Mr D Japp v Aviva Employment Services Ltd: 4102662/2018
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102662/2018Venue GlasgowHearing 8 August 2018
Between
Mr D JappClaimantAviva Employment Services LtdRespondent
Before
Employment Judge M KearnsMr G Kerr for claimantLay Representative for claimantMs K Docherty (instructed by Solicitor) for respondentAviva Employment Services Limited for respondentDate 10 August 2018
JUDGMENT
The Judgment of the Employment Tribunal was that the claims are out of time and the Tribunal has no jurisdiction to hear them.
REASONS
[1]The claimant was employed by the respondent as a personal injury claims handler from 13 February 2012 until 21 August 2017. He presented an application to the Employment Tribunal on 14 February 2018 in which he claimed unfair dismissal and disability discrimination.
Evidence
[2]The claimant gave evidence on his own behalf and lodged one document during the hearing to which no objection was taken. He was an honest and E.T. Z4 (WR) largely reliable witness but did not appear to have detailed recall of some aspects of the evidence, probably due to the lapse of time.[3]The respondent also lodged documents (“R”) and referred to them by page number. Findings in Fact[4]The following material facts were admitted or found to be proved:-[5]The claimant was employed by the respondent as a personal injury claims handler from 1 3 February 201 2 until 21 August 201 7, when he was summarily dismissed. The effective date of termination of his employment was accordingly 21 August 2017, when he was informed of his dismissal at the end of a disciplinary hearing. The claimant’s dismissal was confirmed to him in writing by letter the same day (R45). The letter informed the claimant of his right of appeal. Prior to the hearing the claimant had a telephone assessment with the respondent’s occupational health provider, who pronounced him fit to attend (R33).[6]The claimant decided to appeal the decision to dismiss him. He contacted a former colleague, Roseanne Simpson who was also a trade union representative. The claimant was not a union member, but Ms Simpson agreed to help him with his appeal. The claimant met with Ms Simpson on two occasions. The first meeting was between 21 and 28 August 2017, when Ms Simpson helped him to frame his appeal letter. Ms Simpson told the claimant at the meeting that he should not have gone to the disciplinary meeting himself without a representative. She also helped the claimant with his appeal letter which was lodged on 28 August 201 7. Ms Simpson agreed to represent the claimant at the appeal hearing. The hearing took place on 2 October 201 7 and the claimant met with Ms Simpson a short time prior to that to discuss matters. The claimant first became aware prior to the initial appeal hearing on 2 October 2017 that he could contact ACAS.[7]The claimant had access to the internet at all relevant times. He was used to using it and aware that he could use it to look things up. He did not google ACAS or look into his rights online.[8]Around the beginning of October 201 7 the claimant started a new job in the haulage industry.[9]The appeal hearing on 2 October was adjourned to enable the respondent to obtain a medical report from the claimant’s GP. This was instructed with his consent via the respondent’s occupational health consultants. On 8 November 2017 the respondent’s occupational health consultants reported to the appeal hearer in the following terms (R59): '7am now in receipt of the GP report for Duncan Japp. This letter is a summary of the information contained in the GP report. Duncan has been emailed a copy of this letter in advance and consents to me forwarding to you. The GP states they first saw Duncan in July this year when he mentioned symptoms of IBS and low mood. He also advised the GP that he was working long hours and that his bowel symptoms were concerning him and impacting on his low mood. Duncan had made his GP of the work issues [sic] and that he was receiving counselling which the GP suggested this may indicate that his mental health may have been having an effect on his work. Duncan advised the GP that he had discussed the work issues with a family member which he found very beneficial and the GP had not prescribed Duncan any medication. It is the GP’s opinion that Duncan has improve steadily and that they had reviewed him on 3rd October where Duncan advised the GP that he had had an appeal meeting which caused him some anxiety but that he was sleeping better, eating well and going to the gym. The GP states that in their opinion Duncan, is fit for his job role and does not feel that any workplace adjustments are required at this time...”[10]The limitation period for making claims of both unfair dismissal and disability discrimination in this case expired at midnight on 20 November 2017.[11]The claimants appeal hearing was reconvened on 23 November 2017 following receipt of the GP and occupational health report. The claimant was again represented by Ms Simpson. At the end of the reconvened appeal hearing the appeal hearer, Ms Steph McAnearney gave her decision, which was that the appeal did not succeed. She advised the claimant that her decision was now final and “now concludes the process with Aviva.” The decision given orally to the claimant on 23 November was confirmed to him in writing by letter dated 5 December 201 7 (C1 ). At the end of her letter Ms McAnearney wrote: “I must remind you that the appeal procedure has now been exhausted and that this decision is final.” Although the claimant knew he could go to ACAS he misunderstood this statement to mean that he was now out of time and therefore unable to take matters further.[12]Just before Christmas the claimant spoke to Ms Simpson again about his former employers.[13]The claimant eventually realised that the letter of 5 December was referring to the respondent’s internal process and he contacted ACAS and made an early conciliation notification to them on 9 January 201 8. They told him that he was out of time for making a Tribunal claim but said they would try and contact the respondent. ACAS issued their early conciliation certificate (R19) by email on 22 January 2018. The claimant presented his application to the Employment Tribunal on 14 February 2018, by which time it was nearly three months late.
