Mr A McGuigan v Biffa Waste Services Ltd: 3308135/2023

EMPLOYMENT TRIBUNALS

Case No 3308135/2023

Between

Mr A McGuiganClaimant

Biffa Waste Services Ltd RECORD OF A PRELIMINARY HEARING Heard on 6 February 2025 (by remote video link -CVP)Respondent

Before

Employment Judge D N Jones

In person for claimant

Ms D van den Berg (instructed by counsel) for respondent

Ms D Vanden Berg (instructed by counsel) for respondent

Date 6 February 2025

JUDGMENT

[1]The complaint of being subject to detriments for making protected disclosures is struck out on the ground it has no reasonable prospect of success because it was presented out of time.

[2]The complaint for unauthorised deductions from wages is struck out on the ground it has no reasonable prospect of success.

REASONS

[1]These are applications of the respondent to strike out the claims of the claimant for protected disclosure detriment and unauthorised deductions from wages. The former is on the basis that the claims were presented out of time. It is said there are no reasonable prospects of success for that reason. Alternatively, it is argued that the claims have no reasonable prospects of success because the protected disclosures, as described by the claimant, do not fall within Section 43B of the Employment Rights Act 1996 (ERA), or there is no causal link between those protected disclosures, many of which are rather old, and the alleged detriments. In respect of the latter, the application concerns there being no reasonable prospect of success in respect of a claim for loss of wages. I will deal with those in turn.

[2]The facts were summarised in my earlier consideration of this case with the parties on 11 February 2024 but they have been clarified and developed by further information provided by the claimant following that hearing and consequent upon the order I made. The respondents have amended their response. Case Number: 3308135/2023 2

[3]For these applications, my considerations are limited. It is not appropriate for me to explore the wider issues in this case, such as the points which were made about the background concerning the disclosures. But what is necessary, for the purpose of this hearing, is the brief background which is as follows.

[4]The claimant was employed by the respondent as an HGV driver from 25 March 2002. He suffered a stroke on 25 August 2022 which led to the revocation of his HGV licence for a period of 12 months. I understand that the HGV licence was restored in 2023 and the claimant has since then reverted to work in that role. But this case concerns matters which occurred prior to 14 July 2023 because it is then when the claim was presented to the Employment Tribunal in Watford.

[5]The claimant said in this hearing, that he initially presented the claim in electronic form but it was rejected, because Watford did not deal with electronic submissions and it was submitted to a different department. He gave evidence about that and was questioned by counsel for the respondent. He said he thought it was ACAS who had submitted the claim form on his behalf electronically, but on further questioning he was a little unclear about how the claim form had actually been submitted, but he was sure it had been transferred from one department to another at the Watford Employment Tribunal, or possibly between regions. The case has subsequently been transferred to the North East region. On the evidence I have heard, I am satisfied that the claim was presented on 14 July 2023 and not before. The claimant contacted ACAS for the purpose of early conciliation on 19 June 2023 and ACAS issued an early conciliation certificate on 21 June 2023.

[6]The claimant had been certified as unfit by his doctor to work up until 22 November 2022. Thereafter the claimant was fit to work but he could not drive an HGV vehicle because his licence was suspended. There is reference to the claimant’s dealings with the occupational health department, but they do not affect the decision I have to make in respect of the strike out application.

[7]The complaint, in essence, is that Mr Oates prevaricated in finding any suitable alternative work for the claimant and then it was not on terms he had been assured about by the regional manager. Ultimately the claimant had a meeting with Mr Oates and Mr Oates made an offer of alternative employment at the Bradford depot, but this was at a significantly lower rate of pay and it was said to be a permanent job. That offer was contained in a letter of 7 March 2023 which the claimant did not receive until 14 March 2023. In the meantime he had spoken to the regional manager Mr Little. Mr Little had informed the claimant that he could retain his HGV equivalent salary, because the claimant pointed out to him that there was another driver who had his licence suspended for 12 months but the respondent had paid him his HGV salary for that year. But that discussion contradicted the offer which he then received on 14 March from Mr Oates. The claimant says that he sent Mr Oates an email on 16 March 2023 in respect of the discussion he had had with Mr Little. Mr Oates had set a deadline for the claimant to accept the alternative work in Bradford of 17 March 2023. The claimant did not accept that offer and he heard no more from Mr Oates or Mr Little about the discussion he says he had.

[8]Ms Vanden Berg pointed out that the complaint is one of detriment concerning the actions of Mr Oates and the claimant does not disagree. I have therefore to consider the time limit with respect to the protected disclosure detriment claim and when time will run from. Section 48(3) of the ERA provides: Case Number: 3308135/2023 3 An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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. Section 48(4) provides: For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer... shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[9]I am satisfied that the alleged detriment was that Mr Oates prevaricated, initially offered the claimant the job at a lower rate on a permanent basis in Bradford and did not indicate the claimant might return to his HGV role at a future date or offer pay at HGV rates. I have considered whether it is possible to argue that the date was extended by reason of Mr Oates not responding to a communication the claimant has referred to, although which I have not seen, on 16 March 2023. Given the claimant’s deadline for the job expired on 17 March 2023, even if there was a failure to act by Mr Oates in response to the claimant’s email, he might reasonably have been expected to respond to it by 17 March 2023. The date that time started to run, under section 48 of the ERA, was 17 March 2023. The three- month period includes the first day and so expires three months later, 16 June 2023. That was three days before the claimant contacted ACAS for early conciliation.

[10]There are extensions provided by Section 207B of the ERA, but they do not apply in circumstances in which the primary time limit has expired, as was the case here. The claim was not issued until 14 July 2023, so is outside the primary 3 month period.

[11]I consider whether the claim might be in time, nevertheless. Was it not reasonably practicable for the complaint to be presented before 16 June 2023 and, if not, was it presented within such further period was as reasonable?

[12]I asked the claimant to provide further information about why that might have been. The claimant had contacted Mr Pratt, his union representative, at the end of 2022 when he stopped being paid by the respondent. He had only received Statutory Sick Pay and he had had some discussions with Mr Pratt about that. On 2 June 2023 the claimant sent a text to his union representative for legal advice. He text back to say he would contact the regional legal officer. The claimant received an answer, a week before he presented the claim, that the deadline was 21 July 2023. Case Number: 3308135/2023 4 Ms Vanden Berg infers that the advice was based upon the ACAS certificate which had an issue date of 21 June 2023 and that the advisor had assumed that this would extend time by a month which would provide a new deadline of 21 July 2023. If it was based on that assumption, it was wrong. No extension for ACAS early conciliation arises if the three month period has already expired. It had done by three days.

[13]It is for the claimant to establish the test that it was not reasonably practicable, Porter v Banbridge Ltd

[1978] ICR 943

. In Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

the Court of Appeal gave the following guidance: the test should be given a liberal interpretation in favour of the employee; the statutory language is not to be taken as referring only to physical impracticability but might be paraphrased as whether it was ‘reasonably feasible’ to present the claim in time; if an employee misses the time limit because he or she is ignorant about the existence of a time limit or mistaken about when it expires, the question is whether that ignorance or mistake is reasonable. If it is not, then it will have been reasonably practicable for the employee to bring the claim in time. However it is important to note that in assessing whether ignorance or mistakes are reasonable, one should take into account whether the employer has taken advice. Fifthly, that if an employee retains the skills of an advisor any unreasonable ignorance or mistake on the advisor is attributable to the employee.

[14]The time limit in this case started to run from 17 March 2023. It is not clear to me why the claimant did not have a discussion about bringing a claim with Mr Pratt before 2 June 2023. That would be several weeks after the time limit had started to run. I recognise that it then took Mr Pratt some time to take advice and revert to the claimant, and that the advice the claimant received was erroneous. When he received it, a week before the claim was issued, it was already outside the primary time limit.

