Ms T Babla v London Borough of Waltham Forest: 3200319/2019

EMPLOYMENT TRIBUNALS

Case No 3200319/2019

Between

Ms T BablaClaimant

London Borough of Waltham ForestRespondent

Before

Employment Judge Burgher

Ms CJ Coyne (instructed by Counsel) for claimant

Mr S Harding (instructed by Counsel) for respondent

Date 14 October 2019

JUDGMENT

The judgment of the Tribunal is that the Tribunal does not have jurisdiction to consider the Claimant’s complaints which have been presented out of time. Her claims are therefore dismissed.

REASONS

[1]The matter was listed before me to consider whether the claimant's claim was presented within the time limit provided by section 111 of the employment rights act 1996 which states: Complaints to employment tribunal.(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.

[2]The claimant referred to her witness statement consisting of 14 paragraphs the claimant amplified her evidence by stating that she has had to care for her severely immobilised mother who has suffered two falls one in September 2018 and another in November 2018. This has necessitated her having to care for her for 12 hours a day.

[3]The claimant was dismissed from her employment on 25 October 2018 she contacted ACAS on 4 February 2019 and had an ACAS certificate on 8 February 2019 and presented her claim to the tribunal on 8 February 2019. The Tribunal wrote to the claimant on 5 March 2019 requesting dates of the claimant's employment and the claimant responded to this letter on 5 March 2019 stating that she was employed from 6 December 1998 to 25 October 2018.

[4]The claimant states that following her dismissal on 1 November she appealed against it. She was concerned about the financial consequences of her dismissal and had to rely on financial support from her adult sons.

[5]The claimant did not have assistance from the union representative to assist her during her appeal and she was not provided with any advice by her union representatives about the time limits to bring a claim to the Employment Tribunal.

[6]Sometime in November 2018 the claimant contacted the CAB who advised her to seek employment law advice. However, the claimant stated that she could not afford to do so.

[7]The claimant also had access to experienced counsel Mr Philip Noble who had helped her during her divorce proceedings. The claimant states that Mr Noble did not give her any advice on procedural matters or time limits of an Employment Tribunals and she only contacted him in respect of his comments on her appeal statement.

[8]The claimant accepts that she is computer literate, she worked with computers and would have been able to Google search for information on Employment Tribunal time limits but that did not do so at the time. She stated that she was focusing on caring for her mother and pursuing her internal appeal against her dismissal.

[9]The claimant attended the appeal hearing on 22 January 2019 and was informed of the appeal outcome of her appeal on 29 January 2019. Her appeal was rejected.

[10]The claimant then sought advice from a friend Diane who advised her to contact ACAS. The claimant contacted ACAS and was given a link to the early conciliation form which she received and completed on 4 February 2019. She received an ACAS certificate on 8 February 2019 and was informed by ACAS conciliator that her claim was out of time. She contacted, who Mr Noble undertook some research on the claimant's behalf and said he did not think the claimant's claim would be accepted by the Tribunal as is out of time. The claimant stated that she intended to submit claim and did so online on 8 February 2019. Submissions

[11]Mr Harding, Counsel for the respondent submitted that whilst there was no doubt sympathy for the claimant's position the tribunal's jurisdiction was such that her claim was out of time and it was reasonably practicable for her to have presented her complaint in time. He submitted that the claimant had admitted that she could have researched the time limits and did not do so this was a failure by her to act reasonably in helping to overcome her ignorance of the time limits. Mr Harding also stated the ignorance of the law regarding time limits was no defence especially in the current digital age. He therefore submitted that the Tribunal did not have jurisdiction to hear the claimant's claims which should be dismissed.

[12]Ms Coyne on behalf of the Claimant referred me to the cases of Marks & Spencer plc v Williams Ryan

[2005] EWCA Civ 470

and Beasley v National Grid

[2008] EWCA Civ 742

and Tesco Stores Ltd v Kayani UK/EaT/0128/16/DM.

[13]In Marks & Spencer, Lord Philips stated at paragraph 20

[20]The first principle is that section 111(2) should be given a liberal interpretation in favour of the employee….

[21]In accordance with that approach it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances. At page 60 Brandon LJ said: "The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment 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. Either state of mind 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, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."14. Ms Coyne emphatically submitted that it was not reasonably practicable to present the complaint in time as matter of fact. She submitted that given the emotional pressure placed on the claimant at the time she was looking after her mother and the fact that she had no knowledge of the time limits it was not reasonably practicable for her to bring the complaint within three months. Ms Coyne also stated that given the chronology of what followed thereafter, the 14 day period that elapsed, was such period as was reasonable and the claimant brought the claim on the same day that she received the ACAS certificate Conclusion

15. I conclude that the claimant was not reasonable in her ignorance of the time limit. She had been dismissed on 25 October 2018 and was guided by the CAB to take specialist legal advice, but she could not afford to do so. The claimant had access to experienced non specialist counsel and she could also have asked him where to get such advice but did not do so. She did not undertake any independent research herself and she accepts now that such information is readily available on the internet.

16. Whilst the claimant was pursuing her internal appeal and having to look after her mother, I conclude that she had some responsibility to seek to find out how she could pursue any claims to an Employment Tribunal. Not making any such enquiries until after her appeal outcome was communicated to her was not reasonable.

17. I therefore conclude that the claimant has not satisfied me that it was not reasonably practicable for her to bring her complaint within the three month time limit. The Tribunal therefore does not have jurisdiction to consider her complaints which are dismissed.