Mr T Charlesworth v Dolphin School Ltd and Dolphin School 1970 LLP: 3300540/2022
EMPLOYMENT TRIBUNALS
Case No 3300540/2022
Between
Mr T CharlesworthClaimantDolphin School Ltd and Dolphin School 1970 LLPRespondent
Before
Employment Judge VarnamIn person for claimantMr K Ali (instructed by counsel) for respondentDate 12 December 2022
JUDGMENT
[1]The name of the Respondents is amended to(1) Dolphin School Ltd and(2) Dolphin School 1970 LLP.[2]The Claimant’s claims of detriment for making a protected disclosure and of unfair dismissal were brought outside the primary time limits set out in sections 48(3)(a) and 111(2)(a) of the Employment Rights Act 1996.[3]It was not reasonably practicable for the Claimant’s claims to be presented within the primary time limits, but the Claimant failed to present his claims within a reasonable period after the expiry of the primary time limits.[4]The Claimant’s claims are accordingly dismissed, as the Tribunal has no jurisdiction to hear them.
REASONS
[1]This matter was listed before me to determine whether the Tribunal had jurisdiction to hear the Claimant’s claims alleging that he had been subjected to detriments for making protected disclosures, and that he had been unfairly dismissed. The key question was whether the Claimant had brought his claims within the applicable statutory time limits, which included questions as to whether those time limits should be extended.[2]I heard evidence and submissions from the Claimant, who represented himself. The Claimant was cross-examined by Mr Ali, counsel for the Respondent, who also made submissions on behalf of the Respondent. I am grateful to both the Claimant and Mr Ali for their assistance.[3]At the conclusion of the hearing, I gave judgment dismissing the Claimant’s claims as being outside the jurisdiction of the Tribunal. Oral reasons for my decision were provided at the time. The Claimant, as he was entitled to, made an oral request for written reasons, and these are now provided. Identify of the Respondent[4]Before turning to deal with the substantive issues that were before me, I will deal briefly with the name of the Respondent(s). In his ET1, the Claimant had named the Respondent as simply ‘Dolphin School’. The ACAS early conciliation certificate names the prospective Respondent as ‘Dolphin School LLP’. In the Respondent’s ET3, it was said that the entity operating Dolphin School had, until 1 September 2020, been Dolphin School 1970 LLP (‘the LLP’). The LLP had previously been named Dolphin School LLP. The ET3 stated that, following a transfer on 1 September 2020, Dolphin School Ltd (‘the Company’) had operated the school.[5]While the ET3 appeared to contend that the claim should be rejected under rule 12 of the Employment Tribunal Rules of Procedure 2013 (or, since the claim had already been accepted, that that acceptance should be reconsidered and revoked under rule 70), on the basis that the ACAS early conciliation certificate named the LLP while the ET1 (it was said) only named the Company, this point was not listed for determination before me. Had it been, then I would have applied rule 12(2A), and would very probably have concluded that the Claimant had made an error in relation to a name, and that it would not be in the interests of justice for the claim to be rejected (or the acceptance reconsidered and revoked) because of this.[6]In the event, I dealt with this issue by simply amending the name of the Respondent(s) to include both the LLP and the Company, with any arguments about how any liability fell between these entities (and any arguments about compliance with rule 12) to be resolved in due course if the claims continued past this hearing. Both the Claimant and Mr Ali were content with this approach. In the remainder of these Reasons I refer to ‘the Respondent’ (singular), but all my conclusions in relation to the issues before me apply to the claims against both the Company and the LLP. Factual and Procedural Background[7]The Respondent operates a preparatory school, named Dolphin School. By his claim, the Claimant alleges that he was, from 1 January 2005, a governor of the school. He says that during his employment he raised various matters with the Respondent’s management, which are implicitly alleged to have been protected disclosures within the meaning of section 43A of the Employment Rights Act 1996. The Claimant alleges that, in consequence of this or otherwise unfairly, he was dismissed on 13 April 2019.[8]There also appear to be allegations that the Claimant was subjected to detriments for making protected disclosures. So far as I could discern from the ET1 and the Claimant’s evidence, the last possible date on which a detriment is said to have occurred was some point in October 2019, when the Respondent is alleged to have sent a letter to the Claimant warning him that his children could be expelled from the school. The Claimant did not draw my attention to any later allegations of detriment, nor did he assert that any later detriments were relied upon.[9]Although the Claimant’s cause of action for unfair dismissal arose on 13 April 2019, and although his cause of action for detriment arose, at the latest, in October 2019, the Claimant did not commence ACAS early conciliation until 24 November 2021. Early conciliation concluded on 26 November 2021. The Claimant then issued his claim on 25 January 2022. The Respondent subsequently entered its ET3.[10]On 18 June 2022, the Tribunal listed the present hearing, to determine whether the unfair dismissal claim should be dismissed because it had been brought outside the statutory time limit. Although the notice of hearing of 18 June 2022 only referred to the unfair dismissal claim, on 23 November 2022 Employment Judge Anstis directed that the question of whether any detriment claim should be dismissed as being out of time should also be considered at the hearing. As such, I have dealt with time limit questions in respect of both the unfair dismissal and the detriment claims, and both parties accepted this approach.[11]Besides the question of time limits, the ET3 raises numerous lines of defence, including factual disputes, questions about whether the Claimant had in fact made protected disclosures, and a question as to whether the Claimant is an employee or a worker with standing to bring either an unfair dismissal or a detriment claim. These issues were not, however, listed for hearing before me, and I made no decision about any of them.[12]I will set out below the Claimant’s evidence explaining the delay in bringing the claims, and my conclusions concerning this. First, however, I will set out the law that I have applied in considering both the Claimant’s evidence and whether to dismiss the claims as being brought out of time.
