Mr E Andrulenas v Tesco Stores Ltd: 6016216/2024
JUDGMENT
[1]The Claimant’s claims for unfair dismissal and unpaid wages presented on 24 October 2024 were brought outside the time limits in s 111(2)(a) Employment Rights Act 1996 (unfair dismissal) and s23(2)(a) Employment Rights Act 1996 (unpaid wages). The Tribunal finds that it was reasonably practicable for the Claimant to have presented the claims in time. Time is therefore not extended under s111(2)(b) Employment Rights Act 1996 (unfair dismissal) or under s23(4) Employment Rights Act 1996 (unpaid wages).[2]The Claimant’s claims for unfair dismissal and unpaid wages are therefore dismissed because the Tribunal does not have jurisdiction (ie does not have the power) to decide these claims.REASONS
[1]This hearing was listed to decide whether the Claimant could continue with his claims because they were presented outside the usual time limit of three months. It had originally been listed as the final hearing but was converted to a preliminary hearing to decide if the claims could proceed due to the time limits for presenting claims.[2]The claims were for unfair dismissal based on a dismissal taking effect on 20 July 2023 and for unpaid wages during the period prior to dismissal when the Claimant had been suspended. The Claimant contacted ACAS on 22 October 2024 and presented his claim on 24 October 2024. He did not get any extension to his time limit for that ACAS process because he did not contact ACAS within the three month time limit. This claim was presented in October 2024 around a year after the usual three month had expired which was on 19 October 2023 (assuming the unpaid wages were due at that date at the latest).[3]The legal test the Tribunal has to apply for both claims is the same: whether it was reasonably practicable for the Claimant to have presented his claims in time (s111(2)(b) Employment Rights Act 1996 (unfair dismissal); s23(4) Employment Rights Act 1996 (unpaid wages)).The test is whether it was reasonable to expect a claimant to do that which was possible to have been done.[4]If the Tribunal decided that it was not reasonably practicable for the claim to be presented in time, the Tribunal would then have to decide if he then presented his claims within a further reasonable period.[5]It is for the Claimant to show why his claim should be allowed to be presented outside the time limit. His case was that although he had contacted multiple advisers after he was dismissed, he had been wrongly advised by a solicitor on two occasions that he had to wait until the completion of a connected criminal investigation before he was able to bring a claim in the Employment Tribunal and so he waited until told the criminal investigation was completed before presenting his claim. The reason for the late claims was said to be that wrong advice about when he could bring his claim and the failure to advise him correctly about time limits. I considered Wall’s Meat Co Ltd v Khan [1979] ICR 53 which decided that ignorance or a mistaken belief will not be reasonable if it arises from the fault of a claimant’s solicitors or other professional advisers in not giving such information as they should reasonably in all the circumstances have given the claimant.[6]There was a 58 page bundle. The Claimant had already provided his witness statement for the final hearing, dated 9 January 2025 (page 49) which had been prepared for him by a solicitor (but not one of the ones referred to below who he was contacting in August - September 2023). He also provided a one page typed statement for this hearing (page 48) setting out what happened after he was dismissed. I heard oral evidence from the Claimant and both parties made submissions. There was a short break before submissions and I suggested to the Claimant that he make some notes as to what he wanted to say. The Respondent went first because the Claimant is not legally represented and it was easier for him to respond having first heard the points made on behalf of the Respondent.Findings of fact
[7]The Claimant was dismissed on 20 July 2023 with immediate effect. He appealed his dismissal and was sent an appeal outcome letter (page 58) on 19 September 2023. At that point he was still within the three month time limit by around a month.[8]The Claimant said in his January 2024 witness statement for the final hearing (para[10]that he was advised he could not appeal the decision (presumably to dismiss) whilst the case was with the police – but he did appeal his dismissal and received an outcome by letter dated 19 September 2023 so this must be a reference to making a claim not a reference to appealing the dismissal. In his one page statement for this hearing he said that in August 2023 he spoke to a lawyer who advised that he could not claim unfair dismissal while the criminal case was being investigated. 9 Taking into account his oral evidence I find that the Claimant did the following from August 2023. The Claimant contacted a law firm specialising in employment law who did not give him any advice but gave him the name of another lawyer to contact, which he then did. When he contacted that second lawyer (Linas, a Lithuanian speaker) the Claimant realised that he was a criminal specialist. The Claimant spoke to Linas a few times during August and September 2023. The Claimant said that after Linas had advised that he could not present his claim until conclusion of the criminal investigation, the Claimant wanted to get a second opinion and so contacted Citizens Advice several times to find another firm to ask and was given around 20 names to try (though he rejected most of these due to the fees they told him they would charge). 10 From that he identified to a further employment specialist firm for a second opinion by which time the Claimant had obtained his appeal outcome letter. The Claimant said that the second opinion lawyer advised him that he had three months to bring the claim after the criminal investigation was concluded. The Claimant does not say that any of the individuals he took advice from were unqualified.[11]The Claimant had therefore been very active in trying to get advice within the usual three month time limit. English is not his first language but he was able to find out who could advise him and did not give up after the first advice and just accept it but continued to take steps to check it. He was able to speak to two lawyers and ask Citizens Advice for help. He did not only rely on the advice of a crime specialist but took steps to get a second specialist opinion. Based on his oral evidence I find that the Claimant considered he had been unfairly dismissed as soon as he was dismissed, from ‘day 1’ as he put it; he was aware of his rights because he was getting advice about bringing a claim for unfair dismissal in this Tribunal ie he knew what his claim would be about and where to bring it.[12]Taking the above findings of fact into account I find that the Claimant was either wrongly advised by the criminal specialist Linas and the next employment specialist that he could not bring his claim until the criminal investigation was concluded (and in the case of the second lawyer that the 3 months started to run from that point) or he was advised to wait till he had his appeal outcome and misunderstood that advice; if the latter he would still have had around a month to contact ACAS after he got the appeal outcome letter.[13]Based on the above findings of fact it was reasonably practicable for the Claimant to have presented his claims in time. He was in a position to and did seek advice from several sources within the first three months about an unfair dismissal claim in this Tribunal.[14]The Claimant either misunderstood the advice he received (ie did not appreciate that the advice being given was simply to wait for his appeal outcome, to see what happened with the appeal) or he was wrongly advised that he could not bring this claim until the criminal investigation was concluded.[15]The two lawyers who advised the Claimant should reasonably have given him advice that the time limit starts to run on the effective date of termination for the unfair dismissal claim (and at the latest for the wages claim) and that he should not delay bringing his claims because of the ongoing criminal investigation. If he was given the advice to wait until the criminal investigation was finished, that was wrong advice. If alternatively he was advised to wait for his appeal outcome and had followed that advice he could have presented his claim in time by contacting ACAS before 19 October 2023, around a month after he got the appeal outcome. Either way it was reasonably practicable for the Claimant to have presented his claims in time.[16]If the Claimant was given the wrong advice and has therefore lost the ability to bring these claims he can potentially take action against the lawyer who gave the wrong advice by way of a negligence claim. Receiving the wrong advice about time limits does not mean it was not reasonably practicable for him to present his claim taking into account his active steps to get advice and find out the position show that he was capable of also presenting his claim (Wall’s Meat Co Ltd v Khan [1979] ICR 53) His ignorance or mistaken belief of when the time limits started to run was not reasonable, even if he was wrongly advised. I have taken into account English is not his first language but despite this he was able to research and contact multiple possible sources of advice.[17]The ‘not reasonably practicable’ test is not therefore satisfied in relation to the claim for unfair dismissal and for unpaid wages. This means that the Tribunal does not extend time to allow the claim to be brought late. The claims therefore cannot go any further and are dismissed because the Tribunal cannot decide them.Findings of fact
[1]The Claimant’s application for a reconsideration states that it was not reasonably practicable for him to bring his claims in time because there was an ongoing criminal investigation for which he was waiting the outcome; he says the ongoing police investigation was the circumstance which meant that he could not bring his claims in time. The ongoing criminal investigation and the advice he took about his Tribunal claim around the time of his dismissal was a matter fully addressed at the hearing in evidence and submissions.[2]Based on the evidence before me I decided (para 12) that the reason the Claimant did not bring his claims on time was because either he was wrongly advised about time limits (that he could not bring the claim until the investigation was completed) or because he misunderstood the advice he was given. These were not reasons making it not reasonably practicable to bring his claims in time.[3]The Claimant says in his reconsideration application that the ongoing investigation was a reason he could not bring his claim in time but I decided based on the evidence at the hearing that the reason for the delay was the wrong advice he was given or his misunderstanding of that advice and that it was reasonably practicable for him to have brought his claim in time. The background to that advice was the ongoing criminal investigation but it was not the investigation in itself which I found to be the reason his claim was late, it was the advice (paras 13-14). This was not a situation where the Claimant had taken no advice and had instead simply waited until told by Case Number: 6016216/2024 police that the criminal investigation was being dropped; the point was that he was able to contact multiple lawyers to take advice.[4]I did not find that the Claimant could or could not bring his claim in time simply because there was an ongoing criminal investigation; my decision was about the advice he received about that investigation, which was relevant to the ‘not reasonably practicable’ test.[5]Because I decided that it was reasonably practicable to bring the claims in time, I did not need to go on to consider whether they had been brought within a further reasonable time under s111(2)(b) Employment Rights Act 1996 (an issue the Claimant raises in his reconsideration request).[6]Rule 68(1) Tribunal Rules 2024 provides that a Tribunal can reconsider a judgment where it is in the interests of justice to do so.[7]I decide that there is no reasonable prospect that the judgment will be varied or revoked under Rule 70(2). The Claimant seeks to re-argue his case. All matters relevant to the test to be applied were fully considered at the hearing and it is not in the interests of justice to consider them again, due to the principle of finality in litigation.