims within time, it considered that thereafter she had failed to do so within such further time as was reasonable.

[2]The Rules. Subject to Rule 72(1) of the Tribunal’s Rules of Procedure 2013, the application was not initially refused as having no reasonable prospects and the Tribunal invited further submissions from the parties and their views as to whether or not the matter could be determined without a hearing. The Respondent did not consider that a hearing was necessary, whereas the Claimant did. In a decision dated 22 March 2022, the Tribunal determined that a hearing was not necessary and that the application would be dealt with by way of written submissions. The parties were invited to send any final or consolidated submissions. The Claimant advanced five reasons for her application in her solicitor’s email of 21 February 2022 and expanded on those in a further email of 5 April 2022, along with a witness statement and various exhibits, of the same date. The Respondent’s submissions, submitted by their counsel, are dated 4 April 2022.

[3]Rule 70 of the Tribunal’s Rules of Procedure 2013 states: 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.

[4]Claimant’s Application. In summary, the grounds relied upon by the Claimant are as follows:a. That the lengthy hearing ended abruptly, with no explanation provided as to why the claim had been dismissed.

b. That the Respondent’s request to have the hearing take place over Microsoft Teams, rather than by way of CVP, having been granted by the Tribunal, lead the Claimant to ‘have concerns in relation to the veracity of the process and in particular did not feel that the matter was conducted with sufficient gravitas in the way that a CVP hearing would be’.

c. That the Respondent counsel submitted a skeleton argument ten minutes before the hearing, thus providing no time to the Claimant or her representative to properly consider it, thus putting her to a disadvantage. She also considers herself or her representatives to be disadvantaged by the lack of any response from the Respondent to the bundle provided by her representatives and a failure to notify them as to who would be representing the Respondent at the Hearing. She considered that the Tribunal should have at least expressed concerns about such late submissions or exercised its discretion to adjourn the Hearing.

d. That the Claimant has new evidence in relation to the ACAS Early Conciliation process that she considers relevant, particularly as the Judgment makes reference to that process, in reaching its conclusions. This evidence indicates, she states, the nature of the conflicting advice she was receiving from ACAS, as compared to her solicitors. She also asserts that the Tribunal placed too much emphasis of the Claimant’s own ability to research the time limit point.

e. The ET3 form ‘gave the incorrect name of the Claimant and that, together with the haphazard nature of the ET3 and Grounds of Resistance, ought to have been considered at the very outset when it was received by the Employment Tribunal’.

f. That the impact of COVID-19 on the Claimant’s ability, at the time, to communicate with legal advisors, in particular in a ‘face to face’ meeting, rendered such advice as she did get unclear or incomplete.

g. The application also included the request that it be considered by a different judge, as it would be in the interests of justice and in compliance with the Overriding Objective to do so. (This matter was dealt with in a letter from the Tribunal of 22 February 2022, which stated that ‘There is no provision in the Tribunal's Rules of Procedure for a Judge other than Employment Judge O'Rourke to hear this application, unless, subject to Rule 72(3), it was not 'practicable' for him to do so, due perhaps to illness, retirement etc., which does not apply in this case’. That issue is not therefore considered further.)

[5]Respondent’s Submissions. In summary, the Respondent’s submissions are as follows:a. None of the Claimant’s submissions go to the correctness or otherwise of the Judgment’s reasoning, or of the application of the law.

b. At the conclusion of the Hearing, the Employment Judge informed the parties that his decision was that the Claimant had not presented her claim within such further time as was reasonable, but that he had not yet decided as to whether she had complied with the ‘reasonably practicable’ point and that therefore a reserved judgment on that point would follow, which it did. It is not clear how this issue might render the Judgment subject to revocation.

c. Teams is a similar platform to CVP and was used because the Respondent had experienced technical difficulties with the use of CVP in the past and wished the hearing to proceed without any difficulties. How the ‘veracity’ or the ‘gravitas’ of the hearing might be effected by that choice is puzzling to the Respondent and the Claimant’s counsel raised no objections at the time. Teams is used in similar hearings by the Courts and Tribunals. The Claimant does not point to anything under this head of complaint that in any way affected her evidence.

d. It is correct that Counsel for the Respondent sent over a skeleton argument shortly before the Hearing, but as noted by the Employment Judge that merely highlighted settled legal principles that were well-known to the Judge and presumably to the Claimant’s counsel. The balance of the document was merely a recital of the facts of the case, already known to the Claimant and the Respondent counsel reiterated his arguments in closing submissions, to which the Claimant’s counsel had opportunity to respond. No request was made by the Claimant’s counsel for an adjournment, or for any additional time. Nor does the application set out any authorities or arguments that might have been raised by the Claimant’s counsel, due to the timing of submission of the skeleton argument.

e. The typographical error in the ET3 in relation to the Claimant’s name is utterly irrelevant to the issues at the Preliminary Hearing.

f. New evidence becoming available is a potential ground for reconsideration. The test established in Ladd v Marshall

[1954] 3 All ER 745

(and confirmed in subsequent cases) on this issue is threefold. Firstly, it must be shown that the evidence could not have been obtained with due diligence for use at the original hearing. Secondly, any such evidence must be shown to be relevant and that it would have probably had an important influence on the hearing and finally that the evidence is apparently credible. The Claimant’s application does not meet that test.