Relevant Law
[13]The primary time limit within which a claim of unfair dismissal must be brought is three months beginning with the date of the dismissal: section 111(2)(a) of the Employment Rights Act 1996.[14]The primary time limit within which a claim that a Claimant has been subjected to a detriment for making a protected disclosure must be brought is three months beginning with the date of the detriment: section 48(3)(a) of the Employment Rights Act. Where a Claimant is subjected to a series of detriments, then time for bringing a claim begins to run on the date of the last detriment.[15]This is a strict time limit, and the circumstances in which it may be extended are limited. Whether the claim is one of unfair dismissal or one of detriment, time may only be extended where the Tribunal is satisfied(i) that it was not reasonably practicable to bring the claim within the primary time limit, and(ii) that the claim was brought within such further period as the Tribunal considers reasonable: see (in the case of unfair dismissal) section 111(2)(b) of the Employment Rights Act, and (in the case of detriment) section 48(3)(b) of the Employment Rights Act.[16]The test for an extension of time has two stages. Time is not extended indefinitely merely because it was not reasonably practicable to bring the claim within the primary time limit. Rather, if the Tribunal concludes that it was not reasonably practicable to bring the claim within the primary time limit, then it must go on to identify the further period within which it would have been reasonable for the Claimant to bring his claim. If the Claimant brings his claim within that further period, then his claim will be in time, but if he falls outside that period, then his claim will be out of time.[17]The burden of satisfying the Tribunal that it was not reasonably practicable to bring the claim within the primary time limit rests with the Claimant: see the judgment of the Court of Appeal in Consignia plc v Sealy [2002] IRLR 624, per Hart J at paragraph 23.[18]In resolving the question of whether it was reasonably practicable to bring the claim within the primary time limit, the words ‘not reasonably practicable’ should be given a liberal interpretation in favour of the employee: see the judgments of the Court of Appeal in Dedman v British Building & Engineering Appliances Ltd [1974] 1 WLR 171, per Lord Denning MR at 176E, and Marks & Spencer plc v Williams-Ryan [2005] ICR 1293, per Lord Phillips MR (as he then was) at paragraph 20. This should not, however, obscure the fact that parliament has chosen to lay down a strict primary time limit, which the Tribunal should not be over-ready to disregard.[19]As regards the question of whether the claim was brought within a further reasonable period, I have had regard to the judgment of the Employment Appeal Tribunal in Cullinane v Balfour Beatty Engineering Services Ltd (2011) UKEAT/0537/10, where, at paragraph 16, Underhill J (as he then was) said that: … The question at “stage 2” is what period – that is, between the expiry of the primary time limit and the eventual presentation of the claim – is reasonable. That is not the same as asking whether the Claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted – having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months…[20]The time limits contained within the Employment Rights Act are jurisdictional in nature, and not merely procedural: see the commentary in Harvey on Industrial Relations and Employment Law, Division PI, paragraphs [91] to [101]. This means that, if a claim is brought outside both the primary time limit and any further reasonable period that may be relevant, then the Tribunal simply does not have the power to hear the claim, and must dismiss it. The Claimant’s case for an extension of time[21]I now turn to consider the evidence that the Claimant gave in support of his contention that time should be extended, and my factual conclusions concerning this.[22]The Claimant had not produced a witness statement or filed any documentary evidence, notwithstanding the fact that the Tribunal’s Order of 18 June 2022 required any evidence relied upon by either party to be filed and served by four weeks before the hearing. However, I permitted him to give oral evidence by reference to those parts of his ET1 which dealt with the reasons for the delay in issuing his claim. The Claimant was crossexamined by Mr Ali, and I asked him various questions. The Respondent did not rely on any evidence.[24]The Claimant’s evidence was that he accepted that the claims were brought outside the three-month primary time limit. He also accepted that he knew about the primary time limit, from his own experience as an employer.[25]In contending that time should be extended, the Claimant placed substantial reliance on what he characterised as ‘threats’ from the Respondent’s senior management (particularly the headteacher) that the Claimant’s three children, who were pupils at Dolphin School, would be expelled from, or otherwise required to leave, the school, if he caused difficulties for the Respondent or acted in a manner which the Respondent considered to be unreasonable. These threats were said to have been put in writing in October 2019 (and, as noted above, this appears to be one of the detriments relied upon by the Claimant as part of his detriment claim), but the Claimant told me that he had received oral threats to the same effect on a number of occasions before then, going back to before the termination of his alleged employment on 13 April 2019.[26]It is plainly necessary for me to determine whether such threats were made. The evidence on this point is hardly in an ideal state. Neither party has produced the October 2019 letter relied upon by the Claimant. However, applying the test of what is more likely to have occurred on the balance of probabilities, and placing the burden of proof on the Claimant, I accepted the Claimant’s evidence that at various times beginning before his alleged dismissal and continuing until October 2019, he was told that his children could be required to leave Dolphin School if he caused difficulties for the Respondent or acted in a manner which the Respondent considered to be unreasonable. I accepted the Claimant’s evidence for the following reasons:(1) The account advanced by the Claimant has been substantially consistent. The Claimant gave this account in his ET1, and has subsequently repeated it in correspondence sent to the Tribunal. He has maintained the same account today. In my view, this enhances the credibility of the Claimant’s evidence in at least two ways. First, the maintenance of a consistent account is itself supportive (albeit not decisively in itself) of a conclusion that the account is credible. Consistency is an important facet of credibility. Certainly, an account that the Claimant has been maintaining for at least ten months (since his ET1 was issued) is, prima facie, more likely to be credible than one which was raised for the first time on the day of the hearing. Second, the fact that the Claimant has been putting forward his account for at least ten months means that, if there was convincing evidence to gainsay it, the Respondent has had ample opportunity to put forward evidence. No such evidence has been adduced, strongly indicating that it does not exist. I refer to this point further below, but the fact that the Claimant had put his account forward early, when the Respondent would have ample opportunity to contradict it if it were wrong, reinforced my positive view of his credibility.