Mr K Chappell v Royal Mail Group plc: 3332180/2018

EMPLOYMENT TRIBUNALS

Case No 3332180/2018

Between

Mr K ChappellClaimant

Royal Mail Group plcRespondent

Before

Employment Judge Johnson

In person for claimant

Ms S Hobson (instructed by Solicitor) for respondent

Date 22 August 2019

JUDGMENT

[1]The Judgment of the Employment Tribunal in this case is that the claims brought by the Claimant under the Employment Rights Act 1996 are dismissed as the Tribunal has no jurisdiction to hear them.

REASONS

[1]This case relates to outstanding payments that the Claimant believes he was entitled to following the termination of his employment with the Respondent.

[2]The Claimant was employed by the Respondent as a postman from 2 or 4 August 2004 (the exact date is not important for the purposes of this claim), until his dismissal on 22 March 2018.

[3]The Respondent is the Royal Mail Group Plc and is one of the largest employers in the UK.

[4]Proceedings were issued in the Employment Tribunal on 21 August 2018, following Early Conciliation notification having been received by Acas on 16 August 2018 and a certificate being issued on the same day. A response was presented on 25 September 2018 resisting the claims and also seeking to argue that the claim was presented out of time, being more than 3 months following the date of termination of employment on 22 March 2018.

[5]The claim was identified as being a Short Track case by the Employment Tribunal and was listed for a Final Hearing on 22 February 2019 in the Cambridge Employment Tribunal.

[6]Following initial consideration by Employment Judge Foxwell on 13 November 2018, it was ordered that the claim would be dismissed as of 10 December 2018 unless the Claimant could explain why this should not happen. The Claimant submitted a letter and attached documents dated 6 December 2018 identifying his disability, a number of personal issues and difficulties concerning his Union representation as being reasons why he could not present his complaint in time. As a consequence, it was determined by the Tribunal that the issue of time limits would be considered at the Final Hearing.

[7]The Final Hearing was unfortunately not able to take place on 22 February 2019 due to unavailability of judges. As a consequence, it was postponed and relisted for hearing today. Issues

[8]The first issue to consider in this case is whether the Tribunal actually has jurisdiction to hear the claims as more than three months had elapsed since the termination of his employment on 22 March 2018. As the Claimant was summarily dismissed on this date and no complaint of Unfair Dismissal was presented by him, all outstanding payments arising from his Contract of Employment or under statute would have become due on this date.

[9]The complaints should have been presented by no later than 21 June 2018 and the Claimant acknowledges that he presented his complaint outside of the three month time limit. However, he submits that it was not reasonably practicable to present his claim within this period.

[10]Accordingly, he argues that it is reasonable for the Tribunal to extend the time to at least the date when he presented the claim.

[11]If this application to extend time failed, then it must follow that the substantive complaints in his claim cannot proceed and his claim must be dismissed.

[12]In the event that the application succeeded, the claims which form the substance of this complaint were as follows:11.1 The Claimant claimed a pay rise that was negotiated and agreed between his Union the CWU and the Respondent during October 2017. He sought to argue that this became payable in respect of all wages paid from October 2017 and that at the date of his termination these back dated payments remained unpaid;

11.2 The Claimant claimed that he was not paid his scheduled attendance SA (Scheduled Attendance) payment while he was medically suspended from work. These were payments that he received for working days off in which he claims that he had not worked; and,

11.3 The Claimant claimed that he was not paid holiday pay which he asserts was accrued during his suspension from work.

The Hearing

[13]The Hearing, although originally listed as a Full Hearing, dealt initially with the matter of the preliminary issue relating to whether the complaint was presented in time and whether discretion should be exercised to extend time. Although the Tribunal was intending to hear the full case, it became clear that with a listing of one hour it would only be possible to hear the preliminary issue.

[14]The Respondent’s representative provided a bundle at the Hearing which contained the relevant documents dealing with the preliminary issue. The Claimant did not provide any documentation for use at the Hearing, but the Tribunal did refer to a letter which he had sent dated 6 December 2018 which provided some information concerning personal matters which may have affected his ability to present a complaint to the Tribunal on time.

[15]The Claimant gave witness evidence and was able to provide further information concerning the issues relating to the presentation of his complaint and he was cross examined by the Respondent’s representative.

