Mr M Baba v Bidvest Noonan (UK) Ltd: 2200567/2025
JUDGMENT
The judgment of the Tribunal is as follows: The claim of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The claim is therefore dismissed.REASONS
[1]Reasons were given at the hearing; written reasons were requested. The Issue[2]The claimant was dismissed on 21 June 2024 from his role as Cleaning Supervisor. The parties agree that the primary three-month limitation period ran out on 20 September 2024. It is also agreed that the ACAS pre-claim conciliation process started on 18 December 2024 and ended on 6 January 2025. The employment tribunal ET1 claim was submitted on 4 February 2025.[3]The ET1 contains an application to extend time, saying that the claimant had an eye condition which makes it difficult for him to read, and that he needs assistance to read and understand documents. This meant that the claimant was “unable to submit his claim” within the 3-month time limit, that it was not reasonably practicable for him to do so, and that it was submitted within a reasonable time period thereafter.[4]The claimant’s solicitor wrote to the respondent’s representative on 19 May 2025, stating that the delay in issuing the claim was “due to a lack of support and difficulties processing information”, with a health impact affecting his eyesight “impacting timing”. It says that the claimant only realised he could pursue a claim after “chasing union support”; it says that the claimant relies on disability and lack of knowledge as the reasons for the delay (34). A letter was sent to the Tribunal in similar terms on the same date – the reason for the delay was a serious health condition affecting his eyesight; he was ignorant of the claims process and had a lack of support; he relied on union advice and legal representation to submit a claim when he became aware of time limits (38). The claimant submitted medical records on 17 June 2025.[5]The respondent opposes the application, in letter and in a written skeleton. Hearing procedure and witnesses[6]The parties prepared a bundle which contains medical records from the claimant's GP. The claimant did not submit a witness statement and he asked to give evidence. I did not consider the respondent would be prejudiced by evidence being given and I allowed this application. The claimant was asked questions by his solicitor, followed by cross examination. The claimant was a credible and honest witness.[7]One issue which rose was the claimant's application refers to the period June to September 2024 and the diagnosis of anterior uveitis. The evidence he gave, which is also recorded in the medical evidence, shows that the claimant has had glaucoma and other related conditions from March 2020 to date.[8]The respondent objected to evidence on the wider health issues outside of the June-September 2024 period, saying I can only focus on the impact of anterior uveitis as this is what is specified in the application to extend time. I disagreed, as it appeared that the general medical picture would shed light on the period in question, and in particular the latter period of the primary limitation period, September 2024.[9]The claimant’s application focusses on the period of the claimant’s health issues and diagnosis from June to September 2024; but to answer the legal question on reasonable practicability I concluded that I must consider the cumulative impact of the claimant’s interrelated medical conditions during this period, not focus on one of the conditions.The evidence
[10]The claimant’s medical records show the following diagnoses:a. March 2020 – glaucoma;b. April 2020 – diabetes mellitus (insulin dependent);c. June 2020 – chronic open angle glaucoma;d. Jan 2021 – cataract;e. July 2022 – type 2 diabetes;f. August 2024 – anterior uveitis (left eye);g. September 2024 – primary open angle glaucoma;h. February 2025- anterior uveitis (right eye).[11]The claimant has had six eye operations and is due at least one further operation. While there were no hospital letters on file, the GP records show very regular contact between his GP and the “Ophthalmology Glaucoma” team at Kings College Hospital.[12]I accept the claimant’s evidence that because of these interrelated medical conditions, from his dismissal until he issued his claim he had significant issues with his sight, including a very real difficulty in reading. He has photophobia, meaning he is very sensitive to bright conditions. He says and I accept that he will rarely go out when he is affected by this condition. I accept that these are the symptoms he had in the period June to September 2024.[13]I also accept that it is likely that in September 2024 the diagnosis of primary open eye glaucoma will have further affected his sight during this period.[14]The claimant’s evidence is that he was unaware of the time limits. After his dismissal he did not check on time limits, because he was unaware that they were so restrictive. I accept his evidence that he needed a friend to assist him with reading documents, and that he found it very difficult to use a computer to check the law.