Mr A Dawson v Brighton Trades Labour Club and Institute Ltd: 2302197/2017
JUDGMENT
The Claimant’s claim was presented to the Tribunal outside the time limit prescribed by statute and the Tribunal does not have jurisdiction to extend time in the circumstances of the case. The claim is accordingly struck out. JUDGMENT having been sent to the parties on 13 February 2018 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The preliminary hearing was directed by Employment Judge Baron in an order dated 13 December 2017. The issue to be decided was whether the Tribunal had jurisdiction to consider the only claim made in the case of unfair dismissal taking into account the statutory time limit of 3 months as extended by the ACAS early conciliation procedure.[2]In headline terms there was no dispute over the dates in this case. The Claimant’s effective date of termination in the Claimant’s resignation letter of 7 April 2017 was 14 April 2017. The 3 months time limit for presenting a claim of unfair dismissal therefore expired on 13 July 2017. The Claimant commenced early conciliation on 8 June 2017 and the certificate concluding that conciliation was dated 8 July 2017 which therefore entitled him to add one month to the expiry of the 3 month period on 13 July and should therefore have presented his claim by 13 August 2017. The claim was in fact presented on 18 August 2017, some 5 days later.[3]By a way of amplification of those facts I should also record that the Claimant was clearly aware of the time limit at the time of presentation of the claim as he has stated at page 7 in box 8.2: “Please will you still accept this claim. I’m dealing with this claim for months with ACAB (sic) and ACAS. I was told by ACAS that I need to wait 30 days in order for the Club to respond and thought that to mean that I cannot start the Tribunal process until after that time! I have been waiting for ACAS to contact me to tell me to go ahead with the Tribunal. Finally, after no response I sent an e-mail asking if there was any news on my case then received a phone call from ACAS YESTERDAY saying that I should have already done this. I honestly had no idea or I would I have done this sooner.”[4]It is also relevant to record that the Claimant had as long ago as 10 January 2011 in correspondence to raise concerns with the Respondent and provided to the Respondent highlighted sections on attached sheets dealing with the issue of changes to employment contracts, a matter about which there has been ongoing dispute. The information provided appears to be from a government site providing information about employee rights. Further dispute about, to put it generically, the Claimant’s duties as club steward dates from the latter part of 2016. The Claimant had on 24 March raised a grievance about these matters and made reference to having taken advice from an employment solicitor at the CAB.[5]The Claimant resigned in a lengthy resignation letter on 7 April 2017 indicating that his last working day would be Friday, 14 April 2017. The Claimant told the Tribunal that he made contact with ACAS and on initial contact was informed in relation to the process and it can reasonably be inferred in relation to time limits. This was on or about 8 June 2017 recorded by ACAS as the date of commencement of consideration.[6]The Claimant places a conversation during which he says he was misadvised by ACAS on or about 8 July 2017. In this conversation he said he was told he had to wait 30 days before presenting a claim to the Tribunal. Of course it has to be observed had the Claimant presented 30 days after 8 July, the conclusion of conciliation, he would have been within time because the time expired on 13 August 2017. The Claimant has not produced any satisfactory corroboration for his contention that ACAS fundamentally and negligently advised him to take no action on the case until after the time limit had expired. He wrote an e-mail on 15 August 2017 to the named conciliator rather than approaching ACAS directly by telephone at that time and was subsequently telephoned on 17 August and told that time for presentation of the claim had expired at that point.[7]Accordingly, in an assessment of time and the evidence given by the Claimant I have to consider whether it is inherently more probable that the Claimant was informed of the fact that he had to wait for the conciliation to conclude at the commencement of the conciliation or whether he was informed at the end of the conciliation that he had to wait for further 30 days. I find it unlikely that the Claimant was informed as he contended. I do not lay of the Claimant’s door an attempt to perpetrate a falsehood but I believe that his recollection may have dimmed and he may have failed to appreciate the significance of what was said to him. It would of course had been possible to seek a witness summons from the conciliator, if his name was known, to attend from ACAS to answer whether the conversation took place and whether the advise was given as the Claimant contends but that step was not taken by the Claimant and the preliminary hearing falls with the termination today.[8]In relation to the law the time limit has for many years been 3 months from the effective date of termination as provided by section 111 of the Employment Rights Act 1996 (“the 1996 Act”). The effective date of termination is not in dispute in this case being a date given in the Claimant’s letter of resignation. The complication has arisen as the result of ACAS conciliation and section 207B of the 1996 Act deals with extensions of time. The extension granted in Section 207B(3) operates in this case by adding the period between day A when conciliation started and day B when it finished to the 3 months time limit within which the claim must be presented. Thus by adding one month to 13 July 2017 the time limit runs to 13 August 2017. The extension granted by Section 207B(4) operates when the primary time limit expires between day A and one month after day B. In such a case the extension is to one month after day B. In this case the subsection 3 extension is to 13 August, and the subsection 4 extension is to 8 August. The subsection n3 date is used which is 13 August.[9]The claim cannot be accepted by the Tribunal as provided in section 111 of the 1996 Act unless it is demonstrated that it was not reasonably practicable for the claim to be presented within the statutory time limit. “Not reasonably practicable” is a phrase that has troubled Employment Tribunals and the appellate courts over time. It is not to be placed as high as not physically possible but it falls somewhere approximating to not reasonably feasible.[10]This is a case where the Claimant had ample opportunity for access to advice through the CAB and through ACAS. The correct advice could have been obtained by him online had he desired to undertake the research to obtain that advice. There is no satisfactory basis for saying on the grounds advanced by the Claimant that it was not reasonably practicable for the claim to be presented in time. Accordingly, I have no basis for considering whether the claim was presented within such further time as I consider reasonable since the Claimant has failed to pass the first hurdle required for an extension of time.[11]It is worth recording that, had the Claimant passed the “not reasonably practicable” test it would have been difficult to say that it was not that he did not act within a reasonable period in issuing his claim some 5 days later. That however does not affect the conclusion which is that the claim is out of time and the Tribunal has no jurisdiction to consider it.[12]The only claim in this case is of unfair dismissal and accordingly the claim is therefore dismissed.