Mr J Queen and Mr HG Haddow v SSE Contracting Ltd: 4102063/2019 and 4102064/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102063/2019, 4102064/2019Venue GlasgowHearing 11 April 2019
Between
Mr J Queen and Mr HG HaddowClaimantSSE Contracting LtdRespondent
Before
Employment Judge Rory McPhersonM Allison (instructed by Solicitor) for claimant- see above for claimantL McDonald (instructed by Solicitor) for respondentDate 15 August 2019
JUDGMENT
[1]the respondent’s application for reconsideration of the Tribunal’s acceptance of the ET1 for Mr Queen is refused; and[2]the respondent’s application for reconsideration of the Tribunal’s acceptance of the ET1 for Mr Haddow’s claim is refused; and[3]The respondent’s application to treat Mr Haddow’s claim as not being compliant with Rule 9 of the 2013 Rules is refused; and The Tribunal orders that;[4]Mr Queen’s claim is amended in terms of the claimants’ Joint Paper Apart E.T. Z4 (WR)[5]Mr Haddow’s claim is amended in terms of the claimants’ Joint Paper Apart;[6]Following initial consideration of the claims and responses under Rule 26 of the 2013 Rules, the claims shall be listed for a hearing on time bar.
REASONS
Conclusion
[1]This hearing was appointed a Preliminary Hearing to consider the respondent’s application for reconsideration of the Tribunal’s acceptance of both claimant’s claims, together with the respondents’ objection to the claimants’ Joint Paper Apart being treated either as Further and Better Particulars or as Amendment of the claimants’ claims.[2]There were no witnesses at this Preliminary Hearing, however the Tribunal was referred to a Joint Agreed Bundle of Documents. The Tribunal also to note of the Tribunal’s own records. Findings in fact[3]While no witness evidence was led, a number of factual findings are considered appropriate from the agreed joint bundle documentation provided in respect of which no material issue was taken as to the accuracy of same, together with the Tribunal’s own records.[4]The ET1 identified an address, date of birth, and an employer for the first named claimant. An ACAS Early Conciliation certificate number was provided at 2.3 of the ET1. No start or end date of employment was provided at 5.1 of the ET1.[5]The online application for multiple claimants provided that “the following claimants are represented by (if applicable) and the relevant required information for all the additional claimants is the same as stated in the main claim of John Queen v SSE plc… 1.1. Title: Mr… 1.2 First Names: Graeme… 1.3: Haddow” it also provided both a date of birth and an address for Graeme Haddow. The respondent is SSE Contracting Ltd.[7]The ET1 at page 15 Additional Information provided “Early Conciliation no for Graeme Haddow – R352718/18/60”[8]In the ET1 at 8.1 identified that the type of claim was one of unfair dismissal including constructive dismissal. No other box was ticked.[9]No paper apart was attached. The absence of a Joint Paper Apart for both claimants (the claimants Paper Apart) is identifiable from the e-mail response from the Tribunal on 7 February 2019 which stated “John Queen Thank you for submitting your claim to an employment tribunal…. Additional documents: None”.[10]The ET1 was presented in respect of both the first and second named claimant on 7 February 2019.[11]The claim was not referred to an Employment Tribunal Judge by the staff of the Tribunal office.[12]On 14 February 2019 the Tribunal wrote to the respondents with a letter which stated “1. The Employment Tribunal has accepted a claim against you by J Queen.”[13]On 22 February 2019 the respondents’ agent e-mailed the claimants agent “I understand you are acting on behalf of the Claimant in the above claim, we have been instructed by the Respondent. We don’t appear to have received a full copy of the ET1 and should be grateful if you would forward a copy of your correspondence to the Tribunal submitting to the ET1 to me today if possible.”[14]On 22 February 2019 the claimants’ agents e-mailed the Tribunal enclosing a PDF of the ET1 John Queen “I note we have only received acceptance of the claim for John Queen, despite the ET1 including a claim for Graeme Haddow. Both claims are against” the respondent “Can you confirm that this claim has been accepted?”.[15]On 26 February 2019 the Tribunal emailed the claimants’ agent with an email heading “4102063/19 & 4102063/19” and stated “I refer to the above named proceedings and your e-mail dated 22 February 2019. I can confirm that two claimants were accepted against” the respondent “under the above mentioned case numbers. … For the avoidance of doubt both claims have been accepted and served on the Respondent.”[16]On 26 February 2019 the claimants’ agent recorded a note of telephone discussion with the respondent agent identifying that there was a joint claim, and agreed to provide the paper part and the case numbers for both claimants. The claimant’s agents thereafter e-mailed the respondents agent on 26 February 2019 “Please see paper attached the paper apart for John Queen and Graeme Haddow’s joint ET1 as discussed. Please note that the claim no for John Queen is 4102063/2019 and Graeme Haddow is 4102064/2092”. The paper apart attached consisted of 7 paragraphs and referred to both claimants. The claimants’ Joint Paper Apart identified what each claimant asserted were their respective start and end dates, which is said to be 10 September 2018 together with their respective job titles and description of their work activities including an assertion that both roles involved travelling to and from work in what was described as tracked van. Both claimants asserted that they did not receive full payment of their overtime hours. Both claimants asserted that in January 2018 there was a change in the line manager and identified the individual who they say became their line manager. Both claimants made allegations around the management style of the new line manager. Both claimants assert that the respondent conduct formed repudiatory breaches of contract and the treatment by the new line manager breached the implied term of trust and confidence and pursued an agenda to their detriment by refusing to engage with them personally and by reducing the wages unlawfully.[17]Prior to Initial Consideration under Rule 26 of the 2013 Rules taking place, and on 28 February 2019, the respondent’s agent submitted an application for reconsideration under Rule 71 of the 2013 Rules of what they described as the decision of the Tribunal on 7 February 2019 to accept the claim for John Queen, and, “to the extent that a valid claim has also been submitted for Graeme Haddow”. The application set out the respondents’ position.[18]On 8 March 2019 the claimants’ agent e-mailed both the tribunal and respondent’s agent “We have received confirmation that both the ET1 claim forms for John Queen and Graeme Haddow have been accepted. Notwithstanding, we are also advised that the Tribunal does not have the papers apart for John Queen and Graeme Haddow … It is our understanding that the statement of claim in each case was uploaded to the ET1 claim form. The suggestion that these were not successfully attached (if that is now the suggestion) was not a matter of which we were aware at the time of submission and did not become aware of this until communication was received from the tribunal to that effect … The respondent has already now been provided with the attached statement of claim, a copy of which attached… In the circumstances… it seems to us appropriate that the paper apart is simply received as voluntary further and better particulars of the claim”. That paper apart attached consisted of 7 paragraphs but referred to only John Queen.[19]The respondent’s agent sought an extension the time within which to present an ET3 response for both claims.[20]On 13 March 2019 the Tribunal, in response to the respondent’s agent’s application, extended the time within which to present a response for both claims until 28 March 2019.[21]On 17 March 2019, the Tribunal appointed this Preliminary Hearing to take place on 11 April 2019 to determine “the application made by the respondent’s representative on 28 February 2019”.[22]On 28 March 2019 the respondents’ agent e-mailed the Tribunal and the claimants agent provided an ET3 in respect of each claimant setting out their response and at 6.1 stated “Please see paper apart for full grounds of resistance” and provided a Paper Apart for each and which;a. for Mr Queen identified what the respondent will argue is the correct and relevant factual matrix in respect of the first claimant’s claim commencing at para 1.5 to 4.3 including; what is said to be the start and end date of employment which is said to be 7 September 2018, the first claimant’s job title together with allegations relating to the actings of both the first and second claimant with a consequential investigation by the respondent in August 2018 and quoting from an alleged letter of resignation from first claimant dated 3 September 2018. The respondent further set out their analysis in respect of claim of Unfair Dismissal at 5.1 to 5.7.3 setting out that the “Notwithstanding the Respondent’s primary position as set out at paragraph 1 above, the Respondent denies that the claimant was unfairly, constructively or otherwise. The claimant resigned voluntarily and was not dismissed, as alleged or at all.”. The respondent at para 6 of their specific paper apart to Queen’s claim set out that the respondent “reserves the right to amend its response in relation to any further and better particulars accepted by the Tribunal in relation to the Claimant’s claim.”b. for Mr Haddow identified what the respondent will argue is the correct and relevant factual matrix in respect of the second claimant’s claim commencing at para 1.7 to 4.3 including; what is said to be the start and end date of employment which is said to be 7 September 2018, the second claimant’s job title together with allegations relating to the actings of both the first and second claimant with a consequential investigation by the respondent in August 2018 and quoting from an alleged letter of resignation from second claimant dated 3 September 2018. The respondent further set out their analysis in respect of claim of Unfair Dismissal at 5.1 to 5.7.3 setting out that the “Notwithstanding the Respondent’s primary position as set out at paragraph 1 above, the Respondent denies that the claimant was unfairly, constructively or otherwise. The claimant resigned voluntarily and was not dismissed, as alleged or at all.”. The respondent at para 6 of their specific paper apart to Haddow’s claim set out that the respondent “reserves the right to amend its response in relation to any further and better particulars accepted by the Tribunal in relation to the Claimant’s claim.”. Submissions[23]The respondent confirmed that the correct designation of the respondent is SSE Contracting Ltd and no issue is taken in relation to that issue.[24]Both the respondent and claimant provided oral submissions, supplemented with reference to extract copy authorities including C Fforde v S Black EAT/68/80 (Fforde), Selkent Bus Company v Moore [1996] 661 (Selkent), extracts of the IDS Employment Law Handbook; Chandhok and Another v Tirkey [2015] IRLR 195 (Chandhok); Secretary of State for Business, Energy and Industrial Strategy v Parry and the Trustees of the William Jones’s School Foundation [2018] EWCA Civ 672 (Parry); & Brierley v ASDA Stores Ltd [2019] EWCA Civ 8 (Brierley) . For ease I have separately summarised the parties’ respective positions in relation to Reconsideration, Multiple Claims, the claimant’s Joint Paper Apart and Further Procedure.[25]For the respondent it was argued that the acceptance of the claim form ET1 ought to be subject to reconsideration, the ET1 contains no details of the claim, no paper apart was attached and it was now apparent (though only from the claimants’ Joint Paper Apart which the respondent asserts should not be treated as Further and Better Particulars) that the claims asserted were of constructive dismissal rather than more straightforward unfair dismissal. The respondent argues that on the basis of the information contained within the ET1, they could not reasonably be expected to know the basis or detail of such claims in order to provide a response. The respondent argued that the claims could not be sensibly responded to and this identifies the basis on which the claims ought to have been rejected when presented, referring to Rule 12 (1) (b). The respondent argued that while the existing case of Parry referred to in the IDS extract had some similarity it was distinguishable on the facts from the present case as that was one of unfair dismissal by reason of redundancy of which, it was argued, that respondent could reasonably be said to have had knowledge. The respondent argues that it would be in the interest of justice to reconsider in terms of Rule 70 of the 2013 Rules and revoke what the respondents argue was a decision to wrongly accept the claims. The respondent argues that such reconsideration would be in accordance with the overriding objective.[26]The claimants’ position on Reconsideration was that, reconsideration could only arise in respect of a “judgment”. The acceptance by the Tribunal of the two claims did not, say the claimants, amount to a judgment and thus no opportunity for reconsideration can arise. The claimants relied on Parry as supporting their position. In so far as the overriding objective arise, it being their position that the acceptance by the Tribunal was not a judgment and thus not justiciable by reconsideration, the claimants argued that the correct application of the overriding objective was any reconsideration, on the facts, would in this case not result in the claims being effectively struck out as that would not be in accordance with the overriding objective. Multiple Claim Form[27]The respondents argue that a separate ET1 claim form ought to have been used for the claim of Graeme Haddow. The Respondent argued that Mr Haddow’s claim could not be based on the same set of facts as Mr Queen and this amounts to a breach of Rule 9 of the 2013 Rules and thus Mr Haddow’s claim ought to be struck out and/or his participation in any proceedings barred under Rule 6 of the 2013 Rules. The claimants argued that on the facts of this case, including having regard to the claimants’ Joint Paper Apart which both the Tribunal and the respondents were in receipt of at the time of the hearing, the facts are sufficiently similar for the two claims to have been submitted together as a multiple claim. The claimants’ Joint Paper Apart[28]The respondents argued that the claimants’ Joint Paper Apart should only be considered as amendment and should not be accepted in any event reflecting the