Employment judge T.R. SmithIn person for claimantDate 19 May 2023
JUDGMENT
[1]The claimant’s claim was presented outside the time limit prescribed under section 111(2) the Employment Rights Act 1996 in circumstances where it was recently practicable to be presented within time.[2]The claimant’s claim is therefore dismissed.
REASONS
[1]Did the claimant present her complaint of unfair dismissal before the end of the period of three months beginning with the effective date of termination or, within such further period as the tribunal considered reasonable in a case where it was satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
The evidence
[2]The tribunal heard evidence from the claimant and had submissions made to it, both written ( from Ms Watson) and oral, from both parties. It was also taken to by the claimant to an e-mail from ACAS dated 28 November 2022 and a screenshot of a message from a relative in respect of the claimants Covid, dated 03 December 2022.
Findings of fact
[3]The tribunal made the following relevant findings of fact on the balance of probabilities. 4.The claimant lives with her son for whom she has caring responsibilities. At the age of 11 he developed type I diabetes. He is now aged 15. The claimant at times has to get up in the night to check on her son’s insulin level. That disturbs the claimant’s sleep and can result in tiredness. 5.The claimant commenced employment with the respondent in June 1994. 6.She was made redundant in circumstances the claimant contended were unfair on 20 or 21 July 2022. 7.The claimant accepted that she thought her dismissal was unfair immediately after she was dismissed. 8.The claimant knew of the existence of employment tribunals, certainly from dismissal. 9.The claimant knew, again from dismissal, there was a time limit for bringing a tribunal claim of three months but thought that had changed somewhat, because of the need to contact ACAS. 10.The claimant, certainly from dismissal, had the use of a laptop and access to the Internet. 11.Prior to termination the claimant had been employed by the respondent as a health and well-being coordinator, working 30 hours per week. 12.Following termination the claimant obtained alternative employment with the National Health Service Business Agency, but that ended in September 2022 . 13.She then regularly applied for alternative employment between September 2022 and 06 February 2023, when she obtained employment with National Power . 14.The claimant entered into early conciliation on 17 October 2022. An ACAS certificate was issued on 28 November 2022. 15.The claimant presented her claim form to the tribunal on 09 January 2023 16.The claimant accepted that when she received her early conciliation certificate on 28 November 2022 there was a covering e-mail that said “you can make a claim online or by post”. The letter then provided a link to a government website advising how a claim could be made. 17.The covering email also said “You have at least one month from the date you receive this certificate, if you notify ACAS of the dispute within your time limit. If you’re concerned you might be out of time, make your claim as soon as possible. The employment judge will decide whether to accept it. If you have any questions about time limits contact the ACAS helpline.” 18.The claimant accepted when she received that email that she knew she had to present her claim to the tribunal by, at the latest, 28 December 2022. 19.On or about 03 December 2022 the claimant developed flu like symptoms which were shown, following a lateral flow test, to be covid. Fortunately the claimant had had the relevant vaccinations. That said the tribunal accepted flu like symptoms can be debilitating 20.The symptoms continued for about a week, that would be until about 10 December 2022. After that, however she said she remained weak with some tiredness and loss of appetite. 21.The claimant said she tried a couple of times to complete an online claim form around Christmas but felt, weak tired and lethargic. She accepted she knew the deadline of 28 December 2022 was approaching. 22.She has a number of family members who live in the close vicinity to her. 23.She spent Christmas Day with her family. 24.Although she had a family she did not request them to assist her in completion of the tribunal application. 25.Before the tribunal the claimant stated she did not ask them for help because she didn’t know whether they was particularly IT literate. The tribunal considered that no significant level of IT competency was required to complete the claim form particularly as she could give all relevant information to her relatives. The tribunal noted claim forms are completed by a wide range of society, including those where English is not their first language. 26.The claimant also said she suffered from lower back problems and difficulties with her menstrual cycle which resulted in fatigue and brain fog. She said these symptoms had lasted for about a year and a half. She also referred to tiredness in caring for her son. 27.Whilst the claimant contended the conditions had worsened at around Christmas this was unsupported by medical evidence and the claimant herself accepted that there were days when she was reasonably fit, although did not specify when they were. The law and discussion 28.Section 111 (2) of the Employment Rights Act 1996 provides:- “(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.” 29.Pausing at this juncture the burden of proof is upon the claimant and there are two separate and distinct elements to the hurdle she must surmount. If a claim is out of time the claimant must establish it was not reasonably practicable to present her claim in time. If she does that, then she must demonstrate, and this is the second element of the hurdle that her claim was then presented within such further time as the tribunal considers reasonable. 30.The time period set out in section 111(2) is subject to adjustment under section 207B of the Employment Rights Act 1996. 31.Section 207B provides for the extension of time limits to facilitate the early conciliation procedure before institution of proceedings thus: (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. (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section." 32.Put simply (4) and (5) provide to methods under which the primary time limit can be extended because the claimant has engaged in early conciliation. The claimant is entitled to choose whichever is the most favourable provision, see Tanveer -v-East London Bus and Coach Company 2016 ICR D 11. 