Mr M Stockham v West Midlands Travel Ltd T/a National Express West Midlands: 2303497/2021
JUDGMENT
[1]The Claimant’s claim has not been brought in time.[2]The claim is dismissed.REASONS
[2]The Respondent has raised the issue of whether the claim has been brought in time and therefore whether the Tribunal has jurisdiction to hear the claim.[3]The Claimant’s employment was terminated on 16 November 2020, meaning that proceedings ordinarily should be commenced by 15 February 2021.[4]The claimants contacted ACAS and initiated proceedings with them on 14 February 2021, which had the effect of pausing the clock for the bringing of a claim. Early conciliation ended on 28 March 2021 and a certificate was issued on that date. As the claimants would have had less than a month to run on the clock of the paused time limit the effect of the early conciliation was to extend that time limit by a month giving a new deadline of 28 April 2021. The claimant brought a claim by way of ET1 on 28 April 2021, in principle in time.[5]Within that ET1, there is section eight called “type and details of claim” which has a series of boxes to tick to say which type of claim the claimant is bringing. The claimant did not tick the unfairly dismissed box or any boxes for discrimination. He didn't claim a redundancy payment or say that he was owed any notice pay, holiday pay, or any other type of pay.[6]He instead ticked the box at the end saying “I'm making another type of claim which the Employment Tribunal can deal with”. In the information box he wrote “discrimination following formal discipline proceedings and subsequent redundancy”.[7]The claim was referred under procedure rule 12 to Employment Judge Clark, on the basis that the court staff thought that there was insufficient information for the respondent to respond to it.[8]On 4 August 2021, a letter was sent out to the claimant rejecting the claim, because it was in a form which cannot sensibly be responded to. The judge’s reasons for this decision were as follows. “Whilst you have written that you are claiming discrimination following formal discipline proceedings and subsequent redundancy: 1. You have not ticked any of the boxes in Section 8.1 suggesting you are making a discrimination claim or that you are claiming unfair dismissal or redundancy payments. 2. You have not specified what type of discrimination you are claiming age race, disability etc. Or what actual discrimination you say occurred and when in these circumstances the respondent cannot have sufficient understanding of your claim to be able to respond to it.[9]That was made under Rule 12, which is headed “Rejection - Substantive Defects”.[10]The claimant then amended his claim form and resubmitted it on 22 August 2021 which is 18 days after the rejection was sent out.[11]The claimant says that it was merely a tick box all that was required was a change to the tick boxes. Mr. Reilly for the respondent says that if it was so simple, why did it take 18 days to correct? If it wasn't a substantive defect, it should have been able to be corrected, potentially on the same day.[12]The claimant says that the 18-day delay was because he was trying to seek legal advice. He points out that this was at the tail end of COVID, and it was difficult to obtain legal advice. Mr. Reilly counters by pointing out that at that point, he was working as a claimant solicitor and certainly his firm everybody was working, albeit from home.[13]I take judicial notice that throughout the lockdown periods, perhaps with the exception of very early on, people have been able to obtain legal advice and bring claims. I take on board Mr. Stockham and his comments that it was hard to find a solicitor that he could afford during this time. But I do know that the employment tribunals were set up with the intention that lawyers would largely be sidelines. And whilst employment law may have developed and an arms race has taken place, so that it is more usual now that at least one party will have some form of legal advice during proceedings, the Tribunal is set up as a forum where litigants in person can bring their claims and represent themselves.[14]I also take on board rule 13 of the Employment Tribunal Procedure Rules, which is “Reconsideration of Rejection”. This says a claimant whose claim has been rejected in whole or in part under Rule 10 or 12 may apply for a reconsideration on the basis that either the decision to reject was wrong, or that the notified defects can be rectified. The application shall be in writing and presented to the tribunal within 14 days of the date that the notice of rejection was sent. It should explain why the decision is said to have been wrong or rectify the defect. Then, at sub-paragraph 4, if the judge decides that the original rejection was correct, but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified.[15]Therefore, there is a format set out in the rules for the claimant to obtain a reconsideration of this defect rejection. He says that he managed to correct the defects and I find that he did correct the defect on this claim form when the subsequent claim form that he issued.[16]However, the rule has a strict timeframe of 14 days from the date that the notice of rejection was sent, and the claimant took 18 days. Therefore, it was out of time there as well as generally being out of time. Had the claimant made this correction within the time limit set out in rule 13 then I would almost certainly find that he presented it within a reasonable time after being informed of his defect.[17]I note that part of the four-month delay here was the tribunal unfortunately taking four months to initially look at the claim form. However, the claimant did not do this within the 14 days prescribed in the rules.[18]Whilst I accept he may have struggled to find somebody within his price range that he could obtain legal advice from, there are charities out there. The rules are on the internet for anyone to find. The tribunal process is clear, and the defect did occur from an initial mistake on behalf of the claimant on a form that is designed to be clear as to how you should bring a claim and which has accompanying guidance notes.[19]Therefore, weighing everything in the balance, I find that the claim was brought out of time that it would have been reasonably practicable to bring it in time. And that after the defects were identified the claimant did not act reasonably promptly.[20]Therefore, the claim is out of time. And the tribunal does not have jurisdiction to hear the claim.