Mr R Wrobel v The Merchant Company Education Board (operating as ESMS): 4107155/2024
JUDGMENT
The judgment of the Tribunal is that: The Tribunal does not have jurisdiction to consider the claimant’s complaint of unfair dismissal; and The claimant’s application to amend his claim is refused.REASONS
[1]The claim was set down for an open preliminary hearing to determine the preliminary issue of whether the Tribunal has jurisdiction to hear the claim, or whether it was presented out of time, as well as the claimant’s application to E.T. Z4 (WR) amend his claim and the respondent’s application for a deposit order, if the application to amend is permitted.[2]The Tribunal heard evidence from the claimant only.[3]The respondent lodged a bundle of productions, extending to 72 pages. The claimant confirmed that he did not intend to rely on any further documents.[4]An interpreter was present to assist the claimant.Background
[5]The claimant’s complaint of unfair dismissal was presented to the Tribunal on 31 October 2024.[6]On 12 December 2024, in response to a request from the Tribunal to confirm why he states his dismissal was unfair, the claimant sent an email to the Tribunal stating, in essence, that: a) the cleaning supervisor, called the claimant (in conversation with other cleaners) “that old Jew”, a remark he found upsetting; b) the cleaning supervisor repeatedly made comments about his age and appearance; and c) when he was dismissed, 5 other cleaners were also dismissed, demonstrating an intent to dismiss older staff.[7]At a preliminary hearing for case management, held on 12 February 2025, the claimant indicated that he wished his email of 12 December 2024 to be taken as an application to amend his claim, to include complaints of age discrimination.[8]The respondent objected to the claimant’s application to amend, and indicated that they would seek a deposit order in the event that it was permitted. Findings in Fact[9]The Tribunal found the following facts, relevant to the issues to be determined, to be admitted or proven.[10]The claimant worked for the respondent as a cleaner. He worked 20 hours per week.[11]The claimant lives with his daughter who has a serious illness. She is cared for by nurses, who attend the claimant’s home each day, and the claimant. Her condition is gradually declining.[12]The claimant’s employment with the respondent terminated on 15 May 2024. He received a letter confirming that, dated 17 May 2024, and appealed against his dismissal. He attended an appeal hearing on 17 June 2024. He received the appeal outcome, confirming his appeal had been unsuccessful, by letter dated 18 June 2024. He then, on 15 July 2024, sent an email to the respondent’s Chair of Governing Council asking for a meeting to discuss his dismissal. The Chair responded on 24 July 2024, confirming that the appeal outcome was final and would not be reviewed.[13]The claimant obtained advice and assistance from Citizens Advice Edinburgh (CAE) in relation to the termination of his employment. They prepared his appeal letter and the email of 15 July 2024. He attended their offices to obtain advice approximately 10 times in the period from his dismissal to 15 July 2024. After that date, he generally attended their offices to obtain advice and assistance weekly, on a Tuesday. An interpreter was present on each occasion. CAE also provided assistance to the claimant in relation to his search for alternative employment, which was his focus initially.[14]CAE told the claimant that he could make a complaint to the Employment Tribunal in relation to his dismissal. They informed him that there were time limits for doing so. The claimant did not enquire as to what those time limits were, as he was focusing on seeking alternative employment at that time, and it did not seem to him to be relevant, as he had no intention of pursuing a Tribunal claim at that time.[15]On 31 August 2024 the claimant had an accident and sustained a serious injury to his left hand. He was admitted to hospital for around a week and then required to go to Livingston for physiotherapy, every 2-3 days, for the next month.[16]From 14-18 October 2024, CAE, on behalf of the claimant, participated in early conciliation.[17]On 31 October 2024, CAE assisted the claimant to present a claim to the Tribunal, completing the ET1 form on his behalf. His claim included a complaint of unfair dismissal only.[18]The claimant started alternative employment at the start of 2025. Submissions[19]The respondent submitted a written submission, extending to 7 pages. This was read by the Tribunal and the interpreter read this aloud to the claimant. The written submission for the respondent was supplemented briefly orally, to reflect the evidence heard.[20]The claimant gave a brief oral submission indicating that he understood that his claim had not been lodged in time, but requesting that it, and his amendment, be permitted.Relevant Law
[21]The relevant time limits in relation to the unfair dismissal complaint is set out in section 111(2) of the Employment Rights Act 1996 (ERA).[22]These provisions state that a Tribunal shall not consider a complaint unless it is presented to the Tribunal before the end 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.[23]In considering whether there is jurisdiction to hear such complaints, Tribunals accordingly require to consider the following questions: a) Were the complaints presented within the primary three month time limit? b) If not, was it reasonably practicable for the complaints to be presented within that period? c) If not, were they presented within such further period as the Tribunal considers reasonable?[24]The question of a what is reasonably practical is a question of fact for the Tribunal. The burden of proof falls on the claimant. Whether it is reasonably practicable to submit a claim in time does not mean whether it was reasonable or physically possible to do so. Rather, it is essentially a question of whether it was ‘reasonably feasible’ to do so (Palmer and Saunders v Southend-onSea Borough Council [1984] IRLR 119).[25]Whether the claim was presented within a further reasonable period requires an assessment of the factual circumstances by the Tribunal, to determine whether the claim was submitted within a reasonable time after the original time limit expired (University Hospitals Bristol NHS Foundation Trust v Williams UKEAT/0291/12). Discussion & Decision Jurisdiction[26]The Tribunal considered whether the complaint of unfair dismissal was presented within the primary three month time limit. The Tribunal noted that the effective date of termination of the claimant’s employment was 15 May 2024. The relevant time limit accordingly expired on 14 August 2024.[27]Whilst the claimant commenced early conciliation on 14 October 2024, as this was done after the expiry of the primary time limit, it did not result in the extension of the primary time limit in respect of complaint against the respondent.[28]The claim against the respondent was lodged on 31 October 2024. The claim was accordingly not presented in the primary three month time limit. It was submitted approximately 2.5 months after it expired.[29]The Tribunal then considered whether it was reasonably practicable for the claim to have been presented within the initial three month period. In his email of 12 December 2024, when responding to a question from the Tribunal regarding why he states it was not reasonably practicable to lodge his claim in time, the claimant relied upon 4 issues: language difficulties; limited availability of support from CAE and long wait times for appointments; health problems resulting from a hand injury; and being carer to his daughter.[30]The Tribunal did not accept, given the evidence, that language difficulties, limited availability of support from CAE and long wait times for appointments with CAE made it not reasonably feasible for the claimant to lodge a claim in the period from 15 May to 14 August 2024. The claimant’s evidence was that, by 15 July 2024, he had attended CAE’s offices to obtain advice approximately 10 times and generally saw them weekly, on a Tuesday, thereafter. An interpreter was present on each occasion. They reviewed his dismissal letter, provided advice to him and prepared a letter of appeal for him. They reviewed the outcome of that appeal, provided advice to him and prepared the email of 15 July 2024 to be sent to the Chair of the Governing Council. They reviewed the response to that email and provided advice again to the claimant. He was accordingly readily able to obtain advice from CAE, and an interpreter was present on each occasion. He was aware that there were time limits for presenting claims to the Employment Tribunal, as CAE informed him of this, but he did not ask what those time limits were. He was readily able to do so, given that he had frequent appointments with CAE, seeing the same person on each occasion, with an interpreter present.[31]The Tribunal accepted that the claimant’s daughter has a serious illness, and he has responsibilities caring for her. Whilst her condition is gradually deteriorating, no evidence was led of any significant change in her medical condition in the period from 15 May to 14 August 2024. The Tribunal noted that the claimant was, until 15 May 2024, able to work at least 20 hours per week, notwithstanding his caring responsibilities. The claimant also indicated that his primary focus in the months following the termination of his employment with the respondent was to secure alternative employment. Given these points, the Tribunal concluded that his caring responsibilities did not impact his ability to lodge a claim in the period from 15 May to 14 August 2024.[32]In relation to the claimant’s medical condition, the Tribunal noted that the claimant sustained an injury to his left hand on 31 August 2024, after the time limit for lodging his claim had expired. That injury accordingly had no impact on his ability to lodge a claim in the period from 15 May to 14 August 2024.[33]In light of the above, the Tribunal concluded that the claimant has not demonstrated that it was not reasonably practicable for him to have lodged his claim within the initial three month time limit. The Tribunal concluded that it was reasonably practicable for him to do so. Given this conclusion, the Tribunal does not require to consider whether the claim was submitted in a reasonable further period. The Tribunal accordingly concluded that it does not have jurisdiction to consider the complaint of unfair dismissal. Amendment Application[34]The Tribunal note that the claimant’s proposed amendment application related to comments made to him in the course of his employment, and that his dismissal was an act of direct age discrimination. These are entirely new complaints, which were not referenced in the claimant’s originating claim for unfair dismissal. They would involve substantially different areas of enquiry, into different factual and legal issues. The amendment application was made on 12 December 2024, nearly 7 months after the termination of the claimant’s employment with the respondent.[35]Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 NIRC is authority for the proposition that there must be a claim that is capable of being amended for an application to amend to be granted. If the Tribunal has no jurisdiction to consider the claim form as originally presented, there is nothing to amend.[36]This was not a scenario such as that in Sakyi-Opare v The Albert Kennedy Trust UKEAT/0086/20, where the substance of the proposed amendment may be material to whether the original claim is in time, because they introduce matters which have occurred more recently and which might then constitute conduct extending over a period. The claimant’s proposed amendments related to the period of his employment and his originating application included a complaint for unfair dismissal only.[37]Accordingly, the Tribunal concluded that, as the Tribunal does not have jurisdiction to hear the complaint of unfair dismissal, which was the only complaint in the claimant’s originating claim, there are no proceedings which can be amended. The claimant’s application to amend must, therefore, be refused. Deposit Order[38]As the amendment application was refused, the application for a deposit order did not fall to be considered.