Applicable Law
[14]Section 111 Employment Rights Act 1996 governs the presentation of complaints of unfair dismissal. Section 111(2) provides, so far as relevant: 72)Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -(a) Before the end of the period of three months beginning with the effective date of termination, or(b) 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. "[15]Section 123 Equality Act 2010 applies time limits for discrimination claims. It provides as far as relevant that proceedings on a discrimination complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the employment tribunal thinks just and equitable. Discussion and decision Unfair dismissal claim[16]In this case, the claimant claims unfair dismissal. Section 111(2) of the Employment Rights Act 1 996 (“ERA”) states that an employment tribunal shall not consider a complaint of unfair dismissal unless it is brought before the end of the period of three months beginning with the effective date of termination of employment. All parties were agreed that the effective date of termination of employment in this case was 21 August 2017. Accordingly, the time for presenting the complaint expired at midnight on 20 November 2017. As Ms Docherty submitted, section 111(2) ERA is subject to section 207B which extends the time limit for making a complaint in order to facilitate early conciliation. However, as the claimant did not contact ACAS to start conciliation within the limitation period of three months from the termination date, the limitation period was not extended. The ACAS early conciliation extension of time rules do not, therefore assist the claimant in this case.[17]On behalf of the claimant, Mr Kerr argues that it was not reasonably practicable for the claimant to present his complaint on or before November 2017. The burden of proof rests on the claimant to show this. I have concluded that the claimant has failed to demonstrate that this was the case for the following reasons. Mr Kerr referred to the claimant’s health difficulties at the relevant time (between 21 August and 20 November 2017). However, such evidence as there was did not suggest that the claimant’s health was so impaired as to make it not reasonably feasible to present his claim. The claimant began new employment in the haulage industry around the beginning of October 2017. A report was sought from his GP towards the end of the limitation period in connection with his appeal. While it was clear from this that the claimant had first contacted his GP in July 201 7 complaining of low mood and IBS, the GP had not prescribed medication. The report, as summarised by occupational health stated: “It is the GP’s opinion that Duncan has improve steadily and that they had reviewed him on 3rd October where Duncan advised the GP that he had had an appeal meeting which caused him some anxiety but that he was sleeping better, eating well and going to the gym.” The report concluded: "The GP states that in their opinion Duncan, is fit for his job role and does not feel that any workplace adjustments are required at this time...”[18]A debilitating illness can prevent a claimant presenting his claim in time, but there was no medical evidence supporting such an illness here. Indeed, a month before the end of the limitation period the claimant was working at his new job and his GP reported that he was sleeping better, eating well and going to the gym. Whilst the claimant referred in general terms to his health, I did not conclude from the evidence before me that it was such that it made it not reasonably practicable to present his complaint within the limitation period.[19]There was some suggestion that the claimant did not know of his rights, although this was not a major part of Mr Kerr’s submission and at part 8.2 of the ET1 the claimant asserted that he was unable to submit his claim within the three month period because he was not provided with the final minutes of the meeting until 5 December, suggesting that he knew of the deadline but was unable to meet it. It was not entirely clear from the evidence why this latter point should have been an impediment. Nothing in the evidence indicated what it was that was required from the minutes before the claim could be made. A claim can normally be presented, and then further detail added later. I did take into account the pending appeal process, but I did not conclude that this excused the late presentation of the claim either, given that the claimant had trade union representation and access to the internet.