Mr R Verburg v The Down's Syndrome Association: 2303194/2020
EMPLOYMENT TRIBUNALS
Case No 2303194/2020
Between
Mr R VerburgClaimantThe Down’s Syndrome Association APPLICATION FOR RECONSIDERATIONRespondent
Before
Employment Judge CheethamIn person for claimantAlex Sims (instructed by solicitor) for respondentDate 21 October 2021
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear the complaint of unfair dismissal, as the Claimant was employed for less than 2 years.[2]The Tribunal does not have jurisdiction to hear the complaints for wrongful dismissal and detriments arising from making protected disclosures, as they have been brought out of time.[3]The complaint of age discrimination has been withdrawn.[4]The claim is therefore dismissed.
REASONS
[1]This is a claim that was brought on 31 July 2020, arising from the Claimant’s employment as an Employment Development Officer. Although the ET1 gave 17 March 2020 as the date his employment ended, the correct date was actually 17 February 2020. His employment started on 3 February 2019, so the Claimant had less than 2 years’ continuous service.[2]The complaints listed in the ET1 were unfair dismissal and age discrimination and there was also reference to wrongful dismissal and (in terms) detriment suffered as a result of making a protected disclosure. However, given the length of employment, the Tribunal does not have jurisdiction to hear the claim for unfair dismissal.[3]On 21 October 2020, EJ Andrews gave directions for further information about the claim. That was because the particulars did not mention either age discrimination or protected disclosures, but focused only the dismissal. There was an amount of correspondence about the particulars, but – to take a shortcut through all of the documentation – the issue for this hearing was limitation.[4]The Respondent maintained that the ET1 was out of time and that therefore the Tribunal did not have jurisdiction to hear the claim. The Claimant made it clear at this hearing that he was no longer complaining of age discrimination, so the complaints were (at least potentially) detriment(s) for making protected disclosures and wrongful dismissal.[5]Under the relevant provisions of the Employment Rights Act 1996, complaints must be brought to the Tribunal before the end of the period of 3 months beginning with the date of the act complained of. The Tribunal does, however, have a discretion to extend time, but only where it was “not reasonably practicable” for a claimant to comply with that time limit.[6]In fact, that 3 month time limit is extended by the Acas Early Conciliation procedures so, in this case, the relevant dates were as follows:• Date of termination: 17.2.20• Acas notification: 14.5.20• Acas Early Conciliation certificate: 18.6.20• Limitation date (i.e. last day the claim could be brought): 18.7.20• Date of ET1: 31.7.20[7]The claim was therefore 13 days late. The Claimant provided a number of reasons, some of which had been set out in his ET1. First, he had experienced technical difficulties accessing online forms, partly – it appears – because he was still using Windows 7. He also referred to his computer being temperamental.[8]Secondly, he had suffered from ill-health since losing his job, although he did not provide any medical evidence to show how that might have prevented him from completing the form.[9]Thirdly, he had been awaiting a response to the Freedom of Information request that he had submitted to the Respondent.[10]Fourthly, the Claimant blamed the Covid epidemic, which he said caused him to delay seeking legal advice and approaching Acas.[11]Finally, the Claimant referred to his caring responsibilities for another person.[12]The Tribunal concluded that, those reasons taken separately or together, do not explain why it was not practicable – in other words, feasible – to present the claim in time. Whilst accepting that those reasons may not have made it easier to comply with the deadline, it nevertheless remained feasible to do so.[13]The likelihood of technical difficulties, particularly where one’s computer is temperamental and still using a relatively old operating system perhaps emphasises the importance of not leaving such things to the last minute.[14]The Claimant’s ill-health and caring responsibilities no doubt made bringing a claim more challenging, while Covid19 has affected every party to the Tribunal in different ways. Equally, the Claimant may well have wanted to receive the FOI information first. However, in the Tribunal’s judgment, it still remained practicable to bring the claim in time.[15]That being so, the Tribunal does not have jurisdiction to hear this claim, which is therefore dismissed.[1]At a Preliminary Hearing on 27 September 2021, the Tribunal dismissed the claim, holding that:(a) The Tribunal did not have jurisdiction to hear the complaint of unfair dismissal, as the Claimant had been employed for less than 2 years.(b) The Tribunal did not have jurisdiction to hear the complaints for wrongful dismissal and detriments arising from making protected disclosures, as they had been brought out of time.(c) The complaint of age discrimination had been withdrawn.[2]On 25 October 2021, the Claimant (who is unrepresented) wrote to the Tribunal, copying in the Respondent’s solicitor, setting out at length a number of concerns and attaching various documents. Although reasons had been given orally at the hearing, the written reasons (which had been promulgated on 21 October) had not been sent out at that stage.[3]Although the Claimant’s email was not especially clear, it appeared that he was asking the Tribunal to reconsider its decision in the light of the matters he had set out. He referred to an “oversight” by the Tribunal, although it was not completely clear what that was. The Tribunal therefore ordered as follows: Case No: 2303194/2020 "Following the hearing on 27 September 2021, at which judgment was given dismissing the claim, the Claimant emailed the Tribunal on 25 October 2021. The Tribunal is treating that email as an application for reconsideration of the judgment (a copy of which the parties will now have received) and seeking to have it revoked, under Rule 71. The Respondent is asked to respond to the Claimant's email within 14 days of this Order being sent to the parties (and marked for the attention of EJ Cheetham QC), also stating whether it considers the application for reconsideration can be considered without a further hearing."[4]It is fair to say that the Respondent took exception to that approach, arguing forcibly in its response that the Tribunal was wrong to treat that letter as an application for reconsideration and explaining to the Judge what he should have done. However, the Respondent then helpfully provided the response sought and dealt with the points raised by the Claimant.[5]Having considered again the Claimant’s letter and the Respondent’s substantive response to those points, it is clear that there is no basis at all for revisiting the Judgment. Nothing that the Claimant has said regarding his continuity of service can alter the fact that he was employed for less than 2 years. More significantly, the contentions put forward in the email regarding time limits and the submission of the claim – which appear to be the alleged “oversight” – are not sustainable, as explained by the Respondent.[6]While the Tribunal would not go so far as the Respondent in saying that the Claimant’s email contained statements that were false and misleading, it is clear in its view that nothing in that email provides any basis at all for reconsideration of the Judgment. Whether or not the Tribunal was correct to treat that email from the Claimant as an application for reconsideration, it is nevertheless clear that the application must in any event fail.[7]The Tribunal apologises for the delay in dealing with this matter.