Mr D Singh v Wanis Management Services LLP: 3200018/2023
EMPLOYMENT TRIBUNALS
Case No 3200018/2023
Between
Mr D SinghClaimantWanis Management Services LLPRespondent
Before
Employment Judge ReidIn person for claimantMs Churchhouse (instructed by Counsel) for respondentDate 2 August 2023
JUDGMENT
[1]The Claimant’s claim of unfair dismissal was presented outside the three month time limit in s111(2)(a) Employment Rights Act 1996 (as extended under s207B(3) Employment Rights Act 1996 for the period of ACAS conciliation); the Tribunal decides that it was reasonably practicable for him to have presented his claim in time and does not extend time under s111(2)(b) Employment Rights Act 1996.[2]The Tribunal therefore cannot hear his claim and it is dismissed. The Respondent wished to make an application for costs but there was insufficient time left. The Respondent will make any such application after receipt of the written reasons it has requested. JUDGMENT having been sent to the parties on 15 August 2023 and reasons having been requested at the hearing by the Respondent in accordance with Rule 62(3) of the Rules of Procedure 2013.
REASONS
Relevant Law
[1]The preliminary time limit issue was identified in the Respondent’s grounds of resistance and in its letter to the Tribunal dated 2 March 2023.[2]No separate preliminary hearing had been listed to deal with this preliminary issue and the final hearing listed today was to include this issue.[3]After discussion with the parties and due to the Claimant’s lack of preparedness for today I decided that I would deal only with the preliminary issue today, even if the Claimant succeeded on this issue – if he did and his claim continued, his final hearing would then continue on another date.[4]There was a 363 page bundle and index and a witness statement bundle. The Respondent had also provided a skeleton argument on the time limit issue.[5]The Claimant was supported by his sister-in-law Ms Kaur who had not by the start of the hearing been through the Respondent’s skeleton argument with the Claimant, not having had time to do so.[6]I had identified from the contents of the claim form that an interpreter might be required (although none had been requested) and obtained one on short notice who could start at 11am. Ms Kaur and the Claimant therefore had until 11am to go through the Respondent’s skeleton argument and to look at the limited number of documents it referred to, despite their only access to the bundle being on a separate mobile (in any event the relevant parts of the documents were mostly quoted in the skeleton argument).[7]I checked with the Claimant whether he needed any adjustments beyond regular breaks and possibly questions repeated because Ms Kaur had referred to his mental health being poor – he said there was nothing further he needed.[8]The Claimant had not addressed the time limit issue in his witness statement save to refer to mental health problems in May 2023 after the claim was presented so not relevant to any delay. He referred at various times during the hearing to being mentally unwell at various points but had not provided any medical evidence.[9]The Claimant gave oral evidence assisted by the interpreter and because he was unrepresented and had not addressed the delay issue in his witness statement, I asked him some general questions first and then he was cross examined on behalf of the Respondent.[10]I explained the legal test I had to apply to the Claimant and to Ms Kaur – the ‘not reasonably practicable’ test in s111(2)(b) Employment Rights Act 1996.
Relevant law
[11]After a break I then heard submissions on both sides until 1.40 pm and said I would give judgment at 4pm.[12]At 2.08pm Ms Kaur sent an email to the Listing Officer not copied to the Respondent (so forwarded on to Respondent’s solicitors by the Tribunal) saying that she had been confused about submitting evidence, that the Respondent kept mentioning a lack of evidence but that she did not know where to submit it and asking for that evidence to now be put forward on behalf of the Claimant. However at 4pm Ms Kaur then confirmed that the evidence she was referring to was not relevant to the time limit issue anyway as GP records obtained showed that the Claimant had attended his GP about his mental health in May 2023 after he presented his claim and that the other evidence she was referring to which had not yet been provided related to the fairness of the dismissal and not to the time limit point.
Findings of fact
[13]The Claimant was assisted by his sister-in- law Ms Kaur with contacting ACAS and with presenting his claim form.[14]The Claimant’s employment terminated on 23 May 2022.[15]The Claimant and Ms Kaur contacted ACAS together on 22 August 2022, on the last day of the normal 3 month time limit. ACAS issued its certificate on 3 October 2022.[17]The time limit (as extended by the ACAS certificate) was therefore 3 November 2022.[18]The Claimant presented his claim on 6 Jan 2023, around 2 months after the extended deadline.[19]The Claimant broadly gave two reasons why his claim was late at this hearing (though not articulated as reasons for delay in his witness statement): firstly he said he had been mentally unwell; secondly he said he did not understand the law (and had been unable to afford a solicitor), did not know why they had contacted ACAS and what to do after the ACAS certificate was issued and did not know about time limits; he said he had done his claim form in January 2023 jointly with Ms Kaur’s help.[20]The Claimant also gave the reason that Ms Kaur was pregnant and her baby was due around this time but Ms Kaur clarified that her baby had been born in June 2021. around a year before he was dismissed. Mental illness affecting the Claimant’s ability to present his claim in time[21]The Claimant provided no medical evidence to support his assertion at this hearing that it was his mental health which meant his claim was late – he had been aware he needed to deal with why his claim was late from the letter from the Tribunal dated 6 February 2023 (page 18), the letter from the Respondent dated 2 March 2023 (page 298), the Respondent’s grounds of resistance to the claim (page 34), the Respondent’s email dated 11 April 2023 (page 296), the Respondent’s letter dated 31 May 2023 (page 312 which refers to the failure to provide evidence about why the claim was late) and the Respondent’s email dated 2 June 2023 (page 363 – again reminding about providing evidence relevant to delay); Ms Kaur’s only response (page 314) was about the Claimant’s schedule of loss and not about evidence on the delay issue.[22]The Claimant said initially in his oral evidence that he had been on medication for his mental health since May 2022 ie from when he was dismissed by the Respondent but later changed that to say this had only been sleeping tablets he got from the pharmacy until he first went to his GP in May 2023 about his mental health.[23]I therefore find that the Claimant’s mental health was not requiring input from his GP until around a year after he was dismissed and several months after he presented his claim in January 2023.He was well supported by his family in this period after he was dismissed but did not go to his GP about his mental health until May 2023.[24]The Claimant referred to being stressed but he was able with his wife’s help to obtain two temporary jobs starting on 30 May 2022 and 13 June 2022.[25]The Claimant was able to then attend an SIA course from 21 July 2022 and pass the test at the end of the course in September 2022 (without anyone else’s help because they could not attend with him or take the test for him); that is in particular inconsistent with having a mental illness meaning that he could not present his Tribunal claim in time in the period October-November 2022 .[26]The Claimant was able with the help of Ms Kaur to contact ACAS on 22 August 2022 to start the early conciliation process.[27]The Claimant was well enough to get a security job off the back of that new SIA qualification with Tesco starting on 2 September 2022 (that is the date in his schedule of loss but was not the date he gave on his claim form which was that he started on 19 October 2022) and did not report any health problems with that new job once he had started – he still works there.[28]The Claimant may have been stressed and upset about losing his job at the Respondent but was able to function with some family support, was able to work and able to obtain and then use a new qualification.[29]It was said in submissions on his behalf by Ms Kaur that he had been feeling suicidal before the incident in May 2023 referred to in his witness statement but the Claimant had not said this himself in his evidence - in his witness statement he said this was in May 2023 and in any event he did not go to his GP till May 2023, likely to have been because of a deterioration in his mental health at that particular time. There was no medical evidence to support being this mentally unwell prior to (or after) May 2022.[30]I therefore find that the Claimant was not prevented by mental ill health from presenting his claim on time – he may have been stressed and things may have been difficult financially but that is not sufficient to mean that mental illness or incapacity stopped him bringing his claim in time given the other activities he could still do – this was a very different situation to the claimant in Nobert Logistics Limited v Hutton EAT 0011/2013 (to which Ms Kaur referred in submissions), where that claimant was significantly functionally incapacitated by his mental state. Lack of knowledge and lack of legal representation/legal advice[31]The Claimant with Ms Kaur’s help had been able to contact ACAS on 22 August 2022. In his oral evidence he professed not to know the purpose of contacting ACAS which he had done with Ms Kaur’s help – I find it very unlikely that they did this together without also at the same time both knowing that it was the first step in bringing a claim as otherwise there was no reason to contact ACAS.[32]The Claimant therefore already had in mind a possible claim when he and Ms Kaur contacted ACAS together on 22 August 2022 – he was already sufficiently aware of his rights or he would not have done that.[33]I find based on the Claimant’s oral evidence that once he started his new job at Tesco on 2 September 2022 he was also advised by his new colleagues that he could bring a Tribunal claim.[34]Therefore the Claimant knew about the right to bring a Tribunal claim by 22 August 2022, and was made aware again once he started his new job that a Tribunal claim was open to him; he must have clearly felt his dismissal had been unfair if he was discussing it with new colleagues relevant also to knowing he had a potential claim to bring because he had identified the claimed unfairness and was discussing it.[35]The Claimant did not have legal advice but he had family support especially from Ms Kaur who had already helped with contacting ACAS.[36]English is not his first language but he has lived in the UK since 2007 and had done his SIA course and exam in English and had according to the Respondent spoken in English at work with colleagues and customers.[37]Not knowing about the time limit does not mean it was not reasonably practicable to bring his claim in time, if that ignorance is not reasonable. The Claimant either himself or with the support of family could have found out the time limit with a basic internet search or got advice from eg the CAB or other free sources of advice (the ones in the Tribunal list he was sent subsequently after he presented his claim are examples of the kinds of organisations where advice can be found, which kinds of organisations he and Ms Kaur could have attempted to find and contact).[38]It was unreasonable for the Claimant to rely wholly on Ms Kaur, if that is what he was doing because it was his claim and he was mentally able to deal with it, even if it was a difficult thing to do – it was unreasonable to rely wholly on her to find out about time limits and to make sure his claim was in time. Both Ms Kaur and the Claimant being busy with work and family commitments does not mean it was not reasonably practicable to present the claim in time.
Relevant Law
[39]The primary time limit for presenting an unfair dismissal claim is three months - s111(2)(a) Employment Rights Act 1996.[40]The time limit is extended by a period of ACAS conciliation – s207B(3) Employment Rights Act 1996, provided that ACAS is contacted by the claimant during the normal time limit.[41]If the extended date is less than a month after the date the certificate is issued the claimant has a month from the date of issue of the certificate – s207B(4) Employment Rights Act 1996.[42]The time limit can be extended if the Tribunal is satisfied that it was not reasonably practicable to bring the claim in time - s111(2)(b) Employment Rights Act 1996.[43]If the Tribunal decides that it was not reasonably practicable to present the claim in time, it then has to decide whether the claim was presented within a further reasonable period.[44]It is for the Claimant to show why his claim should be allowed to be presented outside the time limit.[45]Taking the above findings of fact into account I find that it was reasonably practicable for the Claimant to have presented his claim on or before 3 November 2022, when the time limit expired, taking into account that the burden is on him to show that time should be extended.[46]I have not accepted that his mental health stopped him form presenting his claim in time based on the above findings of fact. Stress is unlikely to be enough (Asda Stores v Kauser EAT 0165/2007) and I do not find there are any other factors which taken with stress mean that it is enough. In any event no medical evidence has been provided to support a significant degree of stress.[47]The Claimant was aware of his right to bring a claim and was therefore put on notice to find out what the time limit was (Trevelyans v Norton 1991 ICR 488) even though he was not legally represented or had access to legal advice and was a litigant in person.[48]It was not reasonable to rely solely on Ms Kaur to find out about time limits given he was mentally able to do so himself – if he had needed some support to do that because it was stressful he had that support from his family.[49]I therefore do not extend time to present the claim because it was reasonably practicable to present it by the deadline of 3 November 2022. This means that the Tribunal cannot hear the Claimant’s claim for unfair dismissal, the claim is dismissed and it goes no further. COSTS JUDGMENT[1]The Tribunal makes an award of costs under Rule 76(1)(a) of the Tribunal Rules 2013 of £1,000 plus VAT, total £1,200 including VAT against the Claimant and in favour of the Respondent.[2]The costs are payable by the Claimant to the Respondent within 28 days of the date of this judgment.[1]Following the Tribunal’s judgment on the time limit issue dated 2 August 2023 (sent to the parties on 15 August 2023), the Respondent made a costs application on 18 August 2023.[2]The application was made under Rule 76(1)(a) of the Tribunal Rules 2013 (vexatious etc bringing of the proceedings or the way the proceedings have been conducted) or alternatively under Rule 76(1)(b) of the Tribunal Rules 2013 (no reasonable prospect of success). The Tribunal wrote to the Claimant on 4 September 2023 asking him to respond to the costs application and in particular to give details of his financial situation. He did not reply. I therefore do not know why he says (if he does) that no costs award should be made or what his finances are. Findings relevant to costs application[3]The time limit issue was clearly flagged up to the Claimant at an early stage and on multiple occasions, as set out in para 21 of the judgment.[4]A costs warning had been sent to the Claimant on 31 May 2023 (page 312) which told the Claimant that he had not provided any evidence about why his claim had been presented out of time but noting that this issue would be decided at the hearing on 2 August 2023. The letter also said that even if the claim was allowed to proceed it still had no reasonable prospects of success given his dismissal for gross misconduct on reasonable grounds. The Claimant did not reply to this letter.[5]The Claimant had not disclosed his relevant documents to the Respondent by the start of this hearing despite the case management order dated 17 March 2023 that the parties exchange documents by 15 May 2023. The Claimant was not prepared for this hearing and did not reply to the readiness check letter sent by the Tribunal on 24 June 2023 which specifically asked about compliance with the 17 March 2023 orders. The Claimant emailed the Tribunal on 1 August 2023 saying he was not sure what he should be doing and how to send in evidence (although statements had been exchanged) but by now it was the day before the hearing and the Respondent had still not received the Claimant’s documents (despite reminders on 2 and 7 June 2023 (page 314-315)). The Respondent’s solicitors told the Claimant on 2 June 2023 that he needed to provide any documents he had to them and had provided him with a draft bundle. He was not therefore unaware on 1 August 2023 of what he had to do as regards his own evidence.[6]Ms Kaur’s email on 15 June 2023 (page 314) did not address(1) the provision of the Claimant’s documents including those relevant to the time limit issue(2) what it was the Claimant was saying was the reason for his late claim or(3) the draft bundle provided by the Respondent’s solicitors. Even if she had previously had problems with her email (page 314) she could at this stage now have caught up with these three outstanding matters. Instead she only provided a schedule of loss; her response said she would also respond on all outstanding matters (so she was clearly aware there were other things to do) but she did not do so, even when the Tribunal wrote on 24 June 2023. By this point it was around 5 weeks before the hearing.[7]The Claimant did however provide witness statements from Ms Walker (a friend of his wife), from Ms Kaur, from the Claimant’s wife Ms Shaneeta Kaur and from the Claimant. None of the statements addressed the issue as to why the claim had been presented late. The Respondent therefore attended the hearing without knowing in advance what the Claimant said the reason was. The purpose of witness statements is so that each party can see in advance what the witnesses will say in their evidence, can prepare accordingly and so that no-one is taken by surprise.[8]At the hearing on 2 August 2023 the two reasons advanced by the Claimant for his late claim (his mental health and his lack of knowledge and legal advice) were therefore matters he had not raised before this point. He could have at least addressed it in his own witness statement.[9]With regard to his mental health the Claimant had not provided any medical evidence about his mental health despite relying on it at the hearing as to why his claim although in any event he had not contacted his GP about his mental health until May 2023 (judgment para 22-23).[10]The Claimant and Ms Kaur were aware from at least 15 June 2023 that there were outstanding matters to deal with beyond the schedule of loss. She and the Claimant were not prompted into action by the Tribunal letter dated 24 June 2023 but they ignored it as they had ignored the Respondent’s reminders about disclosure of documents and agreeing the bundle and raising the time limit issue. The Claimant was therefore unprepared for the hearing (judgment para 3); even though witness statements had been provided the Claimant’s statements did not address the time limit issue.
Relevant Law
[11]The relevant Tribunal Rules are Rules 74-84 of the Tribunal Rules 2013. Costs in the Employment Tribunal are the exception rather than the rule and there is a high threshold.[12]There is a two stage test, to consider firstly whether the relevant ground under Rule 76 is made out and then if it is, secondly whether the Tribunal should exercise its discretion to award costs.[13]Rule 76(1)(a) provides that a costs order may be made where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either bringing the proceedings or the way the proceedings have been conducted.[14]Rule 76(1)(b) provides that a costs order can be made where any claim (or response) has no reasonable prospects of success.[15]The Tribunal may (but is not required to) take into account the paying party’s ability to pay in deciding whether to make a costs order and if so in what amount (Rule 84).[16]Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420 requires the Tribunal to consider all the circumstances as a whole. and McPherson v BNP Paribas [2004] IRLR 558 establishes the need to consider the nature, gravity and effect of the claimed unreasonable conduct. There is no need to show a precise causal link between the claimed unreasonable conduct and the costs incurred.[17]In AQ Ltd v Holden 2012 IRLR 648 the EAT stated that the threshold tests governing the award of costs are the same whether a litigant is or is not professionally represented, but that the application of those tests should take this factor into account. However, a litigant in person can be found to have behaved unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[18]There is also Presidential Guidance on costs (Presidential Guidance; General Case management – Guidance Note 7 Costs) which I have taken into account.[19]Taking the above into account and looking at all the circumstances, I conclude that the grounds under Rule 76(1)(a) (unreasonable conduct in the way the proceedings have been conducted) is satisfied and that a costs order should be considered.[20]The unreasonable conduct was ignoring correspondence from the Respondent’s solicitors and from the Tribunal about compliance with obligations the Claimant was under to progress his claim (hampering the Respondent’s ability to prepare and to know the case it had to meet) and failing to address a fundamental part of his claim (the time limit point) until the day of the hearing and then relying on his mental health as a reason without providing any medical evidence and in circumstances where he knew he had not contacted his GP about his mental health until some months after the claim was presented. This was not an issue of a lack of knowledge about how Tribunal claims work or not having legal advice it was an issue of not dealing with what he was being told he needed to deal with, when he had Ms Kaur’s support to do so. Even as a litigant in person he could reasonably have been expected to do this or at least attempt to do so.[21]I do not find the grounds under Rule 76(1)(b) (no reasonable prospect of success) met taking the above findings into account. Although failing to address the time limit point until the last minute, the Claimant as a litigant in person was less able to assess whether the time limit issue itself had no reasonable prospect of success. He was also less able to assess whether his claim for unfair dismissal had no reasonable prospect of success given he did not understand (evident from his witness statement and in common with many unrepresented claimants) that the test for unfair dismissal for misconduct is whether the Respondent had a genuine belief in his misconduct and had reasonable grounds to dismiss him based on a reasonable investigation and not whether the Tribunal would have dismissed him or whether he in fact committed the claimed misconduct. Discretion whether to make a costs award[22]The Respondent issued a costs warning to the Claimant on 31 May 2023, well in advance of the hearing date of 2 August 2023 so with time in particular for the Claimant to say what was the reason for his late claim and provide relevant evidence. The existence of that costs warning is a relevant factor.[23]The Claimant is unrepresented. Although he had the help of Ms Kaur neither of them dealt with the correspondence sent to the Claimant as set out above. If the Claimant was relying solely on Ms Kaur to progress his claim and deal with correspondence, that was unreasonable (in the same way as it had been as regards presentation of the claim, judgment para 38).[24]As to whether I should exercise my discretion to award costs I have no material by which I can take into account the Claimant’s ability to pay because the Claimant has not responded to the costs application and in particular about anything he wanted to say or evidence he wanted to provide about his ability to pay any costs award.[25]Weighing these factors up up I conclude that the high threshold is met for a costs award to be made and that I should exercise my discretion to award costs against the Claimant and in favour of the Respondent. I have taken into account that the Claimant is a litigant in person but he failed to do what he was being asked to do and failed to deal with correspondence which told him what to do. It was not therefore a case of a lack of knowledge or understanding. Amount of costs award[26]I can only take into account the Claimant’s ability to pay to the extent that I am aware that he obtained new employment at Tesco and was still working there in August 2023 (judgment para 27).[27]The Respondent says that the costs are £25,000 plus VAT (solicitors costs) plus £3000 plus VAT (brief fee). It claims £3000 (presumably plus VAT) to reflect the Claimant’s likely limited means.[28]I make an award of costs of £1,000 plus VAT (£1200 including VAT) taking into account the Claimant is not a high earner but is in employment.[29]The costs are payable by the Claimant within 28 days of the date of this judgment. I have extended the 14 day default timescale in Rule 66 to enable the Claimant to make any necessary arrangements and to ensure that he will recently have been paid or be about to be paid.