principles set out in Selkent. The respondent argued that the claimants Joint Paper Apart should not be accepted as Further and Better Particulars, they were not included with the ET1 when was presented. The claimants argue that the claimants’ Joint Paper Apart identifying both claimants are simply Further and Better particulars and it is unnecessary to consider in terms of a formal amendment procedure. Further procedure[29]Finally, both parties indicated that whatever the outcome of this hearing, a separate Preliminary Hearing at which evidence may be required would be require to be appointed on time bar. The respondents will argue at that hearing that both claims were presented out of time in terms of Section 111 of the Employment Rights Act 1996 which provides that a claim for unfair dismissal must be presented before the end of the period of three months beginning with the effective date of termination, or, if it is not reasonably practicable to present the claim within that time limit, within such further period as the Tribunal considers reasonable. Relevant Law The 2013 Rules[30]Rule 2 of the 2013 Rules sets out that: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[31]Rule 6 of the 2013 Rules provides “A failure to comply with any of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal … does not of itself render void the proceedings or any step in the proceedings. In the case of such non- compliance, the Tribunal may take such action as it considers just, which may include all or any of the following-(a) waiving or varying the requirement;(b) striking out the claim or response…(c) barring or restricting a party’s participation in the proceedings;(d) awarding costs in accordance with rule 74 to 84.”[32]Rule 8 of the 2013 Rules provides that “A claim shall be started by presenting a completed claim form (using a prescribed form)…”[33]Rule 9 of the 2013 Rules provides “Two or more claimants may make their claims on the same claim form if their claims are based on the same set of facts. Where two or more claimants wrong include claims on the same claim form, this shall be treated as an irregularity falling under rule 6”[34]Rule 10 of the 2013 Rules sets out the basis on which a Tribunal may reject a claim. It is required that the prescribed form is used and that each claimant and respondents’ names and addresses are provided. However, as not every claim arises from a termination, the rule does not require that the start and end date of employment is supplied.[35]Rule 12 of the 2013 Rules provides that “(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be(a) one which the Tribunal has no jurisdiction to consider;(b) in a form which cannot sensibly be responded to or is otherwise an abuse of the process.(c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies;(d) one which institutes relevant proceedings, is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply;(e) one which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates; or(f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates. (2) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraphs (a) (b), (c) or (d) of paragraph (1). (2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim. (3) If the claim is rejected, the form shall be returned to the claimant together with a notice of rejection giving the Judge’s reasons for rejecting the claim, or part of it. The notice shall contain information about how to apply for a reconsideration of the rejection”.[36]Rule 26 of the 2013 Rules, provides that “(1) As soon as possible after the acceptance of the response, the Employment Judge shall consider all of the documents held by the Tribunal in relation to the claim, to confirm whether there are arguable complaints and defences within the jurisdiction of the Tribunal (and for that purpose the Judge may order a party to provide further information). (2) Except in a case where notice is given under rule 27 or 28, the Judge conducting the initial consideration shall make a case management order (unless made already), which may deal with the listing of a preliminary or final hearing, and may propose judicial mediation or other forms of dispute resolution.”[37]Rules 29 and 30 of the 2013 Rules provide general case management powers including the power to allow an amendment. Rule 30 identifies that an application may be made either in writing or in a hearing.[38]Rule 70 of the 2013 Rules provides ‘a Tribunal may … reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.’[39]Rule 72(1) of the 2013 Rules provides so far as is relevant: ‘An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked … the application shall be refused and the Tribunal shall inform the parties of the refusal.’ Unfair Dismissal and Constructive Dismissal[40]The basis of a claim for constructive dismissal is contained in the Employment Rights Act 1996. Section 94(1) of this Act provides that an employee has the right not to be unfairly dismissed by his employer. Section 95(1)(c) provides that an employee is to be regarded as dismissed if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[41]While neither party referred to specific authority on the approach which would be required by a Tribunal when considering a claim of constructive dismissal I have reminded myself that Langstaff J in Wright v North Ayrshire Council [2014] ICR 77 at paragraph 2 said “that involves a tribunal looking to see whether the principles in Western Excavating (ECC) v Sharp [1978] IRLR 27 can be applied” and sets out 4 issues to be determined: “that there has been a breach of contract by the employer, that the breach is fundamental or is, as it has been put more recently, a breach which indicates that the employer altogether abandons and refuses to perform its side of the contract; that the employee has resigned in response to the breach, and that before doing so she has not acted so as to affirm the contract notwithstanding the breach”.[42]In Parry a claim form had been presented on 25 January 2015, the day before the expiry of the time limit her claim for Unfair Dismissal. In that instance the wrong paper apart was attached by the claimant’s solicitors. The Tribunal staff decided to refer the case to an Employment Judge who made a decision not to reject the claim on 28 January 2016. The claim was sent out and the respondents solicitors responded by arguing that it did not meet the minimum requirements of a valid claim and indicated that it should be referred to an Employment Judge as being in a form which could not sensibly be responded to and should be rejected. The claimant’s solicitors wrote stating that they would be seeking to amend the claim at a preliminary hearing which had by then been listed. The respondents argued that they had in effect sought reconsideration, however the Employment Judge held at the Preliminary Hearing that an application for reconsideration was only available to a claimant (if the ET1 was rejected), not to a respondent and that the decision not to reject on 28 January 2018 was not a judgment. The respondent’s appealed the decision of the Tribunal.[43]The Court of Appeal, in Parry describes the EAT’s approach at para 20 to 24 dismissing the appeal and declaring that Rule 21(1) b was ultra vires.[44]While the Court of Appeal rejected the approach of the EAT in its implied declaration that Rule 12(1) (b) –(f) of the 2013 Rules was ultra vires it dismissed respondents appeal.