[15]The claimant received assistance from a friend to visit Citizens Advice to find out about his rights. He did so in November 2024. The advice he received was that a claim was out of time, but that his medical situation may be good grounds to extend time and was advised to go to his Union. He was also given a list of local solicitors who may assist.[16]The claimant contacted his Union who contacted ACAS on his behalf; the ACAS conciliation process started on 18 December 2024. The ACAS conciliation period ended on 6 January 2025. The claimant had his first telephone consultation his solicitor late January 2025 and the claim was issued on 4 February 2025. Submissions[17]The parties both made submissions. I have considered these in my conclusions, set out below.Relevant law
[18]Section 111 Employment Rights Act 1996 - Complaints to employment tribunal.(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) 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, orb. 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 (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).[19]Case law – the ‘reasonable practicability’ test:a. Porter v Bandridge Ltd [1978] IRLR 271 CA: The burden of proof is on the claimant to show that it was not reasonably practicable to present his claim in time. If he is able to prove this, the tribunal must be satisfied that the claim was presented a reasonable period beyond the primary time limit.b. London Underground v Noel [1999] IRLR 621: The ‘not reasonably practicable test means that “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 good reason” for doing so.”.c. Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 CA: Reasonably practicable means: “was it reasonably feasible to present the complaint to the … tribunal within the relevant three months?”d. Ebay (UK) Ltd v Buzzeo UKEAT/0159/13: What if a claimant is both ignorant of the time limit and at the same time is ill? They will only meet the test of reasonable practicability if they can show that even if they had known of the deadline, their illness alone would have meant that it was not reasonably practicable to bring the claim.e. Schultz v Esso Petroleum Ltd [1999] IRLR 488 CA: When considering reasonable practicability, the Tribunal can take into account a period of increased ill health at the latter stages of the time period in determining whether it was reasonably practicable to bring the claim within the time limit.f. Wall's Meat Co Ltd v Khan [1978] IRLR 499 (CA): if a claimant fails to bring a claim in time because of “ignorance of, or mistaken belief” with regard to time limits; the reasonable practicability yest will only be satisfied if it was reasonable for the claimant to be ignorant or to have that mistaken belief/g. Cygnet Behavioural Health Ltd v Britton [2022] IRLR 906: If a claimant is able to ask someone to look for information on their behalf, such as to ask a friend or to ask a union, then ignorance of time limits are unlikely to be reasonable “… it would be the work of a moment to ask somebody about time limits or to ask a search engine”. A claimant “… is expected to appraise themselves of the time limits that apply; it is their responsibility to do so”.h. Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53: Where a claimant does not know their rights, questions to consider include: ''What were his opportunities for finding out that he had rights? Did he take them? If not, why not? … Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would be inappropriate to disregard it.”[20]A reasonable time period after?a. Marley (UK) Ltd v Anderson [1994] IRLR 152: was the claim submitted within reasonable time after the time limit had expired? It is important not to concentrate on the length of the delay, but to consider all of the relevant circumstances in which the delay occurred.b. Northumberland County Council v Thompson UKEAT/209/07: It is important to consider throughout the period of the delay the actual knowledge which the claimant had as to his rights and “what knowledge he should have had if he had acted reasonably in all the circumstances”.c. Cygnet Behavioural Health Ltd v Britton [2022] IRLR 906 EAT: it was perverse to say that a two month period beyond the primary limitation was a reasonable one within which to bring a claim because during that period the claimant had known of the existence of time limits but had failed to clarify what those time limits were.d. Cullinane v Balfour Beatty Engineering Services Ltd UKEAT/0537/10: The question whether a further period is reasonable is not the same as asking whether the claimant acted reasonably. Instead 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 to the 'strong public interest' in claims being brought promptly, and against a background where the primary time limit is three months. Conclusions on the evidence and the law[21]The case law states that following: that the tribunal must make clear factual findings as to the nature of the claimant’s ill-health and the extent of its impact on the claimant's ability to embark on litigation, and the fact of the claimant’s ignorance and whether the claimant’s failure to seek advice was, in these circumstances, reasonable.