Mr L Tredgett and Others v Steve Porter Transport Ltd (In Administration) and Secretary of State for Business Energy and Industrial Strategy: 3315261/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 3315261/2023

Between

Mr L Tredgett and Others (as itemised in schedule)Claimant

Steve Porter Transport Limited (In Administration) R1 Secretary of State for Business Energy and Industrial Strategy R2Respondent

Before

Employment Judge Quill

Date 16 April 2025

JUDGMENT

Employment Tribunals Rules of Procedure 2024 – Rule 22

[1]The claims against R1 are dismissed because they were not presented within the time limit specified in section 189(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”) (as modified by section 292A of the Act).

[2]The claims against R2 are dismissed because R2 was not the “employer” within the meaning of Chapter II of Part IV of the Act, and because there was no debt, at any relevant time, to which Part XII of the Employment Rights Act 1996 (“ERA”) applied.

REASONS

[1]On 24 December 2023, the Tribunal received a claim form from multiple claimants. The lead claimant was Lawrence Tredgett. At box 1.8, the claim form contained an email contact address, and by comparison with Box 11, that was the representatives’ email address.

[2]Boxes 2.1 to 2.4 of the claim form named Steve Porter Transport Ltd as a respondent, and supplied details of an ACAS early conciliation number.

[3]Boxes 8 and 9 of the claim form made clear that the allegation was that(a) Steve Porter Transport Ltd (“R1”) was the employer and

(b) that there had been termination of employment on 25 September 2023, for each claimant and

(c) that there had been a failure to comply with the requirements of section 188 of the Act. The remedy sought was a declaration and a protective award.

[4]On 2 February 2024, a judge (which was me, EJ Quill) decided that the claim against R1 should be rejected because, in accordance with the rules which applied at the time (Rule 12 of the 2013 rules) neither the name of the claimant nor the name of the respondent on the early conciliation certificate matched those in the claim form. A different certificate number had also been mentioned in Box 2.6 of the claim form; however, that did not refer to Steve Porter Transport Ltd as a prospective respondent.

[5]On 25 March 2024, a brief email from the Claimant’s representative attached a certificate with a different number. That was treated as an application for reconsideration, although it supplied no explanation for why a different early conciliation certificate number had been inserted in the claim form originally, and nor did it expressly seek amendment of the claim form.

[6]By letter dated 8 April 2024, the application for reconsideration was granted, on the basis that the original decision to reject the claim was correct, and, therefore, the presentation date would be treated as 25 March 2024.

[7]The claim was stayed because R1 was in administration. A letter dated 8 April 2024 informed the parties of that.

[8]On my instructions, the Tribunal sent a letter dated 3 June 2024. That dealt with several matters and, in particular, highlighted that the effect of the 8 April 2024 decision was that, while the claim against R1 was accepted, the fact that it was presented on 25 March 2024, that meant that time limit issues would have to be addressed if and when the stay was lifted.

[9]The Claimant’s representative replied on 16 June, without making any comment on time limits. The Tribunal replied to that letter on 6 August 2024.

[10]Following a further reply from the Claimants’ representative, the stay was lifted. On my instructions, the Tribunal sent a letter to the parties dated 11 September 2024 which again referred to the time limit point. In particular, the order was that witness statements should address (amongst other things) the time limit point.

[11]I have received 44 witness statements. They are very similar (and there is nothing wrong with that). None of them comment on time limits. None of them explain why the claim was not presented until 24 March 2024, nor why it was not reasonably practicable to present it sooner. None of them explain why the two early conciliation certificate numbers in the claim form (MU103994/23/72 and MU103995/23/63) did not relate to any of these claimants, or to R1. Law relating to claim against R1

[12]Section 18(1) of the Employment Tribunals Act 1996 (“ETA”) defines “relevant proceedings” for the purposes of section 18 and sections 18A to 18C ETA. Relevant proceedings includes employment tribunal proceedings under sections 189 or 192 of the Act.

[13]Thus, in order to present a complaint to the Tribunal, under section 189 of the Act (alleging that the employer failed to comply with section 188 or section 188A), a claimant must comply with section 18A(1) ETA. That is, they must obtain an early conciliation certificate.

[14]Because of section 18(7) ETA, and the regulations made under it, not every claimant in the claim form would necessarily need to obtain their own early conciliation certificate. The court of appeal has given guidance on that topic in Sainsbury’s Supermarkets Limited V Maria Clark etc

[2023] EWCA Civ 386

. When industrial tribunals were established more than half a century ago the purpose of Parliament was to create a speedy and informal system free from technicalities. It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claims. Nevertheless, if the [respondent to the claims] is right, an artificial barrier has indeed been placed in the way of these claims. It should be emphasised that there is no suggestion that any of these Claimants failed to make the necessary reference to ACAS before the claim was issued, nor that any of them failed to obtain a certificate by ACAS demonstrating that such a reference had been made. The complaint is no more and no less than that the ET claim form did not give the appropriate certificate number.

[15]Section 189 includes the following subsections: (5) An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the date on which the last of the dismissals to which the complaint relates takes effect, or

(b) during the period of three months beginning with that date, or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented during the period of three months, within such further period as it considers reasonable. (5A) Where the complaint concerns a failure to comply with a requirement of [ section 188 or 188A, section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(b).

[16]Section 292A has a similar effect to that of comparable sections in other legislation. In essence:a. Where a claimant contacts ACAS to commence early conciliation outside the time limit calculated by section 189(5), then there is no extension granted by section 292A.

b. However, provided the Claimant contacts ACAS within that time period, then there is an extension to the deadline for submitting the claim. The new date will be whichever is later:

(i) one month after the end of early conciliation or

(ii) extending the original date by taking account of the duration of the early conciliation.

[17]When a Claimant argues that it was not reasonably practicable to present the claim within the time limit, there are questions of fact for the tribunal to decide. In other words, whether it was, in fact, reasonably practicable or not. The onus of proving it was not is on the Claimant. When doing so, the phrase “not reasonably practicable” should be given a liberal interpretation in favour of the Claimant.

[18]If the tribunal is satisfied that it was not reasonably practicable to present the claim within the time limit, then it is necessary to consider whether the period between the expiry of the time limit and the eventual presentation of the claim was reasonable in the circumstances. This does not necessarily mean that the Claimant has to act as fast as would be reasonably practicable.

[19]In Porter v Bandridge Ltd

1978 ICR 943

, CA, the Court of Appeal held that the correct test is not whether the Claimant knew of his rights but whether he ought to have known of them.

[20]Similarly, when a Claimant is ignorant about (or makes a mistake about) a fact which is relevant to the calculation of time limit, the question is whether that ignorance (or that mistake) is reasonable.

[21]The assessment of reasonableness has to take into account that a potential Claimant ought to be aware of the importance of not missing a time limit. Put another way, even if it is true that the Claimant did not know the true facts, then that does not necessarily mean that it was not reasonably practicable to issue the claim in time. The Claimant must also show that the ignorance was reasonable and that he could not reasonably have been expected to have discovered the true situation during the limitation period. Furthermore, ignorance of the true facts must be the actual reason for failing to issue the claim sooner.

[22]Fault on the part of the Claimant’s adviser may be a relevant factor when determining whether it was reasonably practicable for the Claimant to present the claim within the prescribed time limit. A mistake made by a solicitor or barrister acting for the Claimant is likely to deemed to be a mistake made by the Claimant; a mistake by another type of adviser might have different consequences.

[23]In Northamptonshire County Council v Entwhistle

2010 IRLR 740

, EAT, Underhill P noted that there could be some circumstances where – despite having used solicitors to advise him on the matter – a Claimant might show that it had not been reasonably practicable to issue the claim on time In other words, there might be cases where the adviser’s failure to give the correct advice was itself reasonable, such as where the employee and his or her solicitor had both been misled by the employer on some factual matter, such as the date of dismissal. Analysis and Conclusions: R1

[24]Since all the dismissals were on the same day, 25 September 2023, the time limit calculated by reference to section 189(5) of the Act (only) would have been 24 December 2023.

[25]The claim form was received by the Tribunal on 24 December 2023, and therefore, had it not been rejected, it would have been in time even without consideration of sections 189(6) and 292A of the Act.

[26]However, it was only actually presented on 25 March 2024, due to the decision was (at the time) Rule 13(4) of the 2013 rules).

[27]Even allowing for an early conciliation extension of two days (that is, by not counting 19 and 20 November 2023), the time limit specified in the Act expired on 26 December 2023, and so the claim was about three months out of time unless the “escape clause” set out in section 189(5)(c) applies.

[28]That means that I have to decide whether it was not reasonably practicable for the complaint to be presented by 26 December 2023. If I do decide that point in the Claimants’ favour, I have to go on to decide if, by presenting the claim on 25 March 2024, it was done “within such further period” as I consider “reasonable”. For that latter part of the test, it would not be necessary for the Claimants to go as far as demonstrating that it had not been reasonably practicable to present the claim earlier within the period 27 December 2023 to 25 March 2024; however, I only move on to that latter part of the test if it was not reasonably practicable to present the claim by 26 December 2023.

[29]I do not proceed on the assumption that the Claimants did, or did not, have a solicitor or barrister, or similarly qualified lawyer acting for them. They have not specified either way in their evidence.

[30]I do not know why an incorrect number was inserted into the claim form. The witness evidence, and the submissions from the Claimants’ representative are totally silent about that, despite the letters highlighting the issue, and despite the specific instructions that the witness evidence should address time limits.

[31]On 25 March 2024, when the Claimants’ representative emailed a copy of early conciliation certificate numbered MU103992/23/90, that document showed that early conciliation commenced on 18 November 2023 and concluded on 20 November 2023. The document states “method of issue” was email. Thus, the person to whom it was sent had access to it prior to the claim being presented on 24 December 2023.

[32]I have not been provided with evidence about whether the individual or organisation that received the early conciliation certificate is the same, or different, than the individual or organisation that presented the claim. The claim appears to have been presented by CFS Redundancy Payments (according to the information in section 1 and section 11 of the claim form), which is CFS Redundancy Payments Ltd (according to the information in the footer of their emails). That company appears to have represented the Claimants throughout the litigation, and it was that company which forwarded the correct early conciliation certificate in March 2024. However, there has been no explanation of whether:a. CFS Redundancy Payments Ltd obtained the early conciliation certificate and had it in its possession in November and December 2023, and, if so,

b. Which individuals within CFS Redundancy Payments Ltd took relevant steps, OR if not,

c. Which person external to CFS Redundancy Payments Ltd obtained the early conciliation certificate and when they forwarded it to CFS Redundancy Payments Ltd

[33]I cannot make assumptions about what might theoretically have happened. The Claimants have not proven any facts which show that it was not reasonably practicable to present the claim in time. Presentation on 24 December 2023 would have been in time had the correct certificate number been included in the claim form. However, it was not, and the Claimants have not shown that it was not reasonably practicable to have included the correct information in the claim form. Even if – hypothetically – the person who completed the claim form did not have possession of the early conciliation certificate, it would have been reasonably practicable for that person to have obtained it.

[34]Thus the proposed claim against R1 is out of time, and the Tribunal does not have jurisdiction to hear it.

[35]The claims against R1 are dismissed. Law relating to claim against R2

[36]The claim against R2 was not rejected. In Box 15 of the claim form, the claimants specified that the intended claim against R2 was based on section 182 of the Employment Rights Act 1996 (“ERA”).

[37]Part XII ERA deals with employees’ rights to receive payments from Secretary of State in the event of insolvency of the employer. Section 182 creates four conditions for a payment that:a. there is an application in writing to the secretary of state;

b. the employee's employer has become insolvent;

c. the employee's employment has been terminated; and

d. on the appropriate date the employee was entitled to be paid the whole or part of any debt to which Part XII applies.

