Mr G CooperClaimantMurphy Builders LimitedRespondent
Before
Employment Judge R SorrellDate 27 June 2021
JUDGMENT
The Judgment of the Tribunal is that the claims are time barred and therefore the Tribunal does not have jurisdiction to determine the claims. E.T. Z4 (WR)
REASONS
[1]The Claimant lodged two claims for unfair dismissal on 22 September 2020 and 13 October 2020 respectively. The first claim was lodged against Peter Murphy and the second against Murphy Builders Ltd.[2]A Case Management Preliminary Hearing was held by Telephone on 29 January 2021. At that Hearing, the Tribunal issued an order combining the claims on the basis that they both rest on the same facts. The Claimant subsequently confirmed that Murphy Builders Ltd was the correct Respondent.[3]This Hearing was scheduled because the claims appear to be time-barred. The Tribunal was therefore required to determine whether the claims can proceed to be heard at a Final Hearing.[4]The Hearing took place remotely given the implications of the COVID-19 pandemic. It was a virtual hearing held by way of the Cloud Video Platform.[5]Ms Mackie for the Respondent was also in attendance at the Hearing.[6]As the Claimant was a litigant in person I explained the purpose and procedure for the Hearing and that in the event I determined the claims were time-barred, the Tribunal would not have jurisdiction to consider the claims further. I also explained the requirement for the Tribunal to adhere to the Overriding Objective to deal with cases justly and fairly and to ensure parties are on an equal footing.[7]The Respondent lodged a bundle of productions with the Tribunal in advance of the Hearing which the Claimant had not received. This bundle was therefore emailed to the Claimant at the start of the Hearing and he was given time to consider it.[8]I advised the Claimant that the documents he had emailed to the Tribunal prior to the start of the Hearing related to the merits of his claims and could therefore be relied upon in the event the claims proceeded to a Final Hearing. Findings in Fact The following facts are found to be proven or admitted;[9]The Claimant’s date of birth is 14 April 1981.[10]The Claimant commenced employment with the Respondent undertaking Groundworks on 8 February 2015. He worked 39 hours per week and occasionally at the weekend. He was paid an average of £440 gross per week.[11]The Claimant was dismissed by the Respondent on 8 January 2020.[12]The Claimant contacted ACAS under the Early Conciliation scheme around the middle of January 2020. The procedure for lodging a claim with the Tribunal was explained to him. Around the same time, the Claimant also contacted the Citizens Advice Bureau about bringing a claim who again explained the procedure to him.[13]The Claimant did not lodge the claims in time as it was too much information for him to take in. He didn’t recall being told about time limits. He also mistakenly thought ACAS were part of the Tribunal and were lodging his claim for him.[14]The ACAS Early Conciliation process commenced on 7 February 2020 and the Certificate was issued on 7 March 2020. (D13)[15]The statutory time limit for lodging a claim was 7 April 2020.[16]The Claimant contacted ACAS again around two months before he submitted his claims because he hadn’t heard from them. On this occasion he did recall being advised about the time limits for lodging a claim with the Tribunal and that he was required to do it himself.[17]The Claimant lodged a claim with the Tribunal against Peter Murphy on 20 September 2020 and a second claim against Murphy Builders Ltd on 13 October 2020. (D1-12) Respondent’s Submissions[18]Mr Doherty submitted on behalf of the Respondent that in accordance with Section 111 and Section 207B of the Employment Rights Act 1996, the claims should have been lodged by 7 April 2020. The Claimant was dismissed on 8 January 2020. The ACAS conciliation process began on 7 February 2020 and ended on 7 March 2020. The second claim lodged on 13 October 2020 against the proper Respondent is the calculation date to take account of and therefore the claim is 6 months and 6 days out of time. The Respondent contends that it was reasonably practicable for the Claimant to submit the claim in time. Whilst the Claimant cannot remember the exact discussion he had with ACAS, it is clear from the ACAS certificate that the responsibility to submit the claim within the time limit lies with the Claimant. Ignorance in itself is not sufficient, particularly as the Claimant was in contact with ACAS and the Citizens Advice Bureau. The additional delay is not reasonable anyway as the claim was lodged 6 months late. The Claimant said he spoke to ACAS a second time and then took another two months to lodge the claim and that delay in itself is unreasonable. Claimant’s Submissions[19]The Claimant submitted that if it was a mistake on his part in not receiving emails from ACAS or checking dates, he has sufficient information and documents now to take his case forward. Relevant Law ACAS Early Conciliation Scheme
Relevant Law
