Mr N Coulam v The Chief Constable of Avon and Somerset Constabulary: 6010070/2025
EMPLOYMENT TRIBUNALS
Case No 6010070/2025
Between
Mr N CoulamClaimantThe Chief Constable of Avon and Somerset ConstabularyRespondent
Before
Employment Judge LiveseyIn person for claimantMr A Pincott (instructed by counsel) for respondentDate 26 November 2025
JUDGMENT
The Claiamnt’s claim of unfair dismissal is dismissed, it having been brought outside the period of time prescribed by s. 111 of the Employment Rights Act and it having been reasonably practicable for it to have been brought in time.
REASONS
[1]By a claim issued on 23 March 2025, the Claimant brought a complaint of constrictive unfair dismissal relating to his employment between 2 September 2013 and 14 October 2024. He had approached ACAS for early conciliation on 10 March 2025 and he had received his certificate a day later, on the 11th. The Respondent had asserted that the Claimant’s employment had ended a day earlier in its response, on 13 October but, either way, the claim was approximately two months out of time.[2]Upon receipt of the response, Employment Judge Cadney listed this hearing to determine the jurisdictional time point. The Claimant was directed to file a witness statement and any medical evidence if he was to have alleged that there had been some impairment which had prevented him from issuing the claim in time.[3]The Respondent produced a bundle of documents for the hearing. The Claimant gave evidence in accordance with his statement dated 20 July 2025. No medical evidence was provided, but he did produce some emails that passed between him and a number of firms of solicitors in March 2025. Legal principles[4]A complaint to a tribunal of unfair dismissal has to have been presented in accordance with s. 111 of the Act; “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 a further period as the tribunal considers reasonable in a case where it is satisfied that he was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[5]The legal test was therefore a hard one to meet on the face of the wording of the Act. It required a consideration of whether it had been reasonably feasible for the claim to have been issued in time. A tribunal was entitled to take a liberal approach (Marks & Spencer-v-Williams-Ryan [2005] EWCA Civ 470 and Northamptonshire County Council-v-Entwhistle [2010] IRLR 740), but it nevertheless had to apply the wording of the statute to the facts. The onus was 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).[6]The question of what was or was not reasonably practicable was essentially one of fact for the tribunal to decide. The leading authority as to the test to be applied was the decision of the Court of Appeal in Palmer and Saunders-vSouthend-on-Sea Borough Council [1984] IRLR 119, CA in which May LJ undertook a comprehensive review of the authorities, and proposed a test of 'reasonable feasibility'. ''[W]e think that one can say that to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view that is too favourable to the employee. On the other hand, "reasonably practicable" means more than merely what is reasonably capable physically of being done…… Perhaps to read the word "practicable" as the equivalent of "feasible"…… and to ask colloquially and untrammelled by too much legal logic - "was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?" - is the best approach to the correct application of the relevant subsection.''[7]The possible factors were many and various, and as May LJ stated, they could not have been exhaustively described. They depended upon the circumstances of each case. He nevertheless listed a number of considerations which might have been investigated (at page 125) which included the manner of, and reason for, the dismissal; whether the employer's conciliatory appeals machinery had been used; the substantial cause of the claimant's failure to comply with the time limit; whether there was any physical impediment preventing compliance, such as illness, or a postal strike; whether, and if so when, the claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[8]When considering whether or not a particular step was reasonably practicable or feasible, it was necessary for the tribunal, (as the Court of Appeal said in Schultz-v-Esso Petroleum Ltd [1999] 3 All ER 338, [1999] IRLR 488) to consider the question 'against the background of the surrounding circumstances and the aim to be achieved'. This was what the 'injection of the qualification of reasonableness required'. The issue in Schultz was whether it had been reasonably practicable for the claimant to have presented his claim in time in circumstances where(a) he had tried in the early stages of the limitation period to appeal internally against his dismissal, and(b) although he was physically capable of giving instructions to his solicitor for the first seven weeks of the three-month period, he was too ill to do so for the last six weeks. The tribunal and the EAT both held that it had been reasonably practicable, but the Court of Appeal disagreed and overturned the decision. According to Potter LJ, the tribunal, by relying upon what was physically possible during the first seven weeks, failed to have regard to the comments of May LJ about reasonable feasibility in Palmer and Saunders. Moreover, the tribunal failed to consider the surrounding circumstances.[9]It would not have been reasonably practicable for a claimant to have issued a claim until they were aware of the facts giving him grounds to have applied. It was not usually an excuse, however, for a claimant to argue that they were not aware of their right to bring a claim. The reasonableness of their state of knowledge would have to be considered. There was an obligation upon a claimant to take reasonable steps to seek information and advice about the enforcement of their rights (Trevelyans (Birmingham) Ltd-v-Norton [1991] ICR 488m at 491). If a claimant was capable of carrying out other tasks of similar complexity to bringing the claim during the period of delay, it had been said to have ‘flown in the face of reason’ to conclude that he/she would not have been capable of researching the issue on the internet, for example (Cygnet Behavioural Health Ltd-v-Britton [2022] EAT 108).[10]It has been well established that the fact that an appeal may have been pending did not ordinarily render it not reasonably practicable to have presented a complaint in time (Bodha-v-Hampshire Area Health Authority [1982] ICR 200, EAT, Palmer-v-Southend-on-Sea Borough Council [1984] 1 All ER 945 and John Lewis Partnership-v-Charman UKEAT/0079/11). Again, each case would turn upon its own facts and, if a claimant had a belief that he had been unable to bring a claim prior to the end of an appeal, a tribunal would have to examine the reasonableness of that belief.[11]If a claimant instructed legal advisers and there was a delay through their failure to act, a tribunal would ordinarily have to examine whether the claimant or the advisers were at fault. The question as to whether or not the litigant is fixed with the error of his advisers may depend upon the level of skill possessed by the adviser which, again, will be a question of fact. It has been long established that claimants are affixed with the negligence of their professional advisers (Dedman-v-British Building [1973] IRLR 379, confirmed in the context of employment litigation most recently in BLISS Residential Care Ltd-v-Fellows [2023] EAT 59), but the principle has also been extended to union advisers (Alliance & Leicester-v-Kidd UKEAT/0078/07 and Cullinanev-Balfour Beatty UKEAT/0537/10) and the CAB (Riley-v-Tesco [1979] ICR 323, CA). However, the source of the advice and the level of skill held by the advisor may be factors (Theobald-v-Royal Bank of Scotland [2007] All ER (D) 4).[12]In Harvey’s Household Linens-v-Benson [1974] ICR 306 and Alexanders Holdings-v-Methven UKEAT/782/93, claimants were able to pursue their claims having received inaccurate advice from civil servants within different government departments. A similarly approach was taken in respect of advice received from ACAS in DHL-v-Fazackerley UKEAT/0019/18. The distinction drawn in Theobald between situations in which advisers actually act for claimants and those in which they merely advise (with the claimant retaining control) has since been rejected (T Mobile-v-Singleton [2011] All ER (D) 12). If the litigant was misled by the employer, this may give them grounds for arguing for an extension (Williams-Ryan above).[13]If it was not reasonably practicable to have presented the claim in time, the tribunal may have allowed an extension, but only for such a further period as was considered reasonable. A consideration of that issue generally involved similar considerations to the threshold test. Such an assessment must always have been made against the general background of the primary time limit and the strong public interest in claims having been brought promptly (see Cullinane-v-Balfour Beatty Engineering Services Ltd EAT 0537/10). Tribunals always had to bear in mind the general principle that litigation ought to have been progressed efficiently and without delay. Discussion and conclusions[14]The Claimant confirmed that the relevant chronology in the case was as follows; - Following an investigation which had been conducted by the Respondent’s internal PSD department, the Claimant was served with a Regulation 30 Notice on 2 September 2024 and was required to attend a conduct hearing; - He then resigned on 11 September and gave his final day of work as 11 October in the letter. He served his notice whilst on garden leave; - The conduct hearing took place on 14 October, after his resignation had taken effect. He was represented by a union official. He was told that, if he had he not already resigned, he would have been dismissed as a result of the misconduct that was alleged; - He appealed against that decision. He declined to pay any further union fees and was unrepresented at the appeal hearing which then took place on 10 December. His appeal was dismissed that day.[15]The Claimant stated at the start of his witness statement that his claim had been submitted out of time “because I didn’t know that this route was open to me”. He said that he had ‘reached out for support and advice’ and had found out about the route to submit a claim in March 2025. He provided a number of emails that he had sent on or about 9 March in which he had sought quotations from solicitors for advice (Barcan Kirby, DHP Legal, Quay Legal and Poole Alcock).[16]In evidence, he accepted that, as an IT professional, he was probably better placed than most people to have researched his rights, but had not done so. He believed that he had been constructively dismissed at the point that he had resigned, but had not looked into how to bring a claim. He had not asked his union representative for advice on that issue. When he had still been represented, he had only been given advice about a possible appeal against the decision at the misconduct hearing on 14 October.[17]The time which had elapsed after his resignation and before March was not properly addressed in the Claimant’s witness statement. He had said that it had taken him until March to ‘feel like’ seeking support. He did not describe the reasons why he had not ‘felt like’ doing so before. In evidence, he said that he had been depressed and withdrawn and ‘at breaking point’, but he did not produce any evidence to support any impairment at that time. Indeed, he said that he had not sought medical advice at all during that period. He obtained new employment in early January 2025 at an NHS Trust in Bath, a job which he was still undertaking in March when the claim was finally issued.[18]On the basis of the evidence considered above, it was feasible for the claim to have been issued sooner. The Claimant ought reasonably to have researched his rights sooner and, if he had, considering the array of advice that is now available on line about the bringing of such claims, he could have issued the claim within the primary time limit. The fact that he was looking for, and was then in work during the period of delay undermined the notion that he had been incapable of also looking into his rights further over the same period.[19]The issues around the chronology of the disciplinary process and the appeal were something of a red herring since the Claimant had resigned before the first hearing had been held, but he nevertheless attended the hearing, and had pursued an appeal, in attempt to preserve his name and because he did not accept the allegations.[20]When he finally did seek advice in March, it was all too late. At the point that he spoke to ACAS and then received his ECC on 11 March, he said that he was told by ACAS that he had had another month within which to have brought the claim. That advice may not have been wrong if it was given in broad or general terms. The ACAS certificate did not, of course, give him an extra month in this case because he was already out of time when he had made contact. Nevertheless, whilst that advice may have explained the additional gap between 11 and 23 March, it did not assist him in respect of the significant period of delay before it.[21]Accordingly, the claim was out of time under s. 111 and the Tribunal lacked jurisdiction to hear it.