B Sims v University Hospitals Plymouth NHS Trust: 6001548/2024

EMPLOYMENT TRIBUNALS

Case No 6001548/2024

Between

B SimsClaimant

University Hospitals Plymouth NHS TrustRespondent

Before

Employment Judge Winfield

In person for claimant

Date 2 February 2025

JUDGMENT

The Judgment of the Tribunal is as follows: The claim of unfair dismissal under section 94 of the Employment Rights Act 1996 is struck out under rule 38(1)(a) of the Employment Tribunal Procedure Rules (the Rules), for having no reasonable prospect of success.

REASONS

Introduction

[1]This came before me via an application made by the Respondent dated 22 November 2024, to strike out a claim for unfair dismissal and an unlawful deduction of wages claim (holiday pay) (the Claims). This application was made on the grounds that the Claims were presented out of time and the Tribunal does not have jurisdiction to consider them.

[2]The submission made by the Respondent is that the date by which the Claims should have been lodged was 4 April 2024, however the Claimant did not lodge the Claims until 7 April 2024.

[3]In the alternative, the Respondent also presented at the hearing that a deposit order should be made if the Claims were considered to have little reasonable prospect of success.

[4]In the written response to this application, the Claimant stated:(a) the delayed submission was due to a system error with the online ET portal;

(b) difficulties were experienced contacting the office, which caused some delay in dealing with the matter;

[5]A preliminary hearing was listed to consider this matter prior to a full hearing taking place. A preliminary bundle (the Bundle) was produced by the Respondent and submitted shortly before the Hearing.

[6]In accordance with Rule 90 the Respondent’s case clearly stated upon what ground(s) the application is made and the application was copied to the other party (and the Tribunal was informed that this has been done). This afforded the Claimant a reasonable opportunity to make representations in writing and at a hearing. The Claimant responded in writing to the application on 5 December 2024 and, in addition, three hours were allocated to hear this matter in order to ensure all parties were able to make full representations on this application. Chronology and Summary of Events

[7]I spent time at the beginning of the hearing – and subsequently throughout – establishing the agreed timeline between the parties. This can be summarised as follows:a. Employment was terminated by the Claimant on 11 November 2023;

b. The Claimant contacted ACAS on 10 February 2024; Case Number: 6001548/2024 3

c. The date of Issue of the Early Conciliation Certificate was 4 March 2024;

d. The ET1 Claim form was lodged on 7 April 2024, however it was absent any specific information at Box 8.2 of the Claims.

[8]The Claimant agreed that the ET1 Form was lodged on 7 April 2024 and that they intended to lodge it on this date. For the purposes of this decision, the date that the ET1 Form was lodged was not disputed between the Parties.

[9]In addition, for the purposes of this Judgment, the correct date by which the Claimant should have lodged the Claims was 4 April 2024. The Law The Overriding Objective

The Law

[10]A Tribunal is required when addressing such applications as the present to have regard to the overriding objective, which is found in the Rule 3 of the Rules: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Striking out

[11]Rule 38 of the Rules provides: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— Case Number: 6001548/2024 4 (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

[12]The Employment Appeals Tribunal (EAT) has held that the striking out process requires a two-stage test in HM Prison Service v. Dolby

[2003] IRLR 694

EAT, at para 15. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. See also Hassan v. Tesco Stores

UKEAT/0098/19/BA

at paragraph 17 the EAT observed: “There is absolutely nothing in the Judgment to indicate that the Employment Judge paused, having reached the conclusion that these claims had no reasonable prospect of success, to consider how to exercise his discretion. The way in which [rule] 37 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so. That is why in the case of Dolby the test for striking out under the Employment Appeal Tribunal Rules 1993 was interpreted as requiring a two stage approach.”

[13]In Mechkarov v. Citibank N A

UKEAT/0041/16

, the EAT set out the approach to be followed including:(i) Ordinarily, the claimant’s case should be taken at its highest.

(ii) Strike out is available in the clearest cases – where it is plain and obvious.

(iii) Strike out is available if the claimant’s case is conclusively disproved or is totally and inexplicably inconsistent with undisputed contemporaneous documents. Time Limits

[14]Section 111(2)(a) Employment Rights Act 1996 (ERA) states “an employment tribunal shall not consider a complaint… unless it is presented to the tribunal… before the end of the period of three months beginning with the effective date of termination”. If the claim is presented outside the time limit, the tribunal simply does Case Number: 6001548/2024 5 not have jurisdiction to hear it (subject to the tribunal’s discretion, if applicable, to grant an extension of time).