Findings of Fact

[16]I found the Claimant to be a credible witness and he gave an honest account of his working history with the Respondent and also his health issues which had arisen during the last 10 years. He explained that he was an Operational Postal grade at the Royal Mail and worked at their Brinklow Delivery Office from August 2004 until 22 March 2018. He gave an account of his health issues and explained that he had been diagnosed with epilepsy following a seizure which took place in 2008. It was described as ‘nocturnal epilepsy’ and this had been an ongoing health issue which continues to this day. There was no dispute that his employer was aware of this condition. The Claimant also gave evidence of having suffered from Post Traumatic Stress Disorder following the suicide of his girlfriend in 2008 and this had a consequential impact upon his mental health.

[17]In respect of both conditions, the Tribunal was not presented with any medical evidence or any other additional information concerning the ongoing symptoms and the impact that these conditions had upon his day to day activities following his dismissal from work. The Claimant did give evidence that he continued to suffer from seizures but did not give any evidence of a substantial impact resulting upon his ability to carry out his day to day business after his dismissal took place.

[18]The Claimant was suspended from work in November 2017 and dismissed on 22 March 2018 on grounds of gross misconduct. He was summarily dismissed and was the subject of a disciplinary process. The Claimant confirmed that he was made aware of the decision when the Disciplinary Hearing took place on 22 March 2018 and that he was represented by a member of the Communications Workers Union (“CWU”), Neil Kidwell. The Claimant also confirmed that he was informed of the decision to dismiss by letter and a copy of this letter dated 22 March 2018 was provided in the bundle of documents available at the Hearing.

[19]The Claimant advised that there was an internal appeal against the dismissal which took place at the Royal Mail’s High Wycombe office in April 2018. Again, the Claimant was represented by his CWU representative Mr Kidwell.

[20]The Claimant confirmed that the CWU representative was not happy with the outcome of the internal disciplinary process but did not warn him about his need to present his claim at a Tribunal within three months. Having heard the Claimant’s evidence, it was clear to me that at no stage was he advised by the CWU as to the possibility of bringing an Employment Tribunal claim and the consequential time limits that would apply from the date at which he was dismissed by the Respondent.

[21]The Claimant informed the Tribunal that he had personal difficulties concerning his sister who was seriously ill and suffering from terminal cancer and sadly she died on 3 August 2018. He did not, however, suggest that this prevented him from carrying out his day to day activities and indeed informed the Tribunal that once he knew his appeal against dismissal was unsuccessful, he proceeded to take steps to find alternative employment. The Claimant confirmed that he placed a great deal of reliance upon his union representatives at the CWU as he felt they were more experienced than the Citizen’s Advice Bureau, or other advisory bodies. There are no suggestions that he sought alternative legal advice elsewhere.

[22]What is clear, is that during August 2018 an approach was made to Acas by a representative of the CWU on behalf of the Claimant. The Claimant explained that he thought the Union made an on-line application and he accepted that a certificate was issued on 16 August 2018. He did not explain why it took until 21 August 2018 for the claim form to be issued at the Tribunal following the late approach to Acas. The Claimant did say that his Union representative told him that the claim was presented just in time as it was within six months of the date of dismissal. The Law Time Limits under the Employment Rights Act 1996

The Law

[23]The complaints of a failure to pay holiday payments relating to outstanding pay rises and the payment of unpaid scheduled attendance payments can amount to an unlawful deduction of wages under s.13 of the Employment Rights Act 1996.

[24]Section 23(2) of that Act provides that a Tribunal shall not consider a complaint relating to the protection of wages unless it is presented to the Tribunal before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made.

[25]Under Section 23(3)(a), where a complaint is brought in respect of a series of deductions or payments, reference is made to the last deduction or payment in that series.

[26]However, Section 23(4) provides, where the Tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the Tribunal may consider the complaint if it is presented within such further period as the Tribunal considers reasonable.

[27]This is effectively the same test as applies to Section 111(2) of the Employment Rights Act 1996 for complaints of Unfair Dismissal.

[28]The burden of proof in showing that it was not reasonably practicable to present the claim in time rests upon the Claimant. See Porter v Bandridge Ltd.

