Mr S Kerr v The Hain Daniels Group Ltd: 3307529/2020

EMPLOYMENT TRIBUNALS

Case No 3307529/2020

Between

Mr S KerrClaimant

The Hain Daniels Group LtdRespondent

Before

Employment Judge Dobbie

Failed to attend. for claimant

Ms Mills (instructed by Solicitor) for respondent

Date 5 May 2021

JUDGMENT

[1]The Claim is struck out on the basis that it is out of time.

REASONS

[1]By a claim form presented to the Tribunal on 3 August 2020, the Claimant brought a claim for unfair dismissal against the Respondent. In his claim form, the Claimant stated that the date of termination of his employment was 15 April 2020. The Respondent’s ET3 does not specify his dates of employment, but at paragraph 19 of its Grounds of Resistance, it states that notice of summary dismissal was served on 20 April 2020.

[2]On 11 June 2020, the Claimant commenced and concluded ACAS Early Conciliation and the certificate was issued that day. Given that conciliation commenced and concluded on the same day, the Claimant does not benefit from any pausing of time under s.207B(3) Employment Rights Act 1996 (“ERA”).

[3]By 11 June 2020, the Claimant still had more than one month left of the primary time limit under s.111(2) ERA, irrespective of whether his employment terminated on 15 or 20 April 2020. Therefore, he does not benefit from any extension of time under s.207B(4) ERA. Accordingly, using the termination date provided by the Claimant, his claim should have been presented by 14 July 2020. Using the termination date provided by the Respondent, the claim should have been presented by 19 July 2020. The claim form was in fact not presented until 3 August 2020 and is therefore out of time irrespective of which termination date is the correct date.

[4]Under s.111(2) ERA, an employment tribunal is prohibited from considering a complaint of unfair dismissal unless it is presented within the primary time limit or it is presented within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to have been presented in time.

[5]This requires the Tribunal to firstly ask: was it reasonably practicable for the Claimant to present the claim in time? If the Tribunal finds that it was, the claim will be rejected for being out of time. If the Tribunal finds that it was not reasonably practicable to present the claim in time, it will go on to consider whether the claim was presented within a reasonable period after which it became reasonably practicable to present it.

[6]In Robertson v Bexley Community Centre

[2003] IRLR 434

, the Court of Appeal (“CA”) held that time limits should be strictly enforced and that any extension of time is the exception, not the rule.

[7]In Palmer v Southend on Sea BC

[1984] IRLR 119

, the CA gave guidance as to what is meant by “not reasonably practicable” and equated it to “not reasonably feasible”.

[8]In Dedman v British Building and Engineering Appliances Ltd

[1973] IRLR 379

, the CA stated that the “legal test is given a liberal construction in favour of the employee”.

[9]In M&S plc v Williams-Ryan

[2005] IRLR 562

, the CA encouraged tribunals to consider various matters when deciding whether to extend time or not, including: what if anything the employee knew about right to claim to an Employment Tribunal; what should they have known if they had made reasonable searches; and whether they had received legal advice and if so, what that advice was.

[10]In cases where the claim is presented late due to the fault of a legal advisor, the courts tend to attribute that fault to the Claimant and do not extend time as a result of such fault (per Dedman, cited above).

[11]Following Times Newspapers v O’Regan

[1977] IRLR 101

, a trade union adviser amounts to a legal adviser, such that the principle in Dedman applies. As such, if a claim is presented late due to the fault of a trade union representative, the fault of the representative is attributable to the Claimant.

[12]In the present case, the Claimant did not attend the hearing, nor did he provide any evidence or statement in support of an application to extend time. However, for the reasons stated below, the Tribunal decided to continue to hear the matter in his absence under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. In doing so, the Tribunal took into account all information that was before it, including an email that the Respondent had received from the Claimant (and which was duly provided to the Tribunal).

[13]In the email sent to the Respondent on 19 April 2021, the Claimant stated: “The reason the claim was submitted late is because I didn’t have a certificate number from ACAS. I did contact my union representative [] about this matter and he said he’d get back to me, unfortunately this took some time to be resolved. As soon as I had the number I submitted the claim immediately.”

