Miss S Haines v Watford Community Housing Trust: 3323523/2019
JUDGMENT
[1]The claimant’s claim was not presented ‘in time’.[2]It was not reasonably practicable for it to have been so presented and it was presented in a further reasonable period, such that it may procced.REASONS
[1]In this case the claimant Miss Haines said she had been unfairly dismissed by her former employer, Watford Community Housing Trust. This was a preliminary hearing in order to determine whether she had presented her claim to the tribunal in time.[2]Ms Haines had produced a witness statement which was taken as read and not in dispute.[3]Ms Haines claims unfair dismissal. She actually resigned from her employment with the respondent. She says the reason for that resignation was a fundamental breach of contract on the part of the respondent, such that her resignation can be construed as a dismissal.[4]She tendered her resignation on 13 March 2019, giving notice to expire on 13 May. She commenced early conciliation through ACAS on 10 April 2019, terminating on 25 May. Her claim was presented to the tribunal on 24 September 2019.[5]Under section 111 of the Employment Rights Act 1996, a complaint of unfair dismissal will not be considered by a tribunal unless it is presented before the end of the period of three months beginning with the effective date of termination, or 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.[6]Under section 207B of the Act, in working out when a time limit such as this expires, the period of early conciliation is not to be counted.[7]In this case, the early conciliation period lasted six weeks and three days. If that period was in itself entirety added to the three month limitation, it would expire after 24 September and the claim would be in time.[8]If, on the other hand, the period of extension was only that part of the conciliation period that occurred after the effective date of termination of the claimant’s employment, then the extension would only amount to 12 days and the claimant would be out of time.[9]The obvious reading of section 207B is that time simply does not run during the period of early conciliation. For the bulk of the period of early conciliation, time was not running at all, in the sense that the termination had not yet occurred and the cause of action had not arisen. On that interpretation, only 12 days fell to be added to the primary limitation period.[10]There have been a number of first instance decisions in which it was concluded that the entirety of the conciliation period, regardless of whether it fell before or after the cause of action arising, should simply be added to the three months within section 111. However, the situation was clarified in the case of HMRC -v- Serra Garau, when the Employment Tribunal directed that in a case such as this, the limitation period cannot stop running if it has never started.[11]It must follow from that the period for presentation of the claim expired on 23 August 2019. The claim was presented ‘out of time’.[12]I must then go on to consider whether it was reasonably practicable for the claim to have been presented in time.[13]Ms Haines consulted Citizens Advice, who led her to understand that the claim would be in time if it was presented on 24 September. However, she did not rely on that advice alone. She consulted a website which incorporated a ‘calculator’. She put the relevant dates into it and was informed that if she presented the claim on 24 September it would be in time.[14]It was certainly the case that if she had been told presentation had to take place at an earlier date, she would have been able to do achieve that. She told me that she had simply left the matter as late as she could.[15]I concluded that she had done what was reasonable to inform herself on this subject. It was hardly surprising that Citizens Advice might give incorrect advice. This was a far from simple issue and, as I have mentioned, at first instance views had been expressed that supported their interpretation.[16]In those circumstances, I concluded that it was indeed not reasonably practicable for the claim to have been presented in time, given the information with which the claimant had been provided. I also concluded that it was presented within a further reasonable period and on that basis, I concluded that the claim should go forward.