Miss M Consiglio v Department for Work and Pensions: 2501223/2020

EMPLOYMENT TRIBUNALS

Case No 2501223/2020

Between

Miss M ConsiglioClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Arullendran

In person for claimant

Mr A Jones (instructed by counsel) for respondent

Date 24 November 2020

JUDGMENT

The Judgment is that Tribunal does not have jurisdiction to hear the claims as they have been presented more than 3 months from the effective date of termination and it was reasonably practicable to present the claims in time. The claims are dismissed.

REASONS

[1]This hearing was held by way of a video conference on CVP. The Claimant had considerable difficulties in connecting to the video hearing, firstly through her mobile telephone, then the through a computer and lastly via the telephone. The hearing was listed to start at 10 AM, however we were unable to begin due to the technical difficulties and we started the hearing at 12:22 PM. The parties were given the option of adjourning this hearing and attending the Tribunal on another day, however both parties said that they preferred to continue with this hearing. I asked the Claimant if she felt well enough to proceed with the hearing, given her mental health (as disclosed in her ET1 form) and she said that she felt well enough to go ahead and preferred to complete the hearing today, rather than adjourn. I decided to proceed with the hearing as neither party wanted to adjourn and I considered it in the interests of justice to proceed. There was no objection from the Respondent to the Claimant taking part in the hearing by telephone. However, due to the late start, I was unable to give an extempore Judgment on the day and it was agreed I would send out a reserved decision at a later date.

[2]I was provided with an electronic joint bundle of documents consisting of 64 pages and the Claimant submitted further documents on the morning of the hearing, i.e. a copy of her mental health care plan dated 2 November 2020 and her skeleton argument for closing submissions. The Respondent submitted its skeleton argument for closing submissions in advance of today’s hearing. There was no objection to the late submission of the Claimant’s documents and the care plan was entered into evidence.

[3]I asked the Claimant to tell me should she feel unwell at any stage during the hearing or if she needed a break. The Claimant did not make any requests for breaks and the hearing proceeded without incident or any further difficulties with the technology. I am grateful to Mr Jones for treating the Claimant as a vulnerable witness and questioning her in an appropriate manner.

[4]Mr Jones raised at the end of the hearing whether it was appropriate for an anonymity order to be imposed in this case. Under Rule 50(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, schedule1, the Tribunal has the power to anonymise judgments, however we must consider the principle of open justice and the right to freedom of expression before restricting what can be published on the Tribunal’s register. Clear and cogent evidence is required to derogate from the public interest in full publication of a substantive judgment: BBC v Roden [2015] 5 WLUK 259. Having considered all the evidence presented at this hearing, I am not satisfied that there is such clear and cogent evidence requiring anonymisation of this decision, particularly as no evidence has been presented that the Claimant’s convention rights would be adversely affected in any way by the publication of this judgment. There is no evidence that the Claimant is at risk through the publication of this decision, particularly as details of the criminal case in which she was to appear as a witness (but did not proceed due to a guilty plea) were not provided to this Tribunal and are not mentioned herein. In the circumstances, I am not satisfied that anonymisation is required under Rule 50.

The Facts

[5]The Claimant began her employment with the Respondent on 19 November 2001 and was employed as an administration officer. The Claimant was summarily dismissed on 2 August 2019. The Claimant was unhappy about losing her job and planned to appeal the decision but was unable to find the evidence she needed to support her appeal. The Claimant did not submit an appeal within the 10-day time limit stipulated by the Respondent in the letter of dismissal. During this time, however, the Claimant applied online for a job in marketing; she was successful at the interview and was offered the job. In cross examination, the Claimant accepted that during the period from 1 to 20 August 2019 she could have found out about the time limit for submitting an unfair dismissal claim to the Employment Tribunal, but she did not make any enquiries or use the Internet to acquire this knowledge.

[6]The Claimant was subjected to a violent assault on 21 August 2019 which required her to be hospitalised due to physical and psychological injuries. The Claimant was diagnosed with post-traumatic stress disorder (PTSD) as a result of the attack. The attack was investigated by the police, which took several months. The Claimant was provided with assistance from victim support after the assault and she received a great deal of assistance from DCI Dixon in the aftermath and during the criminal trial. She was also supported by her family.

[7]The Claimant’s physical injuries had started to improve by January 2020, although she was still experiencing PTSD. In or around January 2020, The Claimant was asked by DCI Dixon why she had not appealed against her dismissal as the evidence collated by the police, which had been passed to the CPS, appeared to show the Claimant had been set up by her attacker to lose her job. After this conversation, the Claimant drafter her letter of appeal and submitted it to the Respondent, with a request for an extension of time to have her appeal considered outside the 10-day time limit. The Claimant provided the Respondent with the contact details of DCI Dixon as she could not disclose the details of the evidence the CPS held against her attacker which she says was relevant to the circumstances leading to her dismissal. The Claimant had been told that the evidence in the criminal case had to be kept confidential until the completion of the criminal trial, which took place in February 2020, particularly as the Claimant was to be a witness at that hearing. The Claimant was told by the police that the Respondent could contact them through the disclosure process and the relevant evidence could be passed on to the Respondent though that mechanism and this is what the Claimant asked the Respondent to do. However, the Claimant then found out that the CPS would not disclose any evidence until the completion of sentencing, which took place on 28 April 2020.

[8]The criminal process came to an end on 28 April 2020 and the Claimant felt that some of the pressure had come off her and she could start to get on with her life and access the therapy she needed for her PTSD. On 12 May 2020, the Claimant sent a copy of 2 text messages to the Respondent as evidence to be considered as part of her appeal, which had been released by the CPS. The Claimant says that she received a lot of support from her family and victim support throughout this time.

[9]The Respondent notified the Claimant that her appeal had been unsuccessful on 5 June 2020. The Claimant spoke to victim support and told them that she was unhappy that her appeal had been disallowed. Victim support suggested to the Claimant that she could obtain further advice from Citizens Advice. The Claimant contacted Citizens Advice and was placed on a waiting list to receive a call back from an adviser, which took place on 24 June 2020. The Claimant’s evidence in cross examination was that she had looked up time limits for bringing a claim to the Employment Tribunal after her appeal had been dismissed, but she found it confusing and decided to wait and speak to the Citizens Advice adviser before acting further. Citizens Advice told the Claimant that she had to contact ACAS and obtain an early conciliation certificate, which she did on 24 June 2020. The Claimant submitted her ET1 form to the Employment Tribunal on 24 June 2020.

[10]The Claimant said in evidence that she could not have submitted the ET1 form earlier because she did not know about the time limits and because the CPS were holding on to the relevant evidence she needed in support of her claim. However, in cross examination, the Claimant said that, had she known of the time limits, she could have submitted her ET1 in or around January 2020 with the help she was receiving at that time, but she thought she had to wait for the outcome of the appeal. Submissions

[11]The Respondents made oral closing submissions by reference to a written skeleton argument which was submitted to the Claimant and the Tribunal in advance of today’s hearing. I have not reproduced the full skeleton argument here, however I have considered the contents of that document in its entirety.

[12]The Respondent submits that the claimant had until 1 November 2019 to submit her ET1 form to the Tribunal, plus the time to allow for ACAS conciliation. The early conciliation certificate was issued on 24 June 2020 and the ET1 was submitted to the Tribunal on the same day. The Respondent submits that the Claimant’s claim is 7 months and 6 days out of time.

[13]The Respondent relies on the Court of Appeal decision in Palmer v Southend-on-Sea Borough Council

[1984] 1 All ER 945

in which it was decided that the term “reasonably practicable” required the Tribunal to ask itself whether it was “reasonably feasible” to present the claim in time. The Respondent also relies upon the Court of Appeal decision in Robertson v Bexley Community Centre

[2003] IRLR 434

in which it was decided at paragraph 25, in relation to the more generous test of just and equitable extensions of time in discrimination claims, that “it is also of importance to note at the time limits are exercised strictly in employment and industrial cases”. As such, the Respondent submits that the exercise of discretion by the Tribunal is the exception rather than the rule and that it is for the Claimant to persuade the Tribunal to accept a late claim.

[14]The Respondent submits that it was reasonably practicable for the Claimant to submit her claim during the primary three-month time limit and the Claimant accepted in evidence that she could have submitted the claim in time if she had the knowledge at that time. The Respondent submits that the Claimant has not submitted any medical evidence which supports her contention that she was incapable of submitting her claim in time.

[15]In respect of the period between 1 November 2019 and 24 June 2020, the Respondent submits that the test to be applied by the Tribunal is whether this further period of time was reasonable. The Respondent submits that the Claimant accepted in cross examination that, had she known about ACAS and the process for submitting the claim to the Tribunal, she could have bought her claim at the end of January 2020, at the time she submitted her internal appeal. The Respondent submits that ignorance of one’s rights has to be reasonable, but here the Claimant had been able to apply for a job and obtain advice from victim support during the relevant period. In the circumstances, the Respondent submits that a reasonable employee would have made enquiries about how to submit a claim to the Tribunal during this period and, therefore, this further period of time is unreasonable.

[16]The Respondent submits that a decision to await the outcome of related criminal proceedings was found not to render the presentation of a claim within the three-month time limit “not reasonably practicable” in the case of Trevelyans (Birmingham) Ltd v Norton

[1991] ICR 488

. The Respondent relies on the decision in Wandsworth London Borough Council v Covent Garden Market Authority

[2011] EWHC 1245

in which it was held that a decision to wait for a scheduled interview with the police to obtain further relevant information was not a factor making it not reasonably practicable to comply with the time limit. In the circumstances, the Respondent submits that it was reasonably practicable for the Claimant to submit her claim in time and, even if it was not, the further period of time between 1 November 2019 and 24 June 2020 was unreasonable.

[17]The Claimant made closing submissions by reference to a written skeleton argument which was provided to the Tribunal and the Respondent on the morning of the hearing. I have not reproduced the formal skeleton argument here, but I have considered the contents of that document in its entirety.

[18]The Claimant referred to the therapy assessment care plan dated 2 November 2020 as part of her closing submission. The care plan states that the Claimant contacted the service on 7 October 2019 to make a self-referral, however the first face-to-face appointment took place on 7 October 2020 and the delay was caused by the Covid 19 pandemic. I note that the care plan states that the Claimant received therapy for PTSD, but this document does not make any mention of the Claimant’s mental health or her ability to access advice and assistance or to submit her ET1 form to the Tribunal during the period 2 August 2019 to 23 June 2020.

[19]The Claimant submits that the reason she did not submit her ET1 form to the Tribunal within the three-month time limit from the date of dismissal was because she did not know of her rights and because of her physical and mental injuries. The Claimant submits that she did not submit any medical evidence to the Respondent or the Tribunal before this hearing because she had not been asked to produce such evidence. She submits that it was only after she was provided with information by victim support in January 2020 that she was able to submit her internal appeal to the Respondent, but she could not seek legal advice because she had financial difficulties as she was not in work. The Claimant submits that she was unaware of any further step she could have taken after her appeal had been dismissed and that it was only after speaking to victim support again that she was advised to contact Citizens Advice, at which point she learned about ACAS and the Tribunal procedure. In the circumstances, the Claimant submits that it was not reasonably practicable for her to submit her ET1 form within the three-month time limit and that she submitted it as soon as she had the requisite knowledge.

The Law

[20]Section 111 of Employment Rights Act 1996 states “(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 (my emphasis)(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.”

[21]The Court of Appeal decided in the case of Dedman v British Building and Engineering Appliances Ltd

[1974] ICR 53

that where a claimant pleads ignorance as to his or her rights, the Tribunal must ask further questions, i.e. “What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?”. The Court of Appeal decided in Porter v Bandridge Ltd

[1978] ICR 943

, when applying the decision in Dedman, that the correct test is not whether the claimant knew of his or her rights, but whether he or she ought to have known of them.

Conclusions

[22]Applying the relevant law to the facts, I find that the primary time limit for the Claimant to submit her unfair dismissal application to the Employment Tribunal expired on 1 November 2019. The question is, therefore, whether it was reasonably practicable for the Claimant to have submitted her claim by 1 November 2019. The Claimant’s own evidence at this hearing has been that she did not make any efforts to find out what her rights were or the process for submitting a claim to the Employment Tribunal during this period. However, the Claimant was able to apply for a new job, attend an interview and make a self-referral for counselling during this period.