[22]As the law also makes clear, it is the responsibility of a claimant to make themselves aware of the time limits.[23]I accept that the claimant was severely disadvantaged in his ability to seek advice. Because of his medical conditions, it was difficult for him to leave the house during the summer period, he had significant difficulties using a computer. I conclude that because of these medical conditions it was not reasonably practicable for the claimant to undertake his own personal research into the time limits.[24]However, the claimant was a member of a union. He was also able to seek the assistance of a friend to visit Citizens Advice. I heard no evidence why the claimant was unable to contact his union on an earlier date to ask for basic advice on time limits, or why he was unable to visit Citizens Advice with a friend earlier than he did.[25]While I accept that the claimant’s medical conditions made it more difficult to seek advice, there was therefore no evidence to show that a significant reason why the claimant did not seek advice earlier was because of difficulties caused by his medical conditions. There was no evidence to suggest that he was unable to contact his union on an earlier date. There was no evidence to suggest it was unfeasible for the claimant to visit Citizens Avice at an earlier date, even taking into account his medical conditions.[26]I therefore find that the claimant’s failure to seek advice at an earlier stage was not because his medical condition stopped him from doing so.[27]I take into account that the claimant’s symptoms worsened sufficiently for him to receive a further medical diagnosis in September 2024 – primary open eye glaucoma. However, it was after receiving this diagnosis that the claimant was eventually able to start the process by going to Citizens Advice in November 2024 and contacting his union. There was no evidence to say that the claimant’s condition had improved sufficiently between September and November 2024 to mean that what had been impracticable in September had become feasible by November. The evidence suggests that the medical condition did not significantly improve between these dates.[28]I conclude that the main reason why the claimant failed to take advice earlier than he did was because he was unaware of the time limits. As stated above, it was feasible for him to seek advice on time limits. This is a basic question to ask, and the answer would have been that he must contact ACAS within three months of his dismissal.[29]As it was feasible, albeit difficult, for the claimant to seek advice earlier, it was his responsibility to do so.[30]I conclude that had the claimant been aware of the time limits, he could feasibly have contacted ACAS and then submitted a claim within the applicable time limits. The claimant’s medical conditions did not mean that it was unfeasible for him to obtain advice on the time limits, and did not make it unfeasible for him to submit a claim within the time limits.[31]The claimant sought advice in November 2024. He was told about the issue with time limits, and was given a list which included his current solicitor. However, he did not contact his union for several weeks after visiting Citizens Advice. There is no evidence for this time period, there is no evidence why he did not contact his union earlier.[32]There is also no evidence from the claimant whether he did not contact his solicitor earlier after the ACAS conciliation process had ended.[33]Given the lack of evidence, I conclude that there was an unreasonable delay between the claimant’s contact with Citizens Advice in November 2024 and his initial contact with his union which led to the ACAS process starting several weeks later on 18 December 2024. There is no reason given when the claimant could not have initiated the ACAS process earlier. Also, after the ACAS process ended, the claimant took several weeks to contact a solicitor. Again, there is no reason given for this delay.[34]Therefore, if it had not been reasonably practicable to bring a claim before he received advice, the claimant’s delay after receiving advice and contacting his Union, and after the ACAS process had ended making an appointment to see his solicitor, means that he did not bring a claim within a reasonable period after he became aware of the time limits.[35]While I have real sympathy for the claimant and the position he finds himself in, given this very strict legal test, I find that the claimant’s application to extend time does not succeed. Approved by: