Mr U Uthman v Barking and Dagenham Trading Partnership Ltd: 3201091/2023
EMPLOYMENT TRIBUNALS
Case No 3201091/2023
Between
Mr U UthmanClaimantBarking and Dagenham Trading Partnership LtdRespondent
Before
Employment Judge MassarellaMr P. Keith (instructed by Counsel) for respondentDate 9 April 2025
REASONS
[1]By a judgment given orally at a hearing on 18 March 2025, the Claimant’s claims of whistleblowing detriment were struck out in their entirety on the ground that there was no reasonable prospect of the Tribunal’s accepting jurisdiction in respect of them, having regard to the statutory time limits.[2]The written record of the judgment was sent to the parties on 20 March 2025. By email dated 26 March 2025, the Claimant asked for written reasons of that judgment. They are provided below. The law Time limits
The law
[3]S.48 Employment Rights Act 1996 (‘ERA’) provides (as relevant): (1A) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. […] (3) 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 date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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. (4) For the purposes of subsection (3) – (a) where an act extends over a period, the “date of the act” means the last day of that period; and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if was to be done.[4]The Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 at [34] held that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ would be to take a view too favourable to the employee; but to limit their construction to that which is reasonably capable, physically, of being done would be too restrictive. The best approach is to read ‘practicable’ as the equivalent of ‘feasible’ and to ask: ‘was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?’[5]In Walls Meat Co Ltd v Khan [1979] ICR 52 at p.56, Denning LJ held that the following general test should be applied in determining the question of reasonable practicability. ‘Had the man just cause or excuse for not presenting his complaint within the prescribed time limit? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.’[6]There is an obligation on claimants to act expeditiously in asserting their rights. Even a relatively short delay beyond the point when it becomes reasonably practicable may be more than is reasonable, absent a good explanation for the further delay. In Theobald v The Royal Bank of Scotland plc, UKEAT/0444/06 a delay of 13 days was held on the facts to be too long. Strike-out[7]The relevant rule is Rules 38(1)(a) of the Employment Tribunal Procedure Rules 2024, which provides that at any stage of the proceedings, a Tribunal may strike out all or part of the claim or response on the ground that it has no reasonable prospect of success.[8]It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union [2001] ICR 391.[9]Although not considered in this authority, I proceed on the assumption that a similar view may be taken of whistleblowing claims, given the potential public interest inherent in them.[10]This does not mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen UKEAT/0024/11, it was stated that in appropriate cases, claims should be struck out and that ‘the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail.’[11]A similar point was made in the case of ABN Amro Management Services Ltd & Anor v Hogben UKEAT/0266/09, where it was stated that, ‘If a case has indeed no reasonable prospect of success, it ought to be struck out.’ Any decision to strike out needs to be compliant with the principles in Meek v City of Birmingham District Council [1987] IRLR 250 CA and should adequately explain to the affected party why their claims were or were not struck out.[12]In Caterham School Limited v Rose UKEAT/0149/19/RN, the EAT held at [60-66] that if the Tribunal considers at a PH that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed conduct extending over a period together with other incidents, such as to make it in time, that complaint may be struck out. But if it is not struck out on that basis, that time point remains live. By contrast, a determination of whether, substantively, there is conduct continuing over a period, cannot be reached at a PH on the basis merely of consideration of whether there is a prima facie case on the pleadings. Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence.[13]It is implicit from that judgment that the same principles apply to considering whether there is reasonable prospect of establishing at trial that it was not reasonably practicable to present a claim in time. Findings and conclusions[14]The parties agreed that the correct list of issues was the one drawn up by EJ Byrne at page 57 of the bundle.[15]All the allegations of whistleblowing detriment which the Claimant makes relate to things which occurred while he was at work. His last day at work was 31 December 2021; that was the last possible date on which detriment can have occurred. The primary time limit expired, by reference to that date, on 30 March 2022.[16]The Claimant did not contact ACAS until 14 April 2023. All his claims are out of time by more than a year; the earlier claims (issues7.1 and7.2 ) are up to 17 months out of time.[17]In his written submissions the Claimant argued that there was conduct extending over a period connecting these alleged whistleblowing detriments with later acts of discrimination. That argument is legally misconceived: it is not possible to link out of time acts of whistleblowing detriment under the Employment Rights Act 1996 with in-time allegations of discrimination under the Equality Act 2010.[18]Before I broke to deliberate, Mrs Uthman made the following submissions on behalf of her husband, taking instructions from him from time to time, as needed:18.1 the Claimant regarded himself as a whistleblower at the time;18.2 the main reason why he did not issue his claims earlier was because he was waiting for his concerns to be resolved internally; he was passionate about his job, wanted to resolve the problems and did not want to make trouble;18.3 Mrs Uthman said that going to court was, in her culture (and, I infer, the Claimant’s culture), like a declaration of war; it had not got to that point;18.4 it was only in February 2023 that the Claimant felt that he needed to go to court;18.5 if he had known at the time that it would not be resolved internally, he would have gone ahead and put in a claim;18.6 asked whether the Claimant had taken any legal advice, Mrs Uthman said no.[19]There was no suggestion by the Claimant that he was not well enough to present the claims earlier; indeed, it is his case that he was fit for work by May 2022 and should have been allowed to return. He was certainly fit enough to put in at least one, probably two (the Claimant’s submissions on this were somewhat confused), grievances in 2022.[20]The Claimant knew about Employment Tribunals. Mrs Uthman did not say in terms that the Claimant did not know about his right to bring a Tribunal claim of this sort, although she did suggest that he did not know the procedural requirements.[21]After I heard submissions, and while I was deliberating on this issue and the issue of whether I should make a deposit order, I looked at a document which Mrs Uthman had sent me earlier in the day, which was a bank statement from her and her husband’s joint bank account; this was relevant to the question of the Claimant means. Looking at the income column, I noticed a salary payment from the Government Legal Department. I checked with the database of the SRA and found that Mrs Uthman is a qualified solicitor in the GLD.[22]When I resumed the hearing, I asked Mrs Uthman whether this was correct; she confirmed that it was; she told me that she works in the litigation division in public law. Although she is not an employment lawyer, she confirmed that she was aware that all legal claims have a time limit and that, if she did not know the time limit for this type of claim, she could have researched it online without any difficulty.[23]I consider that that is relevant to the extent to which a Tribunal is likely to accept any submission made on the Claimant’s behalf that he was ignorant of his rights and/or time limits or that he could not reasonably be expected to be aware of them (or of the relevant procedural steps).[24]To summarise: the Claimant was not prevented from bring his claims earlier by illhealth; it was feasible for him to pursue internal grievances; he considered himself a whistleblower at the time; he knew about the Employment Tribunal; he had access to professional legal advice in the person of his wife; his own account will be that he chose not to litigate because he wished to resolve matters internally without coming into conflict with his employer.[25]Having regard to all these circumstances, I have concluded that there is no reasonable prospect of the Claimant persuading the Tribunal at a final hearing that it was not reasonably practicable for him to bring his claims of whistleblowing detriment within the statutory time limit. Consequently, the Respondent’s application to strike out all the allegations of whistleblowing detriment because they have no reasonable prospects of success, having regard to the statutory time limits, succeeds and those claims are dismissed.[26]Mr Keith did not make a strike-out application in relation to the discrimination claims; he pursued a deposit order application; my reasons in relation to that application were given in writing in a separate Order.