Mrs B Thompson v North Middlesex University Hospital NHS Trust: 3306902/2018
JUDGMENT
[1]The tribunal has jurisdiction to determine the claim.REASONS
[1]This is the hearing of a preliminary issue as to whether the ET1 has been presented in time. There is no dispute the last date for presentation of the ET1 in the ordinary course of events would have been 7 April 2018. The ET1 was in fact only received by the tribunal on 1 May 2018.[2]Section 111(2) of the Employment Rights Act 1996 provides: “…[a]n employment tribunal shall not consider a complaint 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.”[3]That is subject now to the early conciliation provisions which allow an extension of time.[4]The critical dates in this case are as follows. The claimant was born on 2 December 1967. She started working for the respondent as a Healthcare Support Worker on 31 March 2003. On 5 April 2017 there was an allegation made against her that on 28 March 2017, she had neglected a patient who had died on her shift. On 23 November 2017 she was summarily dismissed after a disciplinary hearing. There was subsequently an appeal in April 2018 which was unsuccessful. This is irrelevant to the current proceedings. The claimant received the letter of dismissal on 25 November 2017 and that is probably the effective date of dismissal although I do not need to decide that issue.[5]On 20 February 2018 she applied to ACAS for an Early Conciliation of the matter. There was some attempt at conciliation but on 7 March 2018 ACAS issued the Early Conciliation Certificate which is necessary to allow the presentation of an ET1. Under s.207B(4) of the Employment Rights Act 1996 she had a month from the date of the Early Conciliation Certificate and that is why the parties agreed that 7 April 2018 was the appropriate date.[6]The claimant had been assisted on a pro-bono basis by Mr Joslin Brissett, who is a paralegal, employed at the time by a firm called E D Leon. He is now employed by a firm of solicitors called Ties. He was assisting the claimant in her internal disciplinary appeal and took it upon himself on a pro-bono basis to draft the ET1.[7]On 28 March 2018, he emailed the ET1 to the East London Employment Tribunal using his personal email address. The tribunal responded the following day, which was in fact Maundy Thursday, and said that the ET1 could not be accepted by email in that way and it stated that there were three methods by which the ET1 could be presented: 7.1. Hand delivered to a local office who will send it to the central office 7.2. Online 7.3. By post to the central office.[8]The employment tribunal asked Mr Brissett to do one of those three things.[9]Mr Brissett explained that he was unfamiliar with, or at least not very familiar, with computer technology and thus, he drafted the ET1 by hand and was intending to deliver it by post.[10]The following day was Good Friday, so the first day on which the Post Office was open was Easter Saturday, 31 March 2018. Mr Brissett says he went to the Post Office in Sittingbourne where he lives. He had been slightly delayed because he had to await a telephone call from a relation who was coming to visit and that meant that the Post Office had closed when he got there so he could not send the ET1 by recorded delivery. Instead he posted it by ordinary post.[11]Easter Sunday was 1 April 2018 and then 2 April was Easter Monday. The presumed delivery of a letter sent by First Class post, as this one was, would have been 4 April 2018, being the second working day after postage on Easter Saturday. In fact, the ET1 was only received by the central office on 1 May 2018.[12]I heard evidence from Mr Brissett and he was cross examined by Mr Ross. Mr Ross invited me to disbelieve Mr Brissett’s assertion that he had posted the ET1 on 31 March. Mr Ross pointed to a subsequent letter which enclosed the skeleton arguments being presented on Mrs Thompson’s behalf which was dated 25 March 2019 but actually only posted on 6 April 2019. That certainly shows poor attention to detail on the part of Mr Brissett. However, in my judgment, Mr Brissett was an honest witness.[13]I accept that he posted the ET1 on the Saturday. That is consistent with the date on which he sent the ET1 to the employment tribunal by email. He was very well aware of the time limits for issuing an ET1.[14]In my judgment, there was a delay in the post which resulted in the late delivery of the ET1 to the central office.