Mr P Colton v Allma Construction (In Administration): 8000857/2024
JUDGMENT
The judgment of the Employment Tribunal is that the claim was lodged out of time and the Tribunal does not exercise its discretion to hear the claim out of time. The claim is hereby dismissed for lack of jurisdiction.REASONS
[1]The present hearing was listed to deal with the issues of time bar and amendment that have arisen in this case.[2]The Tribunal considers that a short summary of the relevant events in the process will put the issues in context:a. The claimant was dismissed on 14 August 2023 when the first respondent ceased trading. He was in hospital due to heart failure at the time and was discharged approximately a week later. He continues to have health problems (including depression) to the present day.b. On 12 September 2023, the claimant commenced ACAS Early Conciliation. This was done online by his grand-daughter on his behalf. There was no contact with ACAS and the Early Conciliation Certificate was issued on 14 September 2023. He had been told by colleagues about the need to contact ACAS.c. Around the same time, the claimant submitted a claim online for his redundancy pay, notice pay and other wages due to him. This claim was submitted to the Insolvency Service who paid the sums owed in or around December 2023.d. On 17 June 2024, the claimant lodged his ET1 claim form. He had read a newspaper article about former employees of the first respondent receiving a “protective award” and lodged a claim intending to seek the same. However, the ET1 was ticked to say he was seeking notice pay and makes no mention of protective award.e. On 1 July 2024, the administrator of the first respondent gave consent for the proceedings but noted that the claim had been lodged out of time. They also informed the Tribunal that the claimant had received payment of notice pay.f. The Tribunal sought clarification from the claimant as to whether the claim for notice pay was being pursued given that this sum had been paid. In response, the claimant sought to amend his claim to introduce the claim for protective award.Relevant Law
[3]Section 111(2)(a) of the Employment Rights Act 1996 (ERA) states that the Tribunal shall not consider a complaint of unfair dismissal unless it is presented within 3 months of the effective date of termination.[4]The Tribunal has discretion under s111(2)(b) to hear a claim outwith the time limit set in s111(2)(a) where they consider that it was not reasonably practicable for the claim to be presented within the 3 month time limit and it was presented within a further period that the Tribunal considers to be reasonable.[5]Under s207B ERA, the effect of a claim entering ACAS Early Conciliation is to pause the time limit until the date on which the Early Conciliation Certificate is issued. The time limit is then extended by the period the claim was in Early Conciliation or to one month after the Certificate is issued if the Early Conciliation ends after the normal time limit.[6]The burden of proving that it was not reasonably practicable for the claim to be lodged within the normal time limit is on the claimant (Porter v Bandridge Ltd [1978] IRLR 271).[7]In assessing the “reasonably practicable” element of the test, the question which the Tribunal has to answer is “what was the substantial cause of the employee's failure to comply” and then assess whether, given that cause, it was not reasonably practicable for the claimant to lodge the claim in time (London International College v Sen [1992] IRLR 292, EAT and [1993] IRLR 333, Court of Appeal and Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119).[8]One of the most common reasons why a claimant will not lodge their claim within the normal time limit is either ignorance of, or a mistake regarding, the application of the relevant time limit. The leading case on this is Wall's Meat Co Ltd v Khan [1978] IRLR 49 where, at paras 60-61, Brandon LJ stated: “the impediment [to a timeous claim] may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.”[9]The test for whether it was reasonable for the claimant to be aware of the time limit is an objective one and the Tribunal should consider whether a claimant ought to have known of the correct application of the time limit (see Porter, Khan, Avon County Council v Haywood-Hicks [1978] IRLR 118).[10]Ignorance or mistake “will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made” (as per Brandon LJ in Khan).[11]Where the Tribunal concludes that it was not reasonably practicable for the claimant to have lodged his claim in time then it must go on to consider whether it was lodged in some further period that the Tribunal considers reasonable.[12]This is a question for the Tribunal to determine in exercising its discretion (Khan) but it must do so reasonably and the Tribunal is not free to allow a claim to be heard no matter how late it is lodged (Westward Circuits Ltd v Read [1973] ICR 301).[13]In assessing the further delay, the Tribunal should take account of all relevant factors including the length of the further delay and the reason for it. It will also be relevant for the Tribunal to assess the actual knowledge which the claimant had regarding their rights (particularly the application of the time limit) and what knowledge they could reasonably be expected to have or investigations they could reasonably be expected to make about their rights (Northumberland County Council v Thompson UKEAT/209/07, [2007] All ER (D) 95 (Sep)).[14]There is no question that the claim has been lodged out of time; the ordinary time limit expired on 13 November 2023 and the extended time limit for ACAS Early Conciliation expired on 15 November 2023. The ET1 claim form was not lodged with the Tribunal until just over 7 months later.[15]The real question for the Tribunal is whether it exercises its discretion to accept the claim out of time. The Tribunal has sympathy for the claimant who found himself in a position which he had never experienced before and was trying to navigate his way through that at a time when he was unwell.[16]However, the legal provisions relating to the issue of time limits are strict. These provisions go to the question of whether the Tribunal has the legal power to hear a claim and the Tribunal has to apply the law correctly.[17]In this case, the reason for the claimant’s delay in lodging his claim was his lack of knowledge of his rights. This is not intended as a criticism of the claimant but simply an acknowledgement that he was not aware that he could bring a claim for protective award until he saw a newspaper article about this and this is why he did not lodge the claim earlier.[18]Although the claimant has been unwell over the whole of the relevant period, the Tribunal does not consider that this impeded him in anyway from lodging his claim. He was able to engage ACAS Early Conciliation and seek payments from the Insolvency Service (albeit with the help of his family) during this time and the Tribunal considers that had he known of his right to seek a protective award at an earlier point in time then he would have been able to do so.[19]The question then becomes whether the claimant’s lack of knowledge was reasonable and the Tribunal considers that it was not. The claimant did not take any steps to seek advice from a solicitor or other legal adviser nor did he carry out any research into his rights. In the modern world, there is a considerable amount of information available online about employment rights including information about time limits.[20]In these circumstances, the Tribunal concludes that it was reasonably practicable for the claimant to have lodged his claim in time and so there is no basis on which it can exercise its discretion to hear the claim out of time.[21]The Tribunal, therefore, dismisses the claim on the basis that it does not have jurisdiction to consider the claim in circumstances where it has been lodged out of time and the Tribunal does not exercise its discretion to hear the claim out of time.[22]Given the Tribunal’s decision to dismiss the claim for want of jurisdiction, the claimant’s amendment application is rendered academic.[23]However, for the sake of completeness, the Tribunal will address the application to amend.[24]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 29.[25]The case of Selkent Bus Co Ltd v Moore [1996] ICR 836 confirms the Tribunal’s power to amend is a matter of judicial discretion taking into account all relevant factors and balancing the injustice and hardship to both parties in either allowing or refusing the amendment. The case identifies three particular factors that the Tribunal should bear in mind when exercising this discretion; the nature of the amendment; the applicability of any time limits; the timing and manner of the amendment.[26]First, there is the nature of the amendment itself. The Tribunal considers that the claimant is seeking to add a new claim which is not pled in the original ET1. Although the claimant had intended to raise a claim of protective award, there is no indication on the ET1 form itself that such a claim was being pursued. The amendment is, therefore, seeking to add a new claim.[27]Second, there is the issue of the applicability of time limits which is relevant given that the claimant is seeking to add new claims. It is beyond question that this new claim is being raised out of time given that the original ET1 was lodged out of time. The Tribunal does bear in mind that the issue of time bar can be a determining factor but that it is not necessarily fatal to an amendment application (Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07).[28]In the present case, had the Tribunal been required to deal with the amendment application, it would have considered that the issue of time bar was determinative for effectively the same reasons as set out above. The claim, whether the original ET1 or the amendment, has been raised significantly out of time and there is no basis on which the Tribunal could exercise its discretion to hear either claim out of time.[29]For this reason, the Tribunal would have refused the amendment application. ______________________ P O’Donnell