Miss S Sabbion v Ellidore Events Ltd: 6006753/2025
JUDGMENT
The claims (unfair dismissal and wages) are struck out as they were presented out of time.REASONS
[1]The primary time limit in which to present a claim for unfair dismissal arising under Section 94 Employment Rights Act 1996 is set out in Section 111 Employment Rights Act 1996. Ordinarily, that would be “before the end of the period of three months beginning with the effective date of termination” (Section 111(2)(a) ERA 1996).[2]Alternatively, the claim must be presented to the Tribunal “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” (Section 111(2)(b) ERA 1996).[3]Section 111(2A) qualifies that the time limit referred to above, is subject to any extensions of time afforded by Section 207B ERA 1996 (i.e. allowing for any period of ACAS Early Conciliation).[4]Similar provisions apply to wages claims.[5]The Claimant was dismissed on 28/8/24. She applied to ACAS for EC on 25/11/24 and the certificate was issued on 6/1/25. The last day for her to present her claim was 6/2/25. She presented her ET1 on 27/2/25, 21 days late.[6]She served a witness statement for purposes of the time issue and was cross-examined on it today. I was referred to documents in a bundle of 74 pages. During the hearing at my request the Claimant sent me an email chain between her and her ACAS conciliator Mr Carl McCurry.[7]The Claimant advances as her first reason for the delay that she was told by ACAS “that if conciliation failed, my assigned conciliator would then “refer me to tribunal.” I understood this to mean that I would not be able to submit a claim until ACAS had officially closed the conciliation process and initiated the referral.”[8]She claims that she learnt only on 24/2/25 from the ACAS conciliator Mr McCurry that she had to submit the ET claim herself. She then waited until 27/2/25 before doing so.[9]She explained in her oral evidence today that she did not ask what “initiating the referral” meant. She was inconsistent in her written and oral evidence as to whether the referral by ACAS would be manual or automatic. She was unable to give the name of the person whom she claims gave her this advice and said she was sceptical and doubtful about what she was told by the various ACAS personnel she spoke to before her conciliator was appointed. Yet despite this she says she did not ask for clarification from her ACAS conciliator who was appointed to her from 25/11/24 onwards. She could and should have asked him if she had any doubt about the matter.[10]During the course of her oral evidence today the Claimant told me that she had to ask the ACAS conciliator to resend the EC certificate on about 8/1/25 because the original had gone into her email spam folder. She said “The reason I wanted it was because I needed it to issue the claim.”[11]Despite the fact that she says she was angry with ACAS when she found out the truth from Mr McCurry on 24/2/25, and despite the fact that there were numerous communications between her and him subsequently, the Claimant made no complaint to him or ACAS about having being misled previously.[12]I find that it is unlikely that any ACAS advisor would tell the Claimant that she had to wait after she received her certificate until ACAS “referred her to the Tribunal” and on a balance of probabilities find that this did not occur.[13]However, even if the Claimant was told this by one of the several ACAS employees she says she spoke to, it was unreasonable of her not to find out the true position in time. The Claimant had access to and took advice about her employment situation from two different firms of solicitors. She could have asked the ACAS conciliator.[14]There is abundant evidence available on the ACAS website which for example contains a paragraph entitled “If you are considering making a claim to an employment tribunal” which reads “It is your responsibility to ensure your claim is submitted in time. You have at least 1 month from the date you receive this certificate, if you notified Acas of the dispute within your time limit. If you have any questions about time limits, contact the Acas helpline” (hyperlink provided). Another section entitled “The conciliation Certificate” includes “Now you have your certificate the clock is ticking…You have at least a month to submit your claim and its up to you to make sure you don’t miss the deadline”.[15]The Claimant was sent her EC certificate under cover of an email dated 6/1/25. Despite requests from the Respondent, the Claimant has not managed to produce a copy of that email for today.[16]However, the EC certificate itself, which the Claimant agrees she had received and read by 8/1/25, contains the following: “This Certificate is to confirm that the prospective claimant has complied with the requirement under ETA 1996 s18A to contact Acas before instituting proceedings in the Employment Tribunal. Please keep this Certificate securely as you will need to quote the reference number (exactly as it appears above) in any Employment Tribunal application concerning this matter.”[17]Secondly the Claimant relies on her vulnerability. A GP letter confirms that she contacted the surgery in July and August 2024 regarding stress and mental health difficulties. She says she became more depressed after being dismissed. Her father also went into hospital briefly for a urology problem. 18.Unfortunately, depression is a common response to dismissal. However, the Claimant’s mental health difficulties did not incapacitate her from working until she was suspended and then participating in the Respondent’s disciplinary and appeal proceedings, liaising with solicitors; and in the period September to January 25 having numerous dealings with ACAS through which she put forward substantial settlement proposal for consideration, and starting to look for new employment in December and January. The Claimant has not satisfied me that she was incapacitated from presenting her claim in time by these matters. 19.I do not find that it was not reasonably practicable for the Claimant to present her claim within the primary limitation period. Furthermore, even if I had decided that point in the Claimant’s favor, I would have found that she did not present her claim within a reasonable time after the time limit expired. Even on her case after she found out the true situation regarding time limits on 24/2/25 but then inexplicably waited another three days before presenting her claim. 20.Hence her claims are outside the jurisdiction of the Tribunal and are struck out. J S Burns