[15]I am not able to find in this case that it was not reasonably practicable for the claim to have been presented in time had the claimant not made diligent enquiries sufficiently soon after he knew that the respondents had reneged on an offer made by the regional manager. Soon after 17 March the claimant could have reasonably made enquiries to appraise himself of time limits in respect of bringing claims and acting upon that advice earlier than he did. The erroneous advice was that of his advisor but, as indicated, when it was received the primary time limit had already expired.

[16]The claim has no reasonable prospect of success. The Tribunal has no jurisdiction to entertain it because is was presented outside the statutory time limit. I would not have struck the claim out on the ground the claimant’s disclosures did not fall within Section 43B of the ERA, as alternatively submitted. The disclosures pertained to health and safety issues. Nor would I have struck out the claim in respect of there being no causal link. I recognise the point the claimant makes, that there are circumstances in which employers act negatively to those who are raising such matters, regarding them as troublesome and distracting. But that is academic, because I have found the claim is out of time and I have no jurisdiction to consider it.

[17]In the claim form, the wages are for the salary the claimant would have received as an HGV driver. He draws attention to the other worker who had received such a wage. He says the best the respondent could do was to find a job which was Case Number: 3308135/2023 5 paid significantly less, on a permanent basis, many weeks after he had become available for work.

[18]The question is, was the respondent legally obliged to pay the claimant wages from 22 November 2022 to 14 July 2023. Section 13(3) of the ERA provides: Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the work on that on occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

[19]The written contract of employment is one for a LGV driver. “In using this job title it is clearly understood that you may be required to carry out such other reasonable duties as from time to time may be required of you”. That has been expressed for the benefit of the employer, such that the employer may require the employee to undertake other duties and the employee cannot refuse. But there is nothing in that document to oblige the respondent to find alternative work for the claimant than the duties of an LGV driver.

[20]The claimant received Statutory Sick Pay until he was fit to work on 22 November 2022. Thereafter there is no entitlement to pay under the contract.

[21]I accept the submission of Ms Vanden Berg that there is nothing in the contract of employment to indicate that the respondent was obliged to find the claimant alternative employment. I recognise that the respondent did offer the claimant alternative employment in March, but there was no obligation to do so. The obligation to pay arises when the claimant makes himself available to discharge the duties of an HGV driver. Because of the suspension of his licence, he could not do that and so there was no reciprocal obligation to pay him. I recognise the feelings of injustice, if the claimant is aware of another driver who received his wages when not working as an HGV driver when his licence was suspended. That is compounded if the regional manager agreed that it was appropriate to pay that amount of wages in alternative employment, but that promise was not honoured. Those might have been considerations with respect to whether the respondent treated the claimant in this way because he had made protected disclosures, but they are not material to whether he was entitled to such remuneration under his contract of employment.

[22]One contractual provision the claimant sought to rely on concerned payment of compensation to a driver who has lost his LGV licence due to ill health. That would be paid as a lump sum for a minimum of two years’ service, at one and a half weeks per year, up to 30 weeks, limited to a weekly pay at 60 hours basic rate. The respondent could reduce that by 50% if it provided the driver with alternative employment of at least 80% of his previous average gross earnings.

[23]The respondent drew my attention to a collective agreement and a handbook which stated that provision is applicable when there is a permanent loss of a licence. The claimant argued permanent did not appear in the written term. I would have allowed the case to proceed on that issue to a final hearing, but for section 27(2)(c) of the ERA in which wages for the purpose of Part 2 are defined. That excludes any payment as compensation for loss of office. Whether it be permanent or temporary loss of office, it is clear that the passage in respect of compensation in the claimant’s contract, is excluded from the definition of wages. Case Number: 3308135/2023 6

[24]I therefore agree with the respondent the claim for unauthorised deductions from wages has no reasonable prospect of success and so it shall be struck out. Approved by