Mr A A Hughes v Somerset NHS Foundation Trust: 6000595/2024
EMPLOYMENT TRIBUNALS
Case No 6000595/2024
Between
Mr Alex A HughesClaimantSomerset NHS Foundation TrustRespondent
Before
Employment Judge GrayIn person for claimantMr Heard (instructed by Counsel) for respondentDate 8 May 2025
JUDGMENT
It is the Judgment of the Tribunal that the Claimant’s complaints of breach of contract and detriment for public interest disclosure are dismissed as they are out of time, and it would have been reasonable to submit them before they were. However, it is just and equitable to extend time for the complaint of victimisation, and that complaint therefore continues.
REASONS
[1]This Hearing[2]This is a reserved judgment following a hearing by video on the 2 May 2025 to determine time limits.[3]It is not in dispute that the complaints made in this claim are all materially out of time.[4]For reference at this hearing, the Judge was provided with a 204-page electronic bundle including index. 1 of 11[5]The Judge was also provided with a witness statement from the Claimant and a witness statement from Alison Wootton Deputy Chief Nurse and Director of Infection Prevention Control at the Respondent, on behalf of the Respondent. The Respondent did not rely upon that statement for the time limit matters.[6]Evidence was heard from the Claimant by affirmation. The Respondent did not call its witness, it being accepted that it was not relevant to the time limit questions to be determined.[7]Evidence and submissions concluded just after 14:30 and it was deemed appropriate to reserve judgment. The parties were informed that outstanding case management issues, if still relevant after the time limit Judgment, would be addressed by a further case management preliminary hearing by telephone.[8]The Claim[9]By a claim form presented on 21 February 2024 the Claimant brought the following complaints:(a) Detriment on the grounds of public interest disclosure;(b) Breach of a settlement agreement.[10]The Claimant commenced the Early Conciliation process with ACAS on 19 February 2024 (Day A). The Early Conciliation Certificate was issued 21 February 2024 (Day B). Accordingly, any act or omission which took place before 20 November 2023 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.[11]It was determined at the hearing on the 2 May 2025 that the Claimant could relabel the facts asserted in his claim to include a complaint of victimisation (section 27 of the Equality Act 2010).[12]With the granting of the amendment application (as set out in the separate case management order), this Judgment also now includes consideration of the just and equitable test, all matters still being materially out of time.[13]The Facts[14]It is not in dispute that the Claimant agrees to settle a previous employment tribunal claim and for the termination of his employment with the Respondent based on the terms of a Settlement Agreement (pages 108 to 118 of the bundle).[15]The Settlement Agreement dated 8 December 2022 (page 108) records the Claimant’s termination date as the 8 December 2022 (page 109).[16]By way of relevant background, the Claimant had submitted a Tribunal claim in February 2022 (page 5) which was dismissed on withdrawal (the withdrawal being 2 of 11 acknowledged by correspondence from the Employment Tribunal dated 4 January 2023 at page 62 of the bundle) by Judgment dated 1 March 2023 (page 65).[17]This current claim submitted on the 21 February 2024 complains that complaints made to the NMC and BABCP about the Claimant around the time of the Claimant signing the Settlement Agreement, were done either as acts of detriment/victimisation because the Claimant had made a protected disclosure / done a protected act, and/or in breach of the confidentiality / non disparagement clauses in the Settlement Agreement.[18]It is understood the NMC complaint was submitted before the settlement agreement and the BABCP complaint was submitted after the settlement agreement.[19]As already noted, based on the dates of the ACAS certificate (19 February 2024 to 20 February 2024) for this claim things complained before the 20 November 2023 are potentially out of time.[20]The Claimant asserted that it was not possible to put his current claim in before he did for two reasons:20.1 That he wanted to confirm that the complaints to the NMC and then BABCP were not patient death complaints.20.2 Then having confirmed they did not relate to patient deaths, he then needed to allow the Respondent time to evidence what steps they had taken to protect him from vindictive allegations.[21]The Claimant says he was advised by ACAS that he could not put a claim in before those things were established.[22]The Claimant explained that the Royal College of Nursing (RCN) had advised he would need to wait for the complaints to be dropped against him.[23]The Claimant did not submit any evidence from ACAS or the RCN as to the advice they gave at the time. The Claimant confirmed that he remains a member of the RCN.[24]The Claimant explained in his oral evidence that when he spoke to ACAS, in Spring 2023, they informed him that as he had entered a settlement agreement (rather than a COT 3 agreement), they could not assist him. In relation to obtaining a conciliation number the Claimant confirmed that ACAS advised that he could not do that as he did not settle the matter through ACAS.[25]The Claimant explained that he then clarified that he could bring a claim following advice from the RCN and an employment solicitor, but when he tried, he was then advised by ACAS that he needed to wait to see the evidence from the Respondent as to whether it had taken every protective measure to stop vindictive reporting. 3 of 11[26]The Claimant confirmed he became aware of the NMC complaint the week after he signed the Settlement Agreement (which was signed by the Claimant on the 15 December 2022 (page 115)), so around the 22 December 2022.[27]The outcome from the NMC complaint is dated 14 February 2023 (pages 127 to 130). The decision is to not investigate the matter further.[28]The Claimant confirmed that he became aware of a BABCP complaint on the 6 February 2023 (email from Claimant dated 6 February 2023 refers (page 125)), but that he thought there may have been two BABCP complaints and it was the second one he complains about that he became aware of on the 23 February 2023. The Claimant confirmed that he recalled becoming aware of the BABCP complaint 9 days after the NMC complaint had been concluded (so 9 days after the 14 February 2023).[29]The Claimant is aware from the 13 February 2023 that the NMC complaint is not from a patient. His email of that date (page 125) confirms … “I have spoken to NMC and they have confirmed that it is not from a patient but has been made anonymously by someone who is aware of my circumstances in Somerset Partnership NHS.”. The Claimant’s email notes his shock at a vindictive act, and that he considers it to be a clear breach of the non-disclosure agreement.[30]At that point the Claimant is aware it is not a patient complaint and believed it was vindictive, so it was put to the Claimant there was nothing stopping him bringing a claim at that point. The Claimant confirmed that he tried his best, he was very keen and following the routes. This is where the second reason then applies, he says he was advised by ACAS and the RCN that he needed to allow the Respondent time to evidence what steps they had taken to protect him from vindictive allegations.[31]On the 1 March 2023 the Claimant writes to the Employment Tribunal reaching out for advice (page 63). The Claimant writes: “Dear Tribunal, I have signed a settlement agreement. However am asking the Courts advise that this agreement seems to have been breached. I have reached out to Caroline Sherwood and my old employers for advice over the last 2 weeks for support and advice to no avail. Given the anonymous reporting that has been made to the Nmc and the babcp. The details of which from my opinion could have only been made someone within Somerset Nhs foundation trust. Only my family and my clinical supervisor and the owner of the venue from which I worked privately were also aware that I was authorised to continue to work privately when I was not contracted to work in nhs. This reporting seems totally vindictive and a breach of the non disclosure agreement. I am asking whether I can provide the details of the case so as to clear my name with my professional bodies or would this be a breach of the agreement. 4 of 11 The nmc have as per the document closed the case. Whilst the Babcp appear to have decided to investigate in full. I am unaware if the details of the complaint are different from the nmc complaint. Also does the Judge have a concern around such reporting being done post signing a non disclosure agreement causing even more stress to myself. I look forward to your guidance.”[32]The Claimant was asked in cross examination why was he seeking such advice if he had been advised as he says by ACAS and the RCN. The Claimant explained that he was very determined to pursue the matter having learnt of nurse deaths in response to complaints and he was looking at the facts and exploring numerous routes. The Claimant confirmed that he considered the advice from the RCN to be completely wrong advice with the RCN saying he couldn’t do anything about it and that wasn’t good enough.[33]It was put to the Claimant in cross examination that he therefore did not believe the advice of ACAS, or the RCN was correct when he sent his email to the Employment Tribunal. The Claimant confirmed that was correct and he was exploring every avenue to bring a case.[34]The complaint through the BABCP was settled by the 24 April 2023 when it was confirmed to the Claimant there was no case to answer and the complaint was to be closed with no further action (page 184).[35]The Claimant explains in paragraph 9 of his witness statement that …. “It was only after I was made aware complaints were dropped, and that they weren’t from patients, that I was able to complain to the NHS Trust. I was also informed they had taken protective measures to prevent vindictive reporting as per Sharon Baxter’s Letter (pg 138-139) [letter dated 19 May 2023].”. Further, at paragraph 10 … “The assertion that my original grievance had led to change in procurement systems was not my experience nor that of a new starter on Hi CBT Training. Please see Peter Lewis letters 5th September 2023 (pg 185) (pg 140).”. Also, paragraph 11 … “I then submitted an ICO Application for evidence of the measures taken. This took from 30th June 2023 till 2nd November 2023, no evidence was available. (pgs 141-146).”.[36]The Claimant’s request for information is dated 11 August 2023 (page 185). It is confirmed to the Claimant on the 22 November 2023 that the information he has requested is ready (page 142). The Claimant arranges to collect the information on the 27 November 2023 (page 141).[37]The Claimant explains that he then acted within 3 months of getting that information (paragraph 12 of his witness statement) submitting his claim on the 21 February 2024. 5 of 11[38]The Respondent confirmed in its submissions that in terms of the just and equitable question it could not be submitted that the cogency of the evidence has been affected by the delay. It is clear the Respondent is on notice of this potential claim from its response to the Claimant dated 19 May 2023 (pages 138 to 139). Instead, it is submitted that the prejudice is the Respondent faces a claim which would otherwise be time-barred.[39]The Law on Time Limits[40]It is not in dispute that the complaints in this claim are all out of time unless it was not reasonably practicable to submit the claim in time and it was then submitted within a reasonable time thereafter (for the whistle blowing / breach of contract complaints) or it is just and equitable to extend time (for the victimisation complaint).[41]Whistleblowing / Breach of contract[42]Section 48(3)(b) of the Employment Rights Act 1996 provides that an Employment Tribunal shall not consider a complaint of detriment unless it is presented before the end of the period of three months beginning with the effective date of the act or deliberate failure to act, 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.[43]Regulation 7 of the Extension of Jurisdiction Order 1994 provides that an Employment Tribunal shall not consider a complaint of breach of contract unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, 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.[44]As Lord Denning MR put it in Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA: ‘If a man engages skilled advisers to act for him — and they mistake the time limit and present [the claim] too late — he is out. His remedy is against them.’ This rule is commonly referred to as the ‘Dedman principle’.[45]In Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. Considering that question is an issue of fact for the Employment Tribunal taking all the circumstances of the given case into account. Consideration can be given to: 6 of 1145.1 The substantial cause of the employee’s failure to comply with the statutory time limit.45.2 Whether they had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar.45.3 It may be relevant to investigate whether, at the time of the thing complained about, and if not when thereafter, the employee knew they had the right to complain.45.4 Whether there was any misrepresentation about any relevant matter by the employer to the employee.45.5 Whether the employee was being advised at any material time and, if so, by whom; the extent of the advisor’s knowledge of the facts of the employee's case; and of the nature of any advice which they may have been given. It will probably be relevant in most cases to ask whether there was any substantial failure on the part of the employee or her adviser which led to the failure to comply with the time limit.[46]Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: ‘The relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.[47]In Pearce v Bank of America Merrill Lynch and ors EAT 0067/19 the EAT confirmed that the extension of time provided by early conciliation does not apply where the limitation period has already expired before the early conciliation commences.[48]In Langley v GMB and ors 2021 IRLR 309, QBD, the High Court provided guidance on the duty of care owed by a trade union to its members when advising and acting in employment disputes. The duty is to exercise reasonable skill and care in the provision of practical industrial relations and employment advice. It requires the reasonable knowledge and experience expected of a trade union in both individual and collective negotiations, and includes having a general understanding of employment, HR, and industrial relations issues; being reasonably well informed about employment law in general terms; having a reasonable level of skill and expertise in persuasion and negotiation; and being able to provide strategic and tactical advice on how to resolve a situation in the best interests of its members. The Court rejected the argument that the duty is ‘quasi-legal’. This was a vague and imprecise term that did not shed light on the scope of the duty.[49]Underhill P as he then was considered the period after the expiry of the primary time limit in Cullinane v Balfour Beattie Engineering Services Ltd [2011] 4 WLUK 89 (in the context of the time limit under section 139 of the Trade Union & 7 of 11 Labour Relations (Consolidation) Act 1992, which is the same test as the complaints in this claim) at paragraph 16: “The question at “stage 2” is what period - that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.”.[50]Victimisation[51]Section 120 of the Equality Act 2010 confers jurisdiction on claims to employment tribunals, and section 123(1) of the Equality Act 2010 provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.[52]Noting the principals from the cases of British Coal v Keeble [1997] IRLR 336; Robertson v Bexley Community Service [2003] IRLR 434 CA; and London Borough of Southwark v Afolabi [2003] IRLR 220;[53]Noting the factors from section 33 of the Limitation Act 1980 which are referred to in the Keeble decision:53.1 The length of and the reasons for the delay.53.2 The extent to which the cogency of the evidence is likely to be affected by the delay.53.3 The extent to which the parties co-operated with any request for information.53.4 The promptness with which the claimant acted once he knew the facts giving rise to the cause of action.53.5 The steps taken by the claimant to obtain appropriate professional advice.[54]The Court of Appeal in the Afolabi decision confirmed that, while the checklist in section 33 of the Limitation Act provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in section 33 should not be elevated into a legal requirement but should be used as a guide. The Court suggested that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). 8 of 11[55]It is also clear from the comments of Auld LJ in Robertson that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard … "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule".[56]The strength of the claim may also be a relevant factor when deciding whether to extend time. In Lupetti v Wrens Old House Ltd 1984 ICR 348, EAT, the Appeal Tribunal noted that tribunals may, if they think it necessary, consider the merits of the claim, but if they do so they should invite the parties to make submissions. However, this is not necessarily a definitive factor: even if the claimant has a strong case, time may not be extended for it to be heard.[57]A useful summary of the principles governing the exercise of the ‘just and equitable’ discretion was set out by Mrs Justice Elisabeth Laing (as she then was) in Miller and ors v Ministry of Justice and ors and another case EAT 0003/15:57.1 the discretion to extend time is a wide one;57.2 time limits are to be observed strictly in employment tribunals. There is no presumption that time will be extended unless it cannot be justified. The reverse is true: the exercise of discretion is the exception rather than the rule;57.3 if a tribunal directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, ‘perverse’, i.e. no reasonable tribunal properly directing itself in law could have reached it, or the tribunal failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence;57.4 what factors are relevant to the exercise of the discretion, and how they should be balanced, are a matter for the tribunal. The prejudice that a respondent will suffer from facing a claim which would otherwise be timebarred is customarily relevant in such cases;57.5 the tribunal may find the checklist of factors in S.33 of the Limitation Act 1980 helpful, but this is not a requirement and a tribunal will only err in law if it omits something significant.[58]The Decision[59]The Claimant is aware of the NMC complaint around the 22 December 2022, so limitation for that would be the 21 March 2023. Then as to awareness of the BABCP complaint he says it was on the 23 February 2023, so limitation for that would be 22 May 2023. The claim was submitted on the 21 February 2024 so 11 9 of 11 months out of time for the NMC complaint and 9 months out of time for the BABCP complaint.[60]The Claimant articulates the potential complaint he has to the Employment Tribunal on the 1 March 2023.[61]It is by the 24 April 2023 the Claimant is aware that neither complaint is proceeding against him.[62]It is then by the 22 November 2023 that the Claimant is informed his requested information from the Respondent is available.[63]Considering then the substantial cause of the Claimant's failure to comply with the time limit / the length of and the reasons for the delay.[64]The claim is 11 months out of time for the NMC complaint and 9 months out of time for the BABCP complaint.[65]Accepting what the Claimant says he was told by ACAS and the RCN, as he has confirmed to this Tribunal under oath, he has a reason why he did not submit a claim before the end of November 2023 (the date by which he had all the information he says he was advised to collate). Although the Claimant is critical of the advice he received from the RCN there is no evidence before this Tribunal to suggest he was given alterative advice to take a different course.[66]I accept that it was not reasonably feasible to submit his claim while he seeks to comply with the advice he has been given and obtain the necessary information to effectively unlock his right of claim.[67]Considering then if the claim was submitted within a reasonable time thereafter. This requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted. That is having regard to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.[68]Accepting the Claimant’s reason as sufficient to explain why it was not reasonably practicable to submit his claim in time, it would though be objectively reasonable to submit the claim on or around receipt of that information. By that point the Claimant is no longer restricted from submitting a complaint. His right of claim has been unlocked. Therefore, the Claimant has not submitted his claim within a reasonable time thereafter by waiting nearly three months to submit his claim from that point.[69]The just and equitable question is different though. There are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). 10 of 11[70]It is clear from the case law that an Employment Tribunal’s discretion to extend time in discrimination cases is wider than the discretion available in breach of contract/detriment cases. It is a relevant factor for this element that the Claimant submitted his claim within three months of the date he obtained the information from the Respondent. While not objectively reasonable in my view it does explain why the Claimant acted when he did, and no evidential prejudice has been caused to the Respondent as a result. Conversely, the Claimant loses his right of claim, which by his actions of seeking advice from ACAS, the RCN, the Employment Tribunal and an employment lawyer, as well as seeking information from the Respondent, support why it is just and equitable to extend time for the victimisation complaint, when balanced against the Respondent having to face a claim that would be time barred.[71]It is therefore the Judgment of the Tribunal that the Claimant’s complaints of breach of contract and detriment for public interest disclosure are dismissed as they are out of time, and it would have been reasonable to submit them before they were. However, it is just and equitable to extend time for the complaint of victimisation, and that complaint therefore continues. Approved by: