Mr M Brown v B&M Retail Ltd: 8002178/2025
JUDGMENT
The tribunal decided it was not reasonably practicable for the claim to have been presented on time and the claim was presented within such further period as was reasonable. The claim will now proceed to be determined at a final hearing.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 7 September 2025 alleging he had been unfairly dismissed.[2]The respondent entered a response admitting the claimant had been dismissed but denying the dismissal had been unfair. The respondent asserted the claim had been presented late.[3]This hearing was arranged to determine whether the claim had been presented late and, if so, whether it had been reasonably practicable for the claim to have been presented on time.[4]I heard evidence from the claimant and I was also referred to some documents produced by the respondent. I made the following material findings of fact.Findings of fact
[5]The claimant was employed by the respondent from 20 July 2022 until the termination of his employment on 18 April 2025.[6]The claimant sought advice from Citizens Advice, but had to wait six weeks for someone to get back to him. The claimant was not aware of his right to pursue a claim at the Employment Tribunal, but he did some research and found out about this and the process to be followed.[7]The claimant was advised by Citizens Advice to contact ACAS and start the process of early conciliation. The claimant was also advised about time limits for bringing a claim, but he did not entirely understand this. He had not ever heard of “stop the clock” until the respondent referred to it.[8]The claimant contacted ACAS on 25 June and 2025 obtained an early conciliation certificate on 6 August 2025.[9]The claimant had put in an appeal against dismissal and had to prepare for this. He received the outcome of the appeal on 1 July 2025.[10]The claimant was severely depressed following his dismissal. He spoke to his GP for advice but did not obtain medication.[11]The claimant found it very stressful to look for alternative employment, care for his family when there was no income and trying to find representation for his claim. The claimant struggled with the process of representing himself.[12]The claimant tried to present his claim online on Sunday 31 August 2025, but having completed all of the required information he could not find the “submit” button. The claimant tried again the following day, but encountered the same difficulty. The claimant had to get help to submit the claim and he did so on 7 September 2025.[13]The claimant had not known his claim was late until this was raised by the respondent in their ET3 response. Respondent’s submissions[14]Mr Campbell referred to paragraphs 1 – 9 of the ET3 response where he had set out a calculation of the time limit for presentation of the claim (6th September 2025). The claim had been presented one day late.[15]Mr Campbell referred to the terms of section 111 Employment Rights Act and to the case of London Underground Ltd v Noel 1999 IRLR 621 where it was said that the power to disapply the statutory period is very restricted and that it is not a question of reasonableness.[16]In the case of Porter v Bandridge Ltd 1978 UCR 943 it was said that ignorance of rights can only assist a claimant with the reasonably practicable test where that ignorance is reasonable having regard to their capability and resources. The question is not what the claimant knew but what he ought to have known.[17]The case of Palmer v Southend on Sea Borough Council 1984 ICR 372 made clear that waiting for a pending internal appeal does not indicate reasonable practicability. Further, in terms of medical illness, a claimant must show the effect of a medical condition at the material time made it not reasonably practicable (Chouafi v London United Busways Ltd 2006 EWCA Civ 689).[18]Mr Campbell submitted that it was clear from the evidence that the claimant was not ignorant of the process to be followed. He took advice from Citizens Advice and initiated the early conciliation process. It was submitted the claimant knew of the applicable time limits because he had made an application for an extension of time for the claim to be received and had referred to the “stop the clock” provisions. The reason why the claim was late was because the claimant had miscalculated the due date for presentation. This was supported by the fact the claimant had tried to submit the claim online on 31 August 2025 and 1/2 September 2025.[19]Mr Campbell submitted the fact the claimant was waiting for the outcome to his appeal and the fact he had approached his GP with depression did not impact on it being reasonably practicable to present his claim on time. Mr Campbell invited the tribunal to strike out the claim. Claimant’s submissions[20]Mr Brown submitted the whole process had been stressful and difficult to understand. He had tried to get legal help but had been unsuccessful. Discussion and decision[21]I had regard firstly to the relevant statutory provisions at section 111 Employment Rights Act, which provides that an employment tribunal shall not consider a complaint (of unfair dismissal) unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination, or 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.[22]I also had regard to section 207B Employment Rights Act which provides for an extension of time limits to facilitate conciliation before instituting proceedings. The section explains that Day A is the day on which the claimant complies with the requirement to contact ACAS before instituting proceedings and Day B is the day on which the claimant receives the certificate issued by ACAS. The section goes on to provide that in working out when a time limit expires, the period beginning with the day after Day A and ending with Day B is not to be counted. Further, if the time limit would, if not extended by the subsection, expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.