Miss C Elliott v Silverstone Heritage Ltd: 3303166/2024
JUDGMENT
[1]The complaint of unfair dismissal is struck out on the ground that there are no reasonable prospects of success because the claimant did not have at least two years continuous employment ending with the effective date of termination.[2]The employment tribunal does not have jurisdiction to consider the unauthorised deduction from wages claim because it was not presented within the applicable time limit. The unauthorised deduction from wages claim is dismissed.REASONS
[1]The claimant did not attend today’s preliminary hearing in public. I had the benefit of an electronic file of relevant documents which had 80 pages and page numbers in these reasons refer to that file. Mr Lewis-Bale provided a skeleton argument which is referred to as RSKEL in these reasons. Although I gave my reasons orally, given the significance of my decision to the claim and the absence of the claimant I provide my reasons in writing.[2]I decided, after considering the provisions of rule 48, to continue with this preliminary hearing in public notwithstanding her absence, taking into account what I knew about the reasons for it. I was satisfied that the claimant had been given notice of today’s hearing by email sent on 4 December 2024 to the email address that the tribunal had on its file for the claimant, the same one that she had indicated was her preferred method of communication.[3]The claimant did not reply to that notice of hearing.[4]Her claim form had included an unfair dismissal complaint and a complaint of unauthorized deduction from wages in respect of her final salary and holiday pay accrued but not take on termination of employment. The claimant had been warned that a Judge was considering striking out her unfair dismissal complaint for lack of two years’ continuous service by a letter dated 18 September 2024. She did not respond to that letter either. Nor did she reply to the respondent’s application to strike out her claims which was originally made in December 2024 but was repeated more recently.[5]On 5 March 2025, the tribunal wrote to both parties indicating that that strike out application would be considered at today’s hearing, and so I am satisfied that the claimant has had ample notice both of the hearing and of the matters that were to be considered at it. The tribunal has not received any communication from her.[6]An attempt was made to telephone her to see if anything could be found out about the reasons for her non-attendance today, but her telephone was switched off.[7]It was not in accordance with the interests of justice for the hearing to simply be vacated. There was no explanation given for her absence, reasonable enquiries had been made and delay would have prejudiced the respondent. I decided that it was in the interests of justice to proceed.[8]I then considered the arguments that the unfair dismissal complaint should be struck out.[9]A letter had been sent on 18 September 2024 on the instruction of my colleague, Employment Judge Green, warning the claimant that it was contemplated that her unfair dismissal complaint would be struck out. I am satisfied that that gave the claimant a reasonable opportunity to explain why that complaint should not be struck out. As I have already said, there was no response to that warning. It appears from the dates provided by the respondent in their response (page 32) that her employment started on 6 October 2021 and ended on 24 August 2023. This is substantiated in her contract of employment (page 46) and dismissal letter (page 63 @ 65). There are no reasonable prospects that the claimant will show that she had at least two years’ continuous service and, therefore, I have decided to strike out that complaint.[10]The hearing was listed by the employment tribunal to consider whether it had jurisdiction to hear the unauthorised deduction from wages complaint. That is a claim for unpaid wages for the last month of her employment with the respondent. The respondent says that they were authorised to make a deduction in full from the last months wages to claw back part of a very large sum of money which they said the claimant had defrauded them of by misuse of a company credit card.[11]However, the reason that the tribunal had listed it for jurisdiction was to consider whether the claim was presented within the applicable time limit. Early conciliation in this case started on 16 November 2023 and ended on 22 November 2023. The claim form was presented on 19 March 2024.[12]In the skeleton argument of Mr Lewis-Bale (paragraphs 22 to 24) where he states that the date by which the claimant might have expected to be paid her final month’s wages in respect of employment that ended summarily on 24 August 2023, was 28 September 2023. That is the date on which she would have expected to be paid had the September payroll led to a transfer to her of her final salary and any accrued holiday pay. That date is confirmed in contemporaneous correspondence between the parties that I have seen in the hearing file.[13]Therefore, the initial primary limitation date, the date three months after the date on which she would expect to be paid, was 27 December 2023. That would be subject to any extension arising as a result of early conciliation. I accept the calculation that is set out by Mr Lewis-Bale in RSKEL paragraphs 23 and 24 which gives the date of 22 January 2024, Taking into account the effect of early conciliation on time limits (found in s.207A Employment Rights Act 1996), the claim should have been presented by 2 January 2024. This gives the claimant the benefit of the more advantageous extension of time due to early conciliation. In fact, the claim was presented on 19 March 2024 and, therefore, it was 2 months and 17 days out of time.[14]It therefore falls to the claimant to show that it was not reasonably practicable for her to present the claim in time and that it was in fact presented within a reasonable further period.[15]Here I run into the reality that the claimant has not responded or put in any correspondence despite being warned that the question of jurisdiction was to be raised. In compliance with his professional obligation to draw to the employment tribunal’s attention all that might reasonably be said even where it was against his client’s interests, given that the claimant is absent, Mr Lewis-Bale drew to my attention hints of possible explanations from the claim form itself or from correspondence. So, in particular, in RSKEL paragraph 39, he points out that in the claim form the claimant stated that she thought this was submitted months ago and he also referred to in contemporaneous correspondence, page 70 of the hearing file, to having consulted a solicitor. However, it is for the claimant to demonstrate that it was not reasonably practicable to present the claim in time. She has not put forward any explanation. I know no information in any detail at all about whether she was in fact consulting a solicitor at that stage, or at any stage, and how that may have impeded the presentation of the claim.[16]When the Tribunal is considering whether it has jurisdiction to consider a complaint of unfair dismissal which was not presented within three months of the effective date of termination, The burden of proof in relation to both stages is on the claimant. ‘Reasonably practicable means more than merely what is reasonably capable physically of being done but less than simply reasonable. When considering the claimant’s explanation for the delay, the employment tribunal needs to investigate what was the substantial cause of the claimant’s failure. Examples of situations where it might not be reasonable practicable to present the claim in time were given by Brandon L.J. (as he then was) in Walls Meat Co Ltd v Khan [1979] I.C.R. 52 CA at paragraph 44, ‘‘The performance of an act. . .is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike: or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.’’[17]There are various examples that have been given in the authorities about the sorts of circumstances which can amount to a situation that means it is not reasonably practicable. The case of Dedman v British Building and Engineering Appliances Ltd [1074] 1 All ER 520, referred to in paragraph 41 of Mr Lewis-Bale’s skeleton argument, makes the point that a litigant cannot simply rely on poor advice or delay, poor conduct of their affairs by a professional adviser. That is also made clear in the above passage from Walls Meat v Khan.[18]The claimant has not put forward an explanation. There is no evidence put forward by her to substantiate any explanation. But, in any event, the matter that is potentially raised about putting it in the hands of solicitors does not in fact amount to something from which I can conclude it was not reasonably practical for her to present the complaint in time.[19]Similarly, she states in her claim form, that she has dissociative personality disorder and ADHD and remarks that she struggles keeping up on top of this. Were that something she wished to rely on, the tribunal would reasonably expect medical evidence from a qualified practitioner of the conditions that she is relying upon of the impact of those conditions on her at the relevant time, namely at the time when she should have been presenting the claim, in order to be satisfied that health or disability meant that it was not reasonably practicable for her to present her claim in time.[20]Even if she were to clear that hurdle, she would have to show that the claim had been presented within a reasonable further period. In this instance, the delay of two months is set against an original limitation period of three months and, therefore, must, in my view, be regarded as being a relatively substantial delay.[21]I therefore have concluded that the tribunal does not have jurisdiction to consider the unauthorised deduction from wages complaint and I do not need to go on to consider the respondent’s application that, if the tribunal has jurisdiction to consider it, it should nevertheless be struck out on the basis that it has no reasonable prospect of success or is a vexatious or unreasonable complaint. Approved by: