Mr M Mudashiru v Sainsbury’s Supermarkets Ltd: 6005896/2024
EMPLOYMENT TRIBUNALS
Case No 6005896/2024
Between
Mr M MudashiruClaimantSainsbury’s Supermarkets LtdRespondent
Before
Employment Judge AlliottIn person for claimantMr N Bidnell-Edwards (instructed by counsel) for respondentDate 6 March 2025
JUDGMENT
[1]It was not reasonably practicable for the claimant to present his unfair dismissal claim in time and the claim was presented in a reasonable time thereafter. Accordingly, there is jurisdiction to hear the claimant’s unfair dismissal claim.[2]It would be just and equitable to extend the time for bringing the claimant’s claims of disability discrimination, failure to make reasonable adjustments and harassment to the 16 July 2024. Accordingly, there is jurisdiction to hear the claimant’s disability discrimination, failure to make reasonable adjustments and harassment claims.
REASONS
[1]This open preliminary hearing was ordered by Employment Judge Cowen on 3 December 2024 to decide the issue of whether the claimant’s claims were brought in time and, if not, whether the tribunal should extend its discretion to allow the claim to proceed.
The evidence
[2]I had a hearing bundle running to 88 pages. In the bundle were two statements from the claimant dealing with his reasons for delay in issuing this claim and he confirmed their contents as true to the best of his knowledge and belief on oath. The claimant gave evidence and was cross examined.[3]The respondent provided written submissions.
The law
[4]Section 111 Employment Rights Act 1996 provides as follows:- “111 Complaints to employment tribunal. … (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.”[5]Section 123 of the Equality Act 2010 provides as follows:- 123 Time limits (1) …proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 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.”[6]I have taken into account the following extracts form the IDS Employment Law Handbook Practice and Procedure.[7]At 5.46: “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:• Section 111(2)(b) ERA should be given a “liberal construction in favour of the employee” – Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, CA• What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. An appeal will not be successful unless the tribunal has misdirected itself in law or has reached a conclusion that no reasonable tribunal could have reached. As Lord Justice Shaw put it in Walls Meat Co Ltd v Khan [1979] ICR 52, CA: “The test is empirical and involves no legal concept. Practical common sense is the key note and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the employment tribunal, and that their decision should prevail unless it is plainly perverse or oppressive.”• The onus of proving that presentation in time was not reasonably practicable rests on the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint.” – Porter v Bandridge Ltd [1978] ICR 943, CA. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable.”[8]And at 5.48: “Meaning of “reasonably practicable”. Judicial attempts to establish a clear, general and useful definition of “reasonably practicable” have not been particularly successful. This is probably because cases are so different and depend so much on their particular circumstances. However, in Palmer and another 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”. 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.”.[9]And at 5.50: “Ignorance of rights 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. As Lord Scarman commented in Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, CA, where a claimant pleads ignorance as to his or her rights, the tribunal must ask further questions: “What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? In Porter v Bandridge Ltd the majority of the Court of Appeal, having referred to Lord Scarman’s comments in Dedman, ruled that the correct test is not whether the claimant knew of his or her rights, but whether he or she ought to have known of them.”[10]And at 5.67: “Advisers at fault Any substantial fault on the part of the claimant’s adviser that has led to the late submission of his or her claim may be a relevant factor when determining whether it was reasonably practicable for the claimant to present the claim within the prescribed time limit. In the majority of cases, an adviser’s incorrect advice about the time limits, or other fault leading to the late submission of a claim, will bind the claimant and a tribunal will be unlikely to find that it was not reasonably practicable to have presented the claim in time. However, much will depend on the circumstances and the type of adviser involved.”[11]And at 5.83: “Citizens Advice Incorrect advice from an adviser employed by a Citizens Advice (previously Citizens Advice Bureau (CAB)) has also been treated as the fault of the claimant him or herself.”[12]And at 5.94: “Internal proceedings pending Employees who have been dismissed may feel that their chances at an internal appeal hearing will be prejudiced if they launch employment tribunal proceedings before the appeal takes place.”[13]And at 5.95: “It follows that if there is a protracted appeal procedure, time is likely to run out before the procedure has been completed. However, the EAT ruled in Bodha v Hampshire Area Health Authority [1982] ICR 200, EAT, that the existence of an impending internal appeal was not in itself sufficient to justify a finding that it was not reasonably practicable to present a complaint to a tribunal within the time limit and this view was expressly approved by the Court of Appeal in Palmer and another v Southend on Sea Borough Council [1984] ICR 372, CA.” As the IDS Handbook observes “This can lead to some harsh results.” It is noted that those cases are of some age.[14]And at 5.96: There are situations, however, where the existence of an internal appeal can be a relevant factor for a tribunal to take into account when determining whether it was reasonably practicable for the employee to submit the claim within the time limit.”[15]And at 5.99: “Whatever the ins and outs of the internal proceedings, the question for the tribunal will always be whether the claimant’s conduct in relation to the enforcement of his or her right to claim was reasonable.”[16]Dealing with the just and equitable extension:- At 5.128 “While employment tribunals have a wide discretion to allow an extension of time under the “just and equitable” test in section 123, it does not necessarily follow that exercise of the discretion is a forgone conclusion in a discrimination case. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisurelink [2003] IRLR 434, CA, “That when employment tribunals consider exercising the discretion under what is now section 123(1)(b) Equality Act, “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 the discretion is the exception rather than the rule.”