[45]LJBean in relation to the initial rejection of the ET concludes that “41. ... an employment tribunal's rejection of a claim pursuant to rule 12 is not a 'determination of proceedings’” thus, a rejection under Rule 12 of the 2013 Rules is not a judgment.[46]In Fforde the EAT considering an application for what was at the time described as “review” commented that “The appellant had acted under a complete misapprehension as to the purpose and extent of the review procedure. It falls to be used exceptionally and normally in the type of case where there has been a clerical error which can be readily put right without the expense of an appeal. When … it is said that a decision may b reviewed if in the interests of justice requires such a review that does not mean, as the appellant seems to think, that in every case where a litigant is unsuccessful, he is automatically entitled to have the tribunal review it ... This ground of review only applies in the event more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. Joint Paper Apart[47]I have reminded myself that the EAT observed in Khetab v AGA Medical Ltd [2010] 10 WLUK 481 that the purpose of pleadings “…is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it”.[48]I was referred to Chandhok in which Langstaff J, commented at para 18 the parties should set out the essence of their respective cases and “… a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it”.[49]In Parry Court of Appeal 2018 the ET1 presented by the former employee of a school claiming unfair dismissal and unpaid wages in January 2016, stated that the background and details of the claim were in an attachment. Through administrative oversight a different (wrong) paper apart was attached which did not give the details of the claim. The claim was reviewed by an Employment Judge who did not reject the claim in January 2016 and the ET1 was sent to the respondent without the wrong attachment. Thus, the respondent had only the ET1 which expressly stated that details of the claim were in an attachment. The respondent on receiving the claim asked the school to reject the claim in terms of Rule 12 of the 2013 Rules. After some exchanges between the parties and the ET the claimant’s agents indicated that they would be applying at a preliminary hearing in March 2016 to amend the claim.[50]I have reminded myself that the EAT in Ladbrokes Racing v Traynor UKEATS/0067/06 indicated that the precise wording to be introduced should be set out.[51]In the leading case on amendment Selkent, Mummery J sets out the criteria for a Tribunal’s exercise of discretion commenting that the Tribunal “should take into account all the circumstances and should balance the injustice and hardship of refusing it”. The EAT in Selkent were considering an appeal which arose from an application to amend an existing unfair dismissal claim, where the application had been made a fortnight before the date fixed for the hearing. The amendment sought to introduce a new allegation that the dismissal related to the claimant’s trade union membership or activities and was thus automatically unfair. The Tribunal had allowed the amendment but was overturned on appeal, the EAT commented that that factors which had influenced its decisions were: “(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, s.67 of the 1978 Act. (c)The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[52]In Chandhok the EAT considered an appeal by a respondent against a decision of an Employment Tribunal to allow an amendment to expand an existing 64 paragraph claim of race discrimination to include explicit reference of what the claimant asserted was “her status in the caste system”. The respondents in the appeal contended that “caste” was not an aspect of race as defined by section 9 of Equality Act 2010. The appeal was dismissed. At para15 J Langstaff commented that the “judge identified the claimant’s case … not from what was asserted in the claim, lengthy though it was, but from material which could only have come from either her witness statement (which was brief) or what he was told.” Although the appeal was dismissed at para 16 J Langstaff criticised this approach and expressly stated the importance of the ET1 and commented “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but is free to be augmented by whatever parties choose to add or subtract merely on their say so. Instead, it serves not only a necessary but useful function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made…. “and at para 17 commented that Employment Tribunals were “not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before employment tribunals does not mean those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principal by which reference to any further document (witness statement or the like) could be restricted.”[53]I have further reminded myself that in White v University of Manchester [1976] IRLR 218 EAT, J Phillips, while considering the then relevant rules concerning the power to Order Further and Better Particulars, observed that a party may be required to give Further and Better Particulars to remedy any deficiencies in the case as pleaded in order to enable the other party to know in advance reasonable details of the nature of the complaints that each side is going to make at the hearing and commented that “We fully understand, accept and would endorse … that one of the characteristics of Industrial Tribunals is that they should be of an informal nature. It may be that there are many cases, particularly where the parties are unrepresented, or represented otherwise than by solicitor or counsel, and especially where the issues are simple, where particulars may not be necessary. We do not wish to say anything to encourage unnecessary legalism to creep into the proceedings of Industrial Tribunals; but, while that should be avoided, it should not be avoided at the expense of falling into a different error, namely that of doing injustice by a hearing taking place when the party who has to meet the allegations does not know in advance what those allegations are. The moral of all this is that everybody involved, whether it be solicitors, counsel, non-professional representatives, or the parties themselves where not represented, should bring to the problem commonsense and goodwill. This involves, or may involve in anything except the simplest cases, giving, when it is asked, reasonable detail about the nature of complaints which are going to be made at the Tribunal…. It is just a matter of straightforward sense. In one way or another the parties need to know the sort of thing which is going to be the subject of the hearing. Industrial Tribunals understand this very well and, for the most part, seek to ensure that it comes about. … by and large it is much better if matters of this kind can be dealt with in advance so as to prevent adjournments taking place which are time-consuming, expensive and inconvenient to all concerned.”