Mr J Cooper v Amazon UK Services Ltd: 6021039/2024
JUDGMENT
[1]The respondent’s name is amended to “Amazon UK Services Ltd”.[2]The Tribunal has no jurisdiction to consider the claim due to the date on which it was presented.[3]The claim is therefore dismissed.REASONS
[1]By a claim form presented on 6 December 2024, Mr Cooper seeks to bring a claim of unfair dismissal against his former employer. His employment with the respondent (“Amazon”) ended on or around 16 November 2022. This hearing was to determine whether the claim could proceed, in view of the time limits which apply to this sort of claim. I decided that it could not. Preliminary matters and today’s hearing[2]There is, unfortunately, some complicated procedural background to be explained. When claim forms are presented, they are reviewed by a Judge. This case was reviewed by EJ Barker on 11 December 2024 who directed that the case should be listed for a public preliminary hearing to determine whether it should be able to proceed, given that it appeared to be “years” out of time.[3]Rule 54(2) Employment Tribunal Rules 2024 provide that a preliminary hearing must be held in public where it involves a determination of a preliminary issue, or the determination of a strike out application. Time limit cases may be determined either as a preliminary issue or as a strike out application, but in either case, the hearing must be held in public.[4]EJ Barker’s direction was actioned in that the hearing was listed (for today) and it was noted to be a public hearing on the Tribunal system. That meant that when the physical list of hearings was published it showed as a public hearing. Anyone wishing to attend a hearing would have been aware that this hearing was one that was open to them to attend. (As in the vast majority of cases, no member of the public actually did attend this hearing. To my knowledge, no member of the public wanted to attend or attempted to attend.)[5]Unfortunately, the wrong notice of hearing was sent to the parties. The Notice that was sent informed them, wrongly, that the matter had been listed for a private hearing for case management. It made no reference to determination of the time point.[6]Cases are reviewed again by an Employment Judge on the submission of the response. This time, the Judge who reviewed the case was Employment Judge Batten. Employment Judge Batten noticed that the wrong notice of hearing had been sent. She directed that the correct notice of hearing should be sent, and that the notice should include the following information as to the purpose of the preliminary hearing: Was it reasonably practicable to present the claim of unfair dismissal within the time limit? If not, was it presented within a reasonable period? Note to parties: In general terms, the time limit is 3 months from the relevant event, as extended by the rules relating to early conciliation. The claimant must persuade the Judge to extend the time limit. If time is not extended the claim will be dismissed.[7]It is clear that Employment Judge Batten envisaged this as a ‘preliminary issue’ case, rather than a ‘strike out’ case, and that will usually be the approach taken in unfair dismissal claims, where the starting date of the limitation period is usually easy to identity and the Tribunal is in a position to make findings of fact about the claimant’s conduct during the limitation period, without trespassing on the matters to be determined at a final hearing.[8]Unfortunately, there is no evidence of Employment Judge Batten’s directions being acted on at all. The respondent wrote to the Tribunal on various occasions over the next few months repeating its applications for the claim to be dismissed (whether by strike out or by determination of time as a preliminary issue) and, eventually, seeking clarity that the hearing today would be ‘converted’ to a public hearing.[9]Mr Cooper’s original claim form provides no information at all as to why his claim was submitted late. In reply to one of the respodnent’s emails, the wrote the following on 26 February 2025. This is the only explanation I have, so I reproduce it in full: The reason why it took me the amount of time it did to submit a claim was due to the fact I was then appealing the dissmissal this took a matter of months I then due to the stresses of Christmas and having no work and getting into debt suffered from mental health which mean the last thing on my mind was to submit a claim I wasn’t sure about the length of time. It was only going through my emails I seen the email from ACAS suggesting the next steps to be take it to a tribunal it was then when I decided to do it.[10]As the hearing approached, the respondent attempted to contact the Tribunal by telephone to raise the issue about the status of the hearing. I am told that the caller (when they had managed to get through) was told that the hearing was listed as a public preliminary hearing, and that the wrong notice had been sent to the parties. Of course, this accords with what the Tribunal file shows to have happened.[11]The respondent therefore prepared to address the time limit point at the hearing today.[12]As at 10am, Mr Cooper had not attempted to join the hearing. As is the usual practice, I asked my clerk to attempt to contact him by phone and email. No contact was made.[13]At 10.15am, I commenced the hearing and spoke to Mr Sugarman, representing the respondent. I asked him if the respondent had had recent contact with Mr Cooper. He read me some emails from earlier in the week. In summary, the respondent’s representatives had told the claimant that they expected the time limit issue to be determined today. The claimant had responded, on Monday afternoon, saying “So essentially you are saying it will be struck out?” The respondent’s representatives had replied saying that that was what they were asking for, and anticipated, but that it was for the Tribunal to decide. The email address used in this exchange is the email address on the Tribunal file and the email address that the CVP link was sent to.