[14]In Stratford upon Avon v Hughes UKEAT0163/20, the Claimant presented the claim 3 days late because he did not have a copy of the ACAS certificate. In that case, ACAS had emailed the Claimant the certificate but it had not been received for some reason. On the day after expiry of the time limit, the Claimant contacted ACAS to obtain a copy of the certificate and he ultimately presented his claim three days out of time. The EAT overturned the judgment of the Employment Tribunal and held that it was reasonably practicable for him to have presented it in time. The EAT stated that the correct question in such a case is – was it reasonably practicable for the Claimant to have obtained the ACAS certificate sooner, such as to enable him to present his claim?

[15]In reaching its decision, the Tribunal considered the Claimant’s explanation for the lateness of the claim as advanced in the email referred to above. Nonetheless, the Tribunal finds that it was reasonably practicable for the Claimant to have presented his claim in time.

[16]The Claimant could have contacted ACAS directly himself to obtain the certificate number. It was reasonably practicable for him to have obtained the certificate sooner (and in time).

[17]In the event that the Claimant relied solely on his trade union representative, the authorities stated above require the Tribunal to find that the fault of the adviser is attributed to the Claimant. Again, this leads to a finding that it was reasonably practicable for the Claimant to have presented the claim in time.

[18]Therefore, there is no basis for finding that it was not reasonably practicable for the Claimant to have presented his claim in time, and the claim is struck out accordingly. Proceeding in the Claimant’s absence under Rule 47

[19]The Claimant did not attend the hearing today. The hearing had originally been listed for 10am on 21 April 2021. However, at 12:22 on 20 April 2021, the Tribunal informed the parties by email that the hearing had been moved to 2pm on 21 April 2021. This correspondence was sent to the Claimant’s correct email address.

[20]At 13:47 on 20 April 2021, the Tribunal wrote to the parties again, informing them that the hearing had been moved back to its original start time of 10am. However, the email address for the Claimant had been mistyped and therefore cannot have been received by him.

[21]At the hearing at 10am on 21 April 2021, the Respondent informed the Tribunal that its last contact with the Claimant had been on 19 April 2021, in which he stated in an email: “May I also add that when I was emailed about the hearing in January I notified [my representative] he said I would need representation and he would pass it on and organise this. However I didn’t hear anything for a long time and had to contact [him] again. Your recent email is the first I’ve heard from anybody apart from [my representative] and I feel there has been a breakdown in communication over the past few months. As a result of not knowing what was happening I am now unable to take the time off work for the hearing on Wednesday and will need my representative to act fully on my behalf.”

[22]The Claimant was therefore aware of the hearing and had been so since January 2021. The Tribunal clerk made several attempts to contact the Claimant by email and phone and eventually got through to him on his mobile phone at around 10:30am to let him know the Tribunal was waiting for him. The Claimant stated that his trade union representative was meant to be attending and that he would contact him and urge him to attend. The Claimant himself was at work and unable to attend.

[23]By 11am, having heard nothing further from the Claimant or his representative, the Tribunal adjourned the proceedings. In the event that the Claimant and/or his representative expected to attend the hearing at 2pm, based on the last communication from the Tribunal to the Claimant (to the correct email address) the Tribunal decided to put the case back to 2pm. At 13:20, the Tribunal Clerk informed the parties of this by email (to the correct email addresses) and three telephone calls were made to the Claimant's mobile between 13:25 and 13:45 but he did not answer. A voicemail was left for him informing him of the adjourned listing and inviting him to check his emails.

[24]At 14:10, the case resumed. The Claimant neither attended, nor had he responded to any of the Tribunal's communications. By that time, the Claimant had had the opportunity to attend at 10am (the original listing which had been set down in January) and 2pm (the time to which the hearing had been moved on 20 April 2021). His failure to attend either indicated he had no intention of attending himself and no one else attended on his behalf. The Claimant did not have any good reason for his non-attendance. He was at work and had failed to secure time off to attend the hearing despite having been aware of it since January 2021. Therefore, the Tribunal exercised its power under Rule 47 of the ET Rules 2013 to hear the matter in his absence.