[54]I have also reminded myself that in Honeyrose Products Ltd v Joslin [1981] IRLR 80, EAT J Waterhouse while considering the then applicable rules 1(1)(c) and 4(1) of the Industrial Tribunals (Labour Relations) Regulations 1974 commented that “it would be most unfortunate if it became the general practice for employers to make applications for further and better particulars when the nature of the employee's case is stated with reasonable clarity.” Indeed I have further reminded myself that the basic principles regarding the granting of an order requiring the production of Further and Better Particulars were summarised by Wood J in Byrne v Financial Times Ltd [1991] IRLR 417 at 419 ''General principles affecting the ordering of further and better particulars include that the parties should not be taken by surprise at the last minute; that particulars should only be ordered when necessary in order to do justice in the case or to prevent adjournment; that the order should not be oppressive; that particulars are for the purpose of identifying the issues, not for the production of the evidence; and that complicated pleadings battles should not be encouraged.' Multiple claimants[55]I further have reminded myself that in respect of an alleged failure to comply to with Rule 9 of the 2013 Rules, the power of the Tribunal to take such action as it considers just was considered in Farmah v Birmingham City Council [2017] IRLR 785 where the EAT identified that the Tribunal does have wide discretion but should consider the(1) the seriousness of the breach;(2) whether the claimants (or, more importantly, their legal advisers) thought that their claims satisfied Rule 9 and, if so, why (and at the time this question would have included whether it was a device to avoid payment fees) ;(3) any potential prejudice to the various parties; and(4) any other relevant factors. I have reminded myself that when the case(s) went to the Court of Appeal where it is reported as Brierley v ASDA Stores Ltd [2019] EWCA Civ 8, this analysis was not challenged. In the Court of Appeal LJ Bean observed at para 86 “if they are to be presented in a single claim form, the claims must be based on the same set of facts” and at para 112 “ there is no basis for the assertion that the Rule 9 is intended to impose a new, strict standard for joining claims on a single claim form” . At para 22 LJ Bean agreed with the analysis of EJ Pirani who had considered at first instance the unreported case of Hamilton v NHS Grampian UKEATS/0067/10/BI which concerned the predecessor to Rule 9 and in which the EAT had held that claims by Mr Hamilton and Mr Girling did not arise out of the same set of facts, as EJ Prinarni observed “One claim was about the opportunity to earn overtime where as the others were about an entitlement to payment of certain money irrespective of whether it was linked or not. The claimants did not accuse their employers of the same wrong.”[56]Rule 10 sets out minimum information for a claim. That minimum information was provided. As the Tribunal did not refer the claims to an Employment Judge in terms of Rule 12 of the 2013 Rules, I do not require to consider the decision which could have been reached in relation to Rule 12 (1) (b). The terms of Rule 13 of the 2013 Rules are clear that they, logically, provide a route only for a claimant to seek reconsideration of a decision to reject a claim.[57]Rule 12 provides a process under which a claim may be rejected, where Tribunal office consider that it can be said it could not be sensibly responded to. That process is described only in the context of an initial acceptance. It does not describe that in each case a judicial determination is made before acceptance. In the present case there is no indication that such a determination was made. In any event Rule 12 of the 2013 is designed to allow the party seeking to assert the claim, a route where there has been such a determination, to seek reconsideration. Rule 12 of the 2013 Rules does not provide a mechanism for a respondent to argue that either an initial acceptance was a judicial determination, when that is not what is envisaged, nor a mechanism for a respondent to argue that that it should not have been accepted.[58]Rule 70 of the 2013 Rules expressly provides that a judgment may be reconsidered “where it is necessary and in the interests of justice to do so”. Subject to the decision in Parry it may be argued that a decision taken by a judge, to whom a claim has referred by the Employment Tribunal staff in terms of Rule 12 of the 2013 rules, may be considered to be a form of a judgement. The Court of Appeal in Parry concludes that a rejection is not judgment dismissing or determining a claim, it is merely a decision that a claim was never presented. In the present instance, there was no decision by an employment tribunal judge. The claim when presented was not referred by the staff of the Employment Tribunal, in Parry it may be possible to speculate that the staff were altered by the wrong attachment. It was accepted. That acceptance, similar to the position of a rejection considered by the Court of Appeal in Parry was not a judgment dismissing or determining an appeal. Thus, the provisions of Rule 70 of the 2013 Rules together with Rules 71 to 73 do not apply. Had Rule 70 of the 2013 otherwise applied it would not, in the circumstances of this case, be necessary and in the interests of justice for such reconsideration to take place. The respondent has already set out their response, the claims are at an early stage, it would not be in the interests of justice for the matter for a request for reconsideration on the grounds set out by the respondent to be granted. Joint Paper Apart[59]While there was number of unfortunate events which resulted in the respondent not being initially provided with the claimants’ Joint Paper Apart, the respondents were able to sensibly respond absent the claimants’ Joint Paper Apart being formally considered by them. The respondents have expressly stated that their response is to the ET1 alone in each case and not to the claimants’ Joint Paper Apart which expressly sets out the claimants’ claims for constructive dismissal. The respondents had the claimants’ Joint Paper Apart before being required to submit an ET3. In any event if, as the respondents assert, they did not have the claimants’ Joint Paper Apart in a technical sense, it is apparent in this case that the respondents had sufficient information available to them, including the claimants start and end date together with detail of relevant factual matters such as the terms of the letters of resignation which has allowed the respondent to sensibly respond to the claim brought by Mr Queen and Mr Haddow. The respondents have entirely reasonably however reserved their position as to whether they wish to expand on their existing responses. It is a matter for the respondents to decide upon whether and to what extend they wish to respond to the claimants’ Joint Paper Apart.[60]The respondents argue that Claimants’ Joint Paper Apart ought not to be regarded as Further and Better Particulars and should be considered as an amendment to which Rules 29 and 30 of the 2013 Rules apply and thus the principles set out in Selkent above apply. The respondent argue support for their position can be derived from the EAT in Chandhok.