[1]The claimant’s claims for unfair dismissal pursuant to sections 98 and 103A of the Employment Rights Act 1996 and the claimant’s claim in respect of whistleblowing detriment pursuant to section 47B of the Employment Rights Act 1996 are all dismissed. The claims were all brought out of time and the claimant failed to show that it was not reasonably practicable to bring the claims within time.[2]The claimant’s claim for indirect race discrimination is also dismissed. The claim was brought out of time and it was not just and equitable to extend time.[3]The remainder of the claimant’s claims were permitted to proceed. Employment Judge McNeill QC 30 May 201930 May 2019 For the Tribunal: 1 ph judgment + cm Nov 2014 wip version Case Number: 2204889/2018 Reasons for the Judgment were given orally at the hearing. Written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision. 2 ph judgment + cm Nov 2014 wip version EMPLOYMENT TRIBUNALS Claimant Respondent Mr N. Makandala v Interserve FM Limited Application for reconsideration - decision[1]The Claimant has applied for me to reconsider my Judgment provided orally to the parties on 17 January 2019 and sent to the parties in writing on 30 May 2019.[2]On 17 January 2019, this case was listed before me for an Open Preliminary Hearing (OPH) to determine the following issues, set out in an Order of the Tribunal dated 5 December 2018 and amended at the OPH:(i) Was the unfair dismissal claim presented out of time?(ii) If so, should time be extended on the basis that:a. it was not reasonably practicable for the unfair dismissal claim to have been presented in time; andb. the claim was presented within such further period as the Tribunal considers reasonable?(iii) Were the Claimant’s whistleblowing claims arising from s103A and s47B of the Employment Rights Act 1996 (ERA) presented out of time?(iv) If so, should time be extended on the same basis as in relation to the (ordinary) unfair dismissal claim?(v) Were the claims for race discrimination, disability discrimination, harassment and victimisation presented out of time?(vi) If so, should time be extended on the basis that it was just and equitable to do extend time?[3]I read documents in a bundle produced by the Claimant’s representative, which started with a document dated 19 December 2018. The bundle had an index but the index did not reflect the pagination in the bundle. I heard oral evidence from the Claimant’s legal adviser; and I read a witness statement from the Claimant which addressed substantive and not time limit issues. Having considered all this evidence, I dismissed the Claimant’s claims for unfair dismissal (which included dismissal for making a protected disclosure), whistleblowing-related detriment and indirect race discrimination as out of time.[4]I concluded that all of the Claimant’s claims were brought outside the applicable three-month time limit (as extended by the early conciliation period). I rejected the Claimant’s submission that it was not reasonably practicable to present her unfair dismissal and whistleblowing-related detriment claims within the relevant statutory time limit. In relation to the discrimination claims (including the harassment and victimisation claims), the claims were out of time but I extended time on “just and equitable” grounds, save in relation to the indirect discrimination claim.[5]The judgment and case management order, approved for sending out on 23 January 2019, were unfortunately not set to the parties until 30 May 2019. The full merits hearing was listed at the OPH for 23-26 September 2019.[6]On 26 July 2019, following a Preliminary Hearing in front of EJ Brown on 3 July 2019, I was sent an application from the Claimant’s solicitors dated February 2019 requesting reconsideration of my judgment dismissing some of the Claimant’s claims. It was not clear from the Tribunal file when that application was sent to the Tribunal, although there was a letter dated 27 March 2019 on file from the Claimant (rather than his legal representative) requesting reconsideration.[7]In accordance with rules 70-72 of the Employment Tribunals Rules of Procedure, I have considered the application for reconsideration. Although normally such an application would only be made after the receipt of the written record of the decision, I treated the Claimant’s application to reconsider as being made within the applicable time limits.[8]I have considered whether it is necessary to reconsider my judgment in the interests of justice. In accordance with rule 72(1), I have considered whether there is any reasonable prospect of my judgment being revoked or varied. Background[9]The Claimant was dismissed on 8 December 2017. None of her claims concerned acts or omissions by the Respondent after that date. The indirect discrimination claim related to an alleged refusal by the Respondent to provide the Claimant with documents for housing benefit purposes that was remedied on 26 September 2017.[10]After taking into account the early conciliation period, the parties agreed that the primary time limit for the Claimant to bring her claims, other than the indirect discrimination claim, was 5 or 7 April 2018.