G Ford v ABM Facility Services UK Ltd: 6004199/2024
JUDGMENT
It was not reasonably practicable for the claimant to present his complaint of unfair dismissal within the limitation period and it was presented within a reasonable time thereafter. Consequently, the tribunal has jurisdiction to hear the complaint. Approved by JUDGMENT having been given orally on 26 February 2025 and the written record having been sent to the parties on 20 March 2025, subsequent to a request for written reasons in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure, the following reasons are provided:REASONS
Issues
[1]The issues for the tribunal were: 1.1. Whether it was reasonably practicable for the claim to be made to the tribunal within the 3 months’ time limit set out in section 111(2) of the Employment Rights Act 1996? 1.2. If it was not reasonably practicable for the claim to be made within this time limit, whether it was made within such further period as the tribunal considers reasonable.Law
[2]Section 111 Employment Rights Act 1996 - Complaints to [employment tribunal] provides: (1) A complaint may be presented to an [employment tribunal] against an employer by any person that he was unfairly dismissed by the employer. (2)– [subject to the following provisions of this section], an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the end of the period of three months beginning with the effective date of termination, or (b) 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.[3]Lady Smith in Asda Stores Ltd. v Kauser EAT 0165/07 explained that “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”.[4]Cullinane v Balfour Beatty Engineering Services Ltd EAT 0537/10 per Underhill P – Whether the further period between expiry of the primary time limit and the eventual presentation of a claim is reasonable requires an objective consideration of the factors causing the delay, and of the period that should reasonably be allowed in those circumstances. This assessment must always be made against the general background of the primary time limit and the strong public interest in claims being brought promptly.[5]All other law as set out in the respondent’s outline submissions has been considered. Background (numbers in brackets are references to the hearing bundle)Background
[6]The claimant’s employment was terminated on 30.11.23. Acas conciliation started on 8.2.24 (58). The claimant was not aware at this stage that Acas was separate to the Employment Tribunal (ET) and he thought that by contacting Acas, he had started his unfair dismissal claim.[7]The claimant corresponded with his Trade Union (TU) and Acas frequently, and believed he was progressing his case as he ought to and hoped to reach a settlement. He relied on Acas and his TU to guide him. There were communication issues with both Acas and his TU.[8]Acas caused confusion by issuing more than one Acas certificate, communicating with the claimant under three different references, and advising him about various different deadlines.[9]The first Acas certificate was issued on 12.2.24 (3) with reference R122584/24 (Reference 1). The accompanying email (59) advised the claimant that he had at least 1 month from the date of the certificate to make a claim to an employment tribunal and it provided a link to do so. It said that if the claimant had any questions, he could contact Acas.[10]On 29.2.2024 the claimant received correspondence from an Acas conciliator (62) with a different Acas reference, R127055/24 (Reference 2) showing a notification date of 17.2.24 and saying that Acas would speak directly with his TU representative from now on.[11]On 28.3.24 the claimant received an email from his TU representative (47- 48) saying: “Spoke with Acas again today, they are still in correspondence exchange with your former employer ABM, but a certificate will be issued soon – once received please complete ET application.”[12]On 5.4.24 the claimant spoke to his TU. The TU log (46) records: – spoke with member, Acas gone quiet and was concerned about timeline to get ET application in, but member already registered his ET before Acas.[13]In an email to the claimant from the TU representative sending him the log (46), the representative says: “This is very confusing – my records show you notified ET some time ago - see below.”[14]It was not until 30.5.24 when he received some correspondence from Acas (45) that he realised there was not going to be a settlement. The communication told him Acas had not heard from the respondent and it appeared that they were not open to settlement. It suggested that if he had not lodged a claim with the ET, he would need to do so within the time limits. It did not say what the time limits were.[15]On 14.6.24 the claimant received another communication from Acas (49 & 70) with a different reference, R195817/24/25 (Reference 3), entitled “Acas has been notified about a work dispute”. It said they would send him a certificate within 5 working days of receipt of his notification. It showed that they were notified on 14.6.24.[16]Also on 14.6.2024 Acas wrote to the claimant under Reference 1 (57,76 &78) telling him that his early conciliation case was closed and the certificate was issued on 12.2.2024.[17]On 18.6.24 the claimant was issued with another Acas early conciliation certificate showing Reference 3 (64). In an accompanying email (74) it said: “You can now use this certificate to make a claim to an employment tribunal if you still want to.”[18]The claimant presented his claim to the ET the following day on 19.6.24 (4).[19]In an email to his TU on 19.6.24 (47) the claimant explained: “There appears to be some confusion as to where the certificate is. I applied in Feb of which a certificate was issued. I was then advised a further certificate will be issued by Acas to proceed to the ET of which has not been received. I have been in contact with both Acas and my union representatives, however, some confusion, hence I applied online for an Employment Tribunal. I await your very urgent advice.”[20]On 20.6.24 the claimant received an email from Acas (46-47) saying “The certificate for this case was issued on 18th June 2024. … Please be advised that the employment tribunal and Acas are separate organisations, and Acas does not complete employment tribunal applications, these have to be done by a claimant or their representative.”[21]On 28.6.24 the claimant received an email from his TU representative (45-46) saying there had been some confusion, the ET1 should have been submitted by 12.3.24, … “and was advised by both Acas and a unite officer on 28.3.24 to submit application to ET – also by email confirming on 6.4.24”. It also said that the first Acas application was “done wrong” and a certificate released within 4 days. A second application was submitted.[22]The claimant does not recall being advised to submit an ET application on either of these dates by email, or otherwise. He does not recall being told verbally. Whilst there was an email from the TU on 28.3.24 advising him to complete the ET application once the Acas certificate had been received, by this stage, there was confusion over the certificate. There is no email in the bundle of 6.4.24 and the TU log of 5.4.24 does not advise him to present an ET claim.[23]Apart from the confusion over Acas certificates, the claimant was experiencing significant stress with his divorce, having had to prepare 3 times for significant financial hearings where his house and assets were at stake. He also visited his GP due to headaches and other potential stress-related symptoms.[24]His gave evidence that he was receiving a lot of correspondence at the time and had a lot to deal with. He did his best to comply with the rules and do the right thing. He did not think he was out of time.[25]Even at the hearing, listening to his evidence, he still believed that he was in time, given that the last Acas certificate was dated 18.6.24.Discussion and Conclusions
[26]The claimant, being a litigant in person, relied heavily on the advice from Acas.[27]Whilst he received the first Acas certificate on 12.2.2024, it informed him that he had at least 1 month to present his claim. The words “at least” did not alert him to any time limit. He was confused at that time about the status of Acas and the Employment Tribunal and thought they were the same organisation and that he had lodged his claim. This is supported by the email on 20.6.2024 from Acas, which appears to be clarifying for him that they are separate organisations.[28]In any event, before the 1-month time limit had expired, the claimant received further communication from Acas on 29.2.2024 indicating that conciliation was ongoing, and this was reinforced by the email from his TU on 28.3.2024.[29]As Acas were still trying to facilitate settlement at this stage, it begs the question whether the first certificate ought to have been issued at all and, indeed, the TU representative stated that it had been issued in error.[30]It was not until 30.5.2024, when he received further correspondence from Acas, that he realised there was not going to be a settlement. Acas then contacted him again on 14.6.2024 and told him a certificate would be issued within 5 days. The promised certificate was issued on 18.6.2024 and the claimant presented his claim the following day on 19.6.2024.[31]The various conflicting communications from Acas caused significant confusion for the claimant, who was unfamiliar with the process. This is understandable. He did his best to comply with the rules but was misled. Under the circumstances it was not reasonable to expect him to present his claim within a month of the first certificate.[32]In conclusion, it was not reasonably practicable for the claimant to present his claim within the time limit. He issued the claim within a day of the second Acas certificate. The tribunal considers this further period to be reasonable. Therefore, the tribunal has jurisdiction to hear the claim. Elizabeth C Ord