(2) I found the Claimant’s oral evidence on this point to be compelling. He was clear in his account, and did not deviate from it in crossexamination. He was clearly aware of the significance of his affirmation that his evidence would be truthful, and indeed referred to this on a number of occasions. At times, he was cautious in advancing an account where he could not be absolutely certain of its accuracy. My conclusion was that he was an honest witness giving a truthful account of the matters before me. I am well aware of the dangers of placing overmuch reliance on oral evidence (see the observations of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), at paragraphs 15-22). However, equally witness evidence is not to be disregarded, and I considered that the Claimant’s witness evidence supported his account.(3) The Claimant’s evidence was not gainsaid by any evidence from the Respondent. The burden of proof was on the Claimant, and the Respondent was not required to prove anything. However, given that the Respondent had had at least ten months’ notice of the Claimant’s account (see above), I would have anticipated that if the Respondent had oral or documentary evidence capable of undermining or disproving the Claimant’s account, it would have advanced it. The fact that the Respondent advanced no such evidence indicates that such evidence probably did not exist.[27]Having accepted the Claimant’s evidence that he was told that causing difficulties for the Respondent or acting in a manner that the Respondent considered unreasonable could result in his children being required to leave Dolphin School, I further accepted his evidence that this inhibited him from pursuing Tribunal proceedings. Besides the fact that, as set out above, I regarded the Claimant as a credible witness, I find his account on this particular point eminently plausible. The expulsion or similar forced removal of a child from a school is innately disruptive of that child’s education, particularly if it occurs in the middle of a term. I have little difficulty in concluding that a father, concerned for his children’s education, who was told that a certain course of action might result in such disruption, not just for one child, but for all three of his children, would be highly reluctant to engage in that course of action, and would reasonably fear that doing so would cause harm to his children. Any parent would wish to avoid such harm. I add that, in my view, it was entirely reasonable for the Claimant to conclude that such threats were likely to be carried out and to act accordingly – if the carrying out of the threats was not likely, it is hard to see why they would have been made in the first place.[28]In addition to the threats detailed above, the Claimant also relied on the fact that the Respondent referred his family to the local children’s services department. I accept that this occurred (the Claimant’s account that the referral had occurred was not challenged by Mr Ali). The Claimant gave evidence that he became aware of the referral in October 2019, and I accept this. I also accept that the referral would have been a source of stress to the Claimant, although I note that he did not become aware of the referral until around six months after his alleged dismissal.[29]The Claimant’s children all left Dolphin School in around July 2020. It seems to me that at that point the Respondent’s threat to expel the Claimant’s children would have been rendered nugatory, since it was no longer a matter within the Respondent’s power.[30]The accuracy of this conclusion is illustrated by the fact that in around the summer of 2020 (after his children had left Dolphin School) the Claimant pursued complaints about the Respondent to the Thames Valley Police, Wokingham Borough Council (the local authority within whose jurisdiction Dolphin School falls), and the Independent Schools Inspectorate, and that by some time in 2021 he had also raised a complaint about the Respondent to the Department for Education. I find that, by August 2020 at the latest, the Claimant was willing and able to complain about the Respondent to numerous bodies without being inhibited or intimidated by the threats previously made or by any stress resulting from the referral to children’s services. I see no reason why he should have been any more restricted in making a claim to the Tribunal than in complaining to any of the four bodies that I have named.[31]Nonetheless, the Claimant did not, between August 2020 and 24 November 2021, bring a claim to the Tribunal (or commence ACAS early conciliation). In his evidence, the Claimant said that he did not think that he could do so, because the three-month time primary time limit had expired. He did not take any legal advice, save as set out below. He also candidly told me that at that time (August 2020 until late November 2021) he was prioritising his complaints to the bodies named in the previous paragraph over any Employment Tribunal proceedings, because he considered that complaints to those bodies offered the best route to safeguarding children. Nonetheless, he was aware of the possibility of a Tribunal claim, and made a positive decision to pursue other routes in preference to this.[32]In around September or October 2021 the Claimant met a lawyer socially. I find that this occurred in September or October because the Claimant told me that it was around one to two months before he contacted ACAS, which he did on 24 November 2021. The Claimant and this lawyer discussed the Claimant’s experience with, and possible claims against, the Respondent, and the Claimant was, for the first time, informed of the possibility that the Tribunal might extend the time in which to bring a claim, beyond the threemonth primary time limit.[33]Thereafter, the Claimant, as noted above, commenced ACAS early conciliation on 24 November 2021. This concluded on 26 November 2021. The Claimant then issued his ET1 on 25 January 2022. It was not clear to me why there was a further two-month delay after the conclusion of early conciliation, given the considerable delay that had already occurred.[34]In support of his contention that the Tribunal should extend time, the Claimant also relied on certain mental health difficulties that he has experienced. No medical evidence was before me, and I had no documentary evidence of a positive diagnosis of a recognised mental health condition. However, I accept the Claimant’s evidence that he has been found to be suffering from anxiety, and that he began taking medication for this in May 2022. That, of course, postdates the commencement of proceedings, and I have no evidence of any medication being prescribed prior to May 2022. Analysis and Decision[35]Against the foregoing factual and legal background, I come to give my conclusions on the fundamental questions of whether the claim was brought within time (including any extension of time), and, in light of this, whether the Tribunal has jurisdiction. The following questions fall to be answered:(1) Were the Claimant’s claims brought within the primary time limit?(2) If not, has the Claimant shown that it was not reasonably practicable to bring the claims within the primary time limit?(3) If so, were the claims brought within such further period as the Tribunal considers reasonable? Were the claims brought within the primary time limit?[36]In respect of this question, the answer is straightforwardly ‘no’:(1) Time in respect of the unfair dismissal claim began to run on the date of the alleged dismissal, namely 13 April 2019. The primary time limit accordingly expired on 12 July 2019. Early conciliation did not commence until 24 November 2021, and the claim was not issued until 25 January 2022. Both were plainly outside the primary time limit.(2) In respect of the detriment claim, I have found that the last possible detriment occurred on an unspecified date in October 2019. Even if one regards time as having begun to run only on 31 October 2019, the primary time limit expired on 30 January 2020. The claim was plainly commenced outside the primary time limit. Has the Claimant shown that it was not reasonably practicable to bring the claims within the primary time limit?