[23]I noted there was no dispute regarding the fact the effective date of termination of employment was 18 April 2025. The claimant contacted ACAS on 25 June 2025 (Day A) and received the early conciliation certificate on 6 August 2025 (Day B). The claim was presented on 7 September 2025.[24]The claim should, in terms of section 111 Employment Rights Act, have been presented on or before 17 July 2025. However, the provisions of section 207B Employment Rights Act extended that date and, as the time limit for presentation of the claim would have expired during the period beginning with Day A and ending one month after Day B, the time limit for presentation of the claim was on or before 6 September 2025. The claim was presented on the 7 September and was one day late.[25]The issue for this tribunal to determine was whether it was reasonably practicable for the claim to have been presented in time. I had regard to the case authorities to which I was referred by Mr Campbell and noted the test of reasonable practicability is a high bar and is not about reasonableness.[26]I next turned to the reasons put forward by the claimant to explain why the claim had not been presented earlier. I noted the fact the claimant did not know the claim was late until he read the respondent’s ET3 where this point was raised. The claimant responded to this by making an application for an extension of time for the claim to be received and in support of that application he set out a number of reasons why the claim had been late. I acknowledged the claimant made reference to the “stop the clock” provisions but I did not attach any weight to that in circumstances where it was clear the claimant had used that term because it had been referred to in the ET3 response.[27]I noted the claimant referred to a number of factors having an impact on him at the time, for example, stress due to financial difficulties, depression, preparing for the appeal, looking for another job, trying to get legal advice and waiting for advice from Citizens Advice and ACAS. I accepted all of these were factors impacting on the claimant at the time, but they were factors regarding reasonableness rather than practicability of presenting the claim.[28]I noted the claimant had sought advice from Citizens Advice and ACAS and that he had tried, unsuccessfully, to obtain legal advice through the various university law clinics and Thompsons solicitors. The claimant accepted that prior to receiving contact back from Citizens Advice, he had done some research about his “rights” so he knew of making a claim to the Employment Tribunal. He also he had been given advice by Citizens Advice regarding the process of bringing a claim and that he understood he had to contact ACAS and he had done so on 25 June 2025.[29]The claimant told the tribunal that he had been given advice regarding the time limits for bringing a claim. I do not know the nature of that advice but it can have been no more than an explanation of the statutory provisions set out above. This was not a situation where the claimant would have been told he had to present his claim by a particular date, because that would not have been known by Citizens Advice as it was subject to when the claimant contacted ACAS and how long was spent on conciliation.[30]I accepted the claimant’s evidence that notwithstanding he had been given this advice, he had not fully understood how to calculate the time limit for presenting the claim. This was supported by the fact the claimant had not known his claim had been presented late until this was raised by the respondent.[31]The case of Porter v Bandridge Ltd (above) made clear that ignorance of rights can only assist a claimant with the reasonably practicable test where that ignorance is reasonable having regard to their capability and resources. The question is not what the claimant knew but what he ought to have known.[32]I, having had regard to this case authority, had regard to the claimant’s capability and resources. I accepted resources were an issue for the claimant in circumstances where he was in significant financial difficulty because of the dismissal. I also accepted the claimant found representing himself very difficult. He did not present as someone who was comfortable with technology or preparing or presenting information. This was supported by the fact the claimant had difficulty joining this hearing and was assisted by his wife in finding and referring to documents.[33]I accepted the claimant’s evidence that he had tried to submit the claim form online on 31 August, but having completed the form, he could not find the “submit” button. He experienced the same difficulty the following day. The claim form could not be submitted online until the claimant obtained help to do so.[34]I next asked whether it was reasonably practicable for the claim to have been presented on time. I had regard to Mr Campbell’s submissions which were well made, but I could not accept that simply because the claimant had taken steps to inform himself of the process of bringing a claim in the Employment Tribunal, including the time limit for doing so, that rendered it reasonably practicable to present the claim in time. I say that because I accepted that having obtained that advice, the claimant had not really understood how to calculate the period for the time limit. I considered his difficulty in understanding the time limit to be both understandable and reasonable given what he said regarding his capability and the fact the provisions are not simple to follow.[35]The claimant’s difficulty in calculating the time limit had then been compounded by technological difficulties relating to online submission of the form. I again accepted the claimant’s evidence that he struggled with technology.[36]I concluded, having regard to the two points set out above which both relate to the claimant’s capability, that it had not been reasonably practicable for this claimant to present the claim in time.[37]I decided the claim had been presented within such further period as I considered reasonable in circumstances where I was satisfied that it was not reasonably practicable for the complaint to be presented earlier. The claim will now proceed to a final hearing.