[11]In February 2018, Acas received three separate notifications from the Claimant in relation to the same issues. The first notification was closed when the second notification was received. In the second notification, the Respondent’s name had the letters PLC added. When the third notification was received, it was closed on the basis that it was an exact duplicate of the second notification.[12]The second notification was in due course closed on 8 March 2018 when there was no scope for further discussion with the Respondent. In an email from Acas to the Claimant’s solicitors dated 23 May 2018, it was stated that Mr Ken Sproson, Conciliator, had called the Claimant’s solicitors on 8 March and informed them that there was no scope for further discussion. Mr Sproson stated that he had issued the correct early conciliation certificate (ECC) in an email on 8 March 2018 at 11.41. That certificate was in the Claimant’s bundle. The method of issue was stated to be “email”. The Acas EC Reference Number was stated in that certificate to be R117727/18/88.[13]The Claimant’s representative denied receiving that ECC until 23 May 2018. She said that it was attached to Mr Sproson’s email of that date. I rejected her evidence on this. On 22 May 2018 she had referred to “the last email of 8/03/18”. Further, there was nothing to indicate that the email of 8 March 2018 was attached to the email of 23 May 2018.[14]On 5 April 2018 the Claimant’s representative handed in an ET1 form at the Employment Tribunal in Croydon, London South. In the ET1, the Claimant had entered the Acas ECC number as R11772/18. In short, the last 2 digits of the ECC number had been left off. As the Employment Appeal Tribunal (EAT) has recently confirmed in E.ON Control Solutions Ltd v Caspall UKEAT/0003/19/JOJ, the inclusion of the correct ECC number is mandatory. A claim form must be rejected if the ECC number is incorrect. The clerk at the Tribunal did not accept the claim form and very properly told the Claimant’s representative that she must get the correct number.[15]On 9 May 2018 the Claimant’s representative sent further documents to the Tribunal. Those documents included a skeleton argument, a witness statement an email of names and dates and some cases in support of the Claimant’s argument but no amended or substitute claim form. On 19 May 2018, the Tribunal sent out a returned claim form notice stating that the claim form had not been presented using one of the prescribed methods.[16]On 21 May, the Claimant’s representative asked the Tribunal for an extension of time for submission of the claim. She referred to a conversation with the Tribunal office in April. The following day, on 22 May the Claimant’s representative notified the Tribunal that she had that day received a certificate stating that the correct Acas ECC number was R1117727/18/74 and not R1117727/18/88 as shown on the ECC certificate emailed on 8 March 2018. I note that the revised certificate with the number ending in “74” was not adduced before the Tribunal but the Respondent did not suggest that this was not the correct number.[17]Although the Claimant’s representative stated in her evidence that she chased Acas for the correct number between 5 April and 22 May 2018, I did not accept her evidence on this. Her account was muddled and the email correspondence suggested that she did not make any significant efforts to obtain the correct number from Acas until about 22 May. When the correct number was asked for, it was provided promptly.[18]The claim was then presented to the Tribunal on 23 May 2018. The claim contained Acas ECC number: R117727/18/74.[19]In relation to the claims which related to the Claimant’s dismissal or a continuing course of events ending with the Claimant’s dismissal, those claims were presented some six weeks after expiry of the primary limitation period. Where the relevant claim related to matters which pre-dated the date of dismissal, the claim was still further out of time.[20]In relation to the unfair dismissal and whistleblowing claims, the issue for me to determine in relation to the claim presented on 23 May 2018 was whether it was not reasonably practicable for the Claimant to present her claims in time.[21]The Claimant was legally represented from at least February or early March 2018. On 8 March 2018, the Claimant’s representatives received the ECC certificate containing what was, on the face of it, the correct Acas ECC number. On that basis, a claim containing the correct Acas ECC number could have been presented before the expiry of the primary limitation period.[22]Even if that were not correct, if the Claimant’s representatives did not have the correct number on 8 March 2018, when they knew that the conciliation period had ended, they knew that they must have a correct number from that date in order to submit a valid claim form. They should have ensured that they had a valid ECC number before proceedings were issued so as not to risk rejection of the Claimant’s claim. In fact, the Claimant’s representatives did not clarify the correct Acas ECC number until about 22 May 2018. Had they asked Acas to clarify the correct number promptly, they would have received the correct ECC number which would have enabled the Claimant to present her claim within the primary time limits.