[14]Finally, I record that at 6.07pm last night, a member of the Tribunal administration contacted the parties to provide the CVP link. She realised that Employment Judge Batten’s directions had not been actioned and included in her email the notice I have set out in italics at paragraph 6 above.[15]Against that backdrop, I considered whether it was correct for me to go ahead and make a substantive determination of the time limit point as a preliminary issue today.[16]Firstly, I considered that Rule 54(2) was satisfied. Although the notice of hearing sent to the parties erroneously stated this was a public hearing, as far as any interested member of the public was concerned, it was a public hearing. The case appeared on the list as a public hearing and there would have been nothing in the various errors made by the Tribunal which would have caused any member of the public to think that they were unable to attend. The fact that no member of the public actually attended is immaterial.[17]Second, I noted that Rule 38(2) provides that a claim may not be struck out unless the claimant has been given a reasonable opportunity to make representations, either in writing, or, if requested by the party, at a hearing. In relation to this, Mr Sugarman suggested that the rule did not apply because this was a determination of a preliminary issue rather than a strike out. Technically, I have to agree with that analysis. However, if I had thought that the Tribunal errors had led to a genuine confusion on the part of Mr Cooper as to the purpose of the hearing today, such that he was unprepared to put forward his position on time limits, then I would have felt compelled to adjourn and re-list the hearing. That was a question which I hoped to explore with Mr Cooper, on the assumption that he was going to attend. I his absence, however, and analysing the documents closely, I am satisfied that Mr Cooper did have an opportunity to make representations for two reasons. Firstly, he actually did make representations in writing, by his email of 26 February, referred to above. Secondly, I am satisfied from the emails he exchanged with the respondent earlier this week, as well as from the Tribunal’s 6.07pm email last night, that Mr Cooper must have known that this hearing would decide the time limit issue. If that was different to what he had expected would happen, and if he therefore considered he was unprepared to deal with the issue, then the onus was on him to explain that and ask for a postponement.[18]I then come to Rule 47, which deals with non-attendance and provides: If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[19]I have already noted that enquiries were made about reasons for Mr Cooper’s absence and those enquiries yielded nothing. Given that the chronology of the claim was evident from the face of the documents, and that I had Mr Cooper’s explanation as set out in his 26 February email, I decided to proceed to determine the preliminary point, as identified by Employment Judge Batten. In the absence of Mr Cooper there was no oral evidence. Mr Sugarman made brief submissions and handed up two additional documents – an appeal outcome letter which identified that date of the conclusion of the appeal process as 15 December 2022 and a copy of the EAT decision Inchcape Retail Limited v Shelton UKEAT/0142/19/JOJ.[20]I announced my decision at the end of the hearing but informed Mr Sugarman that, in view of the claimant’s absence and the complicated procedural history, I would provide a full written Judgment. This is that Judgment.The Issues
[21]The issues are as set out by Employment Judge Batten: Was it reasonably practicable to present the claim of unfair dismissal within the time limit? If not, was it presented within a reasonable period?Findings of Fact
[22]The key findings of fact relate to the chronology, and are apparent from the documents.[23]Mr Sugarman invites me to take note of the fact that Mr Cooper appears to be a native English speak and worked in a training supervisor role which required a degree of computer literacy. He is not someone who is under a particular handicap in terms of his ability to research his rights and find out how to make a claim. I agree that I am able to reach that conclusion appropriately on the basis of the information before me on the papers.[24]Mr Cooper gives his date of dismissal as 18 November 2022, and the respondent agreed with this. This means that the primary limitation period would expire on 17 February 2023. In practice, Mr Cooper did not need to present a claim by 17 February 2023, he needed to notify ACAS that he wanted to commence Early Conciliation by 17 February 2023. That would have extended the time limit.[25]Mr Cooper’s internal appeal was heard on 24 November 2022 and he received the outcome on 15 December 2022. He says in his 26 February email that the appeal process “took a matter of months”. That is incorrect, it took slightly under one month. He still had around two months to contact ACAS and commence Early Concliation in time.[26]Mr Cooper then says that he was stressed by Christmas. Again, had he waited until after Christmas there was still plenty of time before 17 February 2023.[27]Mr Cooper then talks about having no work, getting into debt and suffering from “mental health”. There is no medical evidence to support the assertion that any mental health difficulties were such as to prevent him from taking the simple steps of contacting ACAS. He says that bringing a claim was “the last thing on his mind”. There is nothing to explain what eventually prompted him to contact ACAS on 31 March, approximately six weeks after the deadline.[28]Early Conciliation closed on 12 May 2023. The subsequent delay is the most troubling part of the case. Rather than acting promptly after the end of Early Conciliation, Mr Cooper waited. And he waited. And he waited. The claim was submitted on 6 December 2024, some 18 months after the end of Early Conciliation. Mr Cooper’s email gives no real explanation for this part of the delay at all, he simply says that he was going through emails from ACAS and saw that ACAS had stated the next step was a claim to the Tribunal and “it was then when I decided to do it”. He mentions no delay or difficulty in the process of completing and submitting the claim form after having decided to do it. Relevant Legal Principles[29]It is evident from what I have set out above that this claim was presented outside the primary time limit set out in s111(2)(a) Employment Rights Act 1996 (“ERA”), taking account of the extension of term under s207B ERA.[30]S111(2)(b) provides that the Tribunal can extend time for the presentation of the claim where it was “not reasonably practicable” for the claim to have been presented within the primary time period, and it was presented within such time thereafter as the Tribunal considers reasonable.[31]The “reasonably practicable” test is a strict one (in contrast with the discretion to extend time on “just and equitable” grounds which applies in some other types of claims, and is much broader). The onus of showing that it was not reasonably practicable to present the claim in time lies on the claimant.[32]Something is “reasonably practicable” if it is “reasonably feasible” (see Palmer v Southend-on-Sea Borough Council [1984] ICR 372, Court of Appeal). The question is not whether it was physically possible to present the claim in time, nor whether it was reasonable not to, rather the test lies between these two extremes.[33]Ignorance of one’s rights can make it not reasonably practicable to present a claim within time, as long as that ignorance is itself reasonable: Walls Meat Co v Khan [1979] ICR 52. An employee aware of the right to bring a claim can reasonably be expected to make enquiries about time limits: Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488, EAT.[34]As I have indicated, the respondent relied on the Inchcape case, and particularly drew my attention to the summary of authorities and general principles set out between paragraph 28 and 31 of HHJ Richardson’s Judgment. That includes reference to the Walls Meat and Trevelyans decisions I have referenced above.[35]Looking beyond the question of whether it was reasonably practicable for Mr Cooper to have presented his claim in time, I must also address the second question of whether it was presented within such further period as was reasonable. That is a less stringent test than the test of reasonable practicability. It is a question of fact, taking into account all of the circumstances. Submissions[36]In his brief submissions Mr Sugarman suggested this was “as clear a case as the Tribunal was likely to see”. He emphasised the strict nature of the reasonably practicable test and highlighted the significant gaps in the chronology, which I have already identified above.Discussion and conclusions
[37]I find that Mr Cooper has not come close to establishing that it was “not reasonably practicable” for him to present his claim in time. The limited explanations given in the 26 February email fall far short demonstrating that he meets the test. There is no evidence of any credible barrier to Mr Cooper finding out about the ability to bring a claim and, therefore, about the time limits that apply. As HHJ Richardson pointed out in Inchcape, it is not difficult to find out from official websites that there is a strict time limit for bringing a complaint of unfair dismissal. Access to the internet, particularly via smartphones, is even more prevalent now than it was in 2017 when the events in Inchcape took place.[38]Further, even if I was able to conclude that Mr Cooper was under some sort of handicap between the date of dismissal and the date when he commenced early conciliation, the second part of the test – that the claim was presented within such further period as was reasonable – is not made out.[39]On Mr Cooper’s own account, it was apparent to him on reviewing an email from ACAS that the next step was to proceed to the Tribunal. There is absolutely no explanation offered as to the delay of 18 months in seeking to do so. That delay is wholly exceptional in the experience of the Tribunal.[40]There is no imperative for employees who have been dismissed to challenge that dismissal in the Employment Tribunal. It is a choice. The claimant was perfectly entitled to spend the two years following his dismissal focusing on other matters, and no criticism is made of him for doing so. What he cannot do, however, is expect the Tribunal to entertain a claim at any future date, when it happens to suit him to proceed with it. To put matters plainly, that is just not how it works.[41]For those reasons I find that:41.1 The complaint was presented outside the primary time limit set out in s.111(2)(a) Employment Rights Act 1996.41.2 It would have been reasonably practicable for the claim to have been presented within that time limit.41.3 Even if it was not reasonably practicable, the claim was not presented within such further period as was reasonable.41.4 The Tribunal therefore has no jurisdiction to hear the claim and the claim is dismissed. Approved by: