Mr J Jackson v Gravity Active Entertainment (Mr S Gibbons) and others: 2411639/2023

EMPLOYMENT TRIBUNALS

Case No 2411639/2023

Between

Mr J JacksonClaimant

Gravity Active Entertainment (Mr S Gibbons) and othersRespondent

Before

Employment Judge Boyle

In person for claimant

Date 10 June 2024

JUDGMENT

[1]The claimant did not have sufficient continuous employment to bring a compliant of unfair dismissal against any of the respondents under s108 Employment Rights Act 1996. Therefore the claims of unfair dismissal against each respondent are dismissed because the Tribunal does not have jurisdiction to determine them.

[2]The complaint of breach of contract/wrongful dismissal against each respondent was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of breach of contract/wrongful dismissal against each respondent is therefore dismissed. Case No: 2411639/23 10.2 Judgment - rule 61 February 2018

REASONS

Judgment was sent to the parties on 24 June 2024. The claimant wrote to the Tribunal and requested written reasons on 25 June 2024 in accordance with rule 62(3) of the Employment Tribunals (Constitution and Rules of Procedure ) Regulations 2013 and therefore the following reasons are given. Claims and Issues

[1]The claimant brought claims against the five respondents on the same ET1 claim form.

[2]The claims brought were for unfair dismissal, wrongful dismissal and/or breach of contract.

[3]The claims were not connected. The claimant explained that due to technical difficulties, he had submitted one claim for all the claims. However, if the claims were to proceed, he asked that they be separated.

[4]All the claims arose out of periods of employment which the claimant had with each employer.

[5]Following a reivew of the claim, a public preliminary hearing was held on 10 June 2024 to determine:a. Whether any of the claims should be struck out on the basis they have no reasonable prospect of success, either in relation to time limits, or on the merits; and

b. If any of the claims are not struck out, the appropriate Case Management Orders to bring them to a final hearing or to enable judgment under rule 21 to be issued. Procedure Documents and Evidence

[6]The tribunal received a bundle from the fifth respondent and some documents from the claimant.

[7]The claimant gave evidence and was cross-examined by the respondent’s’ representatives. The first respondent did not attend and was not represented.

[8]The claimant, second, fourth and fifth respondent made submissions at the end of the hearing. Case No: 2411639/2023 Fact Findings After a careful consideration of all the evidence before the Tribunal today, I made the following findings of fact.

[9]The claimant’s dates of employment were agreed by the claimant as being correct.

[10]These were:a. First respondent , whilst he could not give exact details, he believed this was in September 2020 with employment for about 3 weeks;

b. Second respondent from 18 December 2017 to 18 June 2018;

c. Third respondent from 25 May 2017 to 21 August 2017;

d. Fourth respondent from 22 February 2023 to 14 April 2023;

e. Fifth respondent from 16 April 2021 to 15 October 2021.

[11]Clearly, on the face of it, the claimant did not reach two years’ employment with any of the respondent employers. The chronological order for the employments was:a. Third respondent

b. Second respondent

c. First respondent

d. Fifth respondent

e. Fourth respondent

[12]The claimant did not give particulars in his ET1 as to why he says he was dismissed by each employer. I find that there was no automatically unfair dismissal reasons asserted by the claimant either in his ET1 or his evidence at the hearing.

[13]The claimant contacted ACAS on 13 March 2023 regarding the first, second third and fifth respondents.

[14]ACAS Early Conciliation in relation to these respondents closed on 18 April 2023. As these claims were brought to ACAS significantly outside of the primary time limit, the claimant did not benefit from any extension of time to bring a claim in the Tribunal due to the ACAS conciliation period.

[15]The claimant presented his claim in respect of these four respondents on 6 November 2023 to Manchester Employment Tribunal.

[16]In his evidence, the claimant said that he was disappointed each time an employment came to an end.

[17]He is a graduate with 2.1 degree, 5 A-Levels and 11 GCSEs. He struggled due to losing these employments and the gaps that this left in his CV. With short periods of employment he was not able to upskill and move into better jobs. Case No: 2411639/2023

[18]He said that when he spoke to ACAS on 13 March 2023 he ‘was told of the difficulties of bringing older cases”. He said that up to that point he did not know about his employment law rights to bring claims arising out of employment.

[19]At this time of contacting ACAS, the claimant was in employment with the fourth respondent.

[20]The claimant contacted ACAS again on 11 April 2023 regarding the fourth respondent his then current employer.

[21]The claimant was dismissed by the fourth respondent on 14 April 2023. Therefore, the claim should have been presented by 13 July 2023, subject to extension by reason of early conciliation via ACAS.

[22]The ACAS Early Conciliation period in respect of the fourth respondent closed on 25 May 2023.

[23]As the claimant, in respect of the fourth respondent, contacted ACAS within the primary limitation date, he therefore received the benefit of an extension of time for the early conciliation period.

[24]The ACAS certificate in respect of the fourth respondent was issued on 23 May 2023. Accordingly, the early conciliation period was 43 days long, this extended the limitation date from 13 July 2023 to 25 August 2023.

[25]The claims for all five respondents were presented with the Manchester Employment Tribunal on 6 November 2023 and was therefore presented 73 days out of time.in respect of the fourth respondent.

[26]When questioned the claimant could not offer any explanation for his delay in bringing his claims in the Tribunal and simply said “I didn’t realise it was that long”.

[27]The claimant confirmed there was no medical reason for delay in any of these cases. He said that the only explanation for delay was his ignorance of the law and particularly his rights on dismissal.

[28]The claimant did not assert any automatically unfair reasons for his dismissals. Case No: 2411639/2023 The law Time limits – Unfair dismissal and wrongful dismissal/breach of contract

The law

[29]To qualify for the right to claim unfair dismissal, employees must generally show that they have been continuously employed for at least two years: under the Employment Rights Act Section 108(1).

[30]The time limit for unfair dismissal claims is three months. Section 111 of the Employment Rights Act 1996 (‘ERA’) provides that: ‘(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, 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. (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).’

[31]The time limit for wrongful dismissal/breach of contract claims is also three months. Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 (‘the 1994 Order’) provides that: ‘An employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented—(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b).’

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.’

[32]The effective date of termination (‘EDT’) is when time limits begin to run for making claims of unfair dismissal and breach of contract to the Tribunal. For both claims, the EDT is the date of the termination of the contract giving rise to the claim: ERA, Section 97(1); 1994 Order, Article 7. Case No: 2411639/2023

[33]The clock stops when ACAS receives the early conciliation request and starts to run again the day after the prospective claimant receives the certificate: ‘(2) In this section—(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.’ [Section 207B, ERA]

[34]If a claim is presented out of time, the Tribunal has no jurisdiction to hear it. The Court of Appeal endorsed first instance principles in Dedman v British Building and Engineering Appliances

[1974] ICR 53

, CA per Lord Denning MR at p.59H:

[35]‘According to the decisions of the Industrial Court, the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal: “I do not want to take advantage of this man. I will not take any point that he is a day late:” nevertheless the tribunal cannot hear the case. It has no power to extend the time: see … Rogers v Bodfari (Transport) Ltd

[1973] ICR 325

, NIRC.’

[36]Where a claimant seeks to argue that it was not reasonably practicable for the complaint to be presented in the onus of proving that presentation in time was not reasonably practicable rests on the 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 at p.948E]

[37]There is no authoritative definition of ‘reasonably practicable,’ but Lord Justice Underhill summarised the essential points from the case law in Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

, CA at §12: ‘(1) The test should be given “a liberal interpretation in favour of the employee (Marks and Spencer plc v Williams-Ryan

[2005] EWCA Civ 470

[2005] ICR 1293

, which reaffirms the older case law going back to Dedman v British Building & Engineering Appliances Ltd

[1974] ICR 53

). (2) The statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was ‘reasonably feasible’ for the claimant to present his or her claim in Case No: 2411639/2023 time: see Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

… (3) If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will have been reasonably practicable for them to bring the claim in time (see Wall’s Meat Co Ltd v Khan

[1979] ICR 52

); but it is important to note that in assessing whether ignorance or mistake is reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made. (4) If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman). (5) The test of reasonable practicability is one of fact and not of law (Palmer).’

