Mr A Wadsworth v Wipac Technology Ltd: 3303426/2021
EMPLOYMENT TRIBUNALS
Case No 3303426/2021
Between
Mr A WadsworthClaimantWipac Technology LtdRespondent
Before
Employment Judge S MatthewsDate 9 February 2022
JUDGMENT
The claim for unfair dismissal was issued out of time. It was reasonably practicable for the claimant to issue the claim in time. The Tribunal has no jurisdiction to hear the claim and the claim is struck out.
REASONS
[1]The case was listed for a preliminary hearing to consider the following issues; a deposit order under rule 39 of the Employment Tribunal Rules of Procedure 2013 and, at the request of the respondent on 14 May 2021, consideration of whether the claim had been brought within the time limit.[2]At the outset of the hearing there was a small agreed bundle of documents. Skeleton arguments were submitted by both the claimant’s representative and the respondent’s representative. I heard submissions from both the claimant’s representative and the respondent’s representative.[3]It was agreed at the start of the hearing that the issue to be decided first was the time limit issue and we would then proceed to the deposit issue if the claimant was successful on the time limit issue.[4]The time limit issue can be summarised as follows: given the date the claim form was presented and the dates of early conciliation, was the unfair dismissal claim made within the time limit in s.111 of the Employment Rights Act (ERA) 1996, taking into account the effect of s.207B of ERA 1996.[5]The claimant’s representative submitted that if I did not find in favour of the claimant he would argue that it was not reasonably practicable for the claim to be brought within the time limit. I asked him if he would call the claimant to give evidence on this. He said he would not call the claimant to give evidence as the basis of his argument would be that the reason the claim was not made in time was owing to his representative.
Findings of Fact
[6]The claimant was employed by the respondent as a Sales and Marketing Director from 11 October 2009 or possibly 1 April 2010, the date is not material for these purposes. Notice of termination of employment by reason of redundancy was given on 24 July 2020. The claimant appealed the decision and an appeal meeting was held on either 25 or 26 August 2020. The appeal did not succeed and on 28 August 2020 the claimant was informed that he would be made redundant.[7]The claimant then contacted ACAS for the mandatory conciliation procedure on 2 September 2020; this is Day A for the purpose of s.207B(2)(a) ERA 1996.[8]On 16 October 2020 ACAS issued a certificate that the mandatory conciliation procedure had been complied with; this is Day B for the purpose of s.207B(2)(b) ERA 1996. Thus the process of conciliation was ongoing for a period of 44 days.[9]Day B was prior to the effective date of termination. The effective date of termination was 14 November 2020 as that was the date the employment of the claimant came to an end.[10]The claimant presented a claim for unfair dismissal on the grounds that he had been unfairly selected for redundancy on 29 March 2021. This was 44 days after the expiry of 3 months less one day from the effective date of termination.[11]The claimant’s representative submitted that this was in time as the 44 days can be transferred onto the end of the limitation period pursuant to s.207B ERA 1996.[12]The respondent’s representative submitted that the 44 days is not added onto the end of the limitation period as the provisions operate by way of the clock stopping during the limitation period itself.
The Law
[13]I have taken into account the cases referred to by the parties’ representatives, specifically Barua v Prison Service UKEAT/0387/06/MAA and Commissioners for HM Revenue and Customs Commissioners v Serra Garau UKEAT/0348/16. I have also taken into account Tanveer v East London Bus & Coach Company Ltd [2016] ICR D11 which is referred to by His Honour Judge Kerr in Serra Garau.[14]The relevant legislation is as follows: “111 Complaints to employment tribunal(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(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. (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).”[15]Section 207B extends the time limit for the purpose of sub-section 2(a): “207B Extension of time limits to facilitate conciliation before institution of proceedings(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a “relevant provision”).(2) In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.”[16]The background to this legislation is that pursuant to s.18(A) of the Employment Tribunals Act 1996 there is a requirement to contact ACAS before instituting proceedings. Provision was made to modify the limitation regime to take this into account by the insertion of s.207B into the ERA 1996. Section 111(2)A ERA 1996 was inserted to provide for s.207B to have effect on s.111(2)(a) ERA 1996.[17]Section 207B ERA 1996 provides that Day A is the day that the complainant contacts ACAS and Day B is the date that the complainant receives the certificate. Sub-section 3 says; in working out when a time limit set by a relevant provision expires ‘the period beginning with the day after Day A and ending with Day B is not to be counted’.[18]I have been referred by the respondent’s representative to the case of Serra Garau. I have also considered the case of Tanveer which is discussed by Mr Justice Kerr in the case of Serra Garau. These are not on the same facts as this case but I have found the principles set out to be helpful. In Tanveer Her Honour Judge Eady referred to the purpose of s.207B. The purpose is to ensure that with regard to Employment Tribunal time limits a claimant is not disadvantaged by the amount of time taken during the relevant limitation period for early conciliation compliance; thus the amount of time spent on early conciliation would not count in calculating the date of expiry of the time limit. She went on to say that the clock simply stopped during the early conciliation period. This was also taken up by Mr Justice Kerr in Serra Garau. He said that the limitation clock could not stop under the first certificate in Serra Garau because it had never started.[19]I have also considered the case of Barua which was referred to by the claimant’s representative. This case relates to regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the 2004 Regulations). This regulation is no longer in force and that dispute resolution regime no longer exists. It was superseded by the current early conciliation provisions. I therefore find it of limited assistance. I also note that regulation 15 had significantly different wording to the early conciliation provisions, in that regulation 15(1) stated that: “The normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.”
Conclusions
[20]I will now set out my reasoning and conclusions. Under s.111 ERA 1996 the limitation period expired 3 months less one day after the effective date of termination; that was on 13 February 2021.[21]The claimant’s representative submits that if the period of conciliation of 44 days is added on to the date of 13 February 2021 that would take the limitation date to 29 March 2021 which was in fact the date of issue. The claimant’s representative relies heavily on Barua and his argument is that the 44 days can be added on to the date when the limitation period would otherwise have expired. He submits that we need not be concerned with the date when the limitation period start running, only with the expiry date so the fact that the limitation period had not started at Date B leads to the 44 days being transferred on to the end rather than the clock stopping.[22]However, the Barua case refers to different regulations which are no longer in operation. The regulations had different wording and the provisions did not operate in the same way. I do not accept that Barua is binding on how s.111 is to be interpreted in the light of the wording of s.207B.[23]The wording of s.207B(3) is that the period between Day A and Day B is ‘not to be counted’ and that is not the same as saying that the claimant can transfer the period of 44 days on to the end of the limitation period or, as it said in the 2004 Regulations that the time limit is ‘extended for a period of three months’. I have been assisted in this interpretation by Serra Garau which refers to the clock stopping during the early conciliation period and that the clear purpose of the regulations as Her Honour Judge Eady stated in Tanveer is to ensure that the claimant was not disadvantaged during the time which the clock would be running for the limitation period.[24]The claimant is not disadvantaged by this interpretation. He had the conciliation period followed by the limitation period of 3 months to bring a claim. It was reasonably practicable for him to bring a claim within 3 months and the fact that he did not do so was due to inaction by his solicitors and no alternative explanation has been given. It is therefore not open to me to find that it was not reasonably practicable for him to bring his claim within the time limit. The principles were clarified in Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ470; a solicitor’s fault defeats any attempt to argue that it is not reasonable to make a timely complaint.[25]I therefore find that the claim for unfair dismissal has been issued out of time and the tribunal has no jurisdiction to deal with it. I will therefore not proceed to consider a deposit order under rule 39 Employment Tribunal Rules of Procedure 2013.