[23]Even though no medical evidence has been submitted by the Claimant on the point, I accept the Claimant’s uncontested evidence that she was subjected to a brutal assault on 21 August 2019 which required her to be hospitalised with physical and mental injuries. However, no evidence has been submitted as to be duration of the Claimant’s stay in hospital, the ongoing effects of any injuries she received or the treatment she received on being discharged. Further, no evidence has been submitted about how the Claimant was able to look after herself and conduct affairs between 21 August and 1 November 2019. I am guided by the decision in the case of Shultz v Esso Petroleum Co Limited

[1999] ICR 1202

in which the Court of Appeal emphasised that the test is one of practicability, i.e. what could be done, not whether it was reasonable not to do what could be done. Whilst I accept that the Claimant will have experienced difficulties with her dayto-day life as a result of her injuries during this period, in the absence of any medical evidence or, indeed, direct evidence from the Claimant, I am not satisfied that it was not reasonably practicable for the Claimant to submit her claim to the Tribunal by 1 November 2019.

[24]If I am wrong about it being reasonably practicable for the Claimant to submit her claim to the Employment Tribunal by 1 November 2019, it would be necessary for the Tribunal to determine whether the further period of 7 months and 6 days (i.e. from 1 November 2019 to 24 June 2020) was a reasonable period for the Claimant to delay in submitting her claim.

[25]I agree with Mr Jones’s submissions that the Claimant was clearly in a position to obtain advice, construct her letter of appeal (which she did over a period of 2 days) and submit the appeal with a request for an extension of time to the Respondent in January 2020. The reason given by the Claimant as to why she could not submit her claim form to the Employment Tribunal in January 2020 is that she was unaware of the Tribunal process and the time limits. The question to be answered here is whether the Claimant’s ignorance of these matters was reasonable, in accordance with the guidance given in Dedman.

[26]I find that the Claimant had the support of her family and victim support from August 2019 to 24 June 2020. It is clear that she discussed the circumstances of her dismissal with her family and victim support during this period and she was encouraged by them to submit an internal appeal in January 2020, which she did. Therefore, I find that the Claimant had opportunities for finding out what her rights were in relation to her dismissal and the process for bringing a claim to the Employment Tribunal. The Claimant has not given an account of why she did not look up the information herself on the Internet or ask others to do it for her, other than she was not aware of her rights. This is not a case where the Claimant was misled or deceived and I find that the Claimant has not adduced any evidence as to why her ignorance should be deemed to be reasonable given that she had access to the Internet and the support of her family and victim support. In the circumstances, I find that the Claimant ought to have known what her rights were, in accordance with the guidance give in the case of Porter, above.

[27]The fact that criminal proceedings are pending which relate to the circumstances of an employee’s dismissal does not prevent that employee from presenting a claim for unfair dismissal. In the case of Wall’s Meat Company Limited v Khan

[1979] ICR 52

the Court of Appeal said that the fact criminal proceedings were pending was not an acceptable reason for saying that it was not reasonably practicable to present the claim within the 3 month time limit, however it may make it likely that Tribunal proceedings would be stayed until the criminal trial had concluded, although that was an entirely separate matter. In this case, the Claimant knew what her grounds of appeal were in January 2020 and therefore she also knew what her grounds were for her claim of unfair dismissal. It was not necessary for the Claimant to obtain the evidence held by the CPS before she could submit her application to the Employment Tribunal. Indeed, the Claimant submitted her internal appeal before obtaining this evidence and the same principles apply to her ability to submit her claim to the Tribunal.

[28]I accept the Claimant’s uncontested evidence that she was still experiencing the effects of PTSD from November 2019 to June 2020, however I am not satisfied that the effects were so severe that the Claimant was incapable of drafting and submitting her claim of unfair dismissal to the Tribunal, particularly as she was clearly able to draft and submit her appeal, or that she as incapable of getting assistance from someone else to help her draft and submit the claim. There is no medical evidence in front of this Tribunal that the Claimant was incapable or prevented from submitting her claim form to the Tribunal or was incapable of or prevented from obtaining assistance from someone else to do this for her.

[29]In al the circumstances, I am not satisfied that the period between 2 November 2019 and 24 June 2020 was a reasonable period for the Claimant to not submit her claim to the Employment Tribunal. The claim could reasonably have been submitted at the end of January 2020 and I am satisfied that any delay between the end of January 2020 and 24 June 2020 was wholly unreasonable.

[30]Given the above findings, I find that the Claimant’s claims, submitted under case number 250123/2020, were submitted out of time, that it was reasonably practicable for the claims to have been submitted in time and, therefore, the Tribunal does not have jurisdiction under Section 111(2) Employment Rights Act 1996 to hear the claims. The claims are dismissed. Employment Judge Arullendran