Mr J Waterhouse v East of England Ambulance Service NHS Trust: 3300119/2024
EMPLOYMENT TRIBUNALS
Case No 3300119/2024
Between
Mr J WaterhouseClaimantEast of England Ambulance Service NHS TrustRespondent
Before
Employment Judge PostleIn person for claimantMr Cullen (instructed by Counsel) for respondentDate 2 January 2025
JUDGMENT
It was reasonably practical for the Claimant to have issued his claims for breach of contract and unfair dismissal within three months of the effective date of termination. Therefore the claims of unfair dismissal under the Employment Rights Act 1996 and breach of contract are dismissed.
REASONS
[1]This was a Preliminary Hearing to determine whether or not the Claimant’s claim for unfair dismissal and breach of contract were out of time and if so, whether it was reasonably practical to have issued the claim within the three month period beginning with the effective date of termination and for any extended period allowed by ACAS Early Conciliation.[2]It is common ground the Claimant was dismissed from his employment on 13 July 2023 and therefore the primary limitation for both claims expires on 12 October 2023.[3]The Claimant commenced ACAS Early Conciliation on 23 October 2023 and received his Early Conciliation Certificate on 4 December 2023. The Claimant’s claim was issued on 4 January 2024.[4]In this Tribunal we heard evidence from the Claimant as to why he was unable to issue his claim within the limitation period.[5]It has to be said his evidence was vague and it appeared the Claimant started new employment part time on 9 May 2023 and went full time in September 2023 as a Support Worker for mental health patients.[6]The Claimant had the benefit of Union support during the Disciplinary Case No:- 3300119/2024. 2 Process. He says they did not discuss claims to the Employment Tribunal at that stage. The Claimant says he never asked the question about time limits as he felt his Appeal would be successful.[7]His Appeal was heard on 16 October 2023 and the outcome of that was sent to the Claimant on 20 October 2023.[8]The Claimant tells us that between September 2023 and January 2024 he was not absent from work due to sickness and did not at any stage visit his GP.[9]He engaged ACAS around 23 October 2023 and submitted his claim on 4 January 2024.[10]The Claimant told the Tribunal that after 13 July 2023 when he was dismissed, he does not think he had Googled unfair dismissal and breach of contract.[11]After his Appeal was turned down, he spoke to his Union Advisor about options going forward and checked with a Solicitor around that time. Subsequently, the Claimant said he sought advice from a Solicitor around 14 December 2023 and in the meantime he made enquiries with his Union, he says he received no response.[12]The Claimant accepts he should have engaged with ACAS earlier.[13]However, it appears the Claimant did not check with his Union or Google time limits, although one would expect when he sort advice from his Solicitor some time towards the end of 2023, that they would almost inevitably have advised on the question of unfair dismissal the limitation periods.
The Law
[14]The claim for unfair dismissal under s.111 of the Employment Rights Act 1996, is to be brought before the end of the period of three months beginning with the effective date of termination.[15]Time limits are strict in employment matters and the burden of proof is on the Claimant to show precisely why he did not issue in time and why it was not reasonably practicable to have issued within time.[16]Section 111(2)(b) of the Employment Rights Act 1996 says that the period, i.e. limitation, may be extended when the Tribunal is satisfied that it was not reasonably practical for the complaint to be presented before the end of the period.[17]The Tribunal repeats, the onus on proving that presentation in time was not reasonably practical rests on the Claimant.[18]The Court of Appeal said in Palmer and Anor. v Southend on Sea Borough Council [1984] ICR 372, that, “Reasonably practical does not mean reasonable which would be too Case No:- 3300119/2024. 3 favourable to employees and does not mean physically possible as being too favourable to the employer. It means something like reasonably feasible.”[19]It is a high hurdle and what is reasonably practical is a question of fact and the matter for the Tribunal to decide.[20]The process is equally the same for breach of contract claims, although covered by Article 7 of the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994.
Conclusions
[21]It is correct the Claimant failed to address time limits in his Claim Form and does not suggest that any form of illness was the reason for delay following his dismissal. Indeed, the Claimant undertook part time employment in May 2023 and full time employment in September 2023.[22]Clearly it is incumbent upon the Claimant that wishes to pursue a claim for unfair dismissal, to make all reasonable enquiries as to how one should go about it. The Tribunal noted the Claimant, during the course of the Disciplinary Process and shortly thereafter, had the benefit of Union advice, he sought legal advice towards the end of 2023 and yet claims he had no idea as to time limits for presenting a claim.[23]In those circumstances the Tribunal conclude that it clearly was reasonably practical for the Claimant to have issued the claims within the three month period, namely at any time before 23 October 2023.[24]The Claimant’s claims for breach of contract and unfair dismissal are therefore dismissed.