Mr I Galloway v Lanarkshire Deaf Club: 8000548/2024
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim is dismissed for want of jurisdiction, namely that it is time-barred.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 25 April 2025 in which he complained that he was unfairly dismissed by the respondent.[2]The respondent submitted an ET3 resisting the claimant’s claim.[3]Following a Preliminary Hearing before Employment Judge Whitcombe on 22 November 2024, this Preliminary Hearing was listed in order to address ETZ4(WR) the preliminary issue of time bar, on 19 September 2025, in the Employment Tribunal, Glasgow.[4]One of the important arrangements which was put in place for this Hearing was the attendance of 2 British Sign Language interpreters, the claimant being deaf, and those interpreters, Mr A Hesselwood Glass and Ms H Dunipace, ably assisted the parties and the Tribunal in the interpretation of all that was said.[5]A Bundle of Documents was provided by the respondent. While the claimant said that he had not seen it before the Hearing, despite the respondent’s assertion that they had sent him an electronic copy of the bundle in advance, there was no objection to proceeding with the Hearing and relying upon the Bundle. The claimant added a short bundle himself. Where reference is made to the claimant’s documents, it will be prefixed by “C”, and to the respondent’s documents, it will be prefixed by “R”.[6]Based on the evidence led and information provided, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[7]The claimant, who is profoundly deaf, commenced employment with the respondent in 2003, and was appointed to the position of Head of Operations with effect from 16 May 2022, by letter dated 1 May 2022 (R42).[8]In his written statement of particulars of employment, contained within that letter, it was provided that the minimum period of notice from either side would be 4 weeks (clause 9)(R43).[9]On 30 June 2023, the claimant was suspended from his employment, which was confirmed by letter of that date (R51). He was suspended on his usual pay pending investigation of a number of allegations of misconduct. The details of those allegations are not relevant to the issue before the Tribunal in this Hearing.[10]Following an investigation, the respondent’s Board of Trustees met on 2 November 2023 to make its decision. On 7 November 2023, the respondent wrote to the claimant to confirm the outcome of the investigation carried out. A copy of that letter was provided to the Tribunal during the course of this Hearing, and was added to the Joint Bundle and numbered R110/1. Towards the end of the letter, it was stated that “In light of these concerns and after careful deliberation, the board has decided to terminate your employment with Lanarkshire Deaf Club as Head of Operations, effective immediately.”[11]The letter went on to advise the claimant that he had the right of appeal against that decision, and that he should email Samantha O’Donnell within 5 working days of receiving the disciplinary decision.[12]The claimant wrote to Ms O’Donnell on 20 November 2023, intimating his wish to appeal against the disciplinary penalty which he said was imposed upon him on 8 November 2023. It was also the claimant’s evidence before this Hearing that his dismissal took place on 8 November 2023.[13]The claimant notified ACAS of his intention to make a complaint to the Employment Tribunal against the respondent on 21 February 2024; and ACAS issued an Early Conciliation Certificate by email to the claimant on 3 April 2024 (R2).[14]The claimant presented his claim to the Employment Tribunal on 25 April 2024.[15]The claimant’s claim should have been presented within 3 months of the effective date of termination of employment. In this case, taking the claimant’s evidence at its highest, that date was 8 November 2023; his claim should therefore, subject to any extension granted by the ACAS Early Conciliation process, have been presented by no later than 7 February 2024.[16]The claimant did not present his claim to the Tribunal within that 3 month time limit, and nor did he notify ACAS of his intention to make such a claim within the 3 months following dismissal.[17]The claimant’s claim was therefore presented out of time, following dismissal.[18]The claimant obtained help from his daughter in submitting his notification to ACAS and presenting his claim to the Tribunal.[19]On 7 August 2023, the claimant emailed Martin Robertson of the respondent to ask a number of questions and make him aware of a matter. In the course of that email (C1), the claimant made a request for annual leave in December, and stated that “I contacted ACAS this morning to check this was within my rights to ask.”[20]The claimant’s evidence was that he waited for 5 months for a reply to this email, though he was in fact dismissed some 4 months later.[21]The claimant considered that the disciplinary hearing was one which was conducted very unsatisfactorily and unfairly by the respondent, on 8 November 2023.[22]The claimant’s evidence repeatedly suggested that he was originally dismissed on 30 June; however, it is clear from the correspondence that he was not dismissed on that date, but suspended pending the investigation.[23]The claimant attended at the respondent’s office on 2 December (referred to in an email of that date)(C3), to play in the poker game which he was accustomed to join with, but was prevented from doing so and asked to leave. The claimant was very unhappy about this turn of events but said he accepted the decision and left.[24]On 21 February 2024, the claimant was invited to an appeal hearing on 1 March 2024 (C4). The invitation was brief, and confirmed that the meeting would be focusing on the allegations of bullying, and whether his appeal was valid.[25]The appeal meeting was conducted by Derek Todd, and the claimant attended. An extract of the minutes of the appeal meeting (C5) set out the following exchange: “Derek Todd: The problem is we should have had an appeal in December, but you were on holiday. Ian Galloway: Yes but I sent the appeal to you in November. Derek Todd: You did not tell us you were going on holiday. You should have let us know as you are still technically employed and locked into that contract. You were on suspension leave. Ian Galloway: I was sacked from 8 November. Derek Todd: When you replied with the appeal letter, the sacking then gets put on hold as you are still a member of staff, being unpaid, under the disciplinary procedure…”[26]A copy of the Disciplinary Policy and Procedure was produced and marked R112ff. in the section dealing with “Appeals against disciplinary action”, there is no reference to the provision which Mr Todd asserted to be the case. The Policy simply stated that an appeal against a final warning and dismissal should be made to the Appeals Panel of the Management Committee, which would, or a nominee would, carry out a full review of the facts and reply in writing within five working days. There is no provision to the effect that an appeal means that the dismissal is “put on hold”.[27]The respondent did not call any witness and therefore the evidence rests as it was given. Submissions[28]Each party presented concise oral submissions to the Tribunal, which were taken into account in reaching a decision, and are referred to below where appropriate.The Relevant Law
[29]Section 111(2) of the Employment Rights Act 1996 provides: “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, orb. 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.”[30]What is reasonably practicable is essentially a question of fact and 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).[31]The best-known authority in this area is that of Palmer & Saunders v Southend-on-Sea Borough Council 1984 IRLR 119. The Court of Appeal concluded that “reasonably practicable” did not mean reasonable but “reasonably feasible”. On the question of ignorance of the law, of the right to make a complaint to an Employment Tribunal and of the time limits in place for doing so, the case of Porter (supra) ruled, by a majority, 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.” On ignorance of time limits, the case of Trevelyans (Birmingham) Ltd v Norton EAT 175/90 states that when a claimant is aware of their right to make a claim to an employment tribunal, they should then seek advice as to how they should go about advancing that claim, and should therefore be aware of the time limits having sought that advice.[32]In Bodha v Hampshire Area Health Authority 1982 ICR 200, the EAT held that existence of an impending internal appeal was not of itself sufficient to justify a finding that it was not reasonably practicable to present a claim to the Tribunal within the time limit, a view which was expressly approved by the Court of Appeal in Palmer & Saunders (supra). Discussion and Decision[33]The first issue to determine is the effective date of termination in this case.[34]The claimant appeared to suggest that he had been dismissed on 30 June 2023; however, it is clear from the evidence that he was not dismissed on that date, but informed of his suspension from duty pending an investigation.[35]The evidence demonstrates that the claimant was dismissed on 8 November 2023, though no letter of dismissal was produced by the respondent. A “letter of dismissal” appears on the index to the Bundle, but in fact that letter (R77) was a letter notifying him of the allegations and confirming the process to be followed. The claimant’s appeal letter confirms (R79) that he was dismissed on 8 November, and this is the effective date of termination in this case, from which the time limit must be taken to have started to run.[36]In terms of section 111 of ERA, the claimant had 3 months within which to present his claim. From 8 November 2023, he therefore had until 7 February 2024 either to present his claim or to notify ACAS of his intention to make such a claim, thus initiating the ACAS Early Conciliation process. The claimant did not notify ACAS of this intention until 21 February 2024 (R2), and therefore does not benefit from any extension of time provided by Early Conciliation.[37]The claimant presented his claim to the Employment Tribunal on 25 April 2024, which means that his claim was not submitted until 11 weeks after the expiry of the statutory time limit for presenting a claim of unfair dismissal.[38]The claimant asserted, however, that he was advised by the respondent at the Appeal Hearing on 1 March 2024 that his employment continued beyond the date of dismissal, pending his appeal. Mr Todd raised this issue in the context of criticizing the claimant for failing to tell the respondent that he was to be on holiday in December, but he said that “You should have let us know as you are still technically employed and locked into that contract. You were on suspension leave.”[39]The claimant’s position, therefore, was that the date of termination of his employment was 1 March 2024, according to what he was told by the respondent.[40]A copy of the respondent’s disciplinary procedure does not provide that the claimant would continue in employment following dismissal in the event that he appealed against that decision.[41]In my view, while it was quite unhelpful for Mr Todd to have said this at the Appeal Hearing, it does not as a matter of fact affect the claimant’s date of termination. Mr Todd was wrong when he said that the claimant was on suspension leave beyond the date of his dismissal, and in my judgment, such a statement does not affect the legal and factual analysis of the appropriate date of termination in this case.[42]I require, then to consider whether it was not reasonably practicable for the claimant to have presented his claim within the 3 month timescale, and if it was not reasonably practicable, whether the claim was presented within such further time as the Tribunal considers to be reasonable.[43]The claimant maintained that he was ignorant of the Tribunal’s time limits at the point when he was dismissed, and that his daughter assisted him with presenting his claim when he did. It is clear, however, that the claimant was in contact with ACAS in November 2023 (R80), to ask their advice about a number of matters, including his final pay. He was aware at that time that his employment had been terminated, and he could have sought advice about what steps he required to take in order to raise a complaint to the Employment Tribunal, and by when. He did not do so, but in my view it would have been entirely reasonable for him to have sought that advice. He knew enough about the process to contact ACAS on that occasion, as well as in February when he commenced the Early Conciliation process.[44]The claimant also maintained that the respondent had advised him that his contract of employment continued following his dismissal, and that as a result, he believed when he submitted his claim that he was in time to do so.[45]I have given careful consideration to whether or not this erroneous advice should be taken into account in determining this matter. If the claimant were provided with advice, however erroneous, which affected the time within which he raised proceedings, that would be a matter which may affect whether or not it was reasonably practicable for him to have presented the claim in time.[46]There are two reasons why this issue does not, in my view, assist the claimant. Firstly, he was not told that his contract of employment continued beyond his dismissal until 1 March 2024, by which time his claim was already out of time; it cannot affect whether or not it was not reasonably practicable for him to have failed to make his claim within the statutory timescale, because there is no evidence that he was aware of this statement of the respondent. Further, it was not correct, and does not appear in the disciplinary process.[47]Secondly, the claimant had already initiated the ACAS Early Conciliation process on 21 February 2024, before he was told that his employment contract was continuing. As a result, it could not have had any influence on whether or not it was not reasonably practicable for him to have presented his claim in time.[48]There is no clear explanation as to why the claimant did not present his claim in time, and therefore nothing upon which the Tribunal could find that it was not reasonably practicable for him to have presented his claim in time. He demonstrated that he was able to communicate with ACAS to seek advice, but did not explain why he did not seek their advice about raising proceedings before the Tribunal, nor return to them within the time limit to seek further advice. He was able to initiate the Early Conciliation process, but there is no reason on the evidence why he could not have done so earlier. The claimant did not identify any reason, such as incapacitation or illness, or other circumstances of relevance, which would have rendered it not reasonably practicable to have submitted his claim the Tribunal in time.[49]The test is a stringent test, and the time limits in the statute are there for a reason: to prevent claims becoming stale, with the result that the respondent is limited in their ability to defend against them due to the passage of time.[50]In my judgment, it was entirely practicable for the claimant to have presented his claim to the Tribunal in time – or, to put it another way, to have initiated the ACAS Early Conciliation process, which requires considerably less knowledge than presenting a Tribunal claim – and therefore there is no basis in this case for extending the time limit to allow the claimant’s claim to proceed.[51]Accordingly, it is my judgment that the claimant’s claim should be dismissed for want of jurisdiction, namely, that it is time-barred.