[15]In order to allow a claim to be presented and then successfully lodged if it is out of time, the decision maker must follow ‘not reasonably practicable’ formula, which is in two parts:a. ‘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 the period of (three) months’;

b. if a claimant satisfies a tribunal that presentation in time was not reasonably practicable (part a above), that does not automatically decide the issue in their favour. The tribunal must then go on to decide whether the claim was presented ‘within such further period as the tribunal considers reasonable’.

[16]When a Claimant tries to excuse late presentation of his or her ET1 claim form on the ground that it was not reasonably practicable to present the claim within the time limit, three general rules apply:a. the application should be given a ‘liberal construction in favour of the employee’ — Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA;

b. what is reasonably practicable is a question of fact and thus a matter for the tribunal to decide; and

c. the onus of proving that presentation in time was not reasonably practicable rests on the claimant. ‘Porter v Bandridge Ltd

1978 ICR 943

, CA. Representations of the Parties

[17]The Respondent considered first whether it was reasonably practicable not to present the Claims in time. The Respondent submitted the following:a. The Claimant was clearly aware of the deadline for submitting the Claims. I was directed to Page 24 of the Bundle, where at 8.2 of the ET1 Form, the Claimant writes “Due to the length of time it took to process and adjust the relevant information to be within the allocated text, I do not feel I will be able to complete in time as my deadline for submission is today”;

b. The Claimant had the benefit of Trade Union legal advice (for example, Page 32 of the Bundle), which whilst not available for the entirety of the process, had been available to her previously; Case Number: 6001548/2024 6

c. The Claimant has a working understanding of Information Technology – which is relevant to the technical issues stated by the Claimant in their response to this Application. The Claimant made clear they could attend video hearings and the Bundle refers to periods of remote working and applying for roles via an online application portal;

d. The Claimant had all of the information available to them at the time of submission, based on the submissions made. This could have been attached to the Claim Form (ET1), rather than trying to re-write the information into an incomplete box at 8.2 of the ET1 Form;

e. The Claimant should have acted with more prudence by saving their Claims into a word document format;

f. The Claimant had months to file her Claims and no good reason has been given to leave submission until the last minute. If the Claimant chooses to leave filing until the last minute, encountering a “technical issue that is the risk they run”. The test is not “was it reasonably practicable in the last few hours”, but rather “was it reasonably practicable for the Claims to be presented outside the entire four month period”;

g. When the Claimant was ordered to respond to the strike out by 13 November the Claimant responded on 5 December, over three weeks late. The Respondent submitted that “Lateness is a theme of the conduct of litigation to date”;

h. On the Claimant’s statement that they were granted an extension of time to submit their Claims, the Respondent submits there is no formal grant of extension in writing or otherwise. In any event, administrative staff cannot grant an extension of time on behalf of the Tribunal, if this was in some way implied. Time limits are imposed by statute and this governs the jurisdiction to hear the Claims;

i. The bar is not the same for the Tribunal to hear as a “just and equitable” case.

[18]I should add here that the submission of the Claimant also focused on the fact that the Claimant had between the afternoon and “until midnight” to submit the Claims on 7th April and that this was ample time to fill in one page of text at Box 8.2. At this point, time was spent at the hearing clarifying with both parties when it was agreed the Claims had been submitted on 7 April 2024 and this was the intention of the Claimant.

[19]The Claimant then provided a reply. Some time was spent during the hearing allowing the Claimant time to provide all of the representations and information they considered was pertinent to this application. I noted that the Claimant was conducting the hearing on her mobile phone and could only access documentation on that same mobile phone. Additional time was spent reading out relevant parts of the Bundle and clarifying that the Claimant understood the position. The Tribunal Case Number: 6001548/2024 7 then also adjourned for a short period to allow the Claimant time to consider further any additional responses they may wish to make and documents they needed to check. I have sought to summarise the Claimant’s points below as succinctly as possible:a. The Claimant found that there were problems using the online (Employment Tribunal) portal, both in terms of submitting documents and receiving them during the process. More generally, there have been problems relating to communication with the Tribunal. It was clarified during the hearing that the Claimant was referring here to the submission of the ET1 Form and then correspondence and documentation submission during and after 7th April 2024. For example, the Claimant explained that there “was a problem with the Sunday [7th April], because there was no one to speak to and I didn’t speak to anyone until the next day”.

b. The full time was needed between the date of termination in November 2023 and the lodging of the Claims in April for the Claimant to try and remember what had happened, what the experience was that led to that termination and what they wanted to say. In effect, I interpret this to mean the Claimant needed the full amount of time to consider, prepare, concentrate and then deliver the Claims;

c. The Claimant’s view was that the 7th April deadline was acceptable and this is because it was on a weekend day – this was still within the deadline. The Claimant checked this with the Tribunal office after the event and considered that they had agreed this was acceptable as well;

d. The Claimant found they had not received, or had missed, various correspondence after 7th April;

e. There was a delay communicating with ACAS during the period between 11th November and 4th April 2024;

f. The Claimant found the process distressing at times and during a period in March, when communicating with ACAS, was suffering from a virus.

[20]On further questions to the Claimant, they confirmed that they had requested general, but not specific, information from ACAS, relating to the date by which the Claims needed to be lodged. It was established that the Claimant had not contacted the Tribunal prior to submission of the Claims. The Claimant also confirmed that they did not benefit from Union advice at the time the Claims were submitted.

Discussion

[21]It is important to begin by stating that the above submissions were not recorded with the aim of assessing in any detail the evidence provided by the parties – that is not the test that must be applied here. The purpose of evaluating the above is Case Number: 6001548/2024 8 to take the Claimant’s case at its highest and allow as beneficial an interpretation as possible for that party presenting it. This is coupled with the need to consider the Overriding Objective and that this test should be given a ‘liberal construction in favour of the employee’ (see Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA).

[22]As such, it is clear to me that the Claimant has found this process difficult, stressful and that communication has been challenging – both with ACAS prior to the Claims being submitted, then the Tribunal after the Claims were submitted. It is also very unfortunate that the Claimant experienced IT issues when they submitted the Claim on 7th April 2024.

[23]The Claim was not submitted on time. It was submitted after the date. Whilst some time was spent at the hearing trying to conclude why it was not reasonably practicable to submit it by or on 4th April 2024, there is simply no specific reason available, other than the Claimant thought the date was 7th April 2024. On this matter, a claimant’s complete ignorance of his or her right to claim unfair dismissal may make it not reasonably practicable to present a claim in time, but the claimant’s ignorance must itself be reasonable. I note that where the claimant is generally aware of his or her rights, precedent establishes that ignorance of the time limit will rarely be acceptable as a reason for delay; the claimant will generally be taken to have been put on inquiry as to the time limit. Indeed, in Trevelyans (Birmingham) Ltd v Norton

1991 ICR 488

, EAT, Mr Justice Wood stated that, when a claimant knows of his or her right to complain of unfair dismissal, he or she 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. I have also considered Reed in Partnership Ltd v Fraine EAT 0520/10 – the Claimant has not been misled by anyone and could have made enquiries using numerous online resources.

[24]Regarding the reason as to why the Claim was not submitted at any other period throughout the three months, whilst I do sympathise with the Claimant that this process is(a) stressful;

(b) difficult; and

(c) takes time to compile and carefully consider a case – this is the situation that the majority – if not all - Claimants find themselves in when lodging a claim with the Tribunal. Taking the information provided by the Claimant at the highest – and on a liberal interpretation – I do not see that the Claimant has shown precisely why the Claim was not made in time, or that there was a specific reason in this instance as to why this could not have occurred (Porter v Bandridge Ltd

1978 ICR 943

, CA). Furthermore, I do not see that imposing a lesser sanction of a deposit order will effect any different a result. The Claimant was provided with a significant amount of time at this hearing to explain their position in addition to providing a written response prior to this date. Case Number: 6001548/2024 9

[25]I do not see that ignorance of the proceedings, combined with the stress and difficulties that come with the submission of any Claim, gives me a finding that I can consider it was not reasonably practicable to submit the Claim. I note the words of Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained “reasonably practicable” 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’.

[26]It is not a proportionate use of Court’s time and expense to continue this Claim further in, given all of the above taken into consideration.

[27]Finally, to address the point regarding the grant of an extension of time. There is no grant of extension of time and there is no formal direction extending the time by which the Claims must have been filed. Whilst I appreciate that the Claimant has interpreted the conversation with the Tribunal staff in this way, all of this occurred after the event i.e. after the expiry of time on 4th April 2024. There is not much more that can be made of this point.

Conclusion

[28]The difficulty here is twofold:a. there is no precise or specific reason why the Claimant could not lodge the Claims within the time period; and

b. (b) the Claimant mistakenly thought that the date for lodging the Claims was 7th April 2024.

[29]I have had regard to the overriding objective, all the representations of the Claimant (taken in the highest and on a liberal construction) and have been unable to find a reason that meets the test of reasonable practicability. I find this unfortunate and the Claimant was given a lot of time and what I would describe as open questions from me to try and elicit a more specific answer throughout the preliminary hearing. It is for me plain and obvious that the date was missed and there is no reason I can find – or could find during the hearing - to support it. I do then not need to consider the second element of the rest relating to whether the submission in such further time being reasonable in the circumstances.

[30]I have made a finding that there are no reasonable prospects of success in relation to the claimant establishing that it was not reasonably practicable to bring the claim within the limitation period and I am exercising my discretion to strike out this application.

[31]The application succeeds. Case Number: 6001548/2024 10