Mr A Sawyer v Bedfordshire Hospitals NHS Foundation Trust: 3311878/2023
EMPLOYMENT TRIBUNALS
Case No 3311878/2023
Between
Mr A SawyerClaimantBedfordshire Hospitals NHS Foundation TrustRespondent
Before
Employment Judge AlliottIn person for claimantMr Ben Jones (instructed by counsel) for respondentDate 1 August 2024
JUDGMENT
[1]It was not reasonably practicable for the claimant to present his claim in time and the claim was presented within a reasonable time thereafter. Accordingly, the tribunal has jurisdiction to hear the claimant’s claim.[2]The alleged protected disclosure relating to unnecessary enquires for blood test results is struck out as there is no reasonable prospect of success in establishing that it was a protected disclosure.
REASONS
[1]This open preliminary hearing was directed by Employment Judge Bansal on 22 May 2024. The case management summary recites as follows:- “The purpose of this hearing will be to determine,(i) If the complaints were presented outside the time limits in accordance with s.111(2)(a) & (b) of the Employment Rights Act 1996, and(ii) If appropriate to make case management order sand list the case for final hearing.”[2]It is common ground that Employment Judge Bansal also indicated that the respondent’s application for a strike out and/or deposit order would also be dealt with today. Time[3]The claimant was dismissed with effect on 1 June 2023. There is no period of early conciliation to take into account. As such, the primary three month time limit for presenting his claim would expire on 31 August 2023. The claimant’s claim form was presented on 18 October 2023 and is therefore 1 month and 18 days out of time.
The law
[4]S.111 Employment Rights Act (“ERA”) 1996 provides as follows:- “111 Complaints to employment tribunal.(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.”[5]As per the IDS Handbook on Practice and Procedure at 5.46:- “When a claimant tries to excuse late presentation of his or her ET1 claim form on the ground that it was not reasonably practicable to present the claim within the time limit, three general rules apply: S.111(2)(b) ERA… should be given a “liberal construction in favour of the employee – Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, CA. What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. An appeal will not be successful unless the tribunal has misdirected itself in law or has reached a conclusion that no reasonable tribunal could have reached. As Lord Justice Shaw put it in Walls Meat Co Ltd v Khan [1979] ICR 52, CA: “The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the Employment Tribunal, and that their decision should prevail unless it is plainly perverse or oppressive.” The onus of proving that presentation in time was not reasonably practicable rests on the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint ”. – Porter v Bandridge Ltd [1978] ICR 943, CA. Accordingly, if the claimant fails to argue that it was not reasonably practicable to present the claim in time, the tribunal will find that it was reasonably practicable – Sterling v United Learning Trust EAT/0439/14. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable”.[6]As per the IDS Handbook at 5.48 Meaning of “Reasonably Practicable”. “Judicial attempts to establish a clear, general and useful definition of “reasonably practicable” have not been particularly successful. This is probably because cases are so varied and depend so much on their particular circumstances. However, in Palmer and another v Southend-on-Sea Borough Council [1984] ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that “Reasonably practicable” does not mean reasonable, which would be too favourable to employees, and does not mean physically impossible, which would be too favourable to employers, but means something like “reasonably feasible”. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: “The relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.”[7]When considering presentation within a reasonable further period, as per the IDS Handbook at 5.113:- “In Cullinane v Balfour Beatty Engineering Services Ltd and another EAT 0537/10 Mr Justice Underhill, then President of the EAT, commented that the question of whether the period between expiry of the time limit and the eventual presentation of a claim is reasonable requires an objective consideration of the factors causing the delay and of what period should reasonably be allowed in those circumstances for proceedings to be instituted.”[8]Further, if the claim is presented late, even if through no fault of the claimant or his or her advisors, the claimant must act quickly to minimise the delay as soon as he or she becomes aware of it.[9]As per the IDS Handbook at 5.102:- “The leading case is Consignia Plc (formerly the Post Office) v Sealy [2002] ICR 1193,CA, which sets out the guidelines for the presentation of claims… when considering he application of the escape clause, the Court of Appeal stated that the case law established three general propositions: Where a claimant has done something that, in the normal course of events, would have resulted in his or her claim being presented within the relevant time period, but owing to some unforeseen circumstance this did not happen, it will have been not reasonably practicable for the claimant to have presented the claim in time. If the condition mentioned above is satisfied, it does not matter why the claimant waited until the last moment. The question whether the condition has been satisfied is a question of fact to be determined by the tribunal on the evidence before it. These propositions are applicable not only to claims sent by post but also to electronic transmission.”
