Mr D Waring v ADT Fire and Security plc and others: 2500160/2018 and others
EMPLOYMENT TRIBUNALS
Case No 2500160/2018Venue NORTH SHIELDSHearing 2nd May 2018
Between
Mr D WaringClaimantADT Fire and Security plc and othersRespondent
Before
Employment Judge GarnonDate 2 May 2018
JUDGMENT
DISMISSING A CLAIM AT A PUBLIC PRELIMINARY HEARING[1]The claims against the second and third respondents are dismissed on withdrawal .[2]The claim of unfair dismissal against the first respondent was presented outside the time limit for doing so in circumstances where it was reasonably practicable for it to be presented within time. The Tribunal cannot consider the claim which is hereby dismissed. REASONS ( bold print is my emphasis)[1]The claimant named three respondents not being certain which was his employer. He accepted some weeks ago it was the first respondent only and withdrew his claim against the second and third. Rule 52 of the Employment Tribunal Rules of Procedure 2013 ( the Rules) obliges me, save in two circumstances neither of which apply, to issue a dismissal judgment.[2]This hearing was ordered by Employment Judge Buchanan to determine :(a) whether the claim for unfair dismissal was presented within the time limit set by the Employment Rights Act 1996 (the Act)(b) if it was not, whether it was not reasonably practicable for the claim to be presented in time, and(c) if so, whether the claimant presented the claim within a reasonable time thereafter.[3]Rule 53 of the Rules empowers me to issue a final judgment even at a preliminary hearing if the issue I decide is determinative of a case.[4]The claimant presented a claim to the Tribunal on 31st January 2018. The Effective Date of Termination (EDT) was 9th October 2017. His first notification to ACAS was on 10th January 2018 two days beyond three months from the EDT .[5]Section 111 of the Act says the Tribunal shall not consider a complaint under that 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 it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[6]With effect from 6th April 2014 s 207B provides for extension of time limits to facilitate conciliation 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.” Day A was itself outside the time limit . The claim is out of time unless it was not reasonably practicable to contact ACAS by 8th January 2018. The claimant relies on three arguments (a) pursuit of an internal process (b) ignorance of the time limit(c) pressure of work in a job he found in about November making deliveries, which at the Christmas period involved shifts of 12 hours or more often seven days a week.[7]In Palmer v Southend on Sea Borough Council 1984 IRLR 119 the Court of Appeal held to limit the meaning of “reasonably practicable” to that which is reasonably capable physically of being done would be too restrictive a construction. The best approach is to ask “Was it reasonably feasible to present the complaint within three months?” A word commonly substituted for “ feasible” is “do-able”. The question is one of fact for the Tribunal taking all the circumstances into account. It should consider the substantial cause of the failure to comply with the time limit eg had he been physically prevented by illness, a postal strike, or something similar. It may be relevant to investigate whether and when, he knew he had the right to complain. It will frequently be necessary to know whether he was being advised at any material time and, if so, by whom. It will be relevant in most cases to ask whether there was any substantial fault on the part of the claimant or his advisor which led to the failure to comply with the time limit. Palmer held using internal processes does not suspend the time running or, of itself, render it not reasonably practicable to present within time.[8]In Wall’s Meat Company v Khan , Riley –v-Tesco Stores, John Lewis-v- Charman and Dedman-v-British Building it was held to be enough to warrant exercise of the discretion where the claimant was reasonably ignorant of the time limit . But time limits are just that—limits so there have been cases where even a few minutes beyond the limit has been held to prevent a claim being considered. The burden of proving it was not reasonably do-able rests on the claimant, so if there are medical reasons which contributed to his failures to act , I would expect some corroborative evidence of them.[9]The claimant gave evidence and was assisted by his wife . I accept he was shocked by his dismissal and decided to appeal . However, he knew of his right to claim from October. A family friend, Mr Bill Smith, who had been a Union representative accompanied him to the appeal . I accept the process was delayed by the respondent to an extent, but the appeal was heard on 1st December. The claimant said in his closing statement he thought he had been shabbily treated at the initial dismissal hearing and felt the respondent had already made up its mind . This is all the more reason for him to have been taking steps to protect his interests even before the appeal was heard. Mr Smith would have been likely to know there was a time limit running and an appeal would not suspend its running.[10]The claimant was using the internet and most if not all websites about bringing claims in an Employment Tribunal say there is a time limit . They are widely publicised and, though I accept the claimant did not in fact know the time limit, I cannot accept it was reasonable for him not to.[11]He received the appeal outcome on 18th December , yet he did not speak to a specialist advisors until he eventually saw a solicitor for a free hour’s advice on or shortly before 10th January. He had never spoken to ACAS informally before then either. He lives in Gateshead where there is a CAB which he did not visit.[12]The claimant had for some time prior to his dismissal been suspected of having Adult Attention Deficit Hyperactivity Disorder (ADHD). No diagnosis has been confirmed and I have no evidence to support a finding it prevented him contacting ACAS earlier. His wife told me he has always had difficulty “ focussing” and was stressed by his workload at Christmas . In cross examination the claimant said to Mr Allan “I was leaving important things to one side”.[13]It gives me no pleasure to reach this decision. However, I cannot find it was not reasonable practicable for this claim to have been presented in time. I have no further discretion to exercise. These complaints must be dismissed. . T M GARNON EMPLOYMENT JUDGE SIGNED BY