[38]When assessing the reasonableness of a claimant’s ignorance, the question for the Tribunal is: ‘ought the plaintiff to have known and, if he did not know, has the applicant given a satisfactory explanation of why he did not know?’ [Porter v Bandridge Ltd

1978 ICR 943

, CA at p.949D]

[39]Where the claimant is generally aware of his rights, he will generally be taken to have been put on inquiry as to the time limit. Per Lord Scarman in Dedman v British Building and Engineering Appliances Ltd

[1974] 1 All ER 520

, CA at p.528E: ‘…does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion, no. It would be necessary to pay regard to his circumstances and the course of events. What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation for his continuing ignorance of the existence of his rights, it would not be appropriate to disregard it, relying on the maxim “ignorance of the law is no excuse.” The word “practicable” is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance. But what, if, as here, a complainant knows he has rights, but does not know that there is a time limit? Ordinarily, I would not expect him to be able to rely on such ignorance as making it impracticable to present his complaint in time. Unless he can show a specific and acceptable explanation for not acting within four weeks, he will be out of court.’ (emphasis added)

[40]As Judge LJ observed in London Underground Ltd v Noel [2000] I.C.R. 109 at p.117G: ‘The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, “in all the circumstances,” nor when it is “just and reasonable,” nor even where the Tribunal “considers that there is a good reason” for doing so. Case No: 2411639/2023 As Browne Wilkinson J (as he then was) observed: “The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done” (Bodha v Hampshire Area Health Authority

[1982] ICR 200

at p 204).’

[41]Even if a claimant satisfies a Tribunal that presentation in time was not reasonably practicable, it does not automatically decide the issue in his favour. The Tribunal must go on to whether the claim was presented within such further period as the Tribunal considers reasonable. In Cullinane v Balfour Beattie Engineering Services Ltd

UKEAT/0537/10

, Underhill P (as he then was) held at §16. ‘The question at “stage 2” is what period – that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.’ Conclusions Unfair Dismissal – length of service requirement 40. The law is very clear on entitlement to bringing a claim for unfair dismissal: the employee must have two years’ continuous employment. 41. The claimant confirmed that for each employment with the five respondents, he did not have that length of service. I therefore find that he did not have two years’ service with any of the five respondents.

Conclusions

[42]His submission was that his length of service was irrelevant. I disagree with this. The law is very clear and therefore there is no jurisdiction to hear any claims for unfair dismissal.

[43]The claimant did not assert any claims for automatic unfair dismissal for which there is no service requirement (under s 108 (1) Employment Rights Act 1996).

[44]Therefore all the claims for unfair dismissal stand as dismissed. Time limits for bringing claims for unfair dismissal and wrongful dismissal/breach of contract

[45]On this basis of the above decision, I do not need to consider time limits for unfair dismissal. However, as the test is the same, I will Case No: 2411639/2023 consider time limits both in relation to unfair dismissal and wrongful dismissal/breach of contract.

[46]With this section, I have given due consideration to the various authorities on the submission of late claims including the Court of Appeal Judgment in Palmer v Southend on Sea Borough Council

(1984) ICR 372

and Lowri Beck Services Ltd v Brophy

(2019) EWCA Civ 2490

and the cases referred to particularly by Counsel for the fourth respondent and quoted above.

[47]I have reminded myself that “reasonably practicable” does not mean reasonable and does not mean physically possible either. It means something like “reasonably feasible”.

[48]I have reminded myself that the power to disapply the statutory time limits for presenting claims is very restricted for these types of claims. It is a different consideration for claims for discrimination, but that is not relevant here.

[49]I have reminded myself that it is for the claimant to prove why it was not reasonably practicable to present his claims in time and further that if he does so, I must go on to consider whether he then went on to present his claims in a reasonable time period thereafter.

[50]I have also remind myself that there is strong public interest in having and maintaining time limits for these types of claims. The majority of employment law claims have relatively short time limits for reasons that Parliament believed was important when making them part of the law.

[51]I will consider the first, second, third and fifth respondents together and then the fourth respondent separately as there are slightly different considerations for both. First, second, third and fifth respondents

[52]With the first, second, third and fifth respondents claims brought by the claimant, there is no extension for ACAS Early Conciliation. This is because all these claims were recorded with ACAS significantly out of time with time periods since the termination of employment with each respondent ranging from 6 years to at least 18 months.

[53]With these respondents, it is very clear based on the agreed employment dates, that claims should have been brought several years ago for each one. They were not.

[54]The claimant says he was ignorant of his rights but gave no real further explanation here.

[55]The claimant stated he is an intelligent and highly educated man and therefore I find it would not have been difficult for him to do a simple Case No: 2411639/2023 internet search of basic employment rights. He gave no explanation as to why he did not.

[56]He knew he had been dismissed each time and from both his evidence and submissions was clearly upset by and did not agree with each dismissal. It makes no real sense as to why, after a continuing pattern of remaining in jobs for short periods, he would not investigate his rights. If he had, I have no doubt he would have found out relatively quickly that employment rights exist both during and arising out of the termination of employment.

[57]I find that with minimal effort the claimant could and should have educated himself regarding potential employment law claims several years ago and therefore that any ignorance on his part was not reasonable.

[58]It is for the claimant to bear the burden of proving why it was not reasonably practicable to present his claims in time and I find that he has failed to discharge that burden here.

[59]Therefore I find it was reasonably practicable for the claimant to bring his claims for wrongful dismissal/breach of contact in time and therefore as he has failed to do so, these claims will be dismissed

[60]I further find that it was reasonably practicable for the claimant to bring his claim for unfair dismissal in time and therefore as he has failed to do so, this claim would have be dismissed.

[61]Even if I am wrong on this, I will consider even if was not reasonably practicable to bring claims in the specified time period, whether he went on to bring the claims in a reasonable period of time.

[62]It is uncontested that the claimant had made contact with ACAS in March 2023 and was told then about his rights and the difficulties of bringing older claims. I find that this must have involved a discussion about time limits for bringing claims.

[63]Therefore the claimant should have brought these claims straightaway after the ACAS period closed on 18 April 2023 and should not have delayed until November 2023 to bring his claim in the Tribunal.

[64]This was not a reasonable time period, bearing in mind the claimant would have been in no doubt that these claims were already significantly out of time. The claimant could give no explanation for his delay save to say that he didn’t realise it had taken him that long and confirming that there was no medical impediment preventing him from acting sooner. Case No: 2411639/2023

[65]I therefore I find that the claims were not presented within such further period as the Tribunal considers reasonable. I find that there was no explanation from the claimant for this delay and therefore it was not reasonable for the claimant to have presented his claims for wrongful dismissal/breach of contract and unfair dismissal some eight months after contacting ACAS. Fourth respondent

[66]With the fourth respondent, this was the claimant’s most recent employer. He had already made contact with ACAS before his dismissal from this employer, regarding the other respondents (i.e. his former employers).

[67]The claimant made contact with ACAS again regarding this employer on 11 April 2023. There can be no doubt by this time, he was well aware of his rights and the relevant time periods, and can be taken to have been put on inquiry as to the time limit.

[68]Again, he did not then present a claim until 9 November 2023 some 73 days late. There was no explanation from the claimant for this delay. It is for the claimant to bear the burden of proving why it was not reasonably practicable to present his claims in time and I find that, for the reasons above, he has failed to discharge that burden here.

[69]On this basis I find that it was reasonably practicable for the claimant to have presented his claims for wrongful dismissal/breach of contract in time. Further I find that it was reasonably practicable for the claimant to have presented his claim for unfair dismissal in time.

[70]In any event and further, the claimant has failed to give any satisfactory explanation of why, knowing the time limits and their importance, he then failed to bring a claim for several months. This was not a reasonable time period, bearing in mind the claimant would have been in no doubt that these claims were subject to a primary time period. The claimant could give no explanation for his delay save to say that he didn’t realise it had taken him that long and confirming that there was no medical impediment preventing him from acting sooner.

[71]I therefore I find that the claims were not presented within such further period as the Tribunal considers reasonable. I find that there was no explanation from the claimant for this delay and therefore it was not reasonable for the claimant to have presented his claims for wrongful dismissal/breach of contract and unfair dismissal 73 days outside of the primary time limit (with ACAS Early Conciliation extension).

[72]Therefore any claim for wrongful dismissal/breach of contract against the fourth respondent is dismissed. For the same reasons as given above, any claim for unfair dismissal would also have been dismissed. Case No: 2411639/2023 Employment Judge Boyle Date 6 July 2024