[37]Not without some hesitation, I conclude that the Claimant has shown that it was not reasonably practicable to bring the claims within the primary time limit. I reach this conclusion because of the threats which I have found were made to expel or otherwise exclude the Claimant’s children from Dolphin School. As noted above, I accept that such threats would be of considerable concern to a father of three children, whose children would, were the threats carried out, all face disruption to their education. It is obvious that a father concerned for his children’s welfare would wish to prevent such disruption if he possibly could. Certainly, a threat that if the Claimant acted in a matter likely to cause difficulties for the Respondent or which the Respondent considered to be unreasonable would, in my view, be likely to considerably discourage the Claimant from commencing Tribunal proceedings. Such proceedings would naturally amount to causing difficulties for the Respondent and might well also amount to acting in a manner viewed as unreasonable by the Respondent. As such, I find that while the Claimant’s children remained at Dolphin School, he would reasonably have feared that they would be expelled (in fact if not in name) should he commence Tribunal proceedings. I accordingly find that the Respondent’s threats had a chilling effect, reasonably perceived by the Claimant as deterring him from bringing proceedings, so long as the Claimant’s children remained at Dolphin School (that is, until July 2020). Put simply, the Claimant was placed in an invidious position, in which commencing proceedings within the primary time limit could jeopardise his children’s education.[38]In my view, the level of deterrence was such that the Claimant could not reasonably have been expected to commence proceedings within the primary time limit for either the unfair dismissal claim or the detriment claim, given the risk to his children’s education and the stability of their environment that this would have entailed. In the circumstances, notwithstanding the fact that (as set out above) the Claimant was aware of the primary time limit, I find that it was not reasonably practicable for him to bring his claim within that time limit. Were the claims brought within such further period as the Tribunal considers reasonable?[39]The effect of the Respondent’s threats to expel the Claimant’s children lasted so long as the Claimant’s children remained at Dolphin School. However, they had all left the school by the end of July 2020. At that point, the position changed substantially.[40]After July 2020 the Claimant was not deterred from acting in a manner that might cause difficulties for the Respondent or from acting in a manner that the Respondent might consider unreasonable. As I have outlined, in the summer of 2020 the Claimant initiated and pursued complaints about the Respondent to the Thames Valley Police, Wokingham Borough Council, and the Independent Schools Inspectorate, and he subsequently also pursued a complaint to the Department for Education. All of these complaints were likely to cause difficulties for the Respondent, and it is likely that the Respondent would have viewed the complaints as unreasonable. They are precisely the kind of complaints likely to be discouraged by the threats to expel the Claimant’s children. Nonetheless, the Claimant was, after July 2020, plainly willing and able to pursue them. I see no reason why, at this time, he could not also have pursued his Tribunal claims.[41]I accept that the Claimant pursued the other routes, but not the Tribunal claim, because he felt that those other routes were most conducive to his goal of safeguarding children. However, it is possible to pursue multiple claims/complaints at the same time, and I have heard no evidence to support the suggestion that the other complaints that the Claimant was pursuing rendered it reasonably impracticable for him to also commence Tribunal proceedings. Ultimately, I find that the Claimant’s decision to focus on matters other than commencing his Tribunal claim was a matter of choice, resulting from his decision to prioritise his concerns about child safeguarding over any Tribunal claims that he might have. Laudable as the Claimant’s goals may be, this does not change the fact that, after July 2020, the impediment to him commencing a Tribunal claim had been removed, and he would have been well able to bring such a claim.[42]In my view, by the beginning of August 2020 at the latest, the Respondent’s threats no longer prevented the Claimant from bringing a claim to the Tribunal. I do not consider that his desire to pursue other avenues rendered it reasonable for him to delay further after July 2020. Having regard to the fact that there had by then been considerable (albeit, in my view, permissible) delay, it behoved the Claimant to bring his claim swiftly at this point.[43]I have considered whether the Claimant’s view that he was already too late, having overstepped the primary time limit, means that it is reasonable to extend time until after he had spoken to a lawyer in September or October 2021. I do not consider that the Claimant’s view of the impact of time limits render it unreasonable to expect him to pursue his claim well before late 2021. The Claimant had not taken any legal advice until his social encounter with the lawyer. Moreover, he did not undertake any research of his own to confirm that his understanding was correct. I am satisfied that undertaking his own research into the matter would have been well within the Claimant’s capabilities. Even basic online research would swiftly have revealed the fact that time for bringing a Tribunal claim could, in certain circumstances, be extended. I do not consider that it was reasonable for there to be material delay after July 2020 because of the Claimant’s belief that any claim was already too late. While I accept the genuineness of the belief, I do not consider that it was reasonable for the Claimant to take no steps to check the accuracy of the belief, and had he checked the accuracy of the belief he would, I find, have become aware of the true position.[44]I also do not consider that the Claimant’s apparent mental health difficulties adequately explain or justify the delay after July 2020. These problems did not prevent the Claimant from pursuing his complaints to the Thames Valley Police, Wokingham Borough Council, the Independent Schools Inspectorate, or the Department for Education. They did not prevent the Claimant from contacting ACAS in November 2021, or from issuing his claim in January 2022, and I have no evidence that the Claimant’s illness had materially improved by that point, as compared to the second half of 2020 or the first ten months of 2021. Such evidence as I have suggests that, to the contrary, the Claimant’s condition may have worsened during 2022, as it was only in May 2022 that he was prescribed medication. Moreover, I have no evidence that, at any point, the Claimant’s condition was such as to prevent him from issuing a Tribunal claim.[45]I also do not consider that the referral to children’s services explains or justifies the delay after July 2020. I can see no reason why a referral, which had been notified to the Claimant by October 2019, should prevent the commencement of proceedings after July 2020. Moreover, the referral did not stop the Claimant making numerous complaints to other bodies, as outlined above.