[23]In all the circumstances, I rejected the Claimant’s submission that it was not reasonably practicable to present her claim form in time.[24]There was in any event inordinate delay in clarifying the ECC number after 5 April 2018. Even if I had found that it was not reasonably practicable to present the claim in time, I would have found that the six week period between the expiry of the primary limitation period and 22 May was an unreasonable period of delay.[25]For those reasons, the unfair dismissal claims and the claims for whistleblowing-related detriment were dismissed.[26]In relation to the indirect discrimination claim, that was a discreet claim with a three-month time limit which expired on about 25 December 2017, because any discrimination was rectified by 26 September 2017. That was well before the referral for Acas conciliation. The claim presented on 23 May 2018 was well out of time. Time limits are there to be observed and no reasons were made out as to why it would be just and equitable to allow that claim to proceed. Grounds for Reconsideration[27]I have considered the application for reconsideration on the basis of the Claimant’s solicitors’ letter dated February 2019. Many of the matters contained in that letter bear no relevance to the Judgment, which was made solely on the basis of time limit issues and the error in the Acas ECC number recorded on the claim form of 5 April 2018, which was not in the bundle. The Claimant says that the judgment dismissing the claims is wrong and that “the findings of fact in relation to the law should be reconsidered”. It is submitted that the original claim was made in time.[28]I reject this argument. The original claim was not made in time. The claim form presented on 5 April 2018 did not include the correct ECC number as required by rule 12(2)(c) of the Rules of Procedure and was therefore bound to be rejected.[29]The case of Adams v British Telecommunications Plc [2017] ICR 382 does not support the proposition that time limits should be extended in every case where an incorrect ECC number is included in a claim form. Each case turns on its own facts when extensions are being considered. In the current case, I did not consider that time should be extended for the reasons already stated.[30]Contrary to the Claimant’s submission, rule 12(2A) does not apply to errors in the Acas ECC number and there is no “escape route” where there is an error under rule 12(1)(c).[31]The Claimant refers to a jurisdictional issue and “a connection with GB” but no such issue was argued before me and it played no part in my decision.[32]In relation to the date of receipt of the Acas certificate, I made findings of fact on the basis of the oral and written evidence before me. Nothing new has been produced which causes me to change that view.[33]Contrary to what is submitted, I did not find that the tribunal lacked jurisdiction to hear the whole case. On the contrary, a number of claims were permitted to proceed. The sole basis for dismissing some of the claims were that they were made out of time and that I did not consider that time should be extended as explained above. The reason that the claims were dismissed did not have anything to do with the name of the Respondent as the Claimant suggests. Nor did it have anything to do with the Claimant’s length of service.[34]The Respondent accepted that the question of whether the Claimant had the requisite service to claim unfair dismissal was a matter which could only be determined at the full merits hearings, if the unfair dismissal claim was permitted to proceed. This was made clear at the start of the OPH and in the full reasons given orally at the OPH. In the event, the unfair dismissal claim was dismissed and this issue does not fall to be determined.[35]The proper approach to time limits in unfair dismissal and whistleblowingrelated detriment claims is governed by the statutory provisions in ss111(2)(b) and 48(3) of the ERA. In relation to the indirect discrimination claim, the statutory provisions relating to time limits are set out in s123 of the Equality Act 2010. None of the statutory provisions involve a test of what is “in the interests of justice”.[36]The relevant statutory provisions were applied to whether the Claimant’s claims were out of time and whether time should be extended. There was no doubt that the claim form which the Claimant presented or sought to present on 5 April 2018 did not contain the information required by rule 12(1)(c) of the Rules of Procedure. It was therefore defective and could not be accepted. The claim form presented on 23 May 2018 contained an ECC number which at least looks correct in form, even though no certificate was provided to the Tribunal bearing this number.[37]For all the above reasons, I consider that it is not in the interests of justice to reconsider the Judgment of 30 May 2019. There is no reasonable prospect of the Judgment being varied or revoked and the application for reconsideration is therefore refused.