Mrs J Haynes v London North West University Healthcare NHS Trust: 3310913/2023
EMPLOYMENT TRIBUNALS
Case No 3310913/2023
Between
Mrs J HaynesClaimantLondon North West University Healthcare NHS TrustRespondent
Before
Employment Judge YardleyIn person for claimantDate 10 September 2024
REASONS
[1]The Claimant’s employment with the Respondent was terminated on 16 May 2023. The Claimant presented a claim of constructive unfair dismissal to the Employment Tribunal on 18 September 2023.[2]A public preliminary hearing was listed on 10 September 2024 to determine whether the Claimant had presented her claim within the statutory time limits at section 111 Employment Rights Act 1996.[3]The Respondent prepared a bundle running to 141 pages. The Claimant provided a written statement. Mrs Haynes, the Claimant, gave evidence and was cross examined by Miss Whitely. Both parties made oral closing submissions.
Findings of Fact
[4]The Claimant resigned on 16 March 2023 and her employment ended on 16 May 2023.[5]The Claimant initially contacted ACAS by telephone on 10 August 2023 which was 5 days prior to the expiration of the primary time limit.[6]It was the Claimant’s understanding, following that call with ACAS, that she had 3 months less 1 day from the date of the call in which to make a claim. She therefore believed that she had until 9 November 2023 in which to bring her claim.[7]The Claimant notified ACAS of her request for early conciliation on 17 August 2023 and the ACAS certificate was issued on 21 August 2023.[8]Following receipt of the ACAS certificate, the Claimant then understood that she only had one month from the date of the certificate in which to submit her claim (being 21 September 2023).[9]The Claimant submitted her claim form on 18 September 2023.[10]Leading up to the Claimant’s resignation and between May and August 2023, the Claimant had a number of ongoing family issues which required her full attention.[11]The Claimant’s father had sadly passed away in 2022 and was found by the Claimant’s son (aged 12) and daughter (aged 16). In particular, the Claimant’s daughters mental health was and remains severely affected by this event as evidenced by emails from her daughter’s college and her GP.[12]Further, in May 2023, the Claimant’s son was the victim of a serious robbery. This event caused her son to suffer from anxiety and panic attacks as evidenced by his witness impact statement and he required addition support from the Claimant. Submissions[13]The Claimant submitted that there were a number of reasons it had not been reasonably practicable to submit her claim in time including:a. that her employment had not actually terminated until 18 May 2023. She said that she had received holiday pay and reimbursement for expenses by her employer after this date and therefore her claim was in time;b. that by first contacting ACAS on 10 August 2023, the information on the ACAS certificate was incorrect and her claim was in time;c. that she is the main breadwinner in the family and as well as managing a new job (which started on 17 May 2024), she was working hard to support her children through a number of challenging issues; andd. that it would not be in the interests of justice to deny her the ability to bring her claim.[14]In contrast, the Respondent did not accept that it had not been reasonably practicable for the Claimant to submit her claim in time. In particular the Respondent said that:a. the Claimant could have submitted her claim in time but instead had chosen to prioritise her family. For example the Claimant managed to go on holiday during the relevant period as well as giving her daughter driving lessons;b. that the Dedman principle applies to ACAS advisers. ACAS are well versed in the time limits applicable to Employment Tribunal claims and it therefore follows that ACAS could reasonably have been expected to give the Claimant correct information;c. that the Claimant was aware at the time of submitting her claim that her claim had been bought out of time as the ET1 included reasons why her claim should be accepted if it was out of time and also notes that that deadline for submitting the ET1 was 15 August 2024; andd. that the Claimant has provided a number of different reasons for why the claim form was submitted late and that these reasons have developed over time.[15]The Respondent further submitted that even if it was not reasonably practicable for the Claimant to bring her claim in time, the Claimant did not bring the claim within such further time as is reasonable. In particular, after the Claimant had contacted ACAS and received the certificate, she did not submit her final claim until almost 5 weeks later.
The Law
[16]Section 111of the Employment Rights Act 1996 states:(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section 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.[17]Anyone wishing to present a claim to the Tribunal must first contact ACAS so that attempts may be made to settle the potential claim, (s18A of the Employment Tribunals Act 1996).[18]In doing so, time stops running for the purposes of calculating time limits within which proceedings must be issued, from, (and including) the date the matter is referred to ACAS to, (and including) the date of a certificate issued by ACAS to the effect that settlement was not possible was received, (or was deemed to have been received) by the Claimant.[19]Further, if the certificate is received within one month of the time limit expiring, time expires one month after the date the Claimant receives, (or is deemed to receive) the certificate (s207B ERA 1996 and Luton Borough Council v Haque [2018] UKEAT/0180/17).[20]Tribunals have a discretion to extend the time limit if the Claimant can show that it was not “reasonably practicable” to put the claim in on time and that the claim has been submitted within a reasonable time of it becoming practicable to present the complaint[21]The question of whether it was reasonably practicable to bring a claim in time is a question of fact for the Tribunal to decide. The onus is on the Claimant to show that it was not reasonably practicable (Porter v Bandridge Ltd [1978] ICR 943 CA).[22]The expression, “reasonably practicable” has been held to mean, “reasonably feasible” applying common sense. See Palmer v Southend Borough Council 1984 IRLR 119 CA. What is “reasonably feasible” has been held to sit somewhere between the two extremes of what is reasonable, and what is physically possible.[23]In Wall’s Meat Co. Ltd v Khan [1979] ICR 52, Brandon LJ said: “The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of a complainant ...”[24]There is a legal principle called the Dedman principle (named after the Court of Appeal's decision in Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379) which provides that where a professional adviser is at fault in the advice which they gave to a claimant, and the wrong advice is the substantial cause of the missed deadline, the claimant cannot avail themselves of the reasonable practicability extension of time.[25]In Riley v Tesco Stores Ltd [1980] ICR 323 the Dedman principle was extended to citizens advice bureau advisers who provided advice and issued the claim for the claimant. Advice from Employment Tribunal staff has been held not to attract the Dedman principle: London International College Ltd v Sen [1993] IRLR 333.[26]As to whether the time between expiry of the time limit and the issue of the claim is a reasonable period calls for an objective consideration of the factors causing the delay, viewed against the background of the expiry of the primary limitation period and strong public interest in claims being brought promptly. See Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10.
