Mr A Harris v Northern Building Design Associates: 2415461/2020
JUDGMENT
[1]The claim was presented outside of the primary time limit for the presentation of a claim.[2]It was not reasonably practicable for the claim to be brought in time, and time has been extended from 22 September 2020 to 1 October 2020, when the claim was received in the Tribunal.[3]The Tribunal thus has jurisdiction to hear the claim. Having concluded that it was not reasonably practicable for the claim to be brought in time, and that time should be extended to 1 October 2020, and thus the Tribunal now has jurisdiction to hear this claim, we moved on to discuss the issues in the case and to agree Case Management Orders for the preparation for the hearing which are contained within a separate Order dated 11 June 2021.REASONS
[1]The respondent requested written reasons of the judgment made during the Preliminary Hearing in this case on 19 May 2021.[2]On 19 May 2021 during a Preliminary Hearing by CVP, the respondent applied for the claimant’s claim to be struck out on the grounds that the claimant had submitted the claim out of time. The claimant accepts that his claim was submitted out of time. The parties agreed that the last date upon which his claim could be submitted was 22 September 2020. It is not in dispute that the claim was presented to the Tribunal on 1 October 2020.[3]The claimant gave evidence during the hearing during which he invited the Tribunal to find that it was not reasonably practicable for his claim to be brought by the 22 September 2020 and that time should be extended to 1 October 2020, which would give the Tribunal jurisdiction to hear the claim. The Law Case No. 2415461/20 2The Law
[4]Section 111 of the Employment Rights Act 1996 (ERA) provides that a complaint may be presented to an Employment Tribunal against an employer by any person that he was unfairly dismissed by the employer. 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; orb. Within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaints to be presented before the end of that period of three months.[5]Section 111(2)(a) ERA , through section 207(b), provides for an extension of the time limits to facilitate early conciliation before the institution of proceedings. Anyone wishing to present a claim to the Tribunal must contact ACAS to engage the early conciliation provisions. In general, this can extend the original three-month time limit by up to another month to six weeks.The Facts
[6]The claimant gave evidence in support of his account that it was not reasonably practicable for him to bring his claim in time and that it would be reasonable to extend the presentation of his claim to 1 October 2020. He was a credible and consistent witness. He was cross examined by the respondent’s representative.[7]In his evidence the claimant accepted that the claim was out of time and that his time had expired on 22 September 2020. He believed that ACAS would advise him when the period expired. He accepts that he knew the original deadline and he believed he was still in time.[8]The claimant is not represented and has not had any legal assistance. He is not a member of a union. In cross examination he admitted that he knew of the time limit and that he had tried to obtain legal help, but he had found the fees would have outweighed anything he may have won in the claim.[9]He accepted that his ACAS certificate had been dated 22 August 2020. He would then have had a month from that date. However, in his case ACAS conversations were still underway at that time so he expected that he would receive a further Early Conciliation Certificate. He did receive an email on 1 October 2020 from ACAS at which point he realised that he may be out of time. He submitted his claim on the same date. Submissions[10]The claimant’s evidence amounted to his submissions.[11]The respondent made the following points:- Case No. 2415461/20 3 That it was reasonably practicable for the claimant to bring his claim because he was aware of his rights and aware of the time limit. He knew that he had one month from receipt of the ACAS certificate. There is no evidence that any new certificate was offered. Ignorance is no defence. The Tribunal should strike out the claim as out of time as it was reasonably practicable to bring the claim in time. The Tribunal’s Conclusions[12]The claim was submitted out of time. The claimant did have some knowledge of his rights. He was not aware of the correct time limit as he genuinely believed that the first certificate was wrong, i.e. it shouldn’t have been issued as negotiations were ongoing and that in fact he had until 18 October 2020 to bring his claim. He fully expected to receive a further Early Conciliation Certificate at the end of negotiations which were, at the expiry of the time limit, and despite the issuing of the early conciliation certificate, still ongoing. He was not represented by a union and he had no other form of legal advice. ACAS was still talking to the parties after the first certificate had been issued so he genuinely believed there would be another one issued at a later date and that he would then have time to bring his claim.[13]Where the claimant is generally aware of his or her rights, ignorance of the time limit will rarely be acceptable as a reason for delay. In a case where the claimant was aware of his rights he can generally be taken to be put on enquiry as to the relevant time limit. However, each case does depend on its own particular facts.Conclusion
[14]This claimant genuinely believed that as ACAS had continued to negotiate between the parties after the date of the Early Conciliation Certificate, that the process was ongoing and that a further certificate would be issued at the end of that process. These are special circumstances which pertain to this particular claimant in this case and which lead me to conclude that ignorance of the time limit in this case was reasonable. The claim was submitted as soon as he became aware and there was no subsequent untoward delay.[15]In the circumstances I consider it reasonable therefore to extend time to the 1 October 2020 and to confirm that the Tribunal has jurisdiction to hear the claim.[16]EJ Warren apologises to the parties for the delay in the promulgation of these reasons caused by her ill health.