Mr G Nirmal v Wood Group UK Ltd: 4103081/2023
REASONS
[1]On 14 August 2023, following a Preliminary Hearing on 10 August, I issued a Judgment in the following terms:- “The Judgment of the Tribunal, for the reasons given orally at the Hearing, is that:- 1. the claim is time-barred; and 2. the claim is dismissed, for want of jurisdiction.” E.T. Z4 (WR)[2]By e-mail on 18 August 2023, the claimant requested written reasons for my Judgment. The Evidence[3]At the Preliminary Hearing on 10 August, which was conducted by video conference, using the Cloud Video Platform (“CVP”), I heard evidence from the claimant. A Joint Bundle of documentary productions was also submitted (“P”). The Facts[4]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact, relevant to the time-bar issue with which I was concerned. By and large, these were either agreed or not disputed.[5]The claimant commenced employment with the respondent on 1 October, 2020 as a Category Manager. The effective date of termination of his employment was 31 December 2022 which was a Saturday. His last working day was 30 December 2022.[6]Shortly before his employment ended, an issue arose concerning the claimant’s entitlement to pay in lieu of notice.[7]On 14 December 2022, the respondent wrote to the claimant under the heading, “Redundancy Confirmation” to advise him, amongst other things, of the payments he would receive on termination. This included, “12 weeks’ paid in lieu of notice” (P.51). The letter was signed by both parties (P.52).[8]However, on 20 December 2022 the respondent advised the claimant, by email, that there had been “an administrative error”, as he was not entitled to pay in lieu of notice (P.53). Attached to that e-mail was an amended “Redundancy Confirmation” letter, dated 14 December 2022, which contained the following provision in relation to the payments which would be made to the claimant:- “12 weeks’ notice period. As per initial redundancy confirmation this has been worked from 19 April 2022, with a subsequent extended notice period until 31 December 2022”.[9]That letter was not signed by the claimant (P.57).[10]The claimant received a “Pay Advice” from the respondent on or about 27 January 2023. This did not include a payment in lieu of notice (P.57).[11]On or about 5 April 2023, the claimant also received a Bonus Payment from the respondent.[12]The claimant was on holiday from 31 March 2023 to 15 April 2023. On his return, he sent an e-mail to the respondent’s HR Manager claiming that he was entitled, contractually, to 12 weeks’ pay in lieu of notice.[13]His e-mail was not one of the documentary productions. However, he received the same response from the respondent as he had received on 20 December, namely that he was not entitled to a payment in lieu of notice as he had worked his notice period. ACAS Certificate[14]On 24 April, the claimant notified ACAS of his intention to bring an Employment Tribunal claim against the respondent for pay in lieu of notice. ACAS issued a Certificate on 9 May 2023 (P.2).[15]His claim form was submitted on 28 May 2023 (P.3-15).[16]The claimant explained that the reason for the “delay” in engaging with ACAS was that he did not wish to assert his claim for pay in lieu of notice as he was concerned that this might prejudice his entitlement to the bonus payment which was discretionary. This was something the claimant confirmed in an e-mail to the Employment Tribunal on 1 June 2023 (P.16).[17]He also said in evidence that he had been advised by ACAS that the threemonth time limit for bringing his claim started to run from his last pay date which was 28 January 2023. (I found this surprising as the start date for a breach of contract claim is quite clear).[18]He claimed, therefore, that his claim was timeous.[19]However, the respondent’s Counsel maintained that the claim was out of time and that the Tribunal did not have jurisdiction. In short, he submitted that the three-month period started to run from the effective date of termination of the claimant’s employment which was 31 December 2022. The claimant only notified ACAS on 24 April 2023 which was outwith the three-month period. The issue, therefore, was whether or not it had been “reasonably practicable” to notify ACAS within the three-month period and submit his claim form in time. He submitted that it was not. He submitted that “factual ignorance” was insufficient and that the issue was whether he ought to have been aware of the time limit.[20]In support of his submissions he referred, in particular, to:- Porter v. Bandridge Ltd [1978] ICR 943 Trevelayns (Birmingham) Ltd v. Norton [1991] ICR 488 Sodexo Healthcare Services Ltd v. Harmer UKEATS/0079/08/BI Discussion and Decision[21]The basis for the oral Judgment which I gave at the end of the Preliminary Hearing, after an adjournment, was as follows. Relevant Law[22]This is a claim for pay in lieu of notice. This is a breach of contract claim. The relevant statutory provision is the Employment Tribunals (Extension of Jurisdiction (Scotland) Order 1994).[23]Article 7(a) of the Order is in the following terms:- “7. Time within which proceedings may be brought An employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented – (a) within the period of three-months beginning with the effective date of termination of the contract (my emphasis) giving rise to the claim……….”[24]It was agreed that the claimant’s effective date of termination was 31 December 2022. He had three months thereafter to notify ACAS. He did not do so until 24 April 2023 (P.2). He did not submit his claim form until 28 May 2023.[25]The claim was therefore out of time.[26]However, that is not an end to the matter as, in terms of Article 7(c) of the Order, I can extend the time limit if I am satisfied that it was “not reasonably practicable” for the claim to be presented in time and that it was submitted, “within such further period as the tribunal considers reasonable”.[27]I am familiar with the various cases Counsel referred to and take no issue with his summary of the guidance in these cases. However, each case must always depend on its own particular facts.[28]The “reasonably practicable test” is a very strict one and the onus was on the claimant to establish that it had not been reasonably practicable for him to submit his claim form in time.[29]His explanation for the delay was that he didn’t want to risk losing his bonus payment were he to bring an Employment Tribunal claim.[30]That was perhaps understandable, but the analogy Counsel drew with a claimant waiting for the outcome of an Appeal before bringing an unfair dismissal claim was apposite, and the case law is quite clear. Awaiting the outcome of an Appeal does not mean that it was not reasonably practicable to bring the claim in time.[31]In Palmer & Saunders v. Southend-on-Sea Borough Council [1984] IRLR 119, the Court of Appeal suggested that the best approach is to read “practicable” as “feasible” and to ask, “was it reasonably feasible to present the claim to the Employment Tribunal within the relevant three months?”.[32]In my view in the present case, it was.[33]While the claimant may have misunderstood when the three-month period started to run (and this may have been because the period for a claim for unlawful deduction of wages starts to run from the “date of payment” of the wages from which the deduction was made (s.23(2)(a) of the Employment Rights Act 1996), as Counsel submitted, “factual ignorance is insufficient”. The claimant, could have, by reasonable enquiry, established that the threemonth time limit started to run from the effective date of termination and not his last pay date.[34]The claimant is an articulate, well-educated person and there was no impediment whatsoever to him doing so. Indeed, he had been aware from 20 December 2022 that he would not receive his pay in lieu of notice and he had ample opportunity to submit his claim in time as he did not take up alternative employment for some months thereafter.[35]In short, I found favour with Counsel’s submissions.[36]I might add that even if I had decided that it had not been reasonably practicable to submit the claim in time, I would nevertheless have found that the claimant had not submitted his claim form within a reasonable period thereafter, particularly as he received his bonus payment on 5 April and the claim form was not submitted until 28 May 2023.[37]While not unsympathetic to the position in which the claimant found himself, the case law is quite clear and the time limit is strict. I arrived at the view, therefore, that the claim is time-barred and it is dismissed as the Tribunal does not have jurisdiction.