Mr R Craven v Nash Mechanical Seal Services Ltd: 6004790/2025
EMPLOYMENT TRIBUNALS
Case No 6004790/2025
Between
Mr R CravenClaimantNash Mechanical Seal Services LtdRespondent
Before
Employment Judge HumbleIn person for claimantDate 26 November 2025
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]The unfair dismissal claim was presented out of time and it was reasonable practicable for it to be presented in time. The unfair dismissal claim is dismissed.[2]The disability discrimination claim was presented out of time. The tribunal find that it was not just and equitable to extend time.[3]The claims are dismissed.
REASONS
[1]This was a public preliminary hearing to determine the matters identified in the Notice of Hearing of 22 July 2025 as follows: whether the claim was entered within the time required; if not, whether it was not reasonably practicable for the unfair dismissal claim to have been entered in time and whether it was entered in such further period as the Tribunal considers reasonable; and whether the discrimination claim was entered within such time as the tribunal finds to have been just and equitable.[2]The claimant represented himself, and was supported by his partner, Mrs Smith. The respondent was represented by Mr Watson, a consultant. The tribunal was referred to an agreed bundle of documents which extended to 63 pages. Further documents were disclosed during the course of the hearing, which comprised screenshots of email messages between the claimant and his trade union advisor. Evidence was taken from the claimant who had prepared a written statement by way of his evidence in chief. The written statement described the circumstances of the dismissal and its effect upon the claimant, but did not contain any information in relation to the timing of the presentation of the claims and so this was dealt with by way of open questions from the tribunal followed by cross examination by Mr Watson.[3]The evidence and submissions were concluded within the time allotted for the hearing, but the tribunal had a further case to hear on the afternoon and was required to reserve judgment.
The Issues
[4]The issues for the tribunal to determine were identified at the outset of the hearing. In relation to the timing of the unfair dismissal claim these were:4.1 Was the claim made to the tribunal within three months (plus early conciliation extension) of the effective date of termination?4.2 If not, was it reasonably practicable for the claim to be made to the tribunal within the time limit? If it was not reasonably practicable for the claim to be made to the tribunal within the time limit, was it made within such further period as the tribunal considers reasonable?[5]In relation to the timing of the discrimination complaint:5.1 Was the claim made to the tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?5.2 If not, was there conduct extending over a period? If so, was the claim made to the tribunal within three months (plus early conciliation extension) of the end of that period?5.3 If not, were the claims made within a further period that the tribunal thinks is just and equitable, having regard to why the complaints were not made to the tribunal in time and whether, in any event, it is just and equitable in all the circumstances to extend time.
The Law
[7]In respect of the unfair dismissal claim section 111 (2) Employment Rights Act 1996 states: “…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.”[8]In respect of the disability discrimination claim, Section 120(1)(a) of the Equality Act 2010 states that: “An employment tribunal has…jurisdiction to determine a complaint relating to a contravention of Part 5 (work)…” and at Section 123 (1): “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.”[9]There were no skeleton arguments or written submissions. The tribunal was referred to the cases of Palmer and another v Southend on Sea Borough Council [1984] IRLR 119 which suggests that the best approach to the reasonably practicable test is to ask whether it was “reasonably feasible” to present the claim within three months; Dedman v British Building and Engineering Appliances [1973] IRLR, CA; and Miller -v- Community Links Trust Limited [2007] EAT/0486/07.[10]In relation to the reasonable practicable test, the tribunal had reference to Porter v Bandridge Ltd [1978] IRLR 271, CA which confirms that the burden of proof is on the claimant to show it was not reasonable practicable to present his claim in time. In London Underground v Noel [1999] IRLR 621, the Court of Appeal held that, in relation to not reasonably practicable test: “The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, ‘in all the circumstances’, nor when it is ‘just and reasonable’, nor even where the tribunal, ‘considers that there is good reason’ for doing so.”[11]In relation to the just and equitable test, the tribunal had reference to Hawkins v Ball and Barclays Bank plc [1996] IRLR 258, EAT which confirms that the discretion is broader than that given to tribunals under the not reasonably practicable test; British Coal Corporation v Keeble [1997] IRLR 336, EAT; Robertson v Bexley Community Centre [2003] IRLR 434, CA; and Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5, CA. Findings of Fact The Employment Tribunal made the following findings on the balance of probabilities (the tribunal did not make findings upon all the evidence presented but made material findings of fact upon those matters relevant to the issues to be determined):
Findings of Fact
[12]The respondent is a company which specialises in the repair of mechanical seals. The claimant was employed by the respondent as a Lead Mechanical Engineering Technician between 1 July 2018 and 29 August 2024 when he was informed that he was dismissed by reason of redundancy. He appealed against his dismissal and was advised that his appeal was unsuccessful on 16 October 2024.[13]The claimant notified ACAS of a potential claim on 28 November 2024 and the ACAS certificate was issued on 9 January 2025. The claim form was presented to the tribunal on 12 February 2025. On the claim form, at section 8.1, the claimant ticked the boxes for unfair dismissal and disability discrimination. The particulars of claim stated simply: “I was unfairly selected due to my disability and also suffered from unfair dismissal. I was also not made aware of other opportunities within the company. The selection process was not done correctly.”[14]The claimant confirmed at the hearing that the disabilities he relied upon were inflammatory arthritis and a dust allergy. He alleges that his disabilities restricted the tasks he could carry out at work and this in turn adversely affected the scoring carried out under the respondent’s redundancy selection criteria. The basis of his disability discrimination claim therefore was that his selection for redundancy, and in consequence his dismissal, was caused by his inability to carry out certain work activities because of his disabilities. This claim was reflected, albeit very briefly, in the pleaded case, the witness statement he prepared for the hearing (at paragraph 4), and in the response form (page 30 of the bundle). It is essentially a section 15 claim: the claimant alleges his dismissal was because of something arising in consequence of his disability, namely the adverse scoring against redundancy criteria caused by his impairments. It follows that the date of dismissal was also the relevant date when assessing the time limit for the purposes of the discrimination claim.[15]There was some discussion at the outset of the hearing as to the effective date of termination, there was a suggestion that it might be 3 September 2024 when the claimant said that he received written notice of the dismissal rather than 29 August 2024 as set out in the claim and response forms. However, the claimant accepted in evidence that he was informed at a meeting on 29 August that he was told that he was dismissed from that date, which was therefore the effective date of termination.[16]The original time limit was 28 November 2024 and ACAS was notified of the proposed claim on that date. The certificate was issued on 9 January 2025 and the extension for early conciliation, which provides that a claimant has at least one month from the date of issuing the certificate, gave the claimant until 9 February 2025 to present the claim within the applicable time limit. The claim was not received by the tribunal until three days later, on 12 February 2025.[17]The claimant was represented by his trade union at the time of his dismissal, during the course of the appeal process, and when ACAS was notified of the proposed claim. The claimant’s case was that he relied upon his trade union representative to advise him on the appeal and to notify ACAS. He said that he was in touch with Helen Flanagan of the union during the ACAS conciliation period and that he sent an email to her on about 6 February to ask for an update. He was able to obtain a copy of that email, via a screenshot on his mobile telephone, and this was put before the tribunal. The claimant had emailed Ms Flanagan in the following terms: “Hi Helen, Any news on how ACAS are dealing with my current claim. Can you also give any advice on the accident protection plan Unite offer which gives you private healthcare, life insurance etc for a fee of around £15 per month. May prove beneficial moving forward. I look forward to hearing from you.” Ms Flanagan responded on 12 February 2025 in an e-mail which stated: “Hi Bob, Sorry, I'm just back from leave today. I have checked my emails and they did not respond to me other than sending the ACAS early conciliation certificate on 9 January which is triggered automatically. Sometimes they still pursue a settlement if there are ongoing talks after the certificate but it sounds like [the respondent] did not respond to them. After we spoke about the solicitors not supporting your case, did you decide not to pursue the tribunal claim? If not, it has to be submitted within a month of the certificate but you could still lodge it asap to try.” Thanks.” The claimant replied: “Hi Helen, I'm not sure what you mean. I wish to lodge a tribunal claim if [the respondent] are not willing to settle. I thought this was something ACAS would organise if [the respondent] were not willing to settle. Please advise what I need to do going forward. Kind regards.”[18]The claimant also had a telephone conversation with Ms Flanagan on 12 February 2025. He says that Ms Flanagan advised him that the trade union solicitor would not support his claim. In relation to the time limit, she said that the deadline was 9 February 2025 but that it could be “pushed out” to 12 February because the letter confirming his dismissal was not received until 3 September 2025, and she advised him to submit the claim that same day. During cross examination, the claimant admitted that he had engaged directly with ACAS during the conciliation period and that the certificate was issued directly to him, although “it may have been copied in” to his trade union representative.[19]The claimant had the benefit of professional advice throughout the period from his dismissal, 29 August 2024, to the end of the early conciliation on 9 January 2025. The claimant said that he understood from advice provided by Ms Flanagan that the limitation date in his case was 12 February 2025 but, in relation to when that advice was provided, he could only recall the conversation of that same date. The email from Ms Flanagan of 12 February 2025 correctly advises that the claimant had one month from the ACAS certificate, of 9 January 2025, in which to issue the claim. The tribunal had incomplete evidence on what passed between the claimant and his trade union, in relation to advice on limitation dates, prior to 12 February 2025, and was not able to make any finding upon whether the claimant was advised of a limitation date, whether correctly or otherwise, prior to that date. On the evidence before us, the tribunal finds on the balance of probabilities, that the claimant was genuinely ignorant of the limitation date until 12 February 2025 but that he had been advised by his trade union, at some point prior to 6 February 2025, that the trade union solicitor would not support his proposed claim. That latter point was significant, as was the fact that the claimant had engaged directly with ACAS, received notice of the ACAS certificate himself, and had by that stage, had over five months in which to research the position and take personal responsibility for ensuring he presented the claim in a timely manner. For those reasons, the tribunal were of the view that the claimant would have been aware of the time limit had he acted with a reasonable degree of diligence and therefore his ignorance did not assist him for purposes of the reasonably practicable test.[20]No other matters were relied upon to explain the delay in issuing the claim, and the tribunal therefore find that it was reasonably practicable for the claimant to present the claim form within the three month time limit. It follows that the unfair dismissal claim is dismissed.[21]The time limit in the discrimination claim was also 9 February 2025, and that claim is also three days out of time, but the test for assessing whether to allow the claim to proceed is different. The tribunal is required to assess whether it would be just and equitable to extend time having regard to those factors summarised in British Coal Corporation v Keeble [1997] IRLR 336, EAT. Although these are not exhaustive, they include “…the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to – a) The length of and reasons for the delay; b) the extent to which the cogency of the evidence is likely to be affected by the delay; c) the extent to which the parties sued had cooperated with any requests for information; d) the promptness with which the plaintiff acted once he or she knew of the facts given rise to the cause of action; and e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”[22]The delay in this case was short, three days from the limitation date. However, some prejudice will be caused by the delay in having to schedule a preliminary hearing to determine the timing point which will inevitably set back progress to a final hearing, which in turn has some affect on the cogency of the evidence. The tribunal were mindful of the principles enunciated in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5, CA, in which the Court of Appeal reminded the tribunals that the Keeble factors are not a rigid check list to be followed and that, while the length and reasons for the delay are key factors, every case will have its own circumstances which need to be take in to account. The tribunal also reminded itself of the principles set out in Robertson v Bexley Community Centre [2003] IRLR 434, CA: “It is also of importance to note that the 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.”[23]The only reason provided for the delay in this case was a misplaced ignorance of the time limit. It was not clear on the evidence whether this was due to his trade union being remiss in advice they had, or had not, provided to the claimant prior to the limitation date. The claimant did however have the benefit of professional advice and support during most of the period between his dismissal and the issuing of the claim, and his lack of knowledge of the time limit was not one which was reasonably held for reasons previously outlined. There is no presumption in favour of exercising a discretion to extend time and, absent any other reason for the delay, the tribunal was not convinced on the evidence that it was just and equitable to do so.[24]It follows that the discrimination claim is also dismissed.