[46]I add that, even noting all of the Claimant’s evidence and explanations for the delay, there is a considerable period of wholly unexplained delay in late 2021 and early 2022. In particular, by September or October 2021 the Claimant knew (from his conversation with the lawyer whom he met socially) of the possibility that the Tribunal could extend time for bringing a claim. Thereafter, he delayed for one or two months before commencing ACAS early conciliation on 24 November 2021. After early conciliation concluded on 26 November 2021, the Claimant did not issue his claim until 25 January 2022 – another two months later. In total, there is a period of three or four months of delay, even after the Claimant was fully aware that a claim could be brought outside the primary time limit, and that the Tribunal could extend time for doing so. I regard this period of delay as wholly unexplained. Plainly, the Claimant was well able to bring proceedings at that time, since he did bring proceedings, albeit belatedly.[47]In summary, my views on what would have been a reasonable period within which to bring the claims are as follows:(1) The real impediment to bringing a claim was the threat to expel the Claimant’s children from Dolphin School. This threat was removed or rendered nugatory by the end of July 2020.(2) After that point, it was reasonably practicable for the Claimant to issue a claim to the Tribunal, for the reasons that I have given.(3) I accept that the Claimant had various other irons in the fire (the other complaints that he was bringing) and that his mental health problems might have slowed down (but not prevented) the bringing of a complaint. But in assessing what would have been a reasonable period within which to bring a claim, these factors must be balanced against the strong public interest in claims being brought promptly and the fact that parliament has chosen to prescribe a strict and short time limit.(4) Weighing all of these matters in the balance, I consider that the Claimant should reasonably have brought his claims by 30 September 2020. This would have given him at least two months from the date on which his children left Dolphin School. This would have been a generous timeframe of an additional two-thirds of the primary time limit, and would have amounted to giving the Claimant around 17½ months in which to bring his unfair dismissal claim, and at least around eleven months in which to bring his detriment claim – both many times the primary time limit. In light of the fact that I do not consider that the Claimant faced any insurmountable difficulties in bringing his claims after July 2020, and having regard to the public interest in bringing employment claims to a speedy resolution (and parliament’s intention in introducing strict time limits) I regard an extension to 30 September 2020 as eminently reasonable.[48]The Claimant did not commence ACAS early conciliation until 24 November 2021, nearly fourteen months after the expiry of what I consider to be a reasonable period within which to bring his claims. His claim was not issued until 25 January 2022 – sixteen months after the expiry of what I consider to be a reasonable period within which to bring his claims. In the circumstances, I conclude that both the unfair dismissal and the detriment claims were brought out of time. The Tribunal accordingly has no jurisdiction to hear the claims.
Conclusion
[49]For the reasons set out above, the Claimant’s claims must be dismissed, as being outside the Tribunal’s jurisdiction.
Introduction
[1]On 28 November 2022 I conducted a preliminary hearing in respect of the Claimant’s claims that he was unfairly dismissed and that he was subject to detriments for making protected disclosures. At the conclusion of that hearing, I dismissed the Claimant’s claims on the basis that they were brought out of time, and that the Tribunal accordingly did not have jurisdiction to hear them. Written reasons for this decision were sent to the parties on 30 December 2022.[2]By an e-mail sent on 12 January 2023, the Claimant applied for a reconsideration of my decision, on multiple grounds, which are set out below.[3]The Claimant’s e-mail of 12 January 2023 was not copied to the Respondents’ solicitors until 1 February 2023. On 10 February 2023 the Respondents’ solicitors e-mailed the Tribunal, opposing the application for reconsideration on the basis that, because it was not copied to them until 1 February, it should be treated as not having been made until that date, and accordingly the application for reconsideration had been made outside the period of fourteen days specified in rule 71 of the Employment Tribunal Rules of Procedure 2013. They accordingly contended that the Tribunal lacked jurisdiction to hear the reconsideration application.[4]The Claimant responded to this e-mail with a further e-mail of his own on 23 February 2023, in which he argued, by reference to rule 92 of the Employment Tribunal Rules of Procedure in particular, that the Tribunal should not refuse to consider his reconsideration application simply because it had not initially been copied to the Respondents.[5]Unfortunately, the above correspondence was not brought to my attention until 27 March 2023. I have dealt with it as swiftly as possible, but there has still been some further delay in light of my other commitments. I apologise to the parties for the delay that they have experienced in the Tribunal dealing with the reconsideration application. Relevant law and procedure rules[6]The Employment Tribunal Rules of Procedure make provision for parties to apply for reconsideration, and for the approach that the Tribunal should adopt to a request for reconsideration. The key points are as follows:(1) Rule 70 provides that: A Tribunal may, either on its own initiative…or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.(2) Rule 71 provides as follows: Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.(3) Rule 72(1) then provides that: An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked…the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.[7]When the Tribunal considers an application for reconsideration, the key question is the interests of justice (see rule 70). In Outasight VB Limited v Brown (2014) UKEAT/0253/14, Her Honour Judge Eady QC (as she then was) said, at paragraph 33: The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[8]It is axiomatic that a party is not entitled to have a judgment reconsidered simply because that party does not like the result that has been reached, or wishes with the benefit of hindsight that it had framed its arguments differently, or put different or better evidence before the Tribunal. The reconsideration procedure is not an opportunity for a party to have multiple bites of the same cherry.[9]Where a party wishes, as part of a reconsideration application, to put forward fresh evidence which it did not put forward at the original hearing, the Tribunal should ordinarily apply the test set out by the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489. That case established a threestage test for the admissibility of fresh evidence, namely that it must be shown that:(1) The new evidence could not have been obtained with reasonable diligence for use at the original hearing.(2) The new evidence is relevant and would probably have had an important influence on the result of the case.(3) The new evidence must be apparently credible. These requirements are cumulative – in other words, they must all be met.[10]Outasight VB Limited v Brown establishes that the Ladd v Marshall test generally applies when an application for reconsideration is made under the Employment Tribunal Rules of Procedure 2013, albeit that in some rare cases the particular circumstances may mean that it would be in the interests of justice to permit the adducing of fresh evidence even where the Ladd v Marshall test is not met. Analysis and Decision[11]At this stage, I am, in accordance with rule 72(1) concerned to determine whether there is a reasonable prospect of my original decision being varied or revoked. Only if I find that there is no reasonable prospect of variation or revocation should I dismiss the application at this stage.