[6]Claimant’s Evidence. The Claimant’s witness statement is summarised as follows (but without repetition of the above submissions and also as considered relevant to her application):a. She refers to the complaint she has brought, for the Regional Employment Judge’s attention, ‘regarding the outcome of the Preliminary Hearing’ and which is attached as an exhibit. I make no reference to its contents, as that is not a matter for me.

b. As to the timeline in bringing her claim, she states that ‘although I was still not fully recovered from my breakdown in late April 2021, I felt that I had regained a sufficient level of concentration and focus to be able to initiate legal enquiries’.

c. While she had managed to contact several solicitors, she was unable to meet them face-to-face. She instead communicated by email and by telephone, doing so on 23 April 2021. She referred to speaking to one of those solicitors (‘the first firm’), who told her that she ‘had significant mitigating circumstances, having regard to my mother’s recent death and that I should contact ACAS immediately. He did not say any more about what that would involve.

d. On the same day, she spoke to an ACAS representative, by phone, who ‘registered my ACAS Early Conciliation claim online. He also acknowledged that it was a late claim and he again told me that the clock stops when the claim is started with ACAS Early Conciliation. On the basis that this gentleman said that and (the solicitor she had spoken to) had said that, I was given no cause for concern as they both were advising me that when I started the ACAS Early Conciliation claim the ‘clock would stop’.

e. She wrote to ACAS on 29 April 2021 [Exhibit CC.3] stating the following: ‘I have now taken legal advice from several sources … and am clear about taking this matter forward into early conciliation … I am also clear on time limits (and went on to refer to the Tribunal’s discretion to accept … ‘delayed ET1 applications out of time’) and that she’d been advised by the solicitors she had spoken to that she had a strong case in this respect. She went on to say that ‘I am advised to take this forward first through ACAS requesting settlement agreement with RMBC and if my employer does not engage with (the) process and a certificate is then issue(d) through Application to Employment Tribunal (with 1 month period to do that from issuing of ACAS certificate).’

f. ACAS responded the same day, stating the following: ‘The Employment Tribunal would look at the reasons why you did not present it (the claim) as soon as possible and why it was not practical to lodge you(r) ET1 as soon as possible. I will contact the representative but need to clarify to you that by not asking for the certificate with immediate effect this will only make your potential claim more out of time, you will not have the one month grace where in effect the clock gets paused for 4 weeks if you lodge your notification with ACAS out of time. I would suggest that you take further legal advice on this matter.’ (both mine and in part the Claimant’s emphasis).

g. The Claimant replied to that email, almost immediately, informing ACAS that ‘I have checked this out thoroughly and the clock stops when ACAS received my form and I received your reference (which was 24th April). I am agreeing to early conciliation, requesting you talk to my ex-employer on if they will engage in trying to settle this matter before expensive costs are involved in making an employment claim re-form ET1 by my solicitor. If my employer refuses to engage with your request then you issue the certificate.’ She then went on to refer to what she said was CAB advice, which said: ‘You must start early conciliation within three months less 1 day from the date of the thing you’re complaining about … If you miss this deadline any tribunal claim you then make will also be late and in many cases, you’ll lose your right to make a claim …’ (my emphasis). She concluded by stating that ‘I believe you will have to state to my ex-employer that application is going to be made with mitigating circumstances to tribunal if they refuse to engage with ACAS at this point.’

h. She spoke to a solicitor at another firm (‘the second firm’), on 28 April 2021, telling him ‘that what I was now being told by the ACAS Conciliator … was that the clock did not in fact stop, even though when I had spoken (to the first firm on 23 April 2021) that was what I had understood …’. That second firm’s solicitor advised her that she should, via ACAS, seek discussions with the Respondent, ‘ … setting out the mitigating circumstances for the claim not being submitted in time and that if the Respondent was prepared to have such discussions, then I should contact (him) again and he would assist. However, if the Respondent was not prepared to enter into discussions, then I should obtain an ACAS Early Conciliation Certificate and come back to him to progress the case further.’

i. As she considered that she was receiving conflicting advice, she consulted with the Citizens Advice Bureau and read the Tribunal’s online guidance form T420.

