Mrs EK Djan v Nestor Primecare Services Ltd T/a Allied Healthcare: 3201061/2017
EMPLOYMENT TRIBUNALS
Case No 3201061/2017
Between
Mrs EK DjanClaimantNestor Primecare Services Ltd T/a Allied HealthcareRespondent
Before
Employment Judge MS Hallen, sitting aloneMr Djan for claimantDate 25 April 2018
JUDGMENT
The judgment of the Tribunal is that:- The Claimants claim for unfair dismissal was submitted outside the 3 month limitation period set out at Section 111 of the Employment Rights Act 1996 and it was reasonably practicable for the complaint to be presented within time. The Tribunal does not grant an extension of time for its presentation. Accordingly, the Claimant’s claim for unfair dismissal is hereby dismissed as the Tribunal does not have jurisdiction to hear it.
REASONS
[1]In her Claim Form dated 2 August 2017, the Claimant claimed unfair constructive dismissal on the basis that the Respondent was in repudiatory breach of contract in failing to offer her shifts between 1 September 2016 to 27 March 2017, which she said was a breach of the express term of her contract of employment to provide work and/or a breach of the implied term of trust and confidence. The Respondent in its Response Form, resisted the claim for constructive dismissal stating that the Claimant was not offered shifts between the dates specified because the Respondent had lost its contract with Newham and that there was no other suitable alternative employment available.[2]The claim came in front of Employment Judge Russell on 26 January 2018 at a preliminary hearing at which she set out the issues in respect of the constructive dismissal claim. In addition, Judge Russell set out at paragraph 9 of her order, issues that were related to jurisdiction and specifically whether the Claim Form was presented within time. Judge Russell noted that the Claim Form was presented on 2 August 2017 by post. The Claim Form was returned by the Tribunal’s administration on the mistaken belief that it duplicated an earlier claim and therefore was not valid. This earlier claim related to an unauthorised deduction from wages and was not a duplication of the claim presented on 2 August 2017. The Claimant subsequently re-presented the claim on 23 August 2017 and Judge Russell was satisfied on reconsideration that the rejection was wrong and that the date of presentation should be taken as 2 August 2017. She further noted on consideration noted that on the face of it, the presentation of the claim on 2 August 2017 was potentially out of time and that the Tribunal may not have jurisdiction to hear it. She noted that the ACAS early conciliation took place between 2 May 2017 and 12 June 2017. Accordingly, as a preliminary issue, she listed the question of whether the claim was out of time to be considered at the outset of the substantive hearing listed for 2 days on 19 and 20 April 2018.[3]At the substantive hearing, the Judge clarified that the jurisdiction issue would be considered first and thereafter, if appropriate, the claim for constructive unfair dismissal would then be considered. The Tribunal had before it an agreed bundle of documents. To this bundle of documents were added three pages numbered 183-185 with the consent of the parties. Page 184 contained a certificate of postage which the Claimant confirmed was the evidence of postage of the Claim Form and was dated 28 July 2017. In addition, page 184 also contained a compliment slip confirming that a P45 form had already been sent out to the Claimant on 6 March 2017 which was at page 68 of the bundle of documents.[4]At page 185 was a postal tracking form which confirmed presentation of the Claim Form at the Tribunal offices in central Leicester on 2 August 2017. In addition to the agreed bundle with the additional documents attached, the Tribunal had a witness statement from the Claimant, a witness statement from Miss Carly Barnard on behalf of the Respondent as well as a witness statement from the Respondent’s husband which was at pages 42-43 of the bundle of documents which set out his evidence relating to the late presentation of the Claim Form. Furthermore, the Tribunal was referred to Mr Djan’s email of 13 April 2018 which also clarified his evidence relating to the late presentation of the Claim Form.[5]Mr Djan on behalf of his wife, confirmed that he wished to give evidence to the Tribunal in respect of the submission of the Claim Form and that he wished the Tribunal to consider his statement at pages 42-43 of the bundle of documents and his email to the Tribunal dated 13 Aril 2018. The Tribunal noted the content of these two documents. Mr Djan gave evidence to the Tribunal in respect of these documents and was cross examined by the Respondents representative and was asked questions by the Tribunal. Ms. Barnard did not give evidence to the Tribunal in respect of the time limitation issue as she had nothing relevant to say on the matter. Facts[6]The Claimant by email dated 27 February 2017, resigned from her employment with the Respondent with effect from 27 Mach 2017. This email was at page 57 of the bundle of documents. The Claimant specified as follows “It is with great regret that I wish to inform you of my decision to resign from my position as Carer with Nestor Primecare Services Ltd (trading as Allied Healthcare) with effect from 27 March 2017. I hereby serve the contractual four week notice with effect from Monday 27 February 2017.” On receiving the Claimants letter of resignation, the Claimant was, by letter dated 28 March 2017, invited to a grievance meeting which was to take place on 3 April 217 to consider her concerns. The Respondent confirmed that the purpose the meeting was for the Claimant to provide the Respondent with full details of her grievance in order that it could gather all relevant facts. By email dated 3 April 2017, which was at pages 61-62 of the bundle of documents, the Claimant declined the invitation to attend the grievance meeting to discuss the matter further. Thereafter, the Claimant was involved in ACAS early conciliation which took place between 12 May 2017 and 12 June 2017. The ACAS pre-claims conciliation certificate was at page 16 of the bundle of documents.[7]During evidence, Mr Djan stated that the Claimant was issued a P45 showing the Claimants leaving date as 31 August 2016. This was dated 6 March 2017 and was at page 68 of the bundle of documents. Mr Djan confirmed that the reason why the Claim Form was presented on 2 August 2018 was because the Respondent would not provide the Claimant with a further P45 form showing the correct termination date as 27 March 2017. He stated that the best the Respondent would do was to provide the Claimant with a compliment slip, which was at page 184 of the documents and stated as follows “Dear Mrs Djan, Your P45 was posted out to you in March 2017. As per the termination statement enclosed, you can see this was posted to your current home address. We are not allowed to send copies of P45’s which is why we have attached this statement. All relevant information that would be on the P45 appears on this statement.” Mr Djan confirmed that he received this compliment slip instead of a revised P45 on 27 July 2017 and as a consequence of the Respondents failure to provide the correct P45 with the correct date, he posted the Claim Form currently before the Tribunal claiming constructive dismissal on 28 July 2017. This was shown at page 184 at the bundle of documents. He confirmed that the claim was presented to the Tribunal on 2 August 2017 as shown at page 185 which was the proof of delivery at the central Leicester Tribunal office.[8]Because of the delay in providing a P45 with the correct termination date, on 17 July 2017, the Claimant wrote a letter to the Respondent as follows, “I wish to refer to my employment with the company which terminated on March 27 this year. Now that ACAS have concluded the conciliation process and issued a certificate as required by law, I would be extremely grateful if you would kindly issue me with my P45 without further delay. This will enable me to seek counsel to determine what further action I should take, or whether I should proceed to the Employment Tribunal to seek redress”. It should be noted that at the date of this letter, Mr Djan confirmed in his email of 13 April 2017 sent to the Tribunal, that he “still had 10 days to present a claim to the Tribunal”. In addition, in the email, Mr Djan confirmed that he was aware of the time limit to present the claim, namely by no later than 27 July 2017.[9]The parties accepted that the effective date of termination was 27 March 2017 and that the normal 3 month limitation period under Section 111 (2)(a) expired on 26 June 2017. It was also accepted that the 32 days during which ACAS pre claims conciliation took place between 12 May 2017 to 12 June 2017 (32 days), extended the normal period for presentation of the claim form until 27 July 2017. Mr Djan said in his email to the Tribunal dated 13 April “It was sent by Royal Mail on 28 July 2017 for next day delivery to be presented at the Employment Tribunal central office in Leicester...... A certificate of postage was obtained”. However, presentation of the Claim Form did not take place until 2 August 2017 as shown at page 185 of the bundle of documents. Mr Djan asserted in evidence that because the Respondent failed to provide the Claimant with a P45 setting out the correct termination date of 27 March 2017, the delay in presentation of the Claim Form was wholly attributable to the Respondent and that the claim should be considered out of time. The Tribunal noted that the Claimant with the assistance of her husband and representative at this hearing had previously presented a Claim Form to this same Tribunal office in respect of an unlawful deduction of wages claim which was heard on 15 December 2016. The claim related to the same employer and revolved around facts which she sought to rely upon in respect of her current constructive dismissal claim. This unlawful deduction of wages claim was dismissed by judgment sent to the parties on 30 January 2017. The judgment and reasons was contained at pages 179-182 of the bundle of documents. It was put to Mr Djan by the Respondents representative that he was aware of Tribunal procedures and the time limits that were applicable as a result of this earlier application to the Tribunal. The Claimants husband confirmed that he was aware of the time limit. He was a retired gentleman and was responsible for the conduct of this matter on his wife’s behalf. It was also put to Mr Djan by the Respondents representative that as of 17 July when the Claimant wrote her letter complaining about not having received the correct P45, she still had 10 days to lodge her Claim Form. He confirmed that this was so. As of this time, the Claimants representative/husband was fully aware that he had 10 days left to submit the Claim Form. He could not answer the question put to him as to why he could not lodge the Claim Form on or around 17 July 2017 without receiving a P45 form with the correct termination date on it.
