Employment Judge SudraMiss. A. Smith (instructed by Counsel) for respondentDate 19 May 2025
JUDGMENT
[1]The Claimant’s claim is struck-out as it was submitted out of time and the Tribunal does not have jurisdiction to hear it. JUDGMENT[2]The Claimant’s claim is struck-out as it was submitted out of time and the Tribunal does not have jurisdiction to hear it.
REASONS
[1]Following a public Preliminary Hearing on 25th April 2025, these written reasons are being provided following a request from the Claimant made on, 8th May 2025. 1 of 7 Background Application to Strike Out the Claim[2]On 31st December 2023, the Claimant began Acas Early Conciliation (‘Day A’) and was issued with an Acas Early Conciliation certificate on 4th January 2024 (‘Day B’). The Claimant submitted his ET1 on 15th January 2024 and his claim was for whistleblowing detriments.[3]I accepted that the Claimant was a Litigant-in-Person and may have had no legal advice when submitting his claim. The Claimant complained about three detriments alleged to have occurred during the period, 12th July 2020 to 19th March 2021.[4]Therefore, the primary time limit expired on 18th June 2021 and the Claimant should have begun Acas Early Conciliation by this date. As it happened, the Claimant did not begin Acas Early Conciliation until 31st December 2023 and submitted his ET1 claim form on 15th January 2024. This is a significant period of delay.[5]At a Case Management Hearing on 8th January 2025, Employment Judge Ord listed a Public Preliminary Hearing to consider, ‘1.1 The respondent’s application to strike out the entirety of the claim on the basis that it has no reasonable prospects of success (substantially out of time and merits). In the alternative, the respondent’s application for a deposit order. 1.2 The issue of res judicata and abuse of process. 1.3 Case management, if appropriate.’ Summary of the Respondent’s Case[6]The allegations made by the Claimant relate to the period 20th July to 19th March 2021. It was submitted that as the Claimant did not enter Acas Early Conciliation by 18th June 2021, he does not benefit from the Acas extension of time regime. As a matter of logic, time began to run from 19th March 2021 and the primary time limit would have been reached on 18th June 2021. 2 of 7[7]Therefore, the Respondent says that the Claimant’s ET1 was presented just shy of 34 months after the primary time limit expired. The Respondent also submitted that the Claimant was, and is, a member of a trade union and had received advice from it and knew about Employment tribunal processes as he had submitted an earlier claim within the appropriate time limits.[8]Finally, it was said that the Claimant had failed to establish that it was not reasonably practicable for him to submit his claim within the time limit and that he had not demonstrated that he had submitted his claim in a reasonable period thereafter. Summary of the Claimant’s Case[9]Much of the Claimant’s submissions focussed on matters relating to a previous claim he had submitted to the Employment Tribunal and he suggested that their was an ‘overlap’ of matters. Whilst this may be true, the Claimant did not advance any cogent reasons as to why he had submitted his present claim so far outside prescribed time limits.[10]The Claimant accepted that he was a trade union member and had received its advice. He also confirmed that he had brought a previous, successful, claim before this tribunal.
Relevant Law
[11]The starting point must be s.48 of the Employment Rights Act 1996 (‘ERA’) (so far as material): ‘(3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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.’ 3 of 7 …[12]It is for a Claimant to show that it was ‘not reasonably practicable’ for the complaint to be presented in time and that the claim was nevertheless presented 'within such further period as the tribunal considers reasonable' There is no presumption to exercise the discretion. The Tribunal should have regard to relevant factors, including what C knew about the right to complaint to a Tribunal and of the time limit for doing so (Marks & Spencer plc v. Williams-Ryan [2005] EWCA Civ 470).[13]What is reasonably practicable is a question of fact and thus, a matter for the Tribunal to decide. An appeal will not be successful unless the Tribunal has misdirected itself in law or has reached a conclusion that no reasonable Tribunal could have reached. As Lord Justice Shaw put it in Wall’s Meat Co Ltd v. Khan 1979 ICR 52, CA: ‘The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the [employment] tribunal, and that their decision should prevail unless it is plainly perverse or oppressive’[14]I remind myself that the onus of proving that presentation of a claim within the time limit was not reasonably practicable, rests on a Claimant. ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ — Porter v. Bandridge Ltd 1978 ICR 943, CA. Accordingly, if a Claimant fails to argue that it was not reasonably practicable to present the claim in time, the Tribunal will find that it was reasonably practicable — Sterling v. United Learning Trust EAT 0439/14.[15]In University Hospitals Bristol NHS Foundation Trust v. Williams EAT 0291/12 the EAT emphasised that this limb of s.111(2)(b) ERA does not require a Tribunal to be satisfied that the Claimant presented the claim as soon as reasonably practicable after the expiry of the time limit in order to allow the 4 of 7 claim to proceed. Rather, it requires it to apply the less stringent test of asking whether the claim was presented within a reasonable time after the time limit expired. That said, a Tribunal is unlikely to accept a late claim where the Claimant fails to act promptly once the obstacle that prevented the claim being presented in time in the first place has been removed.