Mr S Howie v Equans E&S Solutions Ltd: 8001828/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001828/2024

Between

Mr S HowieClaimant

Equans E&S Solutions LtdRespondent

Before

Employment Judge A Jones

Date 30 April 2025

JUDGMENT

The Tribunal does not have jurisdiction to determine the claimant’s claims and they are dismissed.

REASONS

[1]The claimant lodged a claim on 5 November 2024, complaining of unfair dismissal and age discrimination. A preliminary hearing for the purposes of case management took place on 20 March 2025. At that hearing an open preliminary hearing to determine whether the claimant’s claims were lodged within the statutory time limits was listed. While an application on the part of the claimant to amend his claim to add additional allegations of unlawful conduct related to the protected characteristic of age had been raised, the only allegation of age discrimination set out in his claim form related to the decision to dismiss him.

[2]Both parties lodged documents in advance of this hearing. The claimant gave evidence and was cross examined and both parties made submissions. Findings in fact

[3]Having listened to the evidence, considered the documentary evidence to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.

[4]The claimant was employed by the respondent from 24 June 2019 until his summary dismissal on 15 July 2024.

[5]The claimant had begun looking for alternative employment in advance of his dismissal although he wished to remain in employment with the respondent if possible.

[6]The decision to dismiss the claimant was communicated to him in a letter in which he was informed of his right to appeal against that decision.

[7]The claimant appealed against his dismissal in an email of 16 July and an appeal hearing took place on 29 July. The claimant was informed on 29 July that his appeal against the decision to dismiss him was unsuccessful. The respondent did not delay unduly in arranging an appeal hearing.

[8]The claimant commenced a new job on 19 August 2024 having completed two weeks’ training.

[9]The claimant was dealing with difficult family issues between July and October 2024, including end of life care for his grandmother for whom he was responsible and as guardian for his grandfather who had dementia.

[10]The claimant had no income between his dismissal and commencing a new job.

[11]The claimant arranged to sell his shares in the respondent company and received those sums in September 2024.

[12]The claimant went abroad on a pre-booked family holiday between 12 and 23 October 2024.

[13]The statutory time limit for lodging the claimant’s claims expired after 14 October 2024.

[14]The claimant contacted ACAS by email on 20 October 2024 while he was abroad. He first spoke to a conciliation officer on 30 October.

[15]The claimant had not researched time limits for lodging Tribunal claims prior to speaking to an ACAS conciliation officer. He had in mind that he had three months from the date of his appeal to submit a claim which would have been 28 October.

[16]The claimant commenced early conciliation on 30 October 2024 and an early conciliation certificate was provided on 5 November.

Relevant law

[17]Section 111 (1) of the Employment Rights Act 1996 gives employees the right to purse a claim of unfair dismissal in the Employment Tribunal. Subsection (2) reads: “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 practical for the complaint to be presented before the end of that period of three months.”

[18]In terms of section 123(1)(a) Equality Act 2010 a Tribunal will only have jurisdiction to consider a claim of this nature if it has been lodged within three months of the act complained of. However, section 123(1)(b) provides that a Tribunal may consider a claim not lodged within that period if it is lodged within a period where it considers just and equitable to do so.

[19]In submissions, the respondent referred to a number of authorities: Wall’s Meat Co Ltd

1979 ICR 52

; Kumari v Greater Manchester Mental Health NHS Foundation Trust

2022 EAT 132

; Cygnet Behavioural Health Ltd v Britton EAT 2022 108; Adedeji v University Hospitals Birmingham NHS Foundations Trust 2021 ICR D5 and Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

. Discussion and decision

[20]The claimant’s position was that he had not lodged his claim timeously because of the following reasons: i. He had mistakenly believed that he had three months from the final appeal decision to bring a claim; ii. He had to wait two weeks before his appeal was dealt with; iii. The financial challenges in relation to his lack of income caused him difficulties; iv. He had significant family responsibilities which required his attention and which were very time consuming; v. He had a pre-booked family holiday; and vi. He had tried to contact ACAS by phone while on holiday but could not do so and contacted them by email on 20 October.

[21]He argued that in these circumstances, it was not reasonably practicable for him to have lodged his claim of unfair dismissal within three months of his dismissal and it would be just and equitable to determine his claim of age discrimination.