The Relevant Law
[10]The time limits for presenting complaints of unfair dismissal to an Employment Tribunal are set out in Section 111, Employment Rights Act 1996. By Section 111(2) ERA 1996, “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 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 the period of 3 months”.[11]Where a Claimant fails to present his claim in time and seeks an extension of time, the employee must show that it was not reasonably practicable to present his claim in time. The burden of proof rests on the Claimant, Porter v Bandridge Limited [1978] IRLR 271, [1978] ICR943, CA. If he succeeds in doing so, the Tribunal must be satisfied that the time within which the claim was, in fact presented, was reasonable.[12]The questions of whether it was reasonably practicable for the complaint to be presented, is one of fact for the Employment Tribunal, taking into account all the relevant factors (Palmer & Saunders v Southend on Sea Borough Council [1984] 1ALL ER945, [1984] IRLR 119). Relevant factors can include the manner of, and reason for the dismissal; whether the employers conciliation machinery had been used; the substantive cause of the Claimants failure to comply with the time limits; whether there was any physical impediment preventing compliance, such as illness, or postal strike; whether, and if so when, the Claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; whether the Claimant had been advised by anyone, and the nature of any advice given; whether there was any substantial fault on the part of the Claimant or his advisor which led to the failure to present the complaint in time. Tribunals Conclusions[13]Both parties and the Tribunal noted that the relevant dates were not in question in respect of the lodgement of the Claim Form. The effective date of termination was 27 March 2017 which meant that ordinarily, the Claim Form should have been lodged no later than 26 June 2017. The ACAS pre claims conciliation took place between 12 May 2017 to 12 June 2017 which was a period of 32 days which interrupted the normal time limit and added a further 32 days onto this time limit, being the period of ACAS conciliation. This additional 32 day period meant that the Claim Form should have been presented to the Tribunal by no later than 27 July 2017. In fact, the Claimant accepted that the Claim Form was not presented to the central office of the Employment Tribunal until 2 August 2017, a period of 5 days out of time.[14]During the course of the evidence presented to Tribunal which was done wholly by the Claimants husband Mr Djan, who was responsible for representing and advising the Claimant in respect of this application. He accepted that he was aware of the time limits that were applicable in respect of Tribunal complaints and specifically the time limit to lodge the claim within 3 months, beginning with the effective date of termination. He sought to persuade the Tribunal that the claim was not lodged because the Respondent failed to provide the Claimant with the correct P45 form, specifying the correct date of termination. The P45 that was presented to the Claimant was dated 6 March 2017 and specified the Claimants leaving date as 31 August 2016. This, the parties accepted, was the last date that the Claimant actually worked for the Respondent and was not the date that the Claimant had resigned from her employment (27 March 2017). It was clear to the Tribunal that as of 17 July 2017 (10 days before the expiry of the time limit), the Claimant was aware that she had not received the P45 form that she was asking for. She specifically stated “the the ACAS have concluded the conciliation process and have issued a certificate as required by law, I will be extremely grateful if you would kindly issue me with my P45 without further delay. This will enable me to seek counsel to determine what further action I should take, or whether I should proceed to the Employment Tribunal to seek redress”. Based upon this letter, the Tribunal was satisfied that the Claimant, at this stage, was aware of her rights and that at this time, she could have issued Employment Tribunal proceedings. However, and inexplicably to the Tribunal, the Claimant waited until 28 July 2017 to post the Claim Form to the Tribunal. This did not arrive until 2 August 2017 which was the date of presentation and was 5 days out of time. The Tribunal was not persuaded that it was reasonable for the Claimant or her husband to wait to receive a P45 form from the Respondent setting out the correct termination date. Indeed, Mr Djan confirmed that as of 6 March 2017, his wife had received the P45 which was at page 68 of the bundle and was dated 6 March 2017. It seemed to the Tribunal that even if there was a disagreement about the termination date, this could have no real effect upon the Claimants ability to institute Tribunal proceedings within the normal time period permitted in Section 111 of the ERA. Indeed, the Claimant had previously issued proceedings in the Tribunal and was well aware of her rights to do so and, in respect of this second claim, the Claimant was aware of the time limits that were applicable. It was the Tribunals view that it was reasonably practicable for the complaint to be presented before the expiry of the 3 months time period (as extended by ACAS pre claims conciliation). No evidence had been presented that the Claimant or her husband was incapacitated in any way or had no knowledge of their rights. Furthermore, the Claimant had access to email, as shown by the fact that she emailed the Respondent various times during her employment and could from at least 17 July 2017, which she admitted was 10 days before the expiry of the time limit as extended, presented the Claim Form by email to the Tribunal. Mr. Djan, the Claimant’s husband and representative confirmed that he was retired and had the necessary time to act within the time limits. Accordingly, the Tribunal dismissed the claim as it was presented outside the time limit for presentation of such claims and the Tribunal found that it was reasonably practicable for the Claimant to have submitted the claim within time. The Claimant presented no extenuating circumstances for the delay and the Tribunal was not of the view that the failure to provide a P45 form specifying the correct date of termination was a good reason for submitting the claim out of time.