33.It is not disputed that 28 December 2022 was the most favourable extension to the claimant. 34.The time period as formulated under section 111 (2) is strict. 35.The strictness of the test was emphasised by Judge LJ in London Underground Ltd v Noel [1999] IRLR 621 when he said : “By section 111(2)(b) this period may be extended when the tribunal is satisfied ‘that it was not reasonably practicable for the complaint to be presented before the end of that period. 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 good reason’ for doing so.” 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 (Wishnudut) v. Hampshire AHA [1982] ICR 200, 204.” 36.There is a considerable volume of case law on reasonable practicability. The tribunal considered the recent authority of the EAT in Signet Behavioural Health Ltd -v- Britton [2022]EAT 108 (case EA-2020-000972-OO) at paragraph 19 contained useful guidance. 37.The EAT suggested the following questions were addressed by the tribunal: –• Identify the substantial cause of the claimant's failure to comply with the statutory time limit;• Determine whether and if so the claimant knew of his or her rights;• Determine whether the claimant had been advised by anyone;• Determine the nature of any advice given and whether there was any substantial fault on the part of the claimant which led to the failure to present a claim in time. 38.The tribunal will turn to the first point in due course as it goes to the heart of this claim but before doing so will deal with the other points the EAT recommended a tribunal gave due consideration. 39.In terms of the second point, the claimant believed her dismissal was unfair from inception. She had access to a computer so she could obtain information online. She accepted she knew of the existence of citizens advice bureaux who could provide advice. She was aware of the existence of employment tribunals. She was aware of the existence of ACAS. She was able to engage with ACAS in respect of early conciliation. The claimant knew, or had the means to establish her rights before the expiration of the primary time limit. 40.Turning to the third point, which in this case also answers the fourth point, the claimant did not content that she was misled either by her former employer or by any third party. 41.Turning to the key issue in this case namely what was the substantial cause of the claimant’s failure to comply? The claimant relied upon her illhealth. 42.The tribunal reminded itself that if the illness was serious it would normally be not reasonably practicable to present the claim in time, see Schultz -v- Esso Petroleum Ltd [1999] ICR 1202. In that case the Court of Appeal directed the tribunal should particularly focus on the period when the employee fell ill. Here the tribunal noted the claimant’s case was that she fell ill in the critical period, just before the expiration of the time limit 43.The tribunal did not doubt that the claimant had some long-standing health challenges and nor that she had Covid from about 03 to 10 December 2022. The tribunal also considered that it had to look at the claimant’s health challenges in the round including her caring responsibilities and its impact on her sleep pattern. 44.The tribunal noted that the claimant in her oral evidence, having read the respondents skeleton argument, considerably amplified on the effect of her health challenges, compared with how they were set out in her statement. 45.This led the tribunal, while not doubting the underlying health challenges, to have concern as to their severity and frequency. 46.Whilst medical evidence is not essential the burden is upon the claimant and what the tribunal really needed to know was the extent of those illnesses and their effect on the claimant’s capacity to complete a claim form. That simply was not present here. 47.The Schultz line of authorities can be distinguished because whilst the tribunal did not doubt the claimant suffered some debility it was not in the really serious health category, such as hospitalisation or unfitness to instruct advisers due to a medical disability. 48.In reaching this conclusion the tribunal took into account that the longstanding health challenges hadn’t prevented the claimant holding down her previous employment or securing alternative employment. 49.Whilst there may have been some after effects of Covid the claimant accepted that was before the expiration of the primary time. She did go online at Christmas. She had a family. The tribunal was not satisfied that she could not obtain assistance from a family in completing the form by at least relaying to them information, even if a break was required, the substance of why she thought she was unfairly dismissed. 50.It must be remembered this was a simple unfair dismissal claim . The pro forma boxes simply required personal information which would not cause any difficulties to the claimant. The mandatory information required was very limited. All she had to do was state briefly why she believed her dismissal was unfair. 51.In addition the claimant was able, despite the apparent progressive worsening of her health challenges to lodge her claim late and secure alternative employment. 52.In the circumstances, while sympathising claimant the tribunal found it was reasonably practicable for the claimant to presented her claim within time. 53.If the tribunal was wrong on that point it then went on to consider whether the claimant then presented her claim within such further time as the tribunal considered reasonable. By analogy with Kauser -v- Asda stores Ltd [2007] All ER (D) 195 if the claimant knows the time limit has expired they are expected to proceed quickly. 54.Even though there was a Christmas period there was nothing to stop the claim form lodged online. This is not a case where the claimant had to wait for a tribunal office to open to obtain the appropriate forms. She did not suggest that there was a delay because she was seeking advice. 55.Her claim was lodged on 09 January 2022, some 12 days out of time. The claimant did not offer, other than referring to her illnesses, a reason why it took some 12 days. Looking at this objectively, as the tribunal must do, and considering all the circumstances put before it, it is considered that the claim form still wasn’t lodged within a further period of time that was reasonable. 56.It follows therefore that the claimant’s claim must be dismissed for lack of jurisdiction.