[15]Mr Ross relied on the case of Capital Foods Retail Limited v Corrigan [1993] IRLR 430. That was a case where the solicitors had sent, what was then, an IT1, to the Central Office of Industrial Tribunals in Scotland, about five weeks before the expiry of the three-month period for presenting an unfair dismissal claim. In those days it was the practice of the Industrial Tribunals to make an acknowledgment of the IT1 immediately and to send the IT1 to the respondent so that the respondent could serve its IT3. That was a purely administrative process. The current procedure is different in that the ET1 is perused by an employment judge. It is only after the employment tribunal accepts the ET1, that it is sent out to the parties. That is what occurred in the current case in that it was only on 18 May 2018 that the employment tribunal sent out an acknowledgement to the claimant and sent a copy of the ET1 with a response pack to the respondent.[16]In Capital Foods, the Employment Appeal Tribunal in Scotland held that the claimant had not taken reasonable steps to ensure that the IT1 was presented in time. That was because there were five weeks remaining and they had not received any form of acknowledgement. Once they failed to receive an acknowledgement they should have chased up the absence of any acknowledgement and would then have realised that they needed to re-present the IT1 because it had not been received by the Tribunal.[17]In the current case the time period is much shorter. The ET1 was posted on 31 March. It would be presumed to have been received on 4 April. The claimant would not reasonably have been expected to receive any acknowledgment of any type by the Tribunal until long after 7 April 2018. So, this is a case in which Capital Foods can be distinguished.[18]I need to sit back and take an overall view of the facts. Mr Ross made a number of points on whether it was reasonably practicable to present the ET1 in time:17.1 He pointed out that Mr Brissett was aware of the risk of post going missing.17.2 Mr Ross said that Mr Brissett should have checked whether the ET1 had been received.17.3 He said that Mr Brissett should have posted the ET1 on 29 March when he was in the solicitor’s offices for whom he worked.17.4 Lastly, he said there was insufficient evidence that the letter was posted on 31 March 2018. 18 Dealing with those matters in order:18.1 There is a risk of post going missing but it is a fairly low risk and it was, in my judgment, an acceptable risk to run in the circumstances of this case. Mr Brissett wanted to send the ET1 by recorded delivery. He was delayed. His choices therefore were either posting it on the Saturday or waiting until the Tuesday to resend it. It was perfectly reasonable in my judgment to send it on the Saturday.18.2 As to the second point, that Mr Brissett should have checked that the ET1 had been received, it is not necessarily as easy as Mr Ross suggests to get hold of the central office and to ensure that something has been received. But, in any event, in my judgment on the facts of this case, it was not necessary because the ordinary post would have delivered the matter by 4 April. The tribunal would not be able to deal with any queries as to receipt on 4 April. The 5 April would have been the first day where that was possible but, in my judgment, it is not reasonable to expect a solicitor to have to chase the central office in that sort of way and, as I have said, it is not necessarily easy to get an acknowledgement from the central office that an ET1 had been received.18.3 Then it is said that he could have posted on 29 March. This was a matter where Mr Brissett was acting pro-bono on a personal basis for the claimant, although he obviously had told his Principal about what he was doing. It was a private matter and, in my judgment, he was justified in not wanting to cause expense to the solicitor’s firm for whom he was acting when this was a matter which was unrelated to his work for that firm. Accordingly, that point goes as well.18.4 I have already made a finding of fact that the letter was posted on 31 March 2018 by Mr Brissett.[19]Standing back, therefore, I find that this is a case where reasonable steps were taken to present the ET1. No blame attaches to the failure to present any earlier than 1 May. In the circumstances, in my judgment, it was not reasonably practicable for the complaint to be presented before the end of the period which it is agreed was 7 April 2018.[20]Mr Ross also raises the question as to whether the ET1, in the circumstances which I have found proven, was presented within a reasonable period of time after 7 April 2018. In my judgment, it was reasonable to expect the tribunal to send out its acceptance of the ET1 in due course. There was no reason to chase before 1 May 2018. It is reasonable to extend time to allow the presentation of the complaint on 1 May 2018.[21]In these circumstances I decide the preliminary issue in favour of the claimant.