Miss V Walster v Little Adventurers Forest School (Walesby) Ltd: 2602036/2023
EMPLOYMENT TRIBUNALS
Case No 2602036/2023
Between
Miss Victoria WalsterClaimantLittle Adventurers Forest School (Walesby) LimitedRespondent
Before
Employment Judge CansickIn person for claimantMr B Jangra (instructed by Counsel) for respondentDate 22 November 2024
JUDGMENT
[1]The claim was not presented within the applicable time limits. It was reasonably practicable to do so. The claim is therefore dismissed.
REASONS
[1]The claimant brought complaints of automatic unfair dismissal for making protected disclosures, detriment for making protected disclosures, unpaid holiday pay and unauthorised deduction of wages. The claimant was employed by the respondent, a pre-school, as a manager. The claimant was also a director and shareholder of the respondent. The claimant states she began employment on 24 November 2020, but the respondent states employment began on 7 September 2021. There is a dispute as to what was the termination date of the claimant’s employment. The claimant states if was 21 April 2023, while the respondent states it was 26 March 2023. ACAS early conciliation began on 13 April 2023 which ended on 25 May 2023. The accepted claim form was presented by the claimant on 22 September 2023.[2]At a preliminary case management hearing on 21 March 2024, it was directed that the claim should be listed for a preliminary hearing to decide if it had been made within the statutory time limits.[3]I had before me at the hearing an 89-page hearing bundle. Numerical references below are references to page numbers of that bundle. I also had a statement from the claimant which she adopted in her evidence. The claimant was cross examined by Mr Jangra. I also had a statement from Mrs Cindy Bamford, a director of the respondent. She adopted her statement in evidence and was cross-examined by the claimant.[4]I discussed reasonable adjustments with the claimant at the start of the hearing. She requested that we take regular breaks and if the individuals from the respondent could not sit directly behind her in the hearing room. I agreed we would take regular breaks including when requested. I also made arrangements so the individuals from the respondent did not sit directly behind the claimant.[5]The parties agreed that the deadline for the submission of the complaints for unfair dismissal, detriments and holiday pay was 30 August 2023, if the termination date was 21 April 2023. Alternatively, the deadline was 6 August 2023 if the termination date was the 26 March 2023. In respect of the wages complaint, it was agreed that if the last date for payment was the end of April, then the deadline for submission of the complaint was 9 September 2023. If the last date of payment was the end of March, then the deadline was 10 August 2023.
Findings of fact
[6]The claimant was employed by the respondent as a manager either from 24 November 2020 or 7 September 2021.[7]On 24 March 2023, the claimant resigned from her position as manager giving four weeks’ notice until 21 April 2023. This was accepted by the respondent. On 26 March 2023, the respondent informed the claimant that they were terminating her employment with immediate effect.[8]On 4 April 2023, the claimant brought a formal grievance against the respondent. ACAS early conciliation began on 13 April 2023 and ended on 25 May 2023.[9]On 12 June 2023, the claimant submitted a claim form to the Tribunal. The claim form detailed the respondents as Cindy Bamford and Tina Feuz [3], whilst the conciliation certificate was in the name of the respondent [1]. It detailed the claim was for whistleblowing including unfair dismissal.[10]On 21 June 2023, the claimant was informed that the Tribunal had rejected the claim form because it was in a different name to that on the early conciliation certificate. The claimant was also informed that as the decision was made by a Legal Officer, she could request the decision be made afresh by an Employment Judge. An explanatory note called ‘Claim Rejection – Early Conciliation: Yor Questions Answered’ was sent to the claimant with the decision [16].[11]On 26 June 2023, the claimant emailed the Tribunal stating that the form should be in the name of the respondent and asked for the decision to be considered afresh by an Employment Judge [63]. On 19 July 2023, the claimant emailed the Tribunal asking if the claim had been accepted and a new date set for a hearing [67].[12]On 8 August 2023, the claimant was informed by the Tribunal that Employment Judge Adkinson had rejected the claim form. The claimant was informed that the Employment Judge’s reasons were: ‘The claim form has not been amended to cure the defect. Its rejection means there is no claim. Therefore, you should submit a new claim with the correct respondent’s name’ [17/70].[13]On 9 August 2023, the claimant wrote to the Tribunal in response to this stating: ‘Thank you for your email of yesterday. I’m so sorry but I don’t understand what I have done incorrectly. Are you able to explain it to me at all as I’m very confused’ [71]. On 13 August 2023, the claimant wrote to the Tribunal referring to the decision of the 8 August 2023, attached her email of 26 June 2023 and attached the ACAS certificate and asked what she should do [72]. The Tribunal replied in an email on 16 August 2023, again attaching the letter from the 8 June 2023 [73].[14]On 20 August 2023, the claimant wrote to the Tribunal stating she had read the documents but was struggling to understand if ‘it has been turned down because I made a mistake a second time or based on the fact that I put the wrong name the first time’. She also informed the Tribunal she was struggling a lot with self-harming. On 1 September 2023, the claimant wrote to the Tribunal asking them to speak to the Judge to see what the issue was with the name on the certificate not matching that of the respondent.[15]On 7 September 2023, the claimant was informed by the Tribunal that: ‘Employment Judge Adkinson dismissed your application for a reconsideration on the grounds that it was correct to reject the claim originally and you had not sent in a corrected claim form’ [18]. The claimant was further informed: ‘It remains open to you to send in another copy of the claim form with the correct respondent named on it’. The claimant accepts that by this point she was aware that she needed to submit a new claim form.[16]On 22 September 2023, the claimant submitted a claim form with the correct name of the respondent. Complaints of unpaid holiday and wages were also included.[17]The claimant was suffering from self-harm during this period. On an occasion before 20 August 2024, the Ambulance Service had attended her home for this reason.
Relevant law
[18]The Employment Rights Act 1996 states that the Tribunal shall not consider a complaint of unfair dismissal, or detriment for making a disclosure, unless it is presented within three months of the effective date of termination. Holiday pay complaints have the same time limit under the Working Time Regulations 1998.[19]In respect of unlawful deduction from wages complaints, the Employment Rights Act 1996 states that the Tribunal shall not consider such a complaint unless it is made within three months of the act complained about, or if there were as series of deductions, the complaint is made within three months of the last one.[20]The Tribunal has discretion to hear a claim outside of the above time limits where they consider that it was not reasonably practicable for the claim to be presented within the time limit, and it was presented within a further period that the Tribunal considers to be reasonable.[21]The effect for a claimant entering ACAS Early Conciliation is to pause the time limit until the date on which the Early Conciliation certificate is issued. The time limit is then extended by the period the claim was in early conciliation, or to one month after the certificate is issued if the Early Conciliation ends after the normal time limit.[22]The burden of proving that it was not reasonably practicable for the claim to be lodged within the normal time limit is on the claimant (Poter v Bandridge Ltd [1978] IRLR 271).[23]One of the most common reasons why a claimant will not lodge the claim within the normal time limit is either ignorance of, or a mistake regarding, the application of the relevant time limit. The leading case is Wall’s Meat Co Ltd v Khan [1978] IRLR where, at paras 60-61, Brendon LJ stated: “The impediment [to a timeous claim] may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.”[24]The test for whether it was reasonable for the claimant to be aware of the time limit is an objective one and the Tribunal should consider whether a claimant ought to have known of the correct application of the time limit (see Porter, Khan, Avon County Council v Haywood-Hicks [1978] IRLR 118).[25]Ignorance or mistake ‘will, further, not be reasonable if it arises from the fault of the complaint in not making such inquiries as he should reasonably in all the circumstances have made’ (as per Brandon LJ in Khan).[26]When the Tribunal concludes that it was not reasonably practicable for the claimant to have lodged his claim in time then it must go on to consider whether it was lodged in some further period that the Tribunal considers reasonable.[27]This a question for the Tribunal to determine in exercising its discretion (Khan) but it must do so reasonably, and the Tribunal is not free to allow a claim to be heard no matter how late it is lodged (Westward Circuits Ltd v Read [1973] ICR 301).[28]In assessing the further delay, the Tribunal should take account of all relevant factors including the length of the further delay and the reason for it. It will also be relevant for the Tribunal to assess the actual knowledge which the claimant had regarding their rights (particularly the application of the time limit) and what knowledge they could reasonably be expected to make about their rights (Northumberland County Council v Thompson UKEAT/209/07, [2007] ALL ER (D) 95 (Sep)). Submissions[29]The claimant did not dispute that the claim was made out of time. She, however, made submissions that she did not understand why the initial claim form was rejected, and as soon as she did, she resubmitted it a new claim. She did not understand the terminology being used and asked the Tribunal for advice. If she had been in a better state of mind (considering the self-harming) she would have submitted it properly. The Tribunal also took a significant time to respond to her. For these reasons she did not submit the claim in time as it was not reasonably practical to do so. Further the claimant’s state of mind was such that submission of the claim on 22 September 2023, was within a reasonable time after the expiry of the time limit.[30]The respondent submits that it was reasonably practicable to present the claim within the time period. The respondent should have known the deadline and what needed to be changed. Alternatively, the claim was not submitted in a time that was reasonable after this, given it must have been clear by the very latest on 7 September 2023 that a new claim needed to be submitted, but this was not done for a further 15 days.
Conclusion
[31]The parties agreed the time limits as set out in the introduction above. There is a dispute regarding the claimant’s effective date of termination. I have not needed to address this issue as I have taken the later date of termination for the purpose of my consideration here. The wages claim was therefore made 13 days out of time and the three other claims were made 23 days out of time.[32]The claimant’s reasons for submitting the claim late were that she did not understand the rejection, that the Tribunal took a long time to reply to her enquires and the effect of her mental state on understanding the process.[33]I have to consider if it was not reasonably practicable in those circumstances to submit the claim on time. I first address the self-harm issue, and I accept the claimant was suffering from such. I also accept the ambulance was called to her home on an occasion as she described. I do not though consider the claimant has established that her mental state was such that, even taking into account the other circumstances, it was not reasonably practicable for her to submit the claim in time. No medical evidence was produced to demonstrate this was the position and I also note she was able as detailed above to contact the Tribunal on numerous occasions.[34]I also take into account the correspondence from the Tribunal. I note that in the initial notification, in which the claim was rejected, it was not expressly detailed that the claimant could submit a further claim with the correct names. I consider though such information would have been available online or elsewhere and could have been found by the claimant. I also note that it took some time for the claimant to receive a response from the Tribunal, regarding her request for an Employment Judge to consider the matter afresh. This was though received on the 8 August 2023. At this date all the claims would still have been in time if a correct claim form had been submitted. On that date it was made clear why the Employment Judge had rejected her claim and that she should submit a new claim. The claimant was informed: ‘Therefore, you should submit a new claim with correct respondent’s name’. I do not dispute that the claimant was still confused, however, I do not consider it was reasonable for her to be so in such circumstances. It was clear what needed to be done and therefore reasonably practicable for the claim to be submitted in time.[35]Even if it had not been reasonably practicable to present the claim within the time limit, the claimant herself accepts that by 7 September 2023 she was aware that she needed to submit the new claim form. She did not, however, do so until 22 September 2023. She states the reason was that her mental state was not such that she could do so before then. Although I accept the medical problems the claimant was having there is no evidence establishing that this was such that she could not have submitted a claim form. Therefore, even if it had not been reasonably practical for the claimant to submit the claim within the legal timeframe, I would not have found the claimant submitted the claim thereafter in a reasonable time.
Conclusion
[1]The claimant’s claim was dismissed in a reserved judgment, dated 8 December 2024, because the claim was not presented within the applicable time limits, and it was reasonably practicable for it to have been presented in time. Applicable Rules[2]The power to confirm, vary or revoke a judgment is found at Rule 70. That provides that a judgment can be reconsidered “if it is in the interests of justice to do so”.[3]Rule 71 requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. The claimant made her application in time.[4]Rule 72 (1) of the Rules provides: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …” Page 1 of 3[5]Where an Employment Judge refuses an application following the application of Rule 72(1), then it is not necessary to hear the application at a hearing. Rule 72(3) provides that the application for reconsideration should be considered in the first instance, where practicable, by the same Employment Judge who made the original decision. I am the judge who made the decision in respect of which the claimant makes her application for reconsideration. Grounds and reasons of reconsideration application[6]I have considered the whole of the claimant’s application for reconsideration. The application for reconsideration is made primarily on the grounds that the claimant considers the judge failed to treat her mental health correctly and assess how it was at the material time. The claimant considers she should not have been expected to provide medical evidence. It is also stated that the judge failed to assess that the claimant could not find relevant information online to submit the claim in time. The claimant further repeats other arguments that were made at the hearing. The claimant also states that the Judgment took a long time to be issued causing further distress. Decision on the reconsideration application[7]The relevant issue in the claim was whether the claimant had demonstrated that it was not reasonably practicable for her to submit the claim in time. Consideration was given as to the evidence of her mental health at the time as well as problems with communications with the tribunal. It was not considered that the appellant had demonstrated that her mental health was such that it was not reasonably practicable for her to submit her application in time. The claimant now makes substantially the same arguments in respect of her mental health as she did in the application for an extension of time. There is nothing that would lead to the decision now being revoked.[8]The claimant argues she should not have been expected to submit medical evidence. However, the burden was on the claimant to demonstrate her mental health was such that it was not reasonably practicable for her to make the application in time. The observation that there was no medical evidence was valid in the context of whether the claimant had demonstrated this. There was not a requirement on the claimant to produce such.[9]In respect of whether the appellant could find relevant information online, the issue was not if the claimant did or not, but whether it was reasonably practicable for her to do so. The conclusion based in the evidence at the hearing was that it was reasonably practicable for her to do so and that has not changed.[10]I sympathise with the claimant in that she was suffering with her mental health at the time the claim was due to be issued, but she has not been able to establish, either in her initial application or now, that it was not reasonably practicable for her to submit the claim in time and therefore meet the criteria for an extension of time. There is no reasonable prospect of the decision being revoked. Page 2 of 3[11]I also note the claimant’s concern that the judgment took longer than expected. I apologised to the parties for the delay in sending the judgment in a note sent with it. However, the delay did not have any effect on the decision made.[12]I do not doubt that the claimant is unhappy with the judgment, and I sympathise with her for any stress bringing this claim has brought her, but for the reasons outlined here, the claimant’s application for reconsideration of the judgment in her case is refused.