[61]Considering the terms of Rule 29 and 30 together with the application by the claimants to introduce the claimants’ Joint Paper Apart, I am satisfied that the respondents had prior sight of same and the precise wording has been set out. While expressed as Further and Better Particulars taking the respondents’ approach of arguing that it should be treated as an Amendment, I consider that the document is compliant with the principals set out in Selkent above. It is a permissible amendment and indeed it is of assistance to the Tribunal and both parties in articulating each claimants’ case so the respondent and the Tribunal understand the case and indeed so that the respondent has a proper opportunity to respond to same. Absent this Joint Paper Apart the Tribunal would have been minded to order the production of Further and Better Particulars. The introduction of the claimants’ joint paper apart is designed to avoid the concerns expressed in Chandhok that the Tribunal and the respondent would, in effect, be expected to look elsewhere than the pled case for the claimants’ case.[62]Applying the Selkent principals it cannot be said that the Claimant Apart is objectionable as amendment. The introduction of the claimants’ Joint Paper Apart would fall squarely within what was described as “the correction of clerical and typing errors, the additions of factual details to existing allegations”, it does not make a new positive case (for instance of automatic unfair dismissal) which would require fresh primary facts to be required by evidence; indeed while there are no material new grounds of claim, there is an explanation for the Joint Paper Apart having not been in the originating application, there was an oversight; further and while there is a reasonable basis upon which it could be said the claimants could face hardship in being restricted in any full hearing absent the written articulation of their unfair dismissal claims, the respondent who has already set out in their limited ET3 certain details of which it may be anticipated the claimants’ will respond to, it cannot be said that at this early stage of proceedings there is equivalent hardship on the part of the respondent; and given the timing there would be no adjournment of any final hearing and no concomitant increase in (what would be probably) unrecoverable costs faced by the respondent. Multiple claimants[63]The respondents argue at para 1.3 of their Paper Apart to their ET3 to Mr Haddow’ claim that Mr Haddow and Mr Queen’s claim “could not possibly be based on the same facts”, it is not accepted that they could not “possibly be based on the same facts”. While it may be argued that it may be unusual for two or more claimants claims for constructive dismissal to be based on the same facts, it is not considered impossible. In any event, and having regard to the claimants Joint Paper Apart they are, as presently set out, based on the same facts.[64]The claimants’ Joint Paper Apart refers to both parties in a single document and, on the facts, set out it does not seek to introduce a new head of claim. It is not considered on the facts that it is in breach of the guidance set out in Selkent above, it articulates the basis of the claim Unfair Dismissal/Constructive Dismissal and Breach of Contract claims on which the claimant seeks to rely. It is useful having regard to the overriding objective to have the factual matrix on which each claimant wishes to rely set out in the present case, non acceptance of the paper apart would involve a level of artifice which is not consistent with the overriding objective. The respondents have it. They had the claimants’ Joint Paper Apart on 26 February 2019 when it was sent by the claimants’ agent to the respondent’s agent.[65]On the use of the multiple claim form the position and applying the Court of Appeal’s analysis in the case of Brierley above, both claimants here accuse their employer of the same wrong, having regard to the claimants’ Joint Paper Apart. Further and taking the approach set out in Brierley and Farmah above considering(1) on the seriousness of any breach of Rule 9 of the 2013 Rules it is considered if there had been a breach it was towards the lower end of the scale,(2) on the basis of the claimants’ Joint Paper Apart it is considered that the both the claimants and their legal advisers could reasonably have concluded that their claims satisfied Rule 9 of the 2013 rules as the factual matrix as set out in the claimants’ Joint Paper Apart describes broadly the same set of facts; and(3) in considering any potential prejudice to the various parties, I do not consider, having regard to the existing ET3’s that there has any material prejudice to the respondent. However, a determination that Mr Haddow’s claim should be struck out in whole or in part would create prejudice to Mr Haddow in that he would not have the opportunity to pursue a remedy of constructive dismissal against his employer.(4) Having regard to other relevant factors, it is apparent that the respondent has both a factual and legal analysis on which they seek to rely in defence of their position and which they have already started to articulate. They may choose to expand on same. It is considered, in all the circumstances, that to take a restrictive approach in relation to Haddow’s claim would not be just and had I concluded in this instance that Haddow’s claim was in breach of Rule 9 of the 2013 the appropriate just course of action would have been to waive and or otherwise vary the requirement in Rule 9. In summary it is considered to be in accordance with Overriding Objective, including the avoidance of unnecessary formality and seeking flexibility in the proceedings, to also allow Haddow’s claim to proceed at this time as amended by the Joint Paper Apart. Overview and Initial Consideration and Further Procedure[66]I note the guidance by the Court of Appeal in Parry at para 31 that “Employment tribunals should do their best not to place artificial barriers in the way of genuine claims”.[67]In this case, and prior to Initial Consideration provided for in terms of Rule 26 of the 2013 Rules, the respondent’s agent submitted an application for reconsideration. The application for reconsideration having been considered it falls as this stage, for all the documents held by the Tribunal to be considered. I consider that there are arguable complaints and defences however and standing the amendment of the respective ET1’s by the Joint Paper Apart I do not consider it necessary to order either of the claimants to provide further information. I do not consider it necessary to order the respondent to provide further information although I note that they had reserved their position in relation to further information and it may be that they would wish to do so in light of this judgment.[68]The respondents observe that if their applications are rejected, a further Preliminary Hearing will be required to consider time bar. That is in my view correct.[69]While Sections 111 and 111A of the Employment Rights Act 1996 were not the subject of this Preliminary Hearing, I consider it appropriate to deal with further procedure by making a Case Management Order in terms of Rule 26 of the 2013 Rules that a subsequent Preliminary Hearing will require to determine whether the claims were presented with the relevant statutory time limit and, if not, whether the claimants can satisfy the Tribunal that it was not reasonable practicable to do so and whether the claim was presented within a reasonable time thereafter. In doing so, I recognise that the parties may wish to advance reasons for appointing separate Preliminary Hearings for each claimant however and having regarding the terms of Rule 2 of the 2013, the Overriding Objective, it is considered that should the parties wish to make such representations they should do so within 14 days of the date of judgment.
