Mr B Kerr v Vallourec Oil & Gas UK Ltd: 8001410/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001410/2025
Between
Mr B KerrClaimantVallourec Oil & Gas UK LimitedRespondent
Before
Employment Judge S NeilsonDate 18 November 2025
JUDGMENT
The decision of the Employment Tribunal is that the claimant’s claims for unfair dismissal under Section 103A of the Employment Rights Act 1996 and detriment under Section 47B of the Employment Rights Act 1996 were not lodged in time and are dismissed.
REASONS
[1]The case called on 4 November 2025 for an open Preliminary Hearing by CVP to deal with the single issue of time bar in relation to the claims lodged by the claimant.[2]The claimant attended in person. The respondent was represented by Ms Miller, solicitor.[3]The background to these claims is that the claimant lodged an ET1 with the Employment Tribunal on 2 June 2025. The claimant had been dismissed on 12 April 2024. An Acas Early Conciliation Certificate was issued on 13 August 2024.[4]In the ET1 the claimant brought claims in respect of automatic unfair dismissal under Section 103A of the Employment Rights Act 1996 (“the ERA”) on the grounds that he was dismissed for having made a protected disclosure. The claimant also brought a claim for detriment by reason of having made a protected disclosure under Section 47B of the ERA.
Relevant Law
[5]Section 111 of the ERA states as follows: “(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) 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 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.”[6]The relevant provisions of Section 48 of the ERA states as follows: “(1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. (3) An employment tribunal shall not consider a complaint under this section unless it is presented-(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) 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.”[7]The onus is on the claimant to establish that his claim is in time.[8]The statutory provisions should be given a liberal interpretation in favour of the employee - Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470. Issues[9]The issues to be determined in this preliminary hearing were as follows:-a. Did the claimant lodge his claim within the three months minus a day of his dismissal taking effect or the date of the last act or failure (taking into account the conciliation period)?b. If not, was it reasonably practicable for him to lodge his claim within that time?c. If not, did he lodge his claim within a further reasonable period? Findings in Fact[10]The claimant was injured in an accident at work on 11 March 2024. He sustained a laceration to his left hand and damaged his left arm and shoulder. He was in hospital for one day before returning home.[11]The claimant was dismissed from his employment on 12 April 2024.[12]The claimant alleges that his dismissal was due to health and safety disclosures that he had made.[13]The claimant was aware from shortly after his dismissal that he potentially had a claim for unfair dismissal and whistleblowing.[14]From at least March 2024 the claimant was aware that Citizen Advice Bureau (“CAB”) would be able to provide advice on any potential employment claim.[15]The claimant contacted the Health & Safety Executive after his dismissal and prior to 10 June 2024 to notify them of his concerns regarding the respondent’s approach to health and safety.[16]By no later than 27 June 2024 the claimant was aware that there was a time limit of 3 months minus a day from his dismissal within which to lodge a claim with Acas. He obtained this information through the internet.[17]The claimant entered into lengthy and detailed e-mail correspondence with the respondent concerning his dismissal in the period from 10 June 2024 to 24 July 2024.[18]The claimant spoke to Thompsons Solicitors before submitting his claim to Acas in July 2024.[19]The claimant notified Acas of a claim on 2 July 2024 and Acas issued a certificate on 13 August 2024.[20]The claimant made a Data Subject Access Request (“DSAR”) to the respondent on 24 July 2024. The respondent responded to that on 24 August 2024. The claimant made a complaint to the Information Commissioner’s Office regarding this response.[21]The claimant spoke to Acas about time limits and he was told that it was his responsibility to check time limits for lodging his claim.[22]The claimant was prescribed an anti-depressant drug – Sertraline on 22 July 2024 and has continued to take that drug up to June 2025.[23]The claimant was suffering from low mood and anxiety in the period from July 2024 through to April 2025.[24]The claimant instructed Thompsons Solicitors to pursue a personal injury claim on his behalf in respect of injuries sustained in the accident at work on 11 March 2024. The claim was intimated to the respondent on 14 August 2024.[25]The claimant is in regular contact with Thompsons Solicitors to discuss his personal injury claim.