Mr A Adu-ansere v OCS Group UK Ltd: 3308246/2023
JUDGMENT
[1]The claim for unfair dismissal (being the sole claim made by the claimant) is dismissed. The tribunal has no jurisdiction to hear the claim which was presented outside the primary limitation period. The claimant has failed to persuade the tribunal that it was not reasonably practicable to present the claim within that period.REASONS
[1]The claimant brings a claim for unfair dismissal. The effective date of termination was 17 March 2023. That is an accepted date, the claimant having acknowledged receipt of his dismissal latter by an email of that date.[2]The claimant was represented at the disciplinary hearing which led to his dismissal, by his trade union. The trade union told him of the right to complain to an employment tribunal for unfair dismissal should matters not be resolved satisfactorily to him and also told him of the time limit for making such a complaint. The claimant recalls being told that the period was so many months from dismissal less one day. He cannot now recall the precise figure that he was given for the number of months, but I am satisfied (in the light of his recollection) that what he was told was the method of calculating the three month period following the effective date of termination.[3]It follows that the primary limitation period for bringing such a claim expired on 16 June 2023. In advance of that, the claimant had contacted his local CAB about the possibility of making a claim to an employment tribunal. They told him that they did not deal with employment claims, but referred him to Acas. He spoke shortly after his dismissal to Acas; he told them that he had put in an appeal and he recalls a discussion of it being perhaps sensible to wait a little to see if the appeal was upheld.[4]He approached Acas a second time around about 20 May 2023 because he had not heard the outcome of his appeal hearing. He did not seek an early conciliation certificate at that stage. He was busy with other matters and hopeful the appeal might yield a favourable outcome. However, as he had heard nothing by 21 June, he notified Acas under the Early Conciliation Scheme and obtained his early conciliation certificate on 27 June.[5]He did not act straightaway to bring a claim before the tribunal. He remained busy with other matters and was still hopeful with regard to his appeal. However, he leaned that his appeal had been unsuccessful on 11 July 2023. He ultimately applied to the tribunal alleging unfair dismissal some 10 days later.[6]In accordance with s.111(2) of the Employment Rights Act 1996 the claimant must satisfy me that it was not reasonably practicable for him to make his claim on or prior to 16 June 2023 and, were he to do so, he would then have to show that he had acted within a reasonable period thereafter.[7]I consider that it was feasible for the claimant to make a claim within the primary limitation period. He knew of the right to make such a claim and of the time limit, albeit that he cannot now recall precisely what he was told. In the light of his evidence, I am satisfied that he was told that the time for making such a claim was a period of three months less one day from the day of his dismissal. He could have made such a claim in that period. He was not simply waiting for the outcome of his appeal. He sought and obtained his Acas certificate before he got the result of the appeal.[8]I recognise that until 11 July, when he leant the outcome of the appeal, he had a hope that the appeal might succeed, but the fact that he was someone with an outstanding appeal is just one factor for me to have in mind against the background of all of the other relevant factors in this case. Having heard form him I am satisfied that he was neither someone who thought that he could not apply to the tribunal until he got the result of the appeal or someone who thought that it was simply sensible to wait the outcome of the appeal. He knew he could apply, he had taken the early conciliation steps, albeit after time had expired, but still did not apply when he got his certificate and he did not do so immediately on hearing the outcome of the appeal. At all material times, that is from significantly before the primary limitation period expired, he chose to prioritise other matters.[9]In those circumstances, I am not satisfied that it was not reasonably practicable to present the claim in time. Furthermore, I am not satisfied that even if my initial decision was wrong that it was reasonable for him to have delayed until 21 July to present the claim. I consider that in those circumstances he had waited unreasonably long.[10]Therefore, sympathetic as I am to the fact that he has not had the merits of his claim decided by a tribunal, I consider that the tribunal cannot deal with the claim on its merits because it lacks jurisdiction, the claim having not been presented in time. In those circumstances, the claim must be dismissed. Employment Judge Andrew Clarke KC Date: 17 April 2024 N Gotecha Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/[1]At a Preliminary Hearing on 19 February 2024 the Claimant’s claim for unfair dismissal was dismissed on the basis that the claim had not been presented within the primary limitation period and there was no basis for extending time into the secondary limitation period so as to make the claim one presented in time. Reasons were given orally and written Reasons provided some time later.[2]By letter of 8 March 2024, the Respondent applied for a costs order in its favour pursuant to rule 76 of the Rules of Procedure. It alleged that the claim had not reasonable prospect of success and, for that reason, a costs order should be made in its favour. Detailed grounds for suggesting that a costs order should be made were set out. The letter was sent to the claimant, but he has not responded. I am satisfied that he has had a reasonable opportunity to make representations, hence I have dealt with the application ‘on paper’ as the Respondent requested.[3]In short, the basis of the application is that the claimant knew of the time limit, could have made his application to the tribunal in time, but chose not Case Number: 3308246/2023 to do so. I accept that this summarises findings which lie at the heart of my original reasoned judgment.[4]I also agree that this means that, subject to any extension into the secondary limitation period being granted, the claim was presented out of time and had no reasonable prospect of success.[5]Of course, that does not mean that a costs order should be made. The use of the word ‘may’ in Reg.76 gives me a discretion to make such an order. In this case I decline to exercise that discretion in the respondent’s favour. The claimant had certainly been told that there was a time limit, but I am not satisfied that he understood that failure to adhere to it would be fatal to any claim he might seek to bring. Indeed, he appeared puzzled by the concept of time limits and there would always be the possibility that the secondary limitation period could be invoked. He believed that his appeal would be successful. That does not excuse his failure to claim in time, but it does go some considerable way towards explaining it.[6]In those circumstances, this application for a costs order if refused.