Mr O Igbo v Whittington Hospital (as Amended to Whittington Health NHS Trust): 3306403/2022
JUDGMENT
[1]The name of the Respondent is amended (by consent) to Whittington Health NHS Trust.[2]The Claimant’s claims of unfair dismissal and victimisation are out of time and therefore fail and are dismissed.[3]Having found that the claims are out of time and beyond the jurisdiction of the tribunal there is no need to deal with the other applications.REASONS
[1]An oral judgment with full reasons was delivered to the parties at the conclusion of the Open Preliminary Hearing on 15 March 2023. After hearing the oral reasons the Claimant’s representative requested reasons in writing ‘for their records’.[2]The Claimant was dismissed by the Respondent on 23 February 2022. The Respondent states that the reason for the dismissal was gross misconduct. The Claimant submitted an appeal under the Respondent’s internal appeal procedure challenging his dismissal and this appeal was heard, after several postponements, on 13 July 2022.[3]The Claimant meanwhile made contact with ACAS on 24 May 2022 and an ACAS certificate was issued to him on 26 May 2022. The Claimant then submitted an ET1 setting out claims of unfair dismissal and victimisation. The ET1 was submitted on 31 May 2022.[4]The Respondent in its ET3 raised the issue of jurisdiction on the basis that the claims were out of time. The Claimant instructed solicitors on 6 December 2022 and submitted new grounds of claim on 15 December 2022 followed by a formal application to amend the claim form on 7 March 2023. Today’s preliminary hearing was scheduled to consider these points.[5]On 24 February 2023 the Respondent emailed the Claimant’s solicitors to ask if they intended to provide any witness or documentary evidence at the preliminary hearing. No response was provided by the Claimant and no evidence relating to the time limit issue was provided.[6]At the outset of the preliminary hearing the parties agreed that they wished for the Tribunal to first of all consider the issue of time limits and only then, if it continued to be relevant, to move to consider the Claimant’s application to amend his claim. Counsel for the Claimant confirmed that he understood that there would be no amendment possible unless the Claimant was successful in relation to time limits.[7]I heard submissions first on behalf of the Respondent and then on behalf of the Claimant. I do not repeat those submissions here but I refer to them in my reasoning as necessary.[8]Counsel for the Claimant relied first of all on the argument that the Claimant’s claims were not out of time due to the fact that the internal appeal procedure was ongoing, and the outcome had not been received, at the time that the Claimant submitted his ET1 claim. I do not accept this argument. Under the Employment Rights Act 1996 s111(2)(a) a claim for unfair dismissal must be brought within 3 months of the effective date of termination (the EDT). As a matter of law the existence of a contractual appeal procedure does not alter the EDT. In accordance with the guidance in the cases of J Sainsbury Ltd v Savage 1981 ICR 1, CA, which was approved by the House of Lords in West Midlands Co-operative Society Ltd v Tipton 1986 ICR 192, HL., if the appeal fails, the dismissal takes effect from the original date of dismissal and time limits must be calculated from that date.[9]The time limit for presenting the ET1 was therefore 22 May 2022. In order for the ACAS conciliation extension provisions to extend the period of time for making a claim the Claimant needed to have contacted ACAS by this date. Counsel for the Respondent referred to the case of Pearce v Bank of America Merrill Lynch and ors EAT 0067/19 and I accept that this case confirms that the ACAS extension does not apply where the limitation period has already expired before early conciliation commences.[10]I therefore find that the Claimant was 9 days out of time in presenting his claim.[11]The question then becomes whether ‘it was not reasonably practicable’ for the complaint to have been presented in time under s111(2)(b) of the Employment Rights Act 1996. In considering this question I bear in mind that the onus of proving that presentation in time was not reasonably practicable rests on the claimant, and there is a duty on him to show precisely why it was that he did not present his complaint.[12]I have considered the Claimant’s case – as set out in submissions by his Counsel - that he had been going through personal difficulties around the time that the claim form was due in. There is no doubt that the events described in the Claimant’s ET1 must have caused him significant distress and I accept both that he was a litigant in person and that he may not have been functioning at his normal level of ability during this time.[13]However I note that the Claimant had access to trade union support, which he did indeed utilise at various times. Although the submissions in this preliminary hearing suggest that the Claimant was labouring under a misapprehension about when the time limit for submitting his ET1 claim was, I am satisfied that he had access to advice and that he should therefore have known when the relevant time limits were. I also recognise that the Tribunal was told in the Claimant’s submissions that the Claimant ‘knew he ought to act timeously’ and I note that in the details of claim at page 14 of the bundle the Claimant says ‘I must have exceeded the deadline due to my poor state of mind…’ showing that he was aware, at this time, of the deadline.[14]Given that the Claimant did in fact contact ACAS just 2 days after the tribunal deadline, I find that this suggests he had the capacity and it was practicable for him to submit a tribunal claim at this point. The Tribunal has not had the benefit of oral evidence from the Claimant as to the exact pressures that may have been bearing on him at this time or why he may have been unable to present his claim earlier.[15]Looking at matters in the round I therefore conclude that the Claimant has not overcome the hurdle of showing that it was not reasonably practicable to present his claim before he did in fact do so. As time limits go to the Tribunal’s jurisdiction it is not open to me to exercise discretion or say ‘it is in the interests of justice or in accordance with the overriding objective’ and allow the claim, as the Claimant’s representative would have me do. I have no such discretion. If a claim is out of time and cannot be brought within a statutory formula for extension, then the tribunal must refuse to hear the case.[16]Insofar as any victimisation claim as set out in the claim form exists as a stand-alone cause of action, which is denied by the Respondent and also does not appear to be argued on behalf of the Claimant, I am satisfied that it, too, is out of time and that the Claimant has not shown that it would be just and equitable to extend time.