The facts
[17]The relevant chronology is as follows:-•21 February 2024: Claimant dismissed. Effective date of termination of employment.•26 February 2024: Outcome letter sent to the claimant by email.•4 March 2024: Claimant lodged an appeal against dismissal.•20 March 2024: First appeal hearing: This was either adjourned due to the claimant’s request or due to policy. The claimant was graded 3S and a 4S had dismissed him. Consequently a Grade 5S was required to hear his appeal and such a manager had not, apparently, been appointed.•2 April 2024: Second appeal hearing. The claimant told me this was adjourned as the hearing manager wanted to make enquiries.• 11 or 16 April 2024: The rescheduled appeal hearing was adjourned as the claimant ‘s representative was not available.•30 April 2024: The claimant’s appeal was heard.•19 June 2024: The appeal outcome letter was sent to the claimant.• Acas notification 27 June 2024, Acas certificate 16 July 2024.•16 July 2024: Claimant presented his claim.[18]The EDT was 21 February 2024. Consequently the three month time limit for presenting his claim would have expired on 20 May 2024. The claimant’s discrimination claims are principally related to his dismissal, but one factual allegation relates to the outcome letter on 26 Febraury 2024. As such, the three month primary limitation period would have expired on 25 May 2024.[19]Given that the primary three month limitation period expired on 20 May 2024, so the claims can be considered as having been presented eight weeks out of time.[20]It is noticeable that there was a seven week delay between the appeal being heard on 30 April 2024 and the claimant being sent the outcome letter on 19 June 2024. The primary limitation period obviously expired during that seven week period on 20 May 2024.[21]The claimant told me that when he got the dismissal letter he went to the ‘People Advice’ Bureau in Haringey. He told me that he was looking for legal help and advice. They sent him to Haringey Law Centre.[22]The claimant told me that he put in his appeal within seven days as required and that it was after that, probably in March 2024, that he went to Haringey Law Centre. The claimant told me that he was allocated a caseworker, namely Mr Patrick Gyamfi. It is not known what qualifications, if any, Mr Gyamfi had. The claimant told me that when he saw Mr Gyamfi: “He advised me to go through all internal process with the company. He said I should wait for the appeal outcome before going to court. If they didn’t reinstate me – I could take it to a tribunal.”[23]The claimant told me that the law centre wanted him to pay £50 for representation and, due to the fact that he had no job or savings, the claimant did not pursue this action.[24]The claimant told me that he did not know the procedure and that he simply followed the advice and instructions of Haringey Law Centre. The claimant told me that, in general terms, he was aware of the right to bring a claim to an employment tribunal because he had been aware of other employees doing so. The claimant told me that he did not know of the time limits specifically prior to speaking to the lady from Acas on 26 July 2024. The claimant told me that he was under the impression that if he went to court without seeing the appeal through he might lose.[25]Public policy is to encourage parties to resolve disputes without recourse to tribunal proceedings. To that end, Acas has issued a Code of Practice for Disciplinary and Grievance procedures. The Code of Practice makes plain that:- “26. Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay.” And “29. Employees should be informed in writing of the results of the appeal hearing as soon as possible”[26]Obviously enough, if either an employer or an employee unreasonably fails to comply with the Acas Code, then there may be a 25% uplift or reduction to any compensation payable.[27]By definition, anyone who appeals against the dismissal is hoping to get their job back. That aspiration does not sit comfortably with a three month time limit in cases where there is delay in hearing an appeal. An employee who is hoping to get his job back is required to present his claim which will probably make allegations of unfairness, discrimination and a failure to comply with the Acas Code against his employer which are hardly going to improve his chances. Knowledge that section 27 of the Equality Act protects him is unlikely to be a realistic consideration for someone who just wants their job back.[28]I have to consider whether the advice given to the claimant was necessarily erroneous. In my judgment, it does not necessarily fall into that category. The advice was being tendered in March 2024 against the expiry of the primary limitation period on 20 May 2024. As such, advice to the claimant to be patient and wait for the internal appeal process to be exhausted was probably quite good advice. The claimant did not accept that that advice was followed up with a caution about the three month time limit.[29]I have to consider whether the claimant’s conduct in delaying presenting a claim prior to when he did was reasonable in all the circumstances. The claimant is obviously not legally trained. The claimant accepted that he was familiar with and capable with using Google. However, in light of the advice that he had obtained from Haringey Law Centre, then, in my judgment, the claimant was entitled to rely on that advice and delay until the internal appeal process had been exhausted. I have not been provided with any reasons why there was a seven week delay in giving the claimant the outcome from his appeal. The claimant thought that the respondent’s policy required him to be given the outcome within seven days. I have not been shown the policy, but I would assume that if the policy dealt with a time limit for outcome, that would be an aspiration rather than a rule. Nevertheless, had the claimant had his appeal outcome within a reasonable time of the hearing on 30 April 2024, he would have still been in time to present his claim to the employment tribunal or at the very least, ‘stop the clock’ by making an application to Acas.[30]In all the circumstances, I have come to the conclusion that the claimant’s ignorance of the time limit was reasonable and he acted reasonably in delaying until the internal appeal process had been exhausted. Once the claimant had the outcome of the appeal, in my judgment he acted reasonably in going to Acas and, of course, he issued his claim on the day of the Acas certificate.[31]Consequently, in my judgment, it was not reasonably practicable for the claimant to present his claim in time, and I find that he presented it within a reasonable time thereafter.[32]Turning to the discrimination claims, for the same reasons I consider that it would be just and equitable to extend time to the 16 July 2024.[33]Accordingly, there is jurisdiction to hear the claimant’s claims. Approved by: