Employment Judge IllingIn person for claimantEmmeline Plews (instructed by Counsel) for respondentDate 25 March 2025
JUDGMENT
[1]The claim of Unfair Dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The claim of Unfair Dismissal is therefore dismissed.
REASONS
[1]This is a claim for unfair dismissal, which was issued on 3 February 2024.[2]On 20 June 2024 the Tribunal sent out a Notice of Hearing for a Public Preliminary hearing to consider why the claim was presented when it was and why was it not reasonably practicable for it to be presented in time.[3]The case has been listed for a previous preliminary hearing in September 2024, but this was postponed due to a lack of Judicial resource.[4]On 23 July 2024 REJ Burgher Ordered the Claimant to provide a witness statement and documentary evidence relevant to the time limit issue by 8 August 2024. The Claimant did not and still has not complied with that Order.[5]The Respondent was Ordered to provide evidence by 22 August 2024 and to provide the Claimant with a bundle of documents by 2 September 2024. The Respondent provided a bundle of documents to the Claimant for the September hearing. The same bundle was used for this hearing.[6]On 28 August 2024, the Respondent sent a bundle of documents to the Claimant and invited the Claimant to review this and to add any documents he wished into it.[7]The Claimant did not submit any documents for the Tribunal to consider.[8]On 14 March 2025, the Respondent informed the Claimant that if they required an interpreter, they should contact the Tribunal. The Claimant did not do so.
The hearing
[9]The claim is for unfair dismissal. This Public Preliminary Hearing was listed to consider whether the claim was presented in time and if not, whether it was presented as soon as reasonably practicable thereafter. S.111(2) Employment Rights Act.[10]I have a bundle of 61 pages.[11]We heard evidence from the Claimant. The Claimant had not provided a witness statement and so I asked him some open questions under Oath and the Respondent cross examined him thereafter.[12]At the outset of the hearing, the Claimant stated that he could not understand English. During the preparation for the hearing, the Respondent had asked the Claimant if he had needed an interpreter, but he had not replied. The Claimant was accompanied by his son and the Claimant asked for his son to be allowed to assist him. The Respondent did not object to this request. It was in the interest of justice and the overriding objective to permit the Claimant’s son, Mr Fazal Abbas, to interpret his father’s words. Mr Abbas was told to repeat his father’s words and was not permitted to answer on the Claimant’s behalf when he was giving evidence.[13]A short adjournment was granted after the giving of evidence to allow the Claimant to prepare his closing submissions. He stated that 10-minutes would be enough.
Findings of fact
[14]The Respondent is Uber Eats UK Limited. It states that it entered into a contract for services with the Claimant as a self-employed independent contractor, where the Claimant was a delivery driver.[15]The Claimant’s engagement with the Respondent started on 26 October 2018.[16]The Claimant’s tasks were controlled by the use of an App, which would provide details for the Claimant’s deliveries. The Claimant could also receive messages from the Respondent on this App and upload any relevant documents.[17]The Claimant states that his engagement ended on 23 March 2023 following the provision, by him, of an incorrect insurance certificate.[18]The Respondent states that the Claimant’s engagement ended on 22 February 2023 when his account was permanently deactivated when it discovered that the insurance certificate uploaded by the Claimant had been falsified.[19]The Claimant accepted in evidence that throughout his engagement with the Respondent, he communicated with it via an App on his phone. He confirmed that he had been able to upload documents and read messages from the Respondent. At times he would ask his son or daughter to help him as he had limited knowledge of the English language. I accept this evidence from the Claimant.[20]In evidence the Claimant accepted that he did not check the date on which his account was deactivated when he brought his claim. I find that the App was deactivated on 22 February 2023.[21]The dates for the start of Acas conciliation, which was 18 January 2024 and is undisputed.[22]The ET1 was issued on 3 February 2024, which is also undisputed. The delay in bringing proceedings[23]In oral evidence, the Claimant answered the Tribunal’s open questions and the cross examination from the Respondent giving the following reasons for the delay in bringing proceedings: 23.1. That he had been trying to resolve the deactivation with Uber but had not had success. I find that the Claimant had been trying to resolve his App deactivation and that this process was concluded by the permanent deactivation of his account on 22 February 2023. 23.2. That he did not use the internet and that he could not research how to bring a claim or anything about time limits. The Claimant had accepted that he had used the Respondent’s App throughout his engagement. I find that the Claimant could have used the internet on his phone to research what further action he could take. 23.3. That he was unaware of any claim in the Supreme Court against the Respondent and did not know that he could bring a claim. I accept that the Claimant may not have known how to bring a claim in the Employment Tribunal, however I do not accept that the Claimant was unaware of the case in the Supreme Court against the Respondent. 23.4. That he did not ask his son or daughter for help as they were either at College or working. The Claimant confirmed that his children had occasionally helped him when using the Respondent’s App. I do not accept that the Claimant was unable to ask his son or daughter for assistance in researching what action he could take against the Respondent when his account was deactivated. 23.5. That he did not want to spend money for advice. I accept that he did not want to incur a cost obtaining advice. I do not accept that the Claimant could not seek free advice from organisations such as Citizens Advice Bureau or a free law centre. 23.6. That he did not know about a claim until his friend told him that he could bring a claim. The Claimant confirmed that this was a friend he had seen frequently. He also stated that having been told about bringing a claim, he waited a further 1 – 2 months before doing so, which his friend completed on his behalf. I accept that the information from his friend was the first time the Claimant was told that he could bring a claim. I also accept that he waited for 1 – 2 months before taking any action to bring a claim. The claim was issued in February 2024 and I find that he spoke to his friend about the claim in about December 2023.[24]No other reason, such as a medical reason, or documentary evidence was given by the Claimant in evidence.[25]From the evidence provided by the Respondent, the Claimant’s access to the App was permanently deactivated on 22 February 2023. I find that this is the date on which the Claimant’s engagement with the Respondent was terminated.[26]In closing submissions, the Claimant raised a new reason for his delay in bringing proceedings. He stated that the delay was because he had had a heart attack and related medical conditions, which had caused a delay. He had not provided any documentary evidence of this prior to this hearing, nor did he provide any oral evidence about this reason in response to the Tribunal’s open questions.[27]With regards to documentary evidence, the Tribunal’s Orders expressly provided for the Claimant to provide any documents that he wished to rely on. This was originally ordered for the preliminary hearing listed in September 2024. Even with the postponement of this hearing, the Claimant failed to provide any documentation to support his oral evidence despite having every opportunity to do so.[28]With regards to oral evidence, during the Claimant’s evidence, I asked the claimant, “What is the reason for the delay in bring the claim, just to confirm?” In response, the Claimant answered in relation to the deactivation of his account. I find that the Claimant did not raise any medical condition to the Tribunal during his evidence despite the questions asked of him.
The law
[29]The relevant law is contained in section 111 of the Employment Rights Act 1996, specifically s. 111(2) of the Employment Rights Act 1996 (“ERA”). (2) 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”:[30]When the Tribunal considers the first limb of the test – whether it was “not reasonably practicable” to present a claim in time – three general rules apply: 30.1. The relevant statutory provision should be given a liberal construction in favour of the employee: Dedman v British Building and Engineering Appliances Ltd [1974] 1 WLR 171 (“Dedman”) at p.176E; 30.2. What is reasonably practicable is a matter of fact for the Tribunal to decide: “The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province”: Wall’s Meat Co Ltd v Khan [1979] ICR 52 (“Wall’s Meat Co”) at p.57D; and 30.3. The burden of proving that presentation in time was not reasonably practicable rests on the claimant: “That imposes a duty upon him to show precisely why it was that he did not present his complaint”: Porter v Bandridge Ltd [1978] 1 WLR 1145 at p.1150A. Thus the burden of proof on claimants falls to be discharged by providing documentary and/or witness evidence.[31]The question of what is reasonably practical or means what was reasonably feasible (Palmer & Another v Southend on Sea Borough Council [1984] ICR 372) (“Palmer”). In the case of Dedman v British Building and Engineering Appliances Limited [1974] ICR 53, (“Dedman”) the Court of Appeal stated the relevant questions were as follows: 31.1. what were the claimant’s opportunities for finding out [their] rights? 31.2. did [they] take them, if not, why not? 31.3. [were they] mislead or deceived?[32]In Asda Stores v Kauser EAT 0165/07 (“Asda Stores”) at §17, the relevant test was described as “not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.[33]In the leading case of Marks and Spencer plc v Williams-Ryan [2005] EWCA Civ 470, (“Marks and Spencer”) it was described as the 'first principle' of analysis of the ‘escape clause’ that the question of what is reasonably practicable should be given 'a liberal interpretation in favour of the employee'.[34]The leading textbook on employment law: Harvey on Industrial Relations and Employment Law makes the following comment: “It was held by Brandon LJ in Wall's Meat that ignorance or mistake 'will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made […]'. One question to be asked in ignorance or mistake cases will therefore be whether the claimant who did not engage an advisor acted reasonably in failing to do so. Consideration will be both to the reasonableness of failing to instruct a solicitor, but also the reasonableness of failing to seek advice from other sources such as the Citizens Advice Bureaux, pro bono charities, ACAS or, increasingly, sources of information available on the Internet. On the latter point, the ease of accessing information on the Internet is a material development which makes it far harder for a litigant to claim ignorance is objectively reasonable. In Cygnet Behavioural Health Ltd v Britton [2022] IRLR 906 the EAT, Cavanagh J, held (at [56]) that it had been perverse to accept as reasonable the ignorance of a severely dyslexic claimant suffering from mental health issues given that his ability to function in other respects (continuing to work, submitting an appeal against dismissal and engaging with his regulator) showed no evidence of his being unable to 'type a short sentence into a search engine and to seek information about unfair dismissal time limits, or to ask an acquaintance by email to search for that information' adding (at [58]) that 'it would be the work of a moment to ask somebody about time limits or to ask a search engine'[35]In considering my decision, I have applied this guidance. I have also considered the overriding objective. The question of what is reasonably practicable was a question of fact for me to determine. Submissions[36]The Respondent representatives provided a helpful skeleton argument and the Claimant was afforded every opportunity to tell the Tribunal what he wanted in relation to why the claim had been issued late.
Conclusions
[37]This preliminary hearing has considered the issue of Time Limits under the ERA only. The only question being whether the Claimant’s claim has been issued in time or within a reasonably practicable time thereafter.[38]With regards to the Claimant’s evidence, I conclude that to take into account new evidence submitted in the conclusion of a hearing is highly prejudicial to the Respondent. No medical evidence has been provided during or prior to the hearing despite the Claimant being afforded multiple opportunities to do so, and I find that it is in the interest of justice and the overriding objective to consider my findings based on the oral evidence as given under Oath only.[39]Time limits 39.1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 19 October 2023 may not have been brought in time. 39.2. Was the unfair dismissal made within the time limit in section 111 of the Employment Rights Act 1996? The Tribunal will decide: 39.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination? 39.2.2. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 39.2.3. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[40]Parliament has set down the time limits for bringing claims to the Employment Tribunal. It is for a claimant to show on the balance of probabilities that it was not reasonably practicable for him to present her claim to the Tribunal in time. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination?[41]I have found that the Claimant’s account was deactivated on 22 February 2023, effectively barring him from engaging with the Respondent to carry out any further work. This means that the primary time limit for the Claimant to start proceedings in the Employment Tribunal expired on 21 May 2023.[42]The Acas early conciliation process started on 18 January 2023, which is 7- months and 28-days after the primary limitation period has expired.[43]The claim was not made to the Tribunal within the time limits prescribed by s.111 of the Employment Rights Act 1996. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?[44]The burden of proof to show that it was not reasonably practicable to present a claim in time rests with the Claimant.[45]In considering whether it was reasonably practicable for the claim to be made to the Tribunal within the time limit, I have had regard to the questions raised in Palmer, Dedman and Asda Stores, to consider what was reasonably feasible for the Claimant to do to find out about his rights.[46]I have found that the Claimant had access to the internet. I have accepted that he may not have known about his right to bring a claim in the Employment Tribunal, but I have found that he was capable of using his phone to access the Respondent’s App, and he was capable of seeking assistance from his children or his friend if needed. I have found that the Claimant could have used his phone to make enquiries online.[47]I have also found that the Claimant had his children from whom he could seek assistance and that he saw his friend frequently. But that he did not seek assistance from either until December 2023.[48]I have found that the Claimant did not take steps to find out about his rights, whether online with his friend or his children’s assistance. Nor did he seek out advice from the legal support that is available free of charge, including Citizens Advice Bureau or a law centre.[49]I have found that the Claimant could have asked for assistance from his children and his friend, but that he did not.[50]The Claimant was not misled or deceived.[51]In considering the overriding objective, Parliament has laid down strict time limits for claims of unfair dismissal, stating “An Employment Tribunal shall not consider a complaint under this section..” (my emphasis).[52]The Claimant has not provided any documentation to support his evidence and I have accepted that the Claimant could have made enquiries as to his rights, but did not do so.[53]I have found that it was feasible for the Claimant to search the internet or to seek assistance from his children or friends, but that he did not do so. I conclude that it was reasonably practicable for the Claimant to issue his claim in time.