[16]What amounts to a ‘further reasonable period’ for the purposes of s.111(2)(b) ERA is essentially a matter of fact for a Tribunal to decide on the particular circumstances of the case. There is no hard and fast rule about what period of delay is reasonable and the extent of the delay is just one of the circumstances Tribunals will need to consider. In Cullinane v. Balfour Beatty Engineering Services Ltd and anor EAT 0537/10 Mr Justice Underhill, then President of the EAT, commented that the question of whether the period between expiry of the time limit and the eventual presentation of a claim is reasonable requires an objective consideration of the factors causing the delay and of what period should reasonably be allowed in those circumstances for proceedings to be instituted. Crucially, this assessment must always be made against the general background of the primary time limit and the strong public interest in claims being brought promptly. In Nolan v. Balfour Beatty Engineering Services EAT 0109/11 the EAT reiterated this last point, stating that Tribunals, when considering whether to extend time under S.111(2)(b) ERA, should always bear in mind the general principle that litigation should be progressed efficiently and without delay. The EAT went on to hold that, when deciding what would have been a reasonable time within which to present a late claim, Tribunals should have regard to all the circumstances of a case, including what the Claimant did; what he or she knew, or reasonably ought to have known, about time limits; and why it was that the further delay occurred.
Conclusion
[17]The factual matrix of this matter is uncomplicated and agreed. The Claimant issued a claim in January 2024 relating to matters which took place between July 2020 and March 2021; the ET1 should have been submitted by 18th June 5 of 7 2021 and it was not presented until the passing of nearly 34 months. It is not the Claimant’s case that he was incarcerated or incapacitated at the material time save that he was very ‘stressed and distressed.’[18]An additional feature in this case is that the Claimant had submitted a previous ET1 (2304998/2021) on 14th July 2021 having successfully negotiated the Acas Early Conciliation procedure in June 2020. Indeed, the Claimant went on to represent himself at the subsequent Final Hearing with success.[19]The Claimant was (and remains) a trade union member and had received trade union advice and had access to it. It was also in evidence before me that the Claimant received an email from the Tribunal in respect of time limits in December 2020.[20]The C did not advanced any convincing reasons as to why he submitted his present ET1 so far outside of the primary time limit.[21]I had no reason to doubt the Claimant’s sincerity or that he lives his life with honesty and integrity. However, I was compelled to apply the law to the facts before me and could find no reason why it was not reasonably practicable to present the claim in time. Having made that finding, I was also not persuaded that the claim was submitted within a reasonable period thereafter.[22]Therefore, the Claimant’s claim was presented out of time, there were no reasons to allow an extension of time and the claim was dismissed as the Tribunal had no jurisdiction to hear it.
Conclusion
[1]The Claimant’s application for reconsideration of the judgment given in this matter on 25th April 2025 is refused and the decision in that judgment is confirmed. APPLICATION[2]The Respondent applied, under Rule 69 of the Employment Tribunal Procedure Rules 2024, for reconsideration of my decision, to refuse an extension of time in which to submit his claim as it was presented outside of the requisite time limit.[3]The Claimant has applied for a reconsideration of my judgment as he says, 1 of 4 ‘I’m so please (sic) to gather the hidden truth and fight for my rights and to go for justice and to protect everyone in the workplace.I got high praise for our law and our justice systems.l hope you please reconsider my whistleblower claim.I’m the only one revealing the truth and also trying my very best to abide to the tribunal rulings and also rushing and trying to fight for my right to work in a safe workplace.I want justice.It’s still affecting me badly and l’m still off-work due to work related stress.It was all clearly Asda’s wrongdoings again and should be responsible and to take accountability for all their wrongdoings.I did struggled in my first case.I have more faith in my 2nd case for l didn’t know how the law works but l was just fighting and alerting everyone in Asda wrongdoings.There were so much cover-ups by Asda.Please do reconsider my claim.Justice should prevail and Asda should not escape injustice this time again.I hope the law should protect me on the job l love most ..’[4]Upon reconsideration, there is no prospect of my decision being revoked or varied. The Claimant had no proper reason for presenting his claim nearly three years outside of the appropriate time limit.[5]Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted. Reconsideration is certainly not an opportunity for a party to pursue a claim because he or she wishes to unravel alleged hidden truth or to ‘fight’ for rights[6]There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: 2 of 4 ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[7]Similarly, in Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[8]Reconsideration is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.[9]Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be 3 of 4 corrected on appeal and not through the back door by way of a reconsideration application.[10]For all of the above reasons, the Respondent’s application is refused.