Mr Y StewartClaimantEffective Security Services Ltd (trading as Professional Security)Respondent
Before
Employment Judge MacmillanDate 26 February 2018
JUDGMENT
The complaint of unfair dismissal is dismissed as having no reasonable prospect of success, the proceedings having been commenced after the expiration of the statutory time limit.
REASONS
[1]This is a preliminary hearing to determine whether Mr Lebeter’s complaint of unfair dismissal can be pursued despite having been presented substantially out of time. I have heard evidence from Mr Lebeter, who has represented himself. The respondent has been represented by Mr Bains of the Engineering Employers Federation. I am grateful to Mr Lebeter for the frankness with which he has given his evidence. :
The facts
[2]The facts are brief and they are these. Mr Lebeter had been employed by the respondent for over 9½ years when he was arrested at work on the 2nd November 2016 on suspicion of theft from his employers. On the following day he was suspended on full pay, and on 15th November he attended a disciplinary hearing. In between he had been bailed by the police to reappear at the police station at a later date after enquiries were complete. He was summarily dismissed for gross misconduct on the 17th November 2016. He was eventually charged with the theft of a large quantity of goods from his employers. After three appearances at the Magistrates Court he was acquitted on the 22nd May 2017 after what appears to have been a rather unsatisfactory trial at which the prosecution seem to have failed to call any evidence. Case No: 2600745/2017 Page 2 of 3[3]Within two or three days of his acquittal at the most he had contacted ACAS for advice. The advice he received was that his chances of bringing a claim seemed slight because he was now significantly out of time. He was advised to get legal advice, which he did. After making a number of phone calls to solicitors (he needed free legal advice) he was advised of the need to go through the process of early conciliation, and returned to ACAS to formally commence that process on 7th June. The early conciliation certificate was issued on the following day, the 8th June 2017 but these proceedings were not commenced for a further 16 days on the 24th of June.[4]Mr Lebeter’s evidence is that, although he was aware of the existence of Employment Tribunals and the possibility of bringing a claim of unfair dismissal, he (and this is his words) “deemed it inappropriate to do so”, until the conclusion of the criminal proceedings. He did not know that there was a 3-month time limit for bringing employment tribunal proceedings but he was aware of the concept of time limits as he knew there was a three-year time limit for bringing a personal injury claim if one suffered an accident at work. In his claim form he gave an additional reason for not commencing these proceedings in time, which is that he had to borrow the issue fee of £250, but in evidence he has accepted that in fact that was not a contributory factor to the delay. The delay was entirely caused by his view that there was really no point in commencing Tribunal proceedings until after the criminal proceedings had been finalised.
The law
[5]The right not to be unfairly dismissed derives from sec 94 of the Employment Rights Act 1996. Complaints to Employment Tribunals are governed by sec 111, which, so far as material provides:(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 (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.[6]The not reasonably practicable test is a significant hurdle for a prospective claimant to an Employment Tribunal to overcome, and the burden lies upon the claimant to satisfy the Tribunal that commencing proceedings in time was not reasonably practicable. The principal authority remains the decision of the Court of Appeal in Wall’s Meat Co Ltd v Khan (1979) ICR 52, which also concerned a claim by a claimant facing criminal proceedings. In order for it to be not reasonably practicable to commence proceedings in time, some impediment must exist which materially impairs a claimant’s ability to bring the claim. For example, a medical condition which prevents a claimant from exercising rights that he knows that he has; interference by a third party which prevents the claimant from exercising those rights; or reasonable ignorance of the right to bring a claim, or possibly of the time limit in which to bring the claim. But ignorance is not reasonable unless it arises out of or persists after reasonable enquiries have been made which have either failed to disclose the relevant Case No: 2600745/2017 Page 3 of 3 information, or which have misled the claimant.
Discussion and conclusions
[7]In my Judgement, as Mr Bains submits, there is no possibility here of Mr Lebeter satisfying the Tribunal that it was not reasonably practicable for these proceedings to have been commenced inside the three month time limit which had expired on the 16th February 2017. Proceedings were not finally commenced until 4 months and 8 days later. Mr Lebeter appears to have had all of the relevant knowledge in order to bring proceedings, save for the fact that the time limit was three months, or knew how to obtain what knowledge he did not have. He has certainly not claimed otherwise. He knew of the existence of time limits as a concept but he made no enquiries, he carried out no research and he asked no questions until long after the time had expired. He just took a decision not to bring a claim until after he was cleared by the Magistrates but even then a further month elapsed before proceedings were final commenced. As he said in evidence, he felt there would have been no point in bringing a Tribunal claim if he had been convicted. He seems to have thought that that was the sensible thing to do, provided only that the criminal proceedings did not exceed three years’ duration. It seems reasonably clear from what happened after he was acquitted, that he had all the relevant knowledge about who to contact, and about the existence of Employment Tribunals and ACAS.[8]It must follow then, as Mr Bain’s submits, that Mr Lebeter falls at the first hurdle. It was reasonably practicable for these proceedings to have been commenced within the three-month time limit: It was just his own choice not to commence them. The claim therefore fails and is dismissed.