[12]I note the Respondents’ argument that the failure to copy the original reconsideration application to them within 14 days of the date on which the written judgment was sent to the parties means that the Tribunal lacks jurisdiction to hear the reconsideration application. It seems to me that this is not a jurisdictional issue. The Employment Tribunal Rules of Procedure are, by definition, not jurisdictional. They are procedural rules. I am not inclined to accept that a failure by a party to comply with a procedural requirement means that the Tribunal is deprived of the power to reconsider its own judgments.[13]Rather, the question is whether, as a matter of procedure, the failure to copy the application to the Respondents means that it should be refused (or, since I am at this stage only concerned with the question of whether there is a reasonable prospect of the original decision being varied or revoked, whether the failure to copy the application to the Respondents means that the application has no reasonable prospect of success). It seems to me that there are strong arguments that this should not be the effect of the Claimant’s failure to copy his application to the Respondents’ solicitors. In particular:(1) Rule 2 provides that the overriding objective which the Tribunal must seek to implement when applying the Rules is to deal with cases fairly and justly. I do not consider that it will commonly be fair and just to refuse to consider a reconsideration application which was presented to the Tribunal in time, but which happened not to be copied to the other party until later. There is no suggestion here that there was any prejudice to the Respondents from the three-week delay in copying the application to them.(2) Rule 6 provides in terms that a failure to comply with any provision of the Rules (with some exceptions, which do not include rule 71) does not of itself render void any step taken in the proceedings. It seems to me that the effect of this provision is that the Claimant’s reconsideration application remains valid, notwithstanding the incomplete compliance with rule 71.(3) Rule 5 permits a Tribunal to extend any time limit specified in the Rules, whether or not the time limit has already expired. It would be open to the Tribunal in this case to extend the time for the Claimant to serve his application on the Respondent. That would be a question that the Tribunal would be obliged to consider as part of the question of whether to grant the reconsideration application: TCO In-Well Technologies UK Ltd v Stuart (2017) UKEATS/0016/16. However, it seems to me that, in light of the matters that I have set out above, the Claimant would have a strong case for an extension of time.[14]As I have emphasised, I am at this stage only concerned with whether the reconsideration application has a reasonable prospect of success. I do not, therefore, make any final determination as to the significance of the delay in copying the application to the Respondent. But I am certainly of the view that that delay does not mean that the application has no reasonable prospect of success. It would be a matter for argument at a hearing of the application, but it is not something that should lead me to refuse the application at this stage.[15]Unfortunately for the Claimant, I consider, however, that his application should be dismissed at this stage on its merits. Looking simply at the contentions advanced by the Claimant in support of his application, and putting to one side the question of the delay in copying it to the Respondents, I do not consider that there is any reasonable prospect of my original decision being varied or revoked.[16]The Claimant’s application for reconsideration consists of nine sections, lettered ‘A’ to ‘I’. These are: A: Misunderstandings with regard to evidence. B: What is the correct test for the Tribunal to apply? C: Why did [the Claimant] not proceed until November 2021? D: Misunderstanding of evidence relating to threats made by the Respondent. E: Was it ‘reasonable’ to have expected [the Claimant] to have submitted an ET1 in the summer of 2020? F. Objection to paragraph 34 [of my original judgment]. G. Equality before the law. H. Lack of written evidence at the 28th November hearing. I. When considering whether or not the Tribunal has jurisdiction.[17]I will take these points in a different order from that in which the Claimant set them out, and will address them in the order that seems to me to be most logical. I begin, therefore, with point B, because (as set out below) the points in relation to this ground contend that I made a fundamental error of law in applying the incorrect test to the question of whether time for bringing the Claimant’s claims should be extended. If it were correct that I had made such an error, or if it were even arguable that I had made such an error, then it would plainly be wrong for me to dismiss the reconsideration application under rule 72(1).[18]By point B, the Claimant contends, in essence, that I have applied the wrong legal test to the extension of time, and that rather than applying the ‘not reasonably practicable’ test set out in the Employment Rights Act 1996, I should have applied the ‘just and equitable’ test set out in the Equality Act 2010. The Claimant advances this contention on the basis that his case ‘is, at its heart, a discrimination case’.[19]This argument is unsustainable. The Claimant’s claims were ones of unfair dismissal (whether because he had made a protected disclosure, or on ‘ordinary’ principles) and of detriment for making one or more protected disclosures. These are claims which arise under the Employment Rights Act, and they do not arise under the Equality Act. The Claimant has never advanced any claim that does arise under the Equality Act – he does not, for example, contend that he has been subjected to harassment or a detriment because of any of the protected characteristics listed in Part 2, Chapter 1, of that Act. Accordingly, it is the test set out in the relevant sections (48 and 111) of the Employment Rights Act that applies to the Claimant’s claims. As explained in my original decision, the test under both sections is the ‘not reasonably practicable’ test. I am satisfied that in my judgment I not only identified the correct legal test, but that I applied it properly. As such, there is no reasonable prospect of the reconsideration application succeeding based on an argument that I identified or applied an incorrect test.[20]I add that the Claimant, in his application, relied on the judgment of the Supreme Court in Gilham v Ministry of Justice [2019] UKSC 44, particularly at paragraphs 28 to 37, in support of his contention that the ‘just and equitable’ test for an extension of time applied to his case. I do not consider that anything in Gilham supports the Claimant’s case in this regard. Gilham was concerned with the particular question of whether a District Judge was an office holder entitled to bring a claim of detriment under the Employment Rights Act. The Supreme Court were in no way concerned with identifying the correct test for an extension of time for bringing a claim, and said nothing to support the contention that the ‘just and equitable’ test would apply, either in Judge Gilham’s case, or in this case.[21]I now turn to a series of points (namely, points A, C, D, E, F, and H) in which, in my view, the Claimant seeks to either reargue the case so as to persuade me to take a different view of the evidence that I heard on 28 November 2022, or put forward evidence which is different from or additional to that which he advanced during the hearing before me on 28 November 2022. In light of my conclusions in respect of point B, I approach these arguments on the basis that I applied the correct test for an extension of time, namely the ‘not reasonably practicable’ test.[22]I begin with points A and D. In respect of each of these points, the Claimant contends that I have misunderstood the evidence that he gave in relation to certain matters. In considering the Claimant’s reconsideration application, I have reviewed my notes of the hearing on 28 November 2022, and my written reasons for my decision. I am satisfied that my written reasons accurately summarise the evidence that I heard, insofar as it was material to my decision. I have also reviewed the Claimant’s ET1 and the Respondents’ ET3, and I am satisfied that there is nothing in either document which I misunderstood in setting out my factual findings.[23]At paragraph 1 of his reconsideration application, relating to his point A, the Claimant says that he did not become aware of the possibility of bringing a Tribunal claim until he became aware of the judgment of the Supreme Court in Gilham. Having checked my notes, this is not the evidence that the Claimant gave during the hearing. It is also not set out in the Claimant’s ET1. Gilham itself is mentioned in the ET1, but there is no suggestion that knowledge of this case was a prerequisite for bringing the claim. The ET1 contains a section dealing with time limits, in which the Claimant does not refer to Gilham at all. Similarly, the suggestion that the delay in bringing the claim was due to ignorance of Gilham is not mentioned in an e-mail that the Claimant sent to the Tribunal on 21 November 2022, which contains a section dealing with time limit points. The reconsideration procedure is not an opportunity for a party to improve upon the evidence that was given during the hearing, or to advance evidence that with the benefit of hindsight that party would like the Tribunal to have heard, and I do not consider that there is any reasonable prospect of my decision being varied or revoked on the basis of evidence that the Claimant could have given, but did not give. For the avoidance of doubt, I do not consider that there is anything to suggest that the first limb of the Ladd v Marshall test summarised at paragraph 9 above is met, and there is no proper basis for me to consider this proposed further evidence.[24]At paragraph 10 of his reconsideration application, relating to his point D, the Claimant contends that my judgment ‘does not appear to consider the evidence given in the ET1 and orally concerning the referral to the local children’s services department, or the full extent of the threats that were made against my family’. He then, at paragraph 11 of his application, proceeds to set out further evidence and argument relating to the alleged threat of a referral to children’s services. However, I dealt with this matter, as it was put before me at the hearing, at paragraphs 28, 30, and 45 of my judgment, and I do not see that there is any reasonable prospect that the points now advanced by the Claimant would mean that it would be in the interests of justice for me to change my decision. Once again I emphasise that the reconsideration process is not an opportunity for a party to simply reargue a matter that has been considered and decided against him.[25]It is convenient next to consider the Claimant’s point C, since in my view that gives rise to the same response as points A and D. By his point C, the Claimant seeks to contend that he did not become aware of the Supreme Court’s judgment in Gilham until November 2021, and that as such it would not have been reasonably practicable to bring the claim prior to that point. However, as I have set out above, this is simply not the evidence that the Claimant gave during the hearing before me. As such, point C seems to me to be another attempt to reargue the matter using evidence and arguments which were not advanced at the time (but which the Claimant would have been entirely able to advance at the time, had he so wished). I do not, accordingly, consider that there is any reasonable prospect of the reconsideration application succeeding on this basis.[26]I deal next with point E, because once again this seems to me to be an attempt by the Claimant to improve upon the evidence that he gave during the hearing. In support of this point in his application, the Claimant provides a long list of factors that he contends are relevant to the question that arose under the second limb of the ‘not reasonably practicable’ test, namely, if it was (as I found) not reasonably practicable for the Claimant to bring his claim within the primary time limit, what was the further period within which he should have brought his claim?[27]In my view, the various matters set out by the Claimant fall into one or both of the following two categories:(i) attempts to put forward further evidence that was not put forward at or before the hearing on 28 November, and(ii) attempts to reargue matters that were considered at that hearing. As an example of the former category, I refer to subparagraphs 12(c), 12(d), 12(e), 12(h) and the timeline provided by the Claimant (which was not before me on 28 November), 12(i) (at least insofar as it related to evidence about a meeting between the Claimant’s wife and the head of Dolphin School in November 2019), and 12(j). These all set out evidential details that were simply not put before me on 28 November. I see no basis upon which the Claimant would not have been able to put this evidence before me at the hearing, and as such, in my view, the evidence does not satisfy the first limb of the test in Ladd v Marshall. I do not consider that there is any reasonable prospect that my judgment would be varied or revoked based on evidence which does not satisfy the Ladd v Marshall test, where nothing has been put before me to suggest that this is one of those rare cases where I might admit fresh evidence that does not satisfy the Ladd v Marshall test.[28]The other matters raised in respect of the Claimant’s point E seem to me to be attempts to persuade me to apply a different analysis to the case from that which I in fact applied. In other words, where the Claimant is not overtly seeking to put forward fresh evidence, he is nonetheless seeking to reargue matters that have already been argued over and adjudicated upon. I reached my decision on this matter having considered the evidence and arguments that both sides put before me, and I do not consider that there is any reasonable prospect that further argument would persuade me to reconsider that decision. Nor, in my view, would it be consistent with the strong public interest in the finality of litigation to allow the Claimant now to seek to reopen my decision by advancing further argument and evidence on matters that I have already decided against him.[29]I now turn to the Claimant’s point F. The Claimant records an objection to a finding that he believes that I have made, namely that he was not suffering from any mental health problems prior to May 2022. This is not the finding that I made – the findings at paragraph 34 of my previous judgment record that I accepted that the Claimant suffered from mental health problems, and that he began taking medication in May 2022, and not before. None of this appears (or is said to be) factually incorrect; certainly it accurately reflects the evidence that the Claimant gave. I did not make a finding that the Claimant was not suffering from mental health problems before May 2022, but simply recorded that the evidence was that it was at that point that he began taking medication. I accept that the Claimant suffered from mental health problems for some time prior to May 2022, but this does not undermine the factual findings recorded at paragraph 34, nor does it undermine the reasoning I applied in respect of these mental health problems, as they affected the matters before me (my reasoning is set out at paragraph 44 of my previous judgment).[30]I add that I reject the Claimant’s assertion, in support of his point F, that he was asked ‘a deliberately misleading question’ by the Respondent’s counsel, Mr Ali. I found Mr Ali’s conduct of the hearing, including his crossexamination of the Claimant, to be entirely proper. Had it been otherwise, I would have intervened.[31]By his point H, the Claimant seeks to explain his failure to put forward documentary evidence prior to the 28 November 2022 hearing. Much of the material set out at paragraph 17 of the Claimant’s application appears to me to be subject to without prejudice privilege, since it relates to attempts to settle the dispute between the parties.[32]In any event, I do not accept that the Claimant’s explanations mean that he could not with reasonable diligence have put before me the evidence upon which he now relies. This evidence was clearly available to the Claimant. He knew that the hearing was listed for 28 November, and he should not have assumed that it would be adjourned. I add that, while the Claimant, at paragraph 17 of his application, refers to his request for an adjournment of the 28 November hearing, that adjournment request did not rely upon any suggestion that the Claimant needed additional time to prepare evidence for the 28 November hearing. Rather, the Claimant suggested that the hearing should be adjourned to allow time for the Solicitors Regulation Authority to investigate a complaint that he had made about the Respondent’s solicitors. The application put on this basis was considered and refused by Employment Judge Anstis.[33]But in any case, I fail to see how the matters raised by the Claimant mean that there is any reasonable prospect of my decision being varied or revoked. The matters raised by the Claimant did not, in my view, affect the outcome of the hearing. I allowed the Claimant to give evidence, notwithstanding the absence of a witness statement. He therefore had the opportunity to put before me all the factual matters upon which he wished to rely, including all the matters set out in the timeline that he has produced. The principal document now produced by the Claimant is a letter from the headmaster of Dolphin School to the Claimant and his wife, dated 25 October 2019. However, this letter is referred to in my judgment, and, notwithstanding the fact that I had not seen it, I relied upon it (and other threats that the Claimant told me were made) in the Claimant’s favour in concluding that it would not have been reasonably practicable for him to bring his claim within the three-month primary time limit (see paragraphs 37 and 38 of my judgment). Having now seen the letter, I do not consider that seeing it would have made any difference to my decision on any point in issue before me. Against this background, I do not consider that the explanation for the absence of documentary evidence would give rise to any reasonable prospect that I would vary or revoke my original decision.[34]Having dealt at length with the various points that, in my view, amount to attempts to reargue the case and/or improve upon the evidence given, I turn to two final points, namely point G and point I.[35]By point G, the Claimant emphasises the disparity in resources between himself and the Respondents. I fully accept that the Claimant is likely to have been at a disadvantage as a litigant-in-person, compared to the Respondents, which were represented by specialist solicitors and counsel. However, I consider that ample adjustments were made during the hearing to account for this. These included(i) allowing the Claimant to give oral evidence without a witness statement, and(ii) questioning by me, both before and after cross-examination by Mr Ali, designed to ensure that evidence relevant to the matters before me had been elicited. In my view, these adjustments sufficiently compensated for the inequality of arms that might otherwise have existed, and I am satisfied that the Claimant had a full opportunity to advance his case during the hearing.[36]I add that the questions before me were whether(i) it was not reasonably practicable for the Claimant to present his claim within the primary time limit; and(ii) he presented his claim within a further reasonable period. I resolved the first question in the Claimant’s favour, but not the second question. The fact that the first question was, relatively unusually in a case such as this, resolved in favour of the Claimant might tend to suggest that the inequality of arms has not disadvantaged him. But in any case, both of the questions that I had to consider were matters of fact and/or judicial judgement, and nothing in what the Claimant has put forward under point G leads me to believe that there is any chance that I would have reached any other conclusion had these matters been put forward on 28 November 2022, or that there is any reasonable prospect that the decision that I did reach would be varied or revoked.[37]I turn finally to the Claimant’s point I. In support of this point, the Claimant advances a series of arguments concerning what he considers to be the merits of his case and of the cause of protecting children that he seeks to advance. However, while I do not doubt the strength of the Claimant’s feeling, it does not seem to me that any of what the Claimant says in respect of point I has any bearing on the issues that were before me. Nothing that he says leads me to consider that I applied an incorrect approach to those narrow and specific questions or that it would be in the interests of justice for me to reconsider my decision. General Review[38]In the preceding paragraphs I have considered each of the nine grounds advanced by the Claimant. However, before concluding this judgment, I take a step back, and consider the points advanced in their totality to see whether, taken as a whole, they persuade me that the reconsideration application has any reasonable prospect of success. But taken together, they seem to me no stronger than when taken individually. Summary[39]Having reviewed everything that the Claimant has written and produced in support of his application, I do not consider that I made any error in my analysis of the law, in my assessment of the facts as they were put before me at the hearing on 28 November 2022, or in my application of the law to those facts. Insofar as the Claimant now seeks to rely on evidence that was not before me on 28 November, I do not consider that any of this evidence satisfies the Ladd v Marshall test, nor that there is any other compelling reason for me to admit any of this evidence. I add that I also consider that the hearing on 28 November was conducted fairly, and that the Claimant had a full and sufficient chance to advance his case.[40]As I have already commented, the bulk of the Claimant’s application consists of an attempt to put forward evidence that was available to him on at the hearing before me but which he did not then advance, or to seek to reargue matters that have already been decided against him. But I do not consider this to be remotely sufficient for the reconsideration application to have a reasonable prospect of success. In the intellectual property case of FAGE UK Limited v Chobani UK Limited [2014] EWCA Civ 5, Lord Justice Lewison said evocatively (at paragraph 114) that ‘the trial is not a dress rehearsal. It is the first and last night of the show’. Putting that in plain language, parties ordinarily get one chance – and one chance only – to put their case before a judge. The hearing on 28 November 2022 was not a trial, but Lord Justice Lewison’s point still applies. The Claimant had his opportunity to put his case before me at that hearing. I considered his case as he then presented it, and ultimately decided the matter against him. That was the first and last night of the show – nothing in the Claimant’s application persuades me that there should be an encore.