Conclusion
[27]The Claimant did not present her claim to the Tribunal within the primary time limit set out at section 111 ERA 1996. The reasons for this are as follows:a. There is clear evidence in the form of an email correspondence between the parties, the Claimant’s payslip from May; and the fact that the Claimant commenced her new job on 17 May 2023, that the Claimant’s effective date of termination was 16 May 2023 and therefore the primary deadline for bringing a claim was 15 August 2023;b. Whilst the Claimant genuinely believed early conciliation had started on 10 August 2023 when she first contacted ACAS, the early conciliation certificate is clear that notification was received on 17 August 2023 and therefore the claim is out of time.[28]The next question that I must ask myself is whether the Claimant’s ignorance of the correct time limits was reasonable.[29]The Claimant was aware of the time limits applicable to the making of a claim in the Employment Tribunal and did not seek to pretend otherwise. She believed that by calling ACAS on 10 August 2023 that this meant that she had communicated her wish to bring her claim and that this was in line with the time limits as she understood them. I found the Claimant to be genuine and credible in her evidence and find that the basis of her belief was reasonable for the following reasons:a. The Claimant is not legally qualified.b. The Claimant asserts that her initial contact with ACAS by telephone on 10 August 2024 paused the clock for the purposes of calculating the primary time limit. This is supported by evidence in the Claimant’s ET1 form filed on 18 September 2023 that the date of the ACAS early conciliation certificate was incorrect.c. Based on the Claimant’s reasonable belief that she had notified ACAS on 10 August 2023, it was therefore also reasonable that she was still able to bring her claim in time.[30]The Respondent submitted that ACAS would have made the Claimant aware of the correct deadline and that the Dedman principle applies to information provided by ACAS. However I find that the Dedman principle does not apply and find that the situation is more like the case of the information provided by the Employment Tribunal staff. The ACAS officer was not giving advice or acting for the Claimant and they did not issue the claim on the Claimant’s behalf.[31]I have also considered the issues that were going on in the Claimant’s personal life following her resignation in March 2023 and the period leading up to deadline. The Claimant has explained and evidenced these including:a. starting a new job;b. her daughter’s ongoing and continuing mental health issues following her grandfather’s death; andc. the vicious attack on her son in May 2023.[32]The Claimant was honest about her decision to prioritise her family to deal with these challenges and wanting some time to reflect on her resignation before bringing the claim. Whilst these reasons may not be sufficient on their own to prevent the Claimant from bringing the claim in time, it does explain why the Claimant waited until 10 August 2023 to speak to ACAS and impacted her ability to focus solely on the claim in the intervening period and on her understanding of the time limits position[33]I do not find that the Claimant’s holiday, or the fact that she was providing her daughter with driving lessons are sufficient to demonstrate that it would have been reasonably practicable for the Claimant to submit her claim in time and I accept the Claimant’s explanation that the holiday was booked many months in advance, and the driving lessons were an attempt to support her daughter with her independence and mental health.[34]On balance however, I find that it was the ignorance of the correct applicable time limits (which I have found to be a reasonable mistaken belief) that ultimately resulted in the Claimant’s failure to bring the claim in time and therefore it was not reasonably practicable for the Claimant to submit her claim in time.[35]The next question I considered was whether the delay between 15 August 2024 to 18 September 2024 was too long a delay.[36]I was not convinced that on the date the Claimant actually came to submit her ET1 on 18 September 2023 that she had not subsequently become aware that her claim was out of time. I find this because the Claimant says this in the ET1 and sets out the reasons why it should be accepted.[37]What is not clear is exactly when the Claimant became aware of this. However I find that it was likely to be sometime after 14 September 2023, based on the email evidence from the Claimant to her friend dated 14 September 2023 and on 18 September 2023 when the claim form was finally submitted.[38]Given that the claim was submitted no more than 2 business days after this email was sent and prior to the 21 September 2023 deadline which the Claimant reasonably believed was the correct date, I am satisfied that the Claimant acted promptly upon discovering the error and within a reasonable time period.[39]It is for these reasons that I extend time to allow the claim for unfair dismissal.