[26]On 7 November 2024 the claimant contacted a former colleague, Stewart Norrie by whatsapp to see if he would support his personal injury claim by making a statement. Stewart Norrie declined.[27]The claimant’s mental health had improved by March 2025.[28]The claimant offered to attend an appeal hearing by video on 10 September 2024.[29]The claimant corresponded with the respondent on 20 October 2024 concerning the DSAR and in addition corresponded by e-mail regarding his dismissal.[30]The claimant purchased a new car in October 2024.[31]On 17 March 2025 the claimant logged a lengthy message on LinkedIn in relation to the respondent and their health and safety record.[32]The claimant obtained new employment at the beginning of May 2025 and has been working long hours in that role since then. Discussion & Decision[33]It is not disputed that the claimant did not lodge his unfair dismissal claim within the 3 month period required under Section 111 of the ERA. The extended time limit, taking into account the ACAS conciliation period, expired on 13 September 2024. In relation to the detriment claim the time limit, under Section 48 of the ERA, will run from the last date of the act or failure to act to which the complaint relates. That will be a date that is on or before the last date of the claimant’s employment – 12 April 2024, in which case the last date for lodging the claim will be the same date as the unfair dismissal claim – 13 September 2024. I have considered whether the claimant is alleging that any of his detriments post date the dismissal date. I accept that it is possible to make such a claim. However, the onus is on the claimant to make out that claim (and that it is in time) and I am not satisfied that he has set out any specific detriment that post-dates the dismissal date. He does reference the subject access request and the failure to provide the audio of the disciplinary but it is not clear to me whether these are alleged as detriments and in any event when he states these failures occurred. Accordingly, I treat the time for both claims to be lodged as 13 September 2024.[34]The next issue then is to determine whether it was reasonably practicable to lodge the claims by 13 September 2024? The burden is on the claimant to establish that it was not reasonably practicable.[35]The claimant stated that it was not reasonably practicable to do that as he was unwell due to the mental health challenges that he faced; he was not aware of the requirement to lodge his claims with the employment tribunal within a particular timeframe – he accepted that he was aware of the requirement to lodge with ACAS within 3 months but he thought that there was a dispensation for claims such as whistleblowing that involved the public interest. Finally, he lacked certain documents, and he was worried about what he termed retaliation from the respondent if he lodged the claim.[36]For the respondent Ms Miller submitted that it had been reasonably practicable to lodge by 13 September 2024. She drew attention to the fact that the claimant’s mental health was not so severe that it precluded him from being actively involved in pursuing his employment claim and personal injury claim in the period of July and August 2024; the claimant was aware of the time limit to lodge the claim with Acas; he was aware he might contact the CAB for advice; he was in touch with Thompsons Solicitors; he made a DSAR request in July 2024; he contacted the Information Commissioner’s Office; he contacted the Health & Safety Executive – these were all actions of someone who if he could do these things – could have lodged a claim with the employment tribunal.[37]I will deal firstly with the issue of knowledge of the relevant time limit. Ms Miller referred me to the case of Cygnet Behavioural Health Limited -v- Britton 2022 EAT 108 where at paragraph 53 the EAT state “A person who is considering bringing a claim for unfair dismissal is expected to appraise themselves of the time limits that apply; it is their responsibility to do so.” She also referred to Walls Meat Co Limited -v- Khan 1979 ICR 52 which highlighted that if the employee is alleging ignorance of the time limit it will be a question of whether or not that ignorance was reasonable in the circumstances.