Mr M Frosdick v North Norfolk District Council: 3300328/2023
EMPLOYMENT TRIBUNALS
Case No 3300328/2023
Between
Mr M FrosdickClaimantNorth Norfolk District CouncilRespondent
Before
Employment Judge M WarrenIn person for claimantMs J Shepherd (instructed by counsel) for respondentDate 15 September 2023
JUDGMENT
The claim was issued out of time, it was reasonably practicable for it to have been issued in time and the claim is therefore struck out.
REASONS
[1]On 21 July 2023 at a Public Preliminary Hearing, I gave Judgment orally, striking out Mr Frosdick’s claim on the grounds that it was out of time. Mr Frosdick requested Written Reasons at the end of the hearing. I warned him they may take three months to produce due to a shortage of typing facilities. My reasons are as set out below.[2]In this case it has been identified that Mr Frosdick had issued his claim for unfair dismissal outside the three month time limit. The relevant dates are that he resigned his employment with immediate effect on 24 June 2021, he embarked upon Early Conciliation with ACAS between 20 September and 26 October 2021 and he issued these proceedings on 11 January 2023, which is 16 months and a few weeks later than the time limit expired as extended by the Early Conciliation process.[3]He was required to show cause why the claim should not be struck out in a letter written on the instructions of Employment Judge Tynan, on 17 February 2023. He gave his written response on 28 February 2023, as a result of which today’s Hearing was listed for the Tribunal to have the opportunity of considering whether the claim should be struck out for being out of time or not.
The Law
[4]Section 111(2) of the Employment Rights Act 1996 provides: 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.[5]Putting it simply, the three month period is extended by the time taken for the ACAS Conciliation process.[6]The question of whether it was reasonably practicable to bring a claim in time is a question of fact for the Tribunal. The onus is on the Claimant to show that it was not reasonably practicable, (Porter v Bandridge Ltd [1978] ICR 943 CA).[7]The expression, “reasonably practicable” has been held to mean, “reasonably feasible” applying common sense. See Palmer v Southend Borough Council 1984 IRLR 119 CA.[8]In Wall’s Meat Co. Ltd v Khan [1979] ICR 52 Brandong 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.”[9]In London Underground Ltd v Noel [1999] IRLR 621 Judge LJ said: “By section 111 (2) (b) this period may be extended when the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period. The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, ‘in all the circumstances’, nor when it is, ‘just and reasonable’, nor even where the tribunal, ‘considers that there is a good reason’ for doing so.” Evidence today[10]I had a Bundle prepared by the Respondent’s Solicitors, for which I am grateful. The Respondents have attended today represented by Ms Sheppard. Mr Frosdick has come on his own; he said that he’d had a chat with a Solicitor before he came. He has given evidence to me on oath and Ms Sheppard has had the opportunity of asking him a few questions.
The Facts
[11]Mr Frosdick completed the ET1 form online himself, without assistance. The significance of me mentioning that, is that he tells me he has Dyslexia and so one of the matters I must be concerned about is whether his Dyslexia was an impediment to his having issued the claim in time.[12]Attached to his Claim Form is a fairly lengthy Grievance he had written to the Respondents, written in good English.[13]Mr Frosdick told me that he contacted ACAS. He told me that he knew to contact ACAS from something that his Occupational Health Advisors had said to him. He confirmed that he had accessed their telephone number by going to the ACAS website and as Ms Sheppard points out, the ACAS website contains explanations quite early on about both the three month time limit and the fact that the ACAS process and the Employment Tribunal process are quite separate.[14]Mr Frosdick says that the ACAS Conciliator said to him that Tribunal claims have a backlog of 18 months to two years and he says that when he received confirmation that the conciliation had failed, on or about 26 October 2021, he then thought that it would be another year or 18 months before he heard anything more about his claim. He thought that ACAS had conduct of his Tribunal claim.[15]It was more than a year later that, prompted by a friend, Mr Frosdick made a telephone call to the Tribunal to discover there was no such claim.[16]Mr Frosdick acknowledged that the Early Conciliation Certificate, in its second and third paragraph, contains references to the Tribunal process being separate and the Conciliation Certificate number being needed for the institution of these proceedings. He confirmed that he had spoken to a Solicitor before today and in truth, there was no particular reason why he could not have spoken to a Solicitor in the autumn of 2021. He agreed with my suggestion he had access to the internet and could have carried out research, although he said that with his Dyslexia, whilst he can read, he struggles to take things in.[17]Mr Frosdick said to me that the ACAS Conciliator had not explained to him about the time limit, or the need to issue proceedings. He acknowledged he had a number of telephone conversations with her. I find it unlikely she did not make any mention of the time limit and the need to institute proceedings.
Conclusions
[18]The question for me is whether it was reasonably practicable or reasonably feasible to have issued the proceedings in time? It is a high bar to cross and I’m afraid Mr Frosdick has not crossed that bar, because: the information that was needed was there on the website; it is unlikely the Conciliator did not mention it, more likely is perhaps that Mr Frosdick may have forgotten. The fact that Mr Frosdick left it a whole year before following up does not assist him.[19]There is no way that I could reach a conclusion that it was not reasonably practicable for Mr Frosdick to have issued the claim in time. I am, therefore, going to have to strike out his claim.[20]Having given my decision to the parties, Ms Sheppard made an Application for Costs. She says that persisting with his claim, having received the letter from Employment Judge Tynan which inquired of the Claimant as to why he had issued his claim out of time, he should have known and it should have been plain to him that he was not going to succeed and that his claims would be struck out. She says there are no reasonable grounds for arguing that it was not reasonably practicable to have brought the claim in time. She says that having taken advice from a Solicitor, it should have been plain to him that he was going to be struck out.[21]Rule 76 of the Tribunal’s Rules of Procedure provide that a Tribunal may make a Costs Order where it considers that a party has acted vexatiously, abusively, disruptively, or otherwise unreasonably in either bringing the proceedings or the way the proceedings have been conducted, or that the claim has no reasonable prospects of success.[22]In Gee v Shell UK Limited [2003] IRLR 82, Sedley LJ said, “…It is nevertheless a very important feature of the Employment jurisdiction that it is designed to be accessible to ordinary people without the need of Lawyers and that in sharp distinction for ordinary litigation in the United Kingdom, losing does ordinarily mean paying the other side’s costs.”[23]That sentiment has been expressed many a time by the Appeal Courts; the Employment Appeal Tribunal and the Court of Appeal, since then.[24]Mr Frosdick was entitled to bring his claim that he was unfairly dismissed. I have not made a finding that he knew that his claim was out of time and that he had no chance of succeeding with it. I have not made a finding that he has deliberately left things late. The question for me was simply whether it was reasonably practicable for him to have issued the claim in time. He may well have genuinely misunderstood the situation, but the fact of the matter is that it was reasonably practicable for him to have been able to have understood and brought the claim in time.[25]Mr Frosdick has dyslexia. I do not know what advice he was given by the solicitor he spoke to, but it plausible that one might take the view that there was some prospect of persuading a tribunal that one’s dyslexia rendered it not reasonable practicable to comply with the time limit.[26]That is why I am refusing the Application for Costs.