[38]In this case, the middle two conditions are satisfied, but I have to decide if the first and fourth are also satisfied.

[39]Section 184 defines the “debt to which this Part applies”. As per Graysons Restaurants Ltd v Jones

UKEAT/0277/16/JOJ

, the word “debt” does not impose any additional requirement. The definitions of the sums which might be payable are in section 184(1) (a) to (e) respectively, and if a sum does meet one of those five definitions, then it is – thereby – a “debt” to which Part XII applies.

[40]Section 184(1)(a) means that the definition of a “debt” to which Part XII applies includes: any arrears of pay in respect of one or more (but not more than eight) weeks

[41]Furthermore, section 184(2)(d) specifies: (2) For the purposes of subsection (l)(a) the following amounts shall be treated as arrears of pay— (d) remuneration under a protective award under section 1 89 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[42]The liability of R2 to make a payment, as well as the other conditions in section 182 being satisfied, depends on the “appropriate date”. Section 185(b) ERA states that the “appropriate date” is (in so far as is relevant to this claim): (b) in relation to … remuneration under a protective award so made, means whichever is the latest of—(i) the date on which the employer became insolvent,

(ii) the date of the termination of the employee's employment, and

(iii) the date on which the award was made,

[43]The word “award” in section 185(b)(iii) ERA refers (in so far as is relevant to this claim) to a decision made by the Tribunal, in accordance with section 189(2) of the Act, to make a “protective award”.

[44]Section 188 ERA deals with complaints to the Tribunal based on the rights granted by Part XII: 188.— Complaints to employment tribunals(1) A person who has applied for a payment under section 182 may present a complaint to an employment tribunal — (a) that the Secretary of State has failed to make any such payment, or (b) that any such payment made by him is less than the amount which should have been paid.

(2) An employment tribunal shall not consider a complaint under subsection (1) unless it is presented— (a) before the end of the period of three months beginning with the date on which the decision of the Secretary of State on the application was communicated to the applicant, or (b) within such further period as the tribunal considers reasonable in a case where it is not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where an employment tribunal finds that the Secretary of State ought to make a payment under section 182, the tribunal shall— (a) make a declaration to that effect, and (b) declare the amount of any such payment which it finds the Secretary of State ought to make.

[45]A complaint under section 188 ERA is not the type of complaint covered by section 18A(1) ETA. There is no requirement to obtain early conciliation certificate before presenting it.

[46]No evidence has been provided by the Claimants of any application having made to, and refused by, the Secretary of State prior to presentation of the claim form.

[47]It is true, however, that R2 has responded to the claim. R2 has treated itself as having received a copy of the claim form for information purposes only (as per Rule 96 of the 2013 rules, or Rule 95 of the 2024 rules). R2 did not admit any liability and, on the contrary, has argued that there would be no liability unless and until (at the earliest) there is a decision by an employment tribunal to make a protective award. Analysis and Conclusions: R2

[48]The claim against R2 was not rejected; no reconsideration application was necessary or made. The claim against R2 was presented on 24 December 2023.

[49]Arguably the claim was premature, as it was made before R2 had rejected the written application required by Section 182. Indeed, I have not seen evidence that any written application was made prior to the claim being issued.

[50]However, assuming, without deciding, that a written application was made before the claim was issues (or that the claim form itself satisfies the requirement) and assuming without deciding, that the application was refused (or that R2’s employment tribunal response is sufficient to show that R2 is not intending to make payment), the claim fails.

[51]It is not alleged that R2 is directly liable under section 189 (or 192) of the Act. For the avoidance of doubt, my decision is that, since it is not “the employer”, it is not liable under those sections.

[52]The Claimants are not entitled to a declaration under section 188(3) ERA because the only potential “debt” (as defined in Part XII ERA) identified in the claim form is a protective award. Since no Tribunal has made a decision that there is an entitlement to a protective award (either before or after the claim was issued on 24 December 2023), there is no payment which R2 should have made, or agreed to make. Approved by :