[1978] ICR 943

CA, this states that if a Claimant does succeed in doing so then the Tribunal must also be satisfied that the time in which the claim was in fact presented was in itself reasonable

[29]One of the leading cases is Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

CA, in which Lord Justice May referred to the test as being in effect one of reasonable feasibility. In other words, somewhere between the physical possibility and pure reasonableness.

[30]In Asda Stores Ltd. v Kauser UK

EAT/0165/07

, Lady Smith described the reasonably practicable test as follows, “The relevant test is not simply 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.”

[31]A number of factors may need to be considered, the list of factors is nonexhaustive but may include:31.1 The manner and reason for the detriment;

31.2 The extent to which the internal grievance process was in use;

31.3 Physical or mental impairment (including illness as considered in the case of Schultz v Esso Petroleum

[1999] IRLR 488

CA, which was a case concerning a Claimant suffering from a depressive illness as to the approach to the Tribunal to adopt when determining the reasonably practicability question);

31.4 Whether the Claimant knew of his rights, I must stress here that ignorance of the right to make a claim does not make it reasonably practicable to present a claim in time, but the Claimant’s ignorance must in itself be reasonable. In such cases the Tribunal must ask, what were the Claimant’s opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? There is also the case of Dedman v British Building and Engineering Appliances Ltd.

[1974] ICR 54

CA. In other words, ought the Claimant to have known of his rights? Ignorance of time limits will rarely be acceptable as a reason for delay and a Claimant who is aware of his rights will generally be taken to have been put on enquiry as to the time limits;

31.5 Any misrepresentation on the part of the Respondent, reasonable ignorance of fact, any advice given by a profession and / or other advisors such as the CAB. A Claimant’s remedy for incorrect advice will usually lead to remedy against the advisors and the incorrect advice is unlikely to have made it not reasonably practicable to have presented the claim within the statutory time limit. An example of that can be found in Dedman which I have just mentioned and also the case of Walls Meat Company Ltd. v Khan

[1979] ICR 52

Court of Appeal;

31.6 Finally, the question of postal delays or losses; and,

31.7 There is also the substantive cause of the Claimant’s failure to comply.

Discussion

[32]It is not in dispute that the Claimant ordinarily should have presented his complaint in this case by no later than 21 June 2018; which was three months following the date of dismissal on 22 March 2018. The Claimant was summarily dismissed at this point and was informed at the disciplinary hearing on the day that he was being dismissed for gross misconduct. He was represented by a Trade Union representative at all relevant times. It is reasonable to expect that representative to have been aware of the possible rights of complaint available to the Claimant within the Employment Tribunal and the time limits which needed to be complied with for a valid claim to be brought.

[33]I acknowledge that the Claimant has had a number of personal difficulties and health issues which would be a challenge for anyone who was faced with them. However, I have not seen any medical evidence, or indeed heard any oral evidence which indicated to me that from 22 March 2018 until 21 June 2018, he was unable to present a complaint due to any of these health issues that he was experiencing. Indeed, it is commendable that the Claimant, upon being given notice of his dismissal and being told that his Appeal had been unsuccessful, immediately put a great deal of effort into finding alternative employment. While it is acknowledged that his health issues presented a number of challenges, the Claimant has, nonetheless given evidence of intention to find alternative employment.

[34]Taking these issues into account, the Claimant has not given any evidence of his ignorance of the right to bring a claim, or of having any impairment that prevented him bringing a claim to the Tribunal within time. The Claimant quite reasonably placed considerable reliance upon his Union representative at the CWU. It seems surprising to me that he failed to ensure that the Claimant was made aware of the time limits that applied for Tribunal cases and advised him to bring protective proceedings by no later than 21 June 2018.

[35]The Claimant did give evidence that his Union representative told him that he thought the claim form had been presented in time and it may well be that he was mistaken concerning the time limits that applied. However, the provision of incorrect advice, or a failure by the part of an advisor to ensure that a complaint is brought expeditiously, will not in itself make it not reasonably practicable to have presented the complaint in time.

[36]No doubt the Claimant may wish to make enquiries with his Union as to any failings that he believes existed on their part concerning the giving of advice on this issue.

[37]Accordingly, for these reasons I am unable to accept the Claimant’s complaint and Judgment is given that the claims brought by the Claimant under the Employment Rights Act 1996 are dismissed as the Tribunal has no jurisdiction to hear them.