j. On 11 May 2021, ACAS wrote to the Claimant stating that ‘the respondent believes your claim is out of time’ and stressing that conciliation was voluntary. The Claimant responded the next day, stating that ‘I am not concerned what the respondent believes, they have to say that … (and going on to set out why she considered they ‘are not in a good position to claim out of time’).

k. ACAS informed her on 3 June 2021 that as the Respondent did not wish to negotiate, the EC Certificate would be issued, which it was. The Claimant responded that she was ‘also very disappointed that you did not check with me on my situation prior to issuing the certificate … (and) not keeping me adequately informed on RMBC responses … How can I complain to ACAS about this matter?’ She said that she then immediately thereafter instructed the second firm of solicitors to progress her claim.

l. On 4 June 2021, ACAS responded to her concerns, stating: ‘I would also clarify that I did inform you in our first contact about you lodging your Early Conciliation Notification with us was potentially out of time and by continuing to hold back on me issuing the certificate would not pause the time to allow for conciliation/negotiations …’.

m. The Claimant does not consider that at the Preliminary Hearing she was given sufficient opportunity ‘to explain the position concerning ACAS and that sufficient weight was not attached to the circumstances in or around April 2021 which included conflicting advice that I was receiving, my health and wellbeing and the ongoing Covid-19 pandemic.’

[7]Conclusions on Claimant’s Evidence. I reach the following conclusions on the Claimant’s evidence:a. No explanation is offered as to why this evidence could not have been provided at the Preliminary Hearing, despite its clear relevance.

b. She was told in clear terms by ACAS, on 29 April 2021 that entering into EC would not, in her case, extend time, as her claim was already out of time, but, somewhat surprisingly, she sought to contradict ACAS on this point, while referring to CAB advice which itself clearly stated that ‘You must start early conciliation within three months less 1 day from the date of the thing you’re complaining about.’ She knew, or should have known, therefore, on 29 April 2021, both that her claim was already out of time (at that point by some two and a half months) and that time would not be extended, but still chose to present her claim over two months after that date. It is difficult to see how, even if there had been no COVID restrictions at the time that any face to face discussion of these matters would have been any clearer.

c. She deliberately chose to delay the issue of the EC Certificate, despite thereby knowingly adding to the delay in bringing her claim, because she hoped to avoid the cost of instructing solicitors to present her claim. Instead, she simply planned to rely on the ‘good case’ she considered that she had to justify such delay to the Tribunal, in order for it to exercise its discretion in her favour.

d. This evidence not only doesn’t indicate why it would be in the interests of justice to revoke the Judgment, but in fact strengthens the conclusions reached in that Judgment as to why the claims were not brought within such further time as was reasonable.

[8]Conclusions on other Application grounds. I reach the following conclusions in respect of the other grounds for this Application:a. ‘Abrupt Ending’ – I indicated at the Preliminary Hearing that my decision was that the Claimant had failed to meet the ‘such further time as was reasonable test’, but that as I had not yet decided on the ‘reasonably practicable’ test that I would reserve judgment on that latter point, providing written reasons for both decisions in due course (and which were completed the next day). I see no significance for the ‘interests of justice’ to this ground of appeal.

b. Teams/CVP – again, I see no significance or relevance to this ground. In the end, the hearing was heard by video, in exactly the same way as it would have been, if heard on the CVP platform. No complaint was made at the time, in this respect.

c. Submission of Skeleton Argument – there is no authority or ‘rule’ as to when a skeleton argument should be submitted (unless specifically previously ordered by a Tribunal, which was not the case here). In preliminary hearings such as this, counsel could simply choose to raise whatever arguments they wished in oral closing submissions, without having signalled them earlier in writing and it would then be for their opponent to deal with such arguments, as presented. So, it could be argued, even the belated submission of such a skeleton provides an advantage to the opposing counsel, rather than a disadvantage. In any event, the law on the matter of time limitation is relatively settled and therefore any skeleton is unlikely to contain any particular novel point, but merely serve as a ‘reminder’ of the relevant law, which was the case in that hearing, both for the Employment Judge and it must be assumed, the Claimant’s counsel. Finally, the Claimant’s counsel raised no objection at the time on this point, or asked for further time for consideration. Again, therefore, I see no relevance to this ground.

d. The typographical error as to the Claimant’s name in the ET3 is entirely irrelevant to the issues in the Preliminary Hearing and was not, in any event, raised at the time.

[9]Conclusion. I don’t consider that any of the grounds raised by the Claimant in support of her application for reconsideration render it in the interests of justice to vary or revoke the original Judgment. In Fforde v Black EAT 68/60 the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. This is not the case here. In addition it is in the public interest that there should be finality in litigation, and the interests of justice apply to both sides.

[10]Accordingly, I refuse the application for reconsideration pursuant to Rule 72.