Mr R Smith v SBFM Group Ltd and Atlas Facilities Management Ltd: 2600705/2024
JUDGMENT
[1]The claim for failure to inform and consultant about a TUPE transfer was not presented within the applicable time limit. It was not reasonably practicable to do so but the claim was not presented within a further reasonable period. The claim is therefore dismissed.[2]The claims for unfair dismissal, breach of contract (notice pay), holiday pay and unlawful deduction from wages were not presented within the applicable time limit. It was reasonably practicable to do so. The claims are therefore dismissed.REASONS
[1]The Claimant had pursed claims against both Respondents. They related to the transfer of his employment from the second Respondent to the first Respondent, and then the subsequent termination of his employment by the first Respondent.[2]The Claimant’s employment was transferred from the second Respondent to the first Respondent on the 1st September 2022. This was an agreed fact that was not disputed by either party.[3]Originally the first Respondent had denied there had been a transfer and that they employed the Claimant at all, but during the course of these proceedings, they conceded this point. This was by way of correspondence to the ET and the Claimant in December 2024.[4]The Claimant’s termination was less clear. The Claimant had never received any form of dismissal letter from the first Respondent. Nor was I presented with any other evidence that they had dismissed the Claimant at any other point.[5]This was logical as they had originally argued they never employed Claimant. If they were denying employing him, it would not be correct for them to accept they dismissed him.[6]The Claimant argued that he had been dismissed by the first Respondent and that took place on the 8th December 2023.[7]As part of his employment, the Claimant enjoyed free access to the gym he was assigned to clean. It was only on the 8th December 2023 that that access had been revoked.[8]The Claimant purported then that his employment ended with the first Respondent on that date.[9]The Claimant had submitted his claim to ACAS on the 22nd February 2024. He received a certificate on the 8th March 2024.[10]The Claimant submitted his claim to the tribunal on the 9th April 2024.[11]There had been a preliminary hearing in October 2024 in front of EJ Butler. This had originally been listed as the final merits hearing of the claim, but had been converted to a preliminary hearing as there were a number of preliminary matters that needed to be dealt with.[12]At that hearing, EJ Butler listed a further preliminary hearing to determine the issue of the TUPE transfer and whether the Tribunal had jurisdiction to hear the claims as it appeared they had been submitted out of time.[13]The TUPE transfer issue had now fallen away because of the first Respondent’s concession, but the time point remained live for me to deal with. Time limits[14]The time limits for each of the claims the Claimant pursues are set out in the following statutory provisions;a. Unfair dismissal - s.111(2)(a) Employment Rights Act 1996 (“ERA”)b. Breach of contract – s.7 Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994c. Holiday pay – Regulation 30(2) Working Time Regulations 1998d. Wages – s.23 ERAe. Failure to inform and consult – Regulation 15(12) TUPE[15]Each of these sections make clear that a claim must be presented within 3 months of the act complained of.[16]For the failure to inform and consult claim, that period starts on the date of the transfer- that is from 1st September 2022.[17]For the claims of unfair dismissal, breach of contract and holiday pay, that date started to run from the termination date which has been agreed as the 8th December 2023.[18]For the unlawful deduction from wages claim, the time limit runs from the date when the deduction was made. In claim where an employee says that they have not been paid at all, the time limit would run from the date they should have been paid. In this case, the Claimant claimed that he had not been paid since the 1st September 2022. It wasn’t set out what day of the month the Claimant was supposed to be paid.[19]Where there is a series of deductions, the time limit can run from the date of the last deduction or failure to pay in that series.[20]In the absence of any information about when the Claimant should have been paid his last wage from the Respondent, I take the time to run from the last day of employment, that is the 8th December 2023. ACAS[21]Before a claim can been issued to a tribunal, the Claimant must lodge it with ACAS and receive a certificate from them. This requirement is set out in section 18A of the Employment Tribunals Act 1996.[22]The Claimant receives the benefit of an extension of time if they try to conciliate through ACAS. That is so they don’t lose any time because they are trying to resolve the matter.[23]If a time limit is due to expire during the period beginning with the day ACAS receives the request and ending one month after the Claimant receives the certificate, the time limit expires instead at the end of that period. That rule is set out in section 207B(4 of the ERA.[24]This effectively gives the prospective claimant one calendar month from the date when he or she receives the certificate to present the claim. Tribunal’s power to extend the time limit[25]If the claims are not presented in time the tribunal can extend the time limit. The test the Tribunal must consider is set out in section 111(2)(b) of the ERA[26]There two parts to the test. Firstly, If the tribunal must find that it was “not reasonably practicable” for the Claimant to submit his claim in time.[27]The second part of the test is that, if it was “not reasonably practicable” for the Claimant to have submitted his claim in time, the Claimant must have presented his claim within such further period as the tribunal considers reasonable[28]Only when both parts of that test are met, will the Tribunal be able to extend the time limit.[29]There is no set definition of “not reasonably practicable” or of “within a reasonable period”. Much will depend on the facts and circumstances of the case.[30]A tribunal must make a findings on the facts provided to them.[31]In Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’.[32]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 his or her case, the question is whether that ignorance or mistake is reasonable.[33]A tribunal should consider what enquiries the Claimant made about his rights and the time limits and what advice he had access to. It is not normally reasonable for a Claimant to choose to be ignorant or make no attempts to research what the time limit may be.[34]A Claimant who is not aware that he has the right to pursue a claim because he is not aware of the circumstances that might lead to it-i.e. he doesn’t know he has been sacked or doesn’t know he hasn’t been paid properly, may fall into the “not reasonably practicable” category.[35]If a Claimant has access to legal or other professional advice (such as a union or advice service), and there is a failure to properly advise him of the time limits by them, that will not normally fall into the “not reasonably practicable” definition. Whilst it may seem harsh to penalise a Claimant for trusting their advisor to give correct advice, the remedy for a failure by an advisor lies directly with the advisor, and not with the tribunal.[36]Incapacity or illness of the Claimant may mean it was not reasonably practicable to submit the claim within the normal time limit, but the Claimant would need to provide evidence that he was unable to submit his claim because of a medical reason.[37]This is not an exhaustive list of examples though and other factors put forward by a Claimant can be considered.[38]In relation to presenting the claim within a reasonable further period, this does not require a Claimant to present the Claimant immediately after whatever obstacle was preventing him from submitting it in the normal time limit has stopped.[39]Instead, the tribunal must consider what would be a reasonable time after that in which the Claimant should submit his claim.[40]However, it is likely to not be reasonable if the Claimant delays or fails to act promptly for no good reason once he is able to submit his claim.The hearing
[41]The hearing took place over 2 days on the 12th and 13th March 2025.[42]The Claimant was accompanied by two supporters, Mr JD and Mr DJ. I asked the Claimant if he was going to represent himself in the hearing or whether he wished to nominate one of his supporters to speak on his behalf. The Claimant nominated Mr JD.[43]The first Respondent was represented by Mr A Willoughby of Counsel and the second Respondent by Mr P Chadwick, Legal Consultant.[44]The parties had been ordered to provide witness statements and exchange them before the hearing. The Respondents did not call any witnesses and so had not provided any statements.[45]The Claimant had sent to the Respondents 2 documents which purported to be his witness evidence.[46]They were a document entitled “Affidavit of Life Status Correction” and “Affidavit of Truth”. I had read both documents before the hearing.[47]Both documents contained some statements from the Claimant but also some additional documentary evidence. Not all the documents or statements were relevant to the issues that I was dealing with in this hearing.[48]The Claimant was asked if he had prepared any other statement. The Claimant said he only wished to rely upon the affidavits.[49]Given the affidavits did not provide much by the way of explanation that would assist me in making my finding, I contemplated taking further oral evidence from the Claimant.[50]The Respondents objected to this. They said that the Claimant had been given ample opportunity to provide witness evidence and had chosen not to provide anything more than his affidavits. They said that if he was allowed to give additional oral evidence, they would be at a disadvantage as he might put forward grounds they were not previously aware of and they would not have proper opportunity to reply.[51]The Claimant however stated that it did not matter, because he did not wish to give further oral evidence. He confirmed he was content to rely upon the two affidavits as his witness evidence as he believed they covered all the relevant points.[52]There was also a 260 page bundle that the Respondents had prepared. The Claimant confirmed he had received a copy of it.[53]As there was no witness evidence to be heard, we moved straight to submissions in order for me to make a decision, once we had dealt with the preliminary matters below. Preliminary matters[54]There were a number of ancillary matters I needed to deal with in addition to the time limit point.[55]Firstly, the Claimant stated that he wished to make an audio recording of the hearing.[56]I explained to the Claimant that this was not permitted and would be considered to be contempt. I asked the Claimant why he wanted to record the matter himself given that the Tribunal was recording the hearing themselves and he could request a transcript of that recording.[57]The Claimant said he had previously requested a recording of the October hearing and this had not been responded to.[58]I then contacted the tribunal administration team. They explained that there was a form the Claimant needed to fill in order to get a copy of the transcript. The Claimant was provided with printed copies of the form and agreed to not make his own recording.[59]The Claimant also stated at the end of the hearing, before the judgment was given, that he had not been receiving correspondence from the tribunal as the email address on file was not one he had access to. The Claimant said he had told the tribunal to send things by post only but was not sure this had been listened to.[60]The Claimant requested copies of all correspondence that was on the file already to be sent again to him in post. I emailed the admin team to ask them to do this.[61]Finally, the Claimant also raised that he believed there was a conflict of interests as someone called Simon Rhodes worked for the tribunal service and had sent correspondence to the Claimant and also worked for Clarion Solicitors, the firs Respondent’s solicitors.[62]I could see from the file that EJ Clark had already dealt with this point and had replied to the Claimant that it was a coincidence that there were 2 people working for both organisations with the same name. EJ Clark decided therefore there was not a conflict of interest.[63]I said that unless the Claimant had any evidence that there was a conflict, this matter could not be determine further at this hearing. My decision[64]I will go through each stage of my decision for the two different types of claim separately- that is the claim arising from the transfer and the claims stemming from the Claimant’s employment ending. The failure to inform and consult claim When did the time limit expire?[65]In this claim, the time limit expired 3 months after the transfer date. As the transfer took place on the 1st September 2022, the ordinary time limit expired on the 30th November 2022. This was not disputed by either party and seemed clear from the facts. Was the claim presented in time?[66]The Claimant did not lodge his claim with ACAS until 22nd February 2024. He did not submit his claim until the 9th April 2024. Both these dates are after the 30th November 2022 and so the claim was not presented in time. Was it reasonably practicable for the Claimant to submit his claim in time?[67]The Claimant argued that it was not reasonably practicable for him to submit his claim in the normal time limit, as he was ignorant of the fact there was a claim. He says it only became apparent to him that there was an issue when his employment terminated on the 8th December 2023.[68]The second Respondent disputed this. They argued that the Claimant should have been aware of the alleged failure to consult prior to the transfer on the 1st September 2022. It would have been apparent at that point in time that there had been no face-to-face consultation (which was what the Claimant was apparently complaining about).[69]They also pointed out that Claimant had had union representation at the time of the transfer, and they likely advised him about any alleged deficiencies regarding the consultation.[70]In relation to this point, I sided with the Claimant. Although I accept the Claimant may have been aware that there was no face-to-face consultation in September 2022, he is likely in my opinion not to have been aware that there was a potential claim he could bring about this at that point. The duty to inform and consult, and the right to bring a claim about that, is a technical complaint that the general public is unlikely to have common knowledge of.[71]There is also no evidence that this particular issue was something the Claimant received advice about from his union.[72]I therefore find that it was, more likely than not, not reasonably practical for the Claimant to submit this claim within the 3 months following the transfer Did the Claimant submit his claim in a reasonable period after that?[73]The second part of the test requires me to consider whether the Claimant submitted his claim within a reasonable period after.[74]There is no standard definition of “a further reasonable period” and each case has to be decided on its own facts.[75]In this case, I took note that Claimant had taken advice from his union in January 2024, after the termination. At this stage the Claimant was clearly getting advice about his rights and potential claims.[76]This, I find, is the start of any reasonable period. He is likely at this point to be aware of a potential claim for a failure to inform and consult.[77]I noted that the Claimant did not issue his claim in January but did so on the 22nd February. He went through the ACAS process and then received a certificate on the 8th March.[78]I find that it was reasonable for him to do so. The tribunal system encourages parties to try and conciliate before going to the tribunal. I cannot criticize the Claimant for not choosing to go straight to the ET in January 2024, particularly when there were other claims that required him to go through the conciliation process.[79]However, I find that it would have been reasonable for the Claimant to have submitted his claim when he receives his certificate. At that point, conciliation has ended and, as with all prospective Claimants, he now has the right to pursue the matter with the tribunal.[80]Although the Claimant doesn’t need to submit his claim the same day he has received the certificate, I find that it would have been reasonable for him to do so within 1 month of receiving that certificate.[81]The tribunal rules regarding the extension of time granted due to engaging in ACAS conciliation state that a Claimant has 1 calendar month after receiving the certificate to issue his claim with the tribunal. I consider that this is a “further reasonable period”. If it were an unreasonable period, the statute would not set this out as the extended time limit.[82]The Claimant has presented no evidence to support any argument as to why he could have submitted his claim in that 1-month period. The Claimant did say that he was working in another role during that time, but this is the case for most Claimants. It is not a sufficient reason to delay submitting the claim[83]I also note the Claimant submitted his claim 1 day after the month had expired. He has not explained why that is the case, but given he did so, I must find he could have submitted his claim 1 day earlier, within the month and therefore must find that the tribunal cannot extend the time limit in relation to this claim.[84]The tribunal therefore does not have jurisdiction to hear this claim. The claims stemming from the termination When did the time limit expire?[85]This point was a less clear in relation to the claims stemming from the termination, than in the previous claim for failure to consult.[86]The issue I had was that there was nothing to confirm the Claimant’s termination and thus the termination date.[87]The Claimant had himself stated that his employment had terminated on the 8th December 2023 when his access to the gym had been revoked.[88]Although termination of employment can happen in many ways, I had not seen a previous case where such an action (revocation of access to a facility) was taken to be the act terminating employment.[89]I considered whether in fact the first Respondent would have had to have done something else to confirm termination.[90]If they did, they would have had to have done so after they accepted the Claimant was their employee, after December 2024. Prior to that point they didn’t believe he was their employee.[91]The first Respondent’s rep confirmed there was nothing they could provide which showed they had contacted the Claimant after December 2024 to expressly terminate his employment.[92]However, they said that by accepting he was an employee, they were also accepting his employment ended when the Claimant said it did on 8th December 2023.[93]I contemplated whether this was sufficient, but the alternative would be to find there had been no dismissal by the first Respondent as yet. If that finding was made, there Claimant’s claims for Breach of Contract, Unfair Dismissal and Holiday pay could not continue as they can only be brought after the employment has ended.[94]The Claimant did not seek to argue that his employment had not ended on the 8th December 2023. As such, I had no basis for going behind this agreed fact and finding that his employment was still continuing, or had ended on a different date.[95]As the 8th December 2023 was taken as the effective date of termination, the time limit would expire on the 7th March 2024.[96]The Claimant would need to lodge his claim with ACAS before that date Did the Claimant submit his claim in time?[97]The Claimant did submit his claim to ACAS before the 7th March 2024, on the 22nd February 2024.[98]As set out above, he then engaged in conciliation and received a certificate dated 8th March 2024. He then had 1 calendar month to submit his claim to the ET, that is until the 8th April 2024.[99]He lodged his claim with the ET on the 9th April 2024. This was not disputed by either party.[100]As such, the claim was out of time. Was it reasonably practicable for the Claimant to have submitted his claim in time?[101]In relation to these claims, I find that it was reasonably practicable for the Claimant to have submitted his claims within time.[102]The Claimant did not provide any arguments or evidence to show that he was somehow prevented from submitting his claim within the month after the 8th March.[103]He cannot argue ignorance of the claim or his rights to pursue one as he had already started that claims process by going to ACAS.[104]He was also engaged with his union and receiving advice from them. Although I only saw the first page of their advice letter, it was clear they had advised him about his claims and the time limits.[105]If they had failed to notify him about the ACAS extension, that is something that he would need pick up with them, but the law is clear that an advisor’s failure does not make it “not reasonably practicable” to submit the claim in time. However, I cannot comment further on this as I did not see the letter of advice.[106]The Claimant also raised, after the judgment had been read out, that he only ceased to get support from his union on the 5th April 2024. He said that he only had a few days before the time limit expired to submit his claim. I did not have any evidence to show this, but in any event, it did not make a difference to my decision. The Claimant’s claim form was not particularly detailed, and given he had already received advice from his union about his rights, there appeared to be no reasonable reason he couldn’t have submitted in the period between 5th April- 8th April.[107]The Claimant did say, as above, that he had another job and was working in that, but I do no accept that as reasonable grounds to explain why it was not practicable to submit the claim.[108]I therefore am unable to extend the time limit in relation to these claims and they will also be dismissed.