[20]Details of the Early Conciliation Scheme are set out in sections 18A and 18B of the Employment Tribunals Act 1996. An employee must obtain an Early Conciliation certificate before presenting a claim of unfair dismissal. This certificate will extend the usual time limits. The extension provision is set out in section 207B (3) – (4) of the Employment Rights Act 1996. This states that in working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A (when ACAS are contacted under Early Conciliation) and ending with Day B (the date the Early Conciliation Certificate is issued) is not to be counted. If a time limit set by a relevant provision would expire during the period beginning with Day A and ending one calendar month after Day B, the time limit expires instead at the end of that period. The authority of Luton Borough Council v M Haque UKEAT/0180/17/JOJ sets out the correct approach to adopt in calculating the new time limit. The Presentation of a Complaint[21]Section 111(1) and(2) of the Employment Rights Act 1996 provide that where a complaint relates to an unfair dismissal of an employee by an employer an employment tribunal shall not consider it 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.[22]What is reasonably practicable is a question of fact for the Tribunal to decide. In the well established authority of Wall’s Meat Company Ltd v Khan (1979) ICR 52, CA LJ Shaw stated that: “The test is empirical and involves no legal concept. Practical common sense is the key note and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province.”[23]The authority of Porter v Bandridge Ltd (1978) ICR 943, CA held that the burden of proving that presentation of a claim in time was not reasonably practicable rests on the claimant.[24]Where the claimant is generally aware of his right, ignorance of the time limit will rarely be acceptable as a reason for delay. This is because a claimant who is aware of his rights will generally be taken to have been on enquiry as to the time limit. In accordance with the authority of Trevelyans (Birmingham) Ltd –v- Norton [1991] ICR 488, EAT, Mr Justice Wood said that when a claimant knows of his right to complain of unfair dismissal, he is under an obligation to seek information and advice about how to enforce that right. Failure to do so will usually lead the Tribunal to reject the claim. It was further held in the case of Sodexo Healthcare Services Ltd –v- Harmer EATS/0079/08 that the crucial question for the Tribunal was whether in the circumstances, the employee was reasonably ignorant of the time limit. If an employee is reasonably ignorant of the relevant time limit it cannot be said to have been reasonably practicable for him or her to comply with it. Issues to be Determined[25]The Tribunal identified the following issues as requiring to be determined:-a. What is the (extended) time limit to lodge a claim in accordance with the ACAS Early Conciliation provisions?b. Has the claimant shown that it was not reasonably practicable to present his claim within the three month statutory time limit / or as extended by the ACAS Early Conciliation provisions?c. If so, was the further delay in presenting his claim reasonable?d. Does the Tribunal have jurisdiction to consider the claims?
Conclusions
[26]In applying the ACAS Early Conciliation provisions and the approach to be adopted in accordance with Luton Borough Council v M Haque UKEAT/0180/17/JOJ, I have calculated the time limit in which the Claimant had to lodge a claim to be 7 April 2020. This is because the Claimant was dismissed on 8 January 2020 and the ordinary three month time limit in which to lodge a claim was 7 April 2020. The Claimant made contact with ACAS under the Early Conciliation Scheme on 7 February 2020 and the ACAS Early Conciliation certificate was issued on 7 March 2020. Therefore, the three month time limit did not expire during the period between the Claimant’s first contact with ACAS and one calendar month after the ACAS certificate was issued.[27]The Claimant was honest in his evidence that his failure to lodge the claims in time was probably his fault as it was too much information at the same time to take in. In particular, he said that although ACAS and the Citizens Advice Bureau advised him to contact the Tribunal if he wanted to bring a claim, he was new to the process and didn’t recall being told about time limits. He also mistakenly thought ACAS were part of the Tribunal and were lodging his claim on his behalf.[28]However, I found that the Claimant was aware of his right to bring an Employment Tribunal claim well before the expiry of the time limit. Soon after his dismissal, he made enquiries with ACAS about the Tribunal process and had contact with them under the Early Conciliation Scheme. He also sought advice about it from the Citizens Advice Bureau.[29]In accordance with Trevelyans (Birmingham) Ltd (“supra”), when a claimant knows of his right to complain to an Employment Tribunal, he is under an obligation to seek information and advice about how to enforce that right. However, even though the Claimant had sought advice from ACAS and the Citizens Advice Bureau and received the ACAS certificate on 7 March 2020, that refers to making an employment tribunal application, he did not lodge the first of his claims for another 6 months.[30]I am therefore satisfied that in applying Sodexo Healthcare Services Ltd (“supra”), the Claimant’s ignorance of the time limit was not reasonable on these facts.[31]For these reasons, I have concluded that the Claimant has not shown that it was not reasonably practicable to lodge his claim within the statutory time limit.[32]In these circumstances, I am not required to determine whether the further delay in presenting his claim was reasonable.[33]Accordingly and for all of these reasons, I have determined that the claims are time barred and the Tribunal does not have jurisdiction to consider these claims further.