Mr L F Petrescu v Wasabi Sushi & Bento: 3315366/2020 and 3315382/2020
JUDGMENT
(1) The claim of unfair dismissal is struck out on the grounds that it has been brought out of time and the Tribunal has no jurisdiction to hear it.(2) The Claimant’s remaining claims are dismissed on withdrawal.REASONS
[1]This is a claim for unfair dismissal. In his claim form the Claimant had also ticked boxes claiming race discrimination, religious belief discrimination, unpaid wages, a claim for a redundancy payment and unpaid holiday pay, however he only provided particulars as regards his claim for unfair dismissal and in the course of the hearing clarified that, that was the only claim he was making.[2]The Claimant was dismissed on 25 February 2020 for gross misconduct. He submitted an appeal which was due to be heard in March 2020 but was delayed because of the Covid-19 pandemic. The appeal was not in fact heard until 23 October 2020 and a decision, rejecting his appeal, sent to him on 1 December 2020. The Claimant contacted ACAS on 3 December 2020 and he lodged his claim form on 23 December 2020. The Claimant says that the reason he delayed making his claim was because he was awaiting the outcome of his appeal, which the Respondent kept delaying.[3]Section 111 of the Employment Rights Act 1996 provides that a claim for unfair dismissal must be brought within 3 months of the effective date of termination (EDT) of employment, or such further period the Tribunal considers reasonable where it was not reasonably practicable for the claim to have been submitted within 3 months.[4]In this case the EDT was 25 February 2020, and not the date of the outcome of the appeal. It follows that the 3-month time limit expired on 25 May 2020 and that the claim was submitted nearly 7 months out of time. The question is therefore whether it was not reasonably practicable for the claim to have been submitted by 25 May 2020.[5]In this respect, the Claimant says that after his dismissal he contacted a solicitor, who he found on the internet, about submitting an appeal against his dismissal, and stayed in contact with that solicitor until the outcome of that appeal. Indeed it was the solicitor who got in touch with ACAS and submitted one of the claim forms (since two almost identical forms were submitted). It is therefore unclear why the solicitor did not advise the Claimant to lodge his claim in time, if indeed the solicitor failed to do so. When asked in cross-examination if at any time he had spoken to the solicitor about the time limits for bringing a claim in the employment tribunal, the Claimant said he only spoke to the solicitor about trying to get his job back and was only concerned about going back to work. However, both the Claimant, and his solicitor, must have known that there was a significant chance that the Claimant’s appeal against his dismissal would not be successful and it is hard to believe they did not discuss that possibility.[6]In any event the law is clear that save in unusual circumstances (which are not present here) a claimant cannot rely on the fault of his solicitor to say it was not reasonably practicable to present a claim in time. Indeed where a claimant engages a solicitor it will normally be presumed that it was reasonably practicable for him to present the claim in time, because a solicitor can reasonably be expected to know – or find out – the correct legal principles, and in particular to know that the time limit runs from the date of a dismissal and not from the date of an appeal.[7]It is clear that Mr Petrescu took his dismissal badly. He feels strongly that the dismissal was unfair and that it caused him financial hardship at a time when he and his wife had just had a baby. However on the above facts, I am satisfied that it was reasonably practicable for the claim to have been presented within three months of his dismissal - there is no good reason why Mr Petrescu and/or his solicitor could not have found out about the relevant time limits and protected Mr Petrescu’s position by lodging his claim in the Employment Tribunal before the internal appeal was heard. Accordingly, since the claim was not presented for another seven months, it is considerably out of time and the Tribunal has no jurisdiction to hear it.