[20]As Ms Docherty stated, the correct test is not whether the claimant knew of his rights but whether he ought to have known of them. Ms Docherty pointed out that advice and guidance is available from ACAS as well as from free advice centres such as the CAB. Furthermore, the claimant accepted that he had access to the internet and was used to looking up information when required but that he had not done so. Thus, looking at all the circumstances, including the opportunities the claimant had for finding out his rights, I did not conclude that the claimant’s ignorance of his rights in this case made it not reasonably practicable for him to present his complaint in time. 21 . I considered the claimant’s evidence that he misunderstood the statement at the end of Ms McAnearney’s letter to the effect that the appeal procedure had now been exhausted and the decision was final. However, it had been made clear when the decision was announced at the end of the hearing that the procedure that had been exhausted was the respondent’s internal procedure. I did not conclude that the claimant’s misreading of the letter was such that it excused the lateness of the claim in all the circumstances. The letter was innocuous and not misleading, and the claimant had access to the internet and could have checked the position.[22]The other key point irf Mr Kerr’s submission was that the claimant had been badly advised. The claimant had two meetings with Ms Simpson. It appeared to be the case that Ms Simpson had agreed to help him with his appeal even though he was not a member of the union. It was unclear whether she had undertaken to advise him generally or whether she was just helping informally. However, even if there was a failure by the claimant’s trade union representative, that failure would be attributable to the claimant himself and he cannot claim here that it was not reasonably practicable to claim in time.[23]In all the circumstances, I concluded that the claimant had not shown that it was not reasonably practicable for him to present his unfair dismissal complaint in time and the Tribunal therefore has no jurisdiction to hear it. For the record, I also concluded that the claim was not presented within such further period as was reasonable. The claimant’s explanation for his failure to present his claim promptly once he had made contact with ACAS on 9 January 201 8 was that he was busy in his new job. I did not conclude that that explanation on its own and without further detail was sufficient.[24]Under section 123 Equality Act 2010 proceedings on a discrimination complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the employment tribunal thinks just and equitable. As Ms Docherty submits, the only basis upon which time may be extended is where the claim has been brought within such further period as the tribunal thinks just and equitable. Ms Docherty cited Robertson v Bexley Community Centre [2003] EWCA Civ 576 in which the Court of Appeal stated that the exercise of the discretion to extend time should be the exception rather than the rule.[25]Although there is no exhaustive list of factors to be considered in assessing justice and equity, per British Coal Corporation v Keeble and Others [1997] IRLR 336 these often include:(a) The length of and reasons for the delay;(b) The extent to which the cogency of the evidence is likely to be affected by the delay;(c) The extent to which the respondent co-operated with any requests for information;(d) The promptness with which the claimant acted once he knew of the facts giving rise to the claim; and(e) The steps taken by him to take or obtain appropriate professional advice once he knew of the possibility of taking action.[26]In relation to (a) Ms Docherty submitted that once the claimant had commenced the early conciliation process on 9 January 2018 he would have had the opportunity to liaise with and be advised by an ACAS early conciliation support officer who would offer guidance on relevant time limits. It is therefore unclear why the claimant then delayed for more than a month (until 14 February 2018) before presenting his claim. As mentioned above, the claimant’s explanation for this delay was simply that he was busy in his new job. This did not, on its own strike me as a sufficient explanation for the claimant waiting a further month even once he knew of his rights. I therefore accepted Ms Docherty’s submission and concluded that the claimant had not taken action promptly.[27]The claimant frankly admitted that he had access to the internet and could look things up and it appeared to me that he had not taken steps he could quite easily have taken to explore or check his rights. Finally, I considered that the cogency of the evidence was likely to be affected by the delay. Indeed, the claimant’s own evidence was somewhat vague and general, and he understandably appeared to lack specific recall. This was particularly 5* noticeable in relation to the content of his meetings with Ms Simpson and the advice she had given him. Ms Docherty submitted that this would be a factor for the respondent’s witnesses. In ail the circumstances I have concluded that it would not be just and equitable to extend time in relation to the claimant’s 5 discrimination, claim. It follows that the Tribunal has no jurisdiction to hear it.