Conclusion
[70]The respondent’s application for reconsideration of the Tribunal’s acceptance of the ET1 for Mr Queen is refused; and[71]The respondent’s application for reconsideration of the Tribunal’s acceptance of the ET1 for Mr Haddow’s claim is refused; and[72]The respondent’s application for reconsideration of the Tribunal’s acceptance of the ET1 for Mr Haddow’s claim is refused; and[73]The respondent’s application to treat Mr Haddow’s claim as not being compliant with Rule 9 of the 2013 Rules is refused; and[74]The Tribunal Orders that Mr Queen’s claim is amended in terms of the claimants’ Joint Paper Apart; and[75]The Tribunal Orders that Mr Haddow’s claim is amended in terms of the claimants’ Joint Paper Apart; and[76]The Tribunal Orders that a further Preliminary Hearing on the question of time bar in respect of both Mr Queen’s and Mr Haddow’s claims will be appointed on a date to be notified to the parties.[77]The Tribunal Orders that should the respondent or indeed the claimants consider that separate Preliminary Hearing dates on time bar for each claimant requires to be appointed, they should notify the Tribunal within 14 days of this date.[1]This preliminary hearing was set down to determine whether the claimants’ claims for unfair constructive dismissal were time barred.[2]At the outset of the hearing, Mr Clark explained that his position was that the claimants had resigned on 7 September 2018, and not 10 September 2018 as asserted initially by them; and that it was reasonably practicable for the ETZ4(WR) claimants to have lodged their claims in time, so no extension should be permitted.[3]Ms Neil now accepts that the claimant’s employment terminated when they resigned on 7 September 2018, and therefore that the claims have been lodged out of time. However, she argues that it was not reasonably practicable for the claims to have been lodged in time.[4]Given that, it was appropriate to hear evidence from the claimants. Although Mr Clark had brought along a witness to confirm the date of resignation, since it is agreed, there was no need to call him.[5]The respondent lodged a file of productions and case authorities and the claimant lodged two additional documents, as well as case authorities. Findings in fact[6]The first claimant commenced employment with the respondent over 20 years ago, and the second claimant had worked for the respondent for over 12 years, when they handed in their resignations.[7]The first claimant submitted a typed resignation letter dated 3 September 2018, stating that his last working day would be Friday 7 September 2018 (page R41).[8]The second claimant submitted a hand-written resignation note to his line manager, Gary Hamilton, in which he stated that he wished to terminate his employment on Friday 7 September 2018 (page R42).[9]The claimants state that they felt forced to resign because of the conduct of their line manager Gary Hamilton and the actions of the respondent, as set out in the paper apart to the ET1.[10]Prior to their resignation, the claimants were absent on sick leave for reasons related to stress, caused they said by the way that they were treated by the respondent.[11]Following their resignation, they sought advice informally. The second claimant contacted ACAS.[12]They both met with a solicitor (Ms Neil) on 23 November 2018. They both advised her that they had resigned on 10 September 2018 (in error) (C1 and C3).[13]Ms Neil asked them if they had a copy of their resignation letters.[14]They did not produce their resignation letters, although the first claimant had a copy of it on his computer and the second claimant had taken a photograph of his.[15]During the meeting on 23 November 2018, Ms Neil advised about the time limit for lodging the claim, which she stated was three months less one day from the date of resignation and therefore that the deadline was 9 December 2018. She also advised that if they contacted ACAS that would “stop the clock” for a month (C1- C4).[16]Ms Neil contacted ACAS on behalf of her clients on 7 December 2018. The EC certificate was issued on 7 January 2019.[17]The ET1 on behalf of both claimants was lodged on 7 February 2019. Submissions for the claimant[18]Ms Neil referred to the relevant legislative provisions, and having conceded that the claim was out of time, she made submissions on the factors which the Tribunal should take into account when determining the questions of reasonable practicability. These include the manner and reason for the dismissal; whether conciliation was used; the reason for the failure to comply, whether it was physical, through illness or strike; whether and when the claimants knew of their right; whether there had been a misrepresentation by the respondent; and whether the failure was the fault of an advisor.[19]Relying on the decision of the Court of Appeal in case of Marks and Spencer v Williams-Ryan [2005] EWCA Civ 470, she submitted that section 111 should be given a liberal interpretation in favour of the claimants; and that regard should be had to whether the claimants knew about their rights and time limits, and whether, having regard to their state of knowledge, they had acted reasonably.[20]In this case, with regard to their state of knowledge and whether they had acted reasonably, the claimant’s evidence was that they were suffering from stress at the time, and in addition the first claimant was in debt.[21]With regard to the manner and reason for the dismissal, in the ET1 it is asserted that both claimants became defeated and downtrodden by the treatment of their manager. They describe there the stress they were under and the second claimant confirmed in evidence that he was still under stress by the time of the meeting on 28 November 2018.[22]The file note produced by Ms Neil shows they advised her that they resigned on 10 September 2018. They confirmed in evidence that they had been asked to produce their resignation letters, but also that they had not done so. Assuming that 10 September was the correct date, the contact with ACAS was in time and the ET1 was lodged in time.[23]Relying on University Hospitals Bristol NHS Foundation Trust v Williams, UKEAT/0291/12, Marks and Spencer v Williams-Ryan, John Lewis Partnership v Charman UKEAT/0079/11 and Remploy Ltd v Brain UKEAT/0465, she argued that the Tribunal should not assume that just because the claimants were able to cope with certain difficulties, that meant that it was reasonably practicable for them to lodge their claim in time. Here the claimants’ ignorance of their rights was reasonable, given that these were the only jobs which the claimants had in their adult life and had no prior need to explore their rights or time limits since they had not anticipated finding themselves in this situation. They obtained legal advice but they did not fully understand the importance of time limits, nor appreciate that if they had misinformed their solicitor of the date that would be critical.[24]The Tribunal should take account of the following to conclude that it was not reasonably practicable for them to have lodged their claims in time: the circumstances of the claimants’ life; the lack of clarity over time limits; the lack of understanding of the significance of having misinformed their solicitor about the date; their inexperience of such matters; their ill health; their treatment by their employers which resulted in them not being able to speak up; all of which contributed to the situation. Submissions for the respondent[25]The claimants having accepted that the effective date of termination was 7 September 2018, and therefore the claims were in principle out of time, Mr Clark’s primary submission was that it was plainly reasonably practicable to lodge the claims in time. This is a question of fact for the Tribunal, but the onus is on the claimant to establish it (Porter v Bandridge 1978 ICR 943).[26]Mr Clark relied on Walls Meat v Khan 1979 ICR 52 and Reed in Partnership v Fraine UKEAT/0520/10 in support of his submission that while ignorance or mistaken belief is a relevant factor for the Tribunal to take into account, that ignorance must be reasonable.[27]Here the claimants gave evidence that they had made a mistake about the date of resignation. Yet both confirmed that they had retained a copy of the resignation letters sent to the respondent, and that they were asked to produce them by their solicitor. In this case, both claimants had taken steps to enquire about their legal rights and had been advised about time limits. Having retained copies of the resignation letters, if they were unsure they should have checked. Mr Clark therefore submitted that it was not a reasonable mistake for them to have made.[28]The fact that a claimant engages skilled advisers is not sufficient excuse to satisfy the test; the solicitor is under a duty to take all reasonable steps to ensure that the claim is lodged in time (Dedman v British Building and Engineering Appliances Ltd 1973 IRLR 379).[29]This is not one of those cases where the claimants can rely on ill-health because no medical reports have been lodged. While the claimants gave evidence that they were suffering from stress, in Asda Stores v Kauser UKEAT/0165/07, the EAT stated that mere stress as opposed to illness or incapacity is unlikely to be sufficient as an excuse. Here there is no medical evidence to suggest that they were suffering from anything in excess of stress.[30]The claimants have failure to discharge the onus on them; they had a duty to undertake the proper enquiries; they had knowledge of the resignation letters; the failure was not due to physical impairments; the claimants were not misled by the respondent; they engaged skilled advisers and were given proper advice; their solicitor proceeded on the basis of a false assumption and in the circumstances the mistake was not reasonable.[31]Mr Clark’s secondary submission is that even if it was not reasonably practicable, then the claimants did not lodge their claims within a reasonable period after it became reasonably practicable.[32]It is accepted that the date of resignation was 7 September 2018. Contact with ACAS should take place within the relevant time limit, and the extension of time only operates where ACAS were contacted within the time limit. In this case the ACAS process was not commenced within the three month period, and therefore section 207B is not in play, and there is no extension of time limits (Romero v Nottingham City Council UKEAT/0303/17 and ACAS guidance). This means that the claim has been lodged 63 days, that is around two months, out of time.[33]In this case there was further opportunity for the claimants’ solicitor to obtain the resignation letters and the relevant background and any documentary evidence; including after contacting ACAS, between the certificate being issued on 7 January 2019 and lodging the Tribunal claim on what was calculated to be the last day. It was open to claimant and claimant’s representative to contact ACAS before 7 December and to the end of the conciliation period, and to submit claims between 7 December and 7 February; the conciliation period can be ended at any time. The claimants therefore lodged the claim some two months after the expiry of the time limit; which was not a reasonable period. The
Relevant Law
The relevant law
[34]The law relating to time limits in respect of unfair dismissal is contained in the Employment Rights Act 1996. Section s111(2) states that an employment tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the effective date of termination or 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.[35]Where the claim is lodged out of time, the tribunal must consider whether it was not reasonably practicable for the claimant to present the claim in time, the burden of proof lying with the claimant. If the claimant succeeds in showing that it was not reasonably practicable to present the claim in time, then the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. This is a question of fact for the Tribunal (Walls Meat Co Ltd v Khan 1979 ICR 52).[36]The Court of Appeal in the case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 considered the meaning of the phrase “not reasonably practicable”. In that case Lord Justice May said that “we think that one can say that to construe the words “reasonably practicable” as the equivalent of “reasonable” is to take a view that is too favourable to the employee. On the other hand, “reasonably practicable” means more than merely what is reasonably capable physically of being done.... the words...mean something between these two. Perhaps to read the word “practicable” as the equivalent of “feasible” as Sir John Brightman did in [Singh v Post Office [1973] ICR 437, NIRC] and to ask colloquially and untrammelled by too much legal logic— “was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?”—is the best approach to the correct application of the relevant subsection.” Tribunal decision[37]This case is unusual in that it is not typical of the reasons advanced to support an argument that it was “not reasonably practicable” to lodge a claim in time. That is because, properly speaking, this is not an “ignorance of the law/rights” type case, and nor is it a case where the failure to lodge the claim could clearly be said to be the fault of the legal adviser.[38]The crux of this case is that the claimants sought legal advice in good time before the three-month time limit was up, but they mistakenly gave their solicitor the wrong date of resignation. Whatever happened in the meeting, the claimants accepted that they had been asked for copies of the letters of resignation which would have rectified the error. These letters were not produced to the solicitor, although the claimants confirmed in evidence that they do have copies of them.[39]Ms Neil acted on the basis that the date given to her was correct, and she acted entirely properly in contacting ACAS, albeit on the last day, in what she understood to be within the time limit for lodging the claim. While there would have been time to undertake further preparation of the case and to press the claimants for documentary evidence, having asked the claimant for copies these were not forthcoming. She gave advice about time limits and it is clear that she gave the correct advice on the basis of the information that she had been given and the file notes were lodged to show that.[40]It may be that it would have been less risky to have acted before the last day for lodging claim, to avoid the risk of last minute difficulties or errors like this, and indeed Ms Neil may reflect on her practice in the future, but the fact remains that she acted on instructions and information from her clients.[41]It is not correct to say that the claimants were ignorant of their rights, so that there was no need to analyse whether any “ignorance” of their rights was reasonable. The claimants instructed a solicitor within the three month time limit period. They were told in clear and specific terms, as noted in the file note (and it is understood confirmed in subsequent letters, although these were not lodged) about the time limit.[42]It is clear therefore from the evidence that the claimant simply had made a genuine mistake and simply had not appreciated the significant of that mistake, despite the clear advice they were given.[43]Mr Clark argued that their mistake was not a reasonable one for them to make. Ms Neil put the mistake down to the facts and circumstances of the termination of their employment, the fact that they were absent on sick leave, suffering they said from stress, prior to their resignation, as a result of the employers actions, that the stress was ongoing and that the claimants found themselves for the first time in their working life looking for a new job.[44]Although no medical evidence was lodged I was prepared to accept that the claimants were suffering from stress, even when it came to the meeting with their solicitor. Mr Clarke relied on case law which indicates that suffering from stress will not be sufficient to render the lodging of a claim in time not reasonably practicable.[45]In any event, notwithstanding the stress, the claimants were in a position to instruct a solicitor, their solicitor explained the time limit to them, and as I understand it in subsequent letters. They did have the copies of the resignation letters; they were asked for copies of those letters; but they did not supply them. The claimants met with a solicitor on 23 November. The time limit was 6 December. There was ample time between 23 November and 6 December for the claimants’ representative to contact ACAS and to lodge a claim. The claim form which was lodged was in skeleton form in any event.[46]I could not say that it was not reasonably to have lodged the claim in time, given a solicitor had been instructed. While the claimants made a mistake there was time too to rectify that, but the claimants failed to do so. I agreed with Mr Clark that the mistake, at least after the meeting when their solicitor had clearly explained about time limits, was not a reasonable one to have made, especially when they had retained copies of the resignation letters.[47]In such circumstances there is no requirement to consider Mr Clark’s secondary submission regarding the reasonableness of the time taken to lodge the claim. This is because the question to be considered is whether the claims were lodged within a reasonable time of it becoming reasonably practicable to do so (and not from the date of the time limit). Here I have found that it was reasonably practicable for the claimants to have lodged their claims in time.[48]This is an unfortunate case where I accept that the claimants simply made a mistake and presumably did not appreciate that their mistake would be so costly. However, in the employment tribunal time limits are strictly applied for claimants because they determine the question whether the tribunal has jurisdiction to hear a claim or not.[49]Unfortunately, this conclusion means that the tribunal does not have jurisdiction to hear the claims, which must be dismissed.