The facts
[10]The claimant has a law degree and was well aware of the three month time limit for presenting his claim.[11]The claimant told me that on or about 25 August 2023 he first started trying to submit his claim online. On 30 August 2023 the claimant was unable to submit his claim online. At 08.57on 30 August 2023 the claimant emailed the tribunal as follows:- “I have attached my ET1 form to this email because I tried filing it online but there were problems online and could not submit the form. Please can someone confirm you have received my form because today is my last day to submit”.[12]The claimant would have received an automated response to his email from the tribunal which includes a statement that form ET1 claims cannot be presented by email. It would appear that the claimant did not read that when he received the automated response.[13]It is a fact that at this time, for a period of about six days, the online submissions system was unable to accept ET1s. I find that the claimant was endeavouring to present his claim online, in time, and in the normal course of events that would have resulted in his claim being presented within the relevant time period. I find that owing to some unforeseen circumstance this did not happen.[14]The claimant told me that he telephoned the tribunal and he was told words to the effect that he could send his claim form in by email. Whilst I find that unlikely, I find that it was not impossible that the claimant might have been told to send his email in and see what happened in the circumstances.[15]It was suggested by the respondent that having failed to present his claim online the claimant could and should have printed off his claim form in the library and sent it by post to Leicester or, alternatively, presented it in person at Watford Employment Tribunal. Whilst that may have been possible, in my judgment it is not reasonable to expect that to have happened.[16]I find that the claimant has established that it was not reasonably practicable for his claim to be presented within time.[17]I have gone on to consider whether it was presented within a reasonable time thereafter.[18]I have a statement from Mr D Baglin, Team Leader for the ET1 processing team. Following the submission of the claimant’s ET1 by email, the ECM record was manually created. The Watford office only took on the ET1 work from Cambridge in early September and did not manage the ET1 inbox until October. The system indicates that the claimant’s claim was rejected on 13 October 2023 for being submitted by email. Unfortunately, the rejection letter is not on file. However, the claimant would have become aware around then that his claim had been rejected. The file note records that on 17 October 2023 the claimant telephoned the tribunal very upset. The situation was explained to him and he was told he needed to submit a new claim as email was not an acceptable way of presenting his claim. Thus it is that the claimant submitted his claim on 18 October 2023.[19]It is suggested that the delay was beyond what is reasonable and that the claimant should have acted sooner. In the normal course of events the rejection of the claimant’s claim would have been made much sooner than it actually was. It is not the claimant’s fault that the administrative staff only got round to dealing with it in October 2023. I accept that the claimant could have researched how to present his claim and might have realised that submitting it by email would not be effective. The claimant is a litigant in person albeit with a law degree. As it is possible he had been told to send his ET1 by email, so I consider the delay to be reasonable. Once the claimant was made aware of the situation, in my judgment, he acted reasonably swiftly.[20]Accordingly, I find that the claimant’s claim was presented within a reasonable time after the expiry of the primary limitation period. Strike out/deposit order applications[21]The claimant rellies upon four alleged protected disclosures. These are contained in a document created on or about March 2023 and appear in paragraphs 1,2,3,4 and 5 under the heading “I identified the following problems at the receptions.”[22]These can be categorised as follows:- “1. The cancellation of appointments without informing patients causing them to attend hospital needlessly and resulting in shouting and cursing at the claimant. 2. No wheelchairs being available to reception. 3. “we are having lots of unnecessary enquiries for blood test results both on phones and in person…this can be avoided if managers have good systems in place.” 4 & 5. Staff being rude to patients and/or a doctor.[23]Under rule 37 Employment Tribunals Constitution and Rules of Procedure Regulations 2013 I can strike out a claim or part of a claim if it has no reasonable prospect of success. Under rule 39 I can make a deposit order if I consider that any specific allegation or argument in a claim has little reasonable prospect of success.[24]For the purposes of this hearing I take the claimant’s claim at its highest.[25]Mr Jones cited to me the test in Kilraine v London Borough of Wandsworth [2018] ICR 1850, CA. As per the IDS Handbook on whistleblowing at 3.6:- “The Court of Appeal in Kilraine went on to stress that the word “information” in section 43(b)(i) has to be read with the qualifying phrase “tends to show” – ie the worker must reasonably believe that the information “tends to show” that one of the relevant failures has occurred, is occurring or is likely to occur. Accordingly, for a statement or disclosure to be a qualifying disclosure, it must have sufficient factual content to be capable of tending to show one of the matters listed in s.43(b)(i)(a) – (f). Whether an identified statement or disclosure in any particular case meets that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case.”[26]Mr Jones submitted that the alleged protected disclosures lacked sufficient factual content and specificity in terms of information disclosed and what it is said the information tended to show.[27]I am not deciding whether or not the disclosures made are qualifying disclosures.[28]In my judgment, issues 1,2 and 4/5 could be argued tend to show that the health or safety of an individual has been, is being or is likely to be endangered. Issues 1 and 4 potentially relate to the safety of patients and colleagues. Issue 2 relates to the safety of patients. Consequently, I do not find that the allegations have no or little reasonable prospect of success.[29]In my judgment, issue 3 goes no further than being information that unnecessary enquiries could be avoided if a better system was in place. In my judgment, the claimant stands no reasonable prospect of successfully establishing that that tends to show that the health or safety of any individual has been, is being or is likely to be endangered. Consequently, that allegation is struck out. Employment Judge Alliott Date: 1 August 202410 September 2024 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/