[22]The respondent’s position was that the claimant had failed to establish that the Tribunal should exercise its discretion to extend the period in which the claimant was required to lodge his claims. Was it reasonably practicable to have lodged a claim in time?

[23]In this first instance, I considered whether the claimant had established that it was not reasonably practicable to have lodged a claim in time. Reasonably practicable has been paraphrased as reasonably feasible (Lowri Beck Services Ltd v Brophy

2019 EWCA Civ 2490

). Where a claimant was ignorant about the applicable time limit it will be relevant to determine whether that ignorance was reasonable.

[24]The claimant’s position was that he did not research the relevant time limit. He was not sure why he had believed that the time limit was three months from the outcome of an appeal. The claimant’s failure to research the relevant time limit was not reasonable. He waited until three months after his dismissal to contact ACAS. While it is appreciated that the claimant was on holiday in October, and he had very difficult family responsibilities to attend to around that time, it would still have been reasonably feasible for him to have lodged a claim. It is not clear why he did not contact ACAS until around the time he believed the time limit would expire. On the basis of what the claimant said, he believed that the time limit expired on 27 October. He said that he sought to contact ACAS by phone while on holiday abroad, but did not provide any evidence to support that. In any event, he did not email ACAS until 20 October, in the knowledge that he was not returning to the country until 23 October. There was no reason provided why he could not have contacted ACAS on his return between 23 and 27 October.

[25]When a claimant leaves it to the last minute to explore the raising of Tribunal proceedings they risk that they take that they might not lodge a claim in time ought to be clear to them.

[26]The claimant had a number of issues on his mind between his dismissal and the expiry of the three-month time limit, he had also started a new job and travelled abroad on holiday with his family. However, he had not taken reasonable steps to investigate time limits and an in all of these circumstances, the claimant had failed to demonstrate that it had not been reasonably practicable to have lodged his claim of unfair dismissal in time. Is it just and equitable for the Tribunal to determine the claimant’s discrimination claim?

[27]The discretion afforded to Tribunals to determine a discrimination claim which has been lodged out of time is broader than that relevant in relation to a claim for unfair dismissal.

[28]Relevant factors to be determined include balance of prejudice; explanation and length of the delay; ignorance of rights; ongoing internal procedure and the merits of the claim.

[29]However, it is important that in determining whether the discretion should be exercised a Tribunal considers all the facts of the particular case and takes a multi-factorial approach to the consideration.

[30]In the present case, the following factors were considered relevant; i. The claimant left it very late to take any steps to bring a claim, he did not carry out any research online into time limits prior to contacting ACAS, and his ignorance of his rights was not reasonable; ii. The allegation of age discrimination was not raised in the claimant’s appeal against his dismissal; iii. The basis for his claim is that other members of staff who were older than him were not dismissed. However, the claimant was found to have falsified van driving records, and it was not suggested that his comparators had done this. Therefore, their circumstances are unlikely to be materially the same as that of his circumstances. iv. The appeal proceedings had been resolved on 29 July, more than three months prior to the claimant commencing early conciliation. v. While the claimant was facing challenging personal circumstances, he was also able to commence new employment having undergone training for that and go on a family holiday. vi. The claim was lodged three weeks out of time.

[31]Taking all of these factors into account, and while recognising that the claimant had difficult personal circumstances to deal with at the time, I am not satisfied that it would be just and equitable to extend the time limit to allow determination of the claimant’s claim of age discrimination. The claimant is clearly an intelligent individual and he could not explain why he had thought he had three months from the date of the outcome of an appeal to lodge a claim. There is no good reason why he could not have researched these matters and instead left it until 20 October to try to make contact with ACAS. The claim of age discrimination also appears to be weak and while the merit of the claim is not a determinative factor in the Tribunal’s deliberations, it is a relevant factor.

[32]Taking into account the delay in lodging the claim, the reasons advanced for that by the claimant, and the likelihood of his success in the claim, it would not be just and equitable to extend the time limit in which to determine the claimant’s claims.

[33]Therefore, the Tribunal does not have jurisdiction to determine his claims and they are dismissed.