Mrs S Brooker v Oxford University Hospitals NHS Foundation Trust: 3305458/2020
JUDGMENT
The Respondent’s Application to strike out the claim (on the basis that it is out of time) is refused.REASONS
[1]The matter was listed for an open Preliminary Hearing to determine the Respondent’s application (dated 13 November 2020) in which it applied to strike out the Claimant’s claim form for being out of time.[2]The Claimant’s employment ended on either 14 or 15 February 2020 (the parties disagree on the date) following the Claimant serving notice to resign on 15 January 2020. The Claimant had commenced Acas Early Conciliation on 9 February 2020 and the certificate had been issued on 10 February 2020, whilst she was completing her notice.[3]The claim form was presented on 11 June 2020 through the online application portal and claimed unfair dismissal (constructive) only. It was therefore out of time and at risk of strike out unless the Claimant was able to demonstrate that it was not reasonably practicable to present her claim sooner and that it was presented within a reasonable period of it becoming reasonably practicable to present it. I explained this to the Parties at the outset of the hearing. The Respondent was professionally represented and had provided written submissions to support the application.[4]The Claimant had not produced a witness statement as to why she had not presented her claim sooner. I therefore asked her questions about this and then Ms Scarfe also cross examined the Claimant.[5]Through the course of questioning the Claimant, she explained that she had sought advice from her Trade Union (Unison) even before resigning and had been assured by her Representative that the Union would handle her claim for her and that the Union Representative’s details were given to Acas, such that all correspondence went directly to the Union, not her.[6]The Claimant described that she had been (erroneously) advised by the Union that she had 3 months and one day to issue a claim form following termination of her employment. She further stated that she had obtained a paper copy claim form from Acas and after filling it in (by hand) and returning it to Acas, that Acas then forwarded it to Leicester Employment Tribunal (the central office for receiving paper claims). The Claimant was not entirely sure where she had posted the hard copy claim form to (she thought it was Acas or the Tribunal itself and her answers changed at times) but she could clearly recollect it was sent by registered post on 17 February 2020. She then says she started to receive correspondence from Leicester Tribunal.[7]In the intervening months, between February and June 2020, she states she continually (up to three times a week) chased her Trade Union Representative to see if they had received a copy of her form. The Union Representative repeatedly informed her that no form had yet been received by them. It was not until 4 June 2020 that the Union informed the Claimant that it had received her form.[8]The Claimant was unable to explain why the form received by the Tribunal was typed (she maintained she was not able to use a computer and had not ever submitted anything online) and why that typed form was presented on 11 June 2020. Despite repeated requests to the Union to be provided with all her papers and correspondence, this had not been provided and the Claimant was unsure what the Union may have done on her behalf or what correspondence they may have received.[9]I decided it was necessary to make enquiries to see if any other claim form had been presented to the Tribunal in the Claimant’s name, given the Claimant’s repeated references to Leicester Tribunal (which is the central office for receipt of paper (hard copy) claim forms). It would have made no sense to me otherwise that Leicester was involved. I adjourned for a period to make enquiries.[10]Upon speaking to a Clerk at Leicester, she located a hand-written claim form from the Claimant that had been received by registered post on 21 February 2020.[11]Upon inspecting the hand-written claim form received at Leicester on 21 February 2020, I could see that it was materially different from the typed one received at Watford in June 2020. Whilst it raised the same claim (constructive unfair dismissal) it contained far lengthier particulars than the June 2020 claim form (which was previously understood to be the sole claim form). Accordingly, I did not think it appropriate to simply substitute the February 2020 claim form for the June 2020 claim form and make directions for the Full Merits Hearing. Given the material differences, I considered it only appropriate that the Respondent should receive the February 2020 claim form in the normal way and have the chance to respond to it in the normal way. The Respondent may elect to submit largely the same response to that previously submitted for the June 2020 claim form, but it may wish to provide more or a different response.[12]Whilst I also indicated to the parties that I might formally strike out the June 2020 claim form, leaving only the February 2020 claims form, on further reflection, so as to ensure there is no risk of any legal estoppel or confusion surrounding the claim number, I decided not to strike out the June 2020 claim form (which I would otherwise have done so) and instead decided to place the February 2020 claim form on the file as being the correct claim form in the proceedings.[13]The February 2020 claim form was presented well within time. Hence the Application to strike out is not granted.