Ms T Gideon v St George's University Hospitals NHS Foundation Trust: 2300225/2022
JUDGMENT
[1]The claim was submitted out of time and is dismissed. __________________________ Employment Judge K Andrews Date: 31 October 2022 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.[2]Case Number: 2300225/2022 THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE:REASONS
FOR THE JUDGMENT SENT TO THE PARTIES ON 26 NOVEMBER 2022 PROVIDED AT THE CLAIMANT’S REQUEST[1]This preliminary hearing was listed to consider whether the claimant’s claim of unfair dismissal had been submitted in time and if not, whether it had been reasonably practicable for her to submit it in time. It was initially listed to be heard entirely by video but on commencement of the hearing it became apparent that the claimant’s connection was not sufficient to enable a fair hearing to take place. The matter was therefore converted to a hybrid hearing and the claimant given time to travel to the Tribunal office in Croydon.[2]I heard evidence from the claimant, considered an agreed bundle of documents and submissions from both parties. I note that English is the claimant’s second language but also that she was very able to express herself to me apparently without any difficulty during the hearing.[3]Relevant Law[4]A complaint of unfair dismissal must be submitted before the end of the period of three months beginning with the effective date of termination or within such further period as the Tribunal considers reasonable if it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period (s111(2) of the Employment Rights Act 1996). To facilitate early Case Number: 2300225/2022 conciliation by ACAS, that primary time period is extended by the period beginning the day after commencement of the process (day A) up to and including the issue of the conciliation certificate (day B) or, if time would expire during that period, the time period instead expires one month after day B (section 207B of the 1996 Act).[5]Whether it was reasonably practicable for the claimant to submit the claim in time is a question of fact for the Tribunal to decide having looked at all the surrounding circumstances and considered and evaluated the claimant’s reasons. The burden falls on the claimant to explain precisely why the claim was not presented within time. In essence this test requires the claimant to demonstrate that it was not feasible to present the complaint within time. An assessment of what further period may be reasonable, requires an objective consideration of the factors causing the delay and what period should reasonably be allowed.Findings of Fact
[6]Having assessed all the evidence, both oral and written, and the submissions made by the parties I find on the balance of probabilities the following to be the relevant facts.[7]The claimant’s employment with the respondent ended on 20 September 2021. The Highbury Grove Advice Centre Ltd submitted an appeal against termination on her behalf on 6 October 2021. It was a detailed letter that referred to unfair dismissal. It concluded: ‘[the claimant’s] case stands a good chance if it’s referred into the employment tribunal is the advice of the pro Bono lawyer, who is happy to represent her at the time the case referred to the tribunal’ (sic)[8]The claimant’s evidence was that she did return to the advice centre but was told that they could no longer help her and she had no further contact with them.[9]The claimant confirmed that she had been actively looking for a job online after her dismissal and that from mid-December 2021 to mid-January 2022 she worked as a covid vaccinator one or two days per week.[10]ACAS early conciliation ran from 2 December 2021 (day A) to 17 December 2021 (day B). The deadline for submitting a claim to the Tribunal, therefore, expired on 17 January 2022. The claimant submitted her claim of unfair dismissal to the Tribunal on 20 January 2022.[11]Her appeal was heard on 27 January 2022 and the outcome communicated to her on 2 February 2022.[12]The claimant was a member of the union Unison at the relevant times. She contacted them by email regarding her employment situation after she had been dismissed and had at least one face to face conversation with a union representative and probably another conversation as well. The union representative told the claimant about the ACAS process and also told her that there was a 3 month time limit for making claims to the Tribunal. Case Number: 2300225/2022[13]When the claimant spoke to ACAS she was also told about the Tribunal time limit but she cannot remember exactly what she was told.[14]The claimant drafted the ET1 herself without assistance and submitted it online.[15]The claimant suffered some health difficulties during her employment although no medical evidence was before me as to the details of those difficulties and the impact upon her. I note that she was seen by the respondent’s occupational health team during her employment but was certified as fit for work. The claimant referred during the hearing to a letter written in July 2022 by her GP that she had sent to the Tribunal on 29 July 2022. The respondent had not been copied into that correspondence and I read it out for Miss O’Halloran’s benefit. It read: ‘This is to certify that the above patient has severe stress. This is affecting her mental health. Please could it be settled as soon as possible as she feeling mentally vulnerable.’[16]The claimant also referred in cross examination to an email she sent to the Tribunal on 8 August 2022, again not copied to the respondent, in which she stated that the severity of her health situation had clouded her judgment which is why she missed the time limit for submitting her claim.Conclusions
[17]It is clear that the claim was submitted out of time.[18]This was a relatively short period of time by which the claimant was late but the time limits in respect of claims for unfair dismissal are strict and I only have the power to extend time when I am satisfied that it was not reasonably practicable for the claimant to submit the claim in time.[19]Strikingly the claimant had the benefit of several sources of advice. She was a member of the union and was advised by them about her employment situation and the 3 month time limit well within that time limit. When she spoke to ACAS they also told her about the time limit.[20]The claimant had also, very sensibly, consulted a local advice centre and obtained advice from them about her employment position. The exact status of the person she spoke to is not completely clear from the appeal letter he/she wrote on her behalf. What is clear however is that detailed consideration was given by the author to the claimant’s position and the letter certainly suggests that the advice centre were happy to continue to advise her and specifically mentioned the prospect of an unfair dismissal claim at the Tribunal. Again this letter as written well within the time limit.[21]The claimant says that despite this she was unable to comply with the time limit because she was under pressure, receiving a lot of information at the time and did not fully understand the situation. Further, that she had health issues.[22]Although I have not been provided with any medical evidence in support of the claimant’s position, I certainly accept that she was unwell generally in the relevant period. It is clear from the documentation before me regarding the Case Number: 2300225/2022 claimant’s dismissal that she had been referred to occupational health who confirmed she had health issues but also that she was fit to work. Further there is the letter from her GP written in July this year which although written in relation to the impact of ongoing proceedings on the claimant, also supports her general position that that she has had health issues.[23]This has to be viewed however against a background where the claimant was able to seek advice, actively look online for work and indeed carry out multiple shifts as a vaccinator during the relevant time period..[24]I conclude that the claimant was very capable of at least understanding the position that had been explained to her by more than one agency regarding the applicable time limit and complying with that time limit if she prioritised it. Her health issues did not preclude her from doing so.[25]Accordingly, I find that it was reasonably practicable for the claimant to submit her claimant in time and it is not appropriate to extend time in her favour.[26]The claim of unfair dismissal was submitted out of time and is dismissed. __________________________ Employment Judge K Andrews Date: 13 December 2022 Case No: 2300225/2022 EMPLOYMENT TRIBUNALS Claimant: Ms T Gideon Respondent: St George’s University Hospitals NHS Foundation Trust