[38]The claimant accepts that he was aware of the requirement to lodge his claim with Acas within the 3 months. He found this out on the intranet. He claims he was not aware of the need to then lodge the claim with the employment tribunal within the extended period of 1 month following the issue of the Acas certificate. He stated in evidence that he had gained an understanding from speaking with some people in a peer to peer support group that there was an exemption for whistleblowing claims because of the public interest. He did not say what the exemption amounted to in terms of whether it meant a further one month, six month or twelve-month extension. I did find his evidence on this vague. In considering whether this was a reasonable position I take into account the fact that the claimant is a reasonably sophisticated individual who at an early stage had identified that he had a potential whistleblowing claim arising out of his dismissal and that he had already by July 2024 engaged with making a DSAR; reporting the respondent to the Health & Safety Executive and was instructing Thompsons Solicitors to lodge a personal injury claim. He was aware that he might approach the CAB for advice as he had recommended the CAB to a colleague dismissed in March 2024 (although claimed he was put off by the long waiting list to get an appointment). He had gone online to find out about the process of lodging his claim with Acas. He had spoken with Acas who he accepts expressly told him it was his responsibility to check the time limit. In these circumstances I do not consider it reasonable that he did not check the time limit for lodging his claim with the employment tribunal. It was not reasonable in these circumstances to rely upon some vague suggestions from people he met in a peer to peer group – rather than checking the position with Thompsons, the CAB or going online. A google search would have revealed the position relatively quickly. I also do not accept, for the reasons set out below that his health precluded him from making such enquiries.[39]The claimant alleges that the primary reason he was not able to lodge his claims prior to June 2025 was due to his health. He claims that he was suffering from depression and could not deal with lodging a claim. Whilst it is correct that the claimant was prescribed Sertraline, an anti – depressant drug on 22 July 2024 and was on that medication for the period through to June 2025 there is no medical evidence that he was actually diagnosed with depression. The claimant has produced GP records for the period from 12 March 2024 through to 20 August 2024. Although these detail the physical difficulties he had with his left arm and shoulder following the accident at work they make only limited reference to his mental health. The first reference to his mental health is an entry on 24 April 2024 where it is noted “dismissed work, a bit stressed”. Then it is not until 22 July 2024 that there is a more detailed entry and there is reference to low mood, and reference to the claimant being “very low, panicked, anxious, sleep poor, low energy and motivation”. It is at this point that he is prescribed Sertraline. On the 6 August 2024 there is reference to some improvement in his mood but sleep still poor and Sertraline has helped a bit but not completely. On 20 August 2024 the last entry is “Thinks Sertraline has helped him feel less tense although sometimes feels a bit woozy/light headed with it. Different on different days, takes it in the mornings, sleep still inconsistent, had a good night last night, planning a holiday next week.” There are no further medical records until we get to a partial copy of a medical report dated 15 May 2025 following an examination on 3 April 2025. The report is a 17 page report by Dr Douglas Patience but the claimant has only lodged 6 pages (and one appears to be a duplicate). The report was prepared in relation to a personal injury claim being pursued by the claimant against the respondent. There is no formal diagnosis in the extracts of the report that we have but I note that there is a reference at paragraph 18 under Medication to “He currently takes Sertraline which was started a few months after the accident. He explained that he was really down at that time but this has picked up now. He feels no excitement/adrenaline and a general hollow feeling. He is planning to stop in due course.” There is also reference in the report to a referral from the GP to Psychological Services on 6 August 2024 that narrates low mood and anxiety. In the Summary section Dr Patience records what he has been told by the claimant – that the claimant is suffering from low mood, sleep disturbance, onset and middle insomnia, pre-occupation with the accident, altered concentration and loss of energy and exhaustion, comfort eating and weight gain, loss of interest and reduced activity, suicidal thoughts, anhedonia and anxiety. He also notes that the claimant considers that he is around 60 to 70% recovered to date. The final prognosis is that the claimant will make a full recovery in 3 to 6 months. In the Opinion section of the Report Dr Patience states that the claimant’s account of events is compatible with the GP reports and that “I consider that he is a reliable historian.”[40]The respondent accepted that the claimant had mental health difficulties. I agree with that. However there is no evidence of any formal diagnosis of depression and I note that in August 2024 there is evidence that the Sertraline is helping and that by the time of the assessment in April 2025 he is in a better place – the Dr Patience Report notes (paragraph 24) that the claimant states it is in the last month or so that he has started to feel better and noticed a big improvement in his sleep.[41]On the issue of whether it was reasonably practicable to lodge the claim by 13 September 2024 the question is whether he was incapacitated to the extent that it was not reasonably practicable to expect him to be able to lodge the employment tribunal claim. In considering that it is important to look at all the evidence to determine what he was doing at the relevant time. I do not accept that the medical evidence indicates that he was severely incapacitated in the period of July, August and September 2024. He was suffering from low mood and anxiety and was on medication but this did not preclude him entering into fairly lengthy and complex correspondence with the respondent regarding his claim in July 2024. It did not stop him engaging with ACAS or instructing Thompsons Solicitors to pursue his personal injury claim. It did not stop him lodging a DSAR. He indicated in evidence that he would have been willing to proceed with his appeal against dismissal via video link (although this was rejected by the respondent). Taking the evidence in the round I am not satisfied that his illness made it not reasonably practicable to lodge his claim within time.[42]I also take into consideration the claim by the claimant that he did not have all the documents that he needed to lodge his claim. The claimant has not explained exactly what documents he would have required and given that he had sufficient information as early as the beginning of May 2024 to set out in correspondence with the respondent the basis of his claim I do not see how the lack of any unspecified documents would have prevented the claimant from lodging his claim. There is then the final point made by the claimant that he was concerned about retaliation by the respondent. In evidence the claimant made some general comments about the respondent going out of its way to protect its reputation and he referenced other witnesses being dismissed and that the respondent branded him a liar and a thief. He was not able to provide anything more specific by way of a threat. I am not convinced that there is any evidence to support a contention that there was any genuine threat of retaliation. I also take into account that that risk presumably remained in June 2025 – and it did not stop the claimant lodging his claim then – nor did such a threat prevent the claimant from engaging Acas; lodging his DSAR; threatening litigation in his correspondence, lodging a personal injury claim or going to the Health & Safety Executive. Accordingly, I am not satisfied that it was not reasonably practicable to lodge the claims in time.[43]Whilst it is not strictly necessary to consider the third issue – whether the claims were lodged within a further reasonable period I will do so in any event.[44]The claim was lodged on 2 June 2025. If it had not been reasonably practicable to lodge the claim by 13 September 2025 it would be necessary to find that it would be reasonable to extend time to 2 June 2025. Even if I am wrong on the severity of the claimant’s health condition during the period of July 2024 through to March 2025 the evidence does disclose that there was an improvement in his health by March 2025. In the Report from Dr Patience the claimant is recorded as stating that he has started to feel better in the last month or so. In evidence before the Tribunal the claimant stated that his health was much improved by March 2025 (although he did caveat that by saying his prognosis was for full recovery in a further 3 to 6 months). The claimant himself explained that his motivation for lodging the claim in June 2025 was that the respondent had just posted on social media (in about March 2025) a new facility was opening and he, the claimant, considered that it was in the public interest to let people know how the respondent operates – and it was for that reason that he lodged the claim in June 2025. The claimant himself posted to LinkedIn on 17 March 2025 a fairly detailed post in negative terms regarding the respondent’s new facility and their previous health and safety record. Critically I note that the claimant commenced work by the beginning of May 2025 and stated in evidence that he was working long hours.[45]Based on the evidence I do not consider that it would in any event be reasonable to extend time beyond the beginning of May 2025 – and on that basis the claims would be out of time in any event.
Conclusion
[46]For the reasons set out above I find that the claimant has not established that it was not reasonably practicable to lodge the claims in time and in any event any reasonable extension of time would be, at best, to the beginning of May 2025. The claims are accordingly out of time. 18 November 2025