Mr G Hayes v Secretary of State for Business and Trade: 8002570/2025
JUDGMENT
The claim was lodged late and in terms of section 188 of the Employment Rights Act 1996 it was reasonably practicable for the claimant to have lodged his claim in time. The claim is therefore dismissed.REASONS
[1]This Hearing had been fixed as a preliminary hearing to determine two preliminary issues: the issue of time bar and whether or not the claimant was an employee.[2]The claim form was presented on 24 October 2025 and the response form on 17 November 2025. On 28 November 2025, following initial consideration, the parties were advised that a preliminary hearing would be convened to deal with time bar and employee status.[3]On 1 December 2025 a notice of hearing was issued confirming the hearing would proceed on 24 March 2025 and deal with employee status and time bar. On 9 December 2025 the claimant acknowledged receipt by email.[4]On 23 February 2026 the respondent’s agent sent an email to the Tribunal and the claimant confirming who would deal with the hearing and confirming that the hearing was proceeding on 24 March 2026.[5]At the outset of the Hearing the claimant said he had been told by a member of the Tribunal staff that the hearing was on 25 March and he had wanted another day to finalise preparations. I explained that in terms of the overriding objective it was important that matters progressed justly and fairly which meant expeditiously with due regard to cost and proportionality. Today had been set down to determine the 2 issues. The first issue was time bar which looked at why the claimant had lodged his claim when he did (which required the claimant to explain what he did, when and why) and then employment status (which required a detailed analysis of what the claimant’s day to day relationship with the business was).[6]Following a discussion it was agreed that it would be fair and just to determine the issue of time bar first given this involved the claimant explaining why he had lodged the claim when he had which did not require the claimant to undertake further enquiries. If the claim was allowed to proceed, a separate hearing would be fixed to deal with employment status. Both parties agreed this was a fair way to proceed.Facts
[7]The claimant was able to give evidence with reference to productions that had been provided. I was able to make the following findings of fact from the evidence presented, making a decision from the evidence presented with particular reference to what was said and done at the time, making a decision based on what was more likely than not to have occurred.[8]The claimant was a director and shareholder of the business. He is an articulate and intelligent individual. Cash flow issues arose and the business became insolvent. The claimant sought a redundancy payment, notice pay and holiday pay from the respondent.[9]The claimant’s health had been adversely affected by the collapse of the business and the surrounding events. He suffered from extreme anxiety and stress. The claimant’s health had peaks and troughs such that there were occasions when he was unable to deal with his personal affairs and times when he was able to manage matters, with the claimant focussing on matters that were more pressing at the time. The claimant had met with his GP but had declined medication. The claimant did his best to deal with the issues facing him to protect himself and his family.[10]In July 2025 the issues affecting the claimant affected his mental health. Things on occasion overwhelmed the claimant and he would put them to one side and return to them when he was able to do so.[11]The claimant had some friends who were able to assist him and guide him, including a director of a housing association, but he would require to make an appointment to see that person to get advice. The claimant had done so but only after his claim had been lodged. The claimant did have access to legal advice but he had no money to instruct a solicitor in connection with the claim (and was seeing a solicitor in connection with his personal situation to protect his home and family in light of personal guarantees he had issued).[12]On 8 July 2025 the respondent issued its decision rejecting the claimant’s claim. The letter ran to 3 pages. The first half of the letter explained that the respondent did not consider the claimant to be an employee and as such the sums were not due. The remaining half of the letter was under the heading “If you do not think this decision is correct” and noted that the service could consider any further information available. The letter also stated that the claimant had the right to make a claim to the Tribunal if he felt the decision was wrong. The letter warned the claimant that there were time limits and gave a link to a website with further information on time limits and remedies.[13]The claimant received this letter and understood it. Given the number of other issues facing the claimant, which included issues around personal guarantees, risk of eviction and personal insolvency and financial collapse, the claimant did not consider the rejection of his claim further at this stage.[14]On 18 July 2025 the claimant responded to the letter he had received (to the email address from which the letter had been sent to him). The claimant repeated what had been said in the letter (that he was not considered to be an employee) and said “this is incorrect and I wish to appeal this error”. He then stated: “I did follow the links in the letter you sent, to appeal the decision but I could not find a link to upload the contract”.[15]On 28 July 2025 the second respondent replied by email stating that the additional evidence the claimant had provided (his contract) was reviewed and that the original decision stood. The claimant was told that he had the right to make a claim to the Tribunal and was again warned about time limits and given a link to a website which set out the 3 month time limit (which runs from the date the Secretary of State rejected the claim). The email gave the claimant advice as to how to complete the claim, making it clear that his former employer should be first respondent and Secretary of State second respondent. Later that day the claimant asked why his claim was rejected. There was no further correspondence.[16]The claimant had been working on a number of matters between July and October which included dealing with former employees of the business, creditors and personal issues. The claimant had access to the internet and email and could have taken steps to lodge his claim but did not do so.[17]In late September an early October the claimant revisited the rejection of his claim and undertook some basic research He was not sure if it was worth challenging the decision but had been told by a friend or family member that he might have a case. The claimant had initially thought a director might not also be an employee but realised around September time that the position might not be as clear cut as the respondent alleged.[18]The claimant knew of the existence of Employment Tribunals and time limits to challenge the decision. He knew the claim was not time barred in September and early October and that the time limit was approaching. He did not give the matter further thought nor take urgent steps to verify what the time limit was or to protect his position in this regard.[19]The claimant assisted former employees for whom he felt responsible, having set up the business, which had collapsed. The claimant was also having to manage personal debts that arose as a result of the financial situation facing the business, which included personal guarantees and a risk to the family home. The claimant was also trying to secure alternative employment. There were also personal issues affecting the claimant and his wife as a result of the demise of the business. The claimant chose to focus on these matters rather than take urgent steps to protect his position in relation to this claim.[20]The claimant did get some advice from debt advice agencies and solicitors particularly with regard to the personal guarantees and his financial situation. He spoke to solicitors around September time and during the Summer in relation to his financial position but did not seek advice as to the rejection of his claim which he did not consider in detail at that time.[21]In the intervening period the claimant chose to focus upon steps to protect his family home and financial situation. Around the end of September, the claimant had gone to the insolvency service who were unable to provide the claimant with advice. The claimant knew of the existence of ACAS who could advise him and of Tribunals (and time limits). The claimant’s wife had been an employee of the business and she had reminded the claimant around September 2025 that there were time limits pertaining to this redundancy payment application. The claimant knew it was possible his claim was time barred or would soon be time barred.[22]The claimant had been communicating with a number of different bodies in the intervening period and at this time. He sought some advice from the advisers dealing with the insolvency process particularly given threats to him and his family which led to him removing himself from social media which helped lessen the anxiety he suffered. The claimant had also sought legal advice as to the personal guarantees from a solicitor and ensured that his position was protected in that regard. He did not seek advice or ask any questions about challenging the decision in this claim.[23]On 7 October 2025 the claimant sent an email to events@acas.gov.uk with the heading “redundancy pay tribunal” stating his claim had been refused and he wished to go to a Tribunal. An automatic reply was generated which referred to a helpline or website for further information. The email made it clear that support would be provided if sought. The claimant did nothing further that day. On 17 October 2025 that the claimant initiated early conciliation which lasted until 23 October 2025.[24]The claimant presented his claim to the Tribunal on 24 October 2025. Observations on the evidence[25]In examination in chief the claimant said not read the letter rejecting his claim of 8 July 2025 nor did he understand it. The claimant’s evidence was conflicting. When the surrounding correspondence was put to him in cross examination the claimant’s position changed and he said that he had in fact read and understood the letter rejecting his claim. That was more likely to be correct given his response at the time. The claimant knew of the decision and of the right to challenge it. He also knew of the time limits and Tribunal process. At the time, however, he did not wish to proceed via that route and chose instead to try and persuade the respondent of the position.[26]The claimant also said in evidence that he believed the respondent’s decision was a “fait accompli” and there was nothing he could do about it. His position was that he felt the decision had been made and there was no point challenging it. That evidence however was contradicted by the reality of the situation since in fact he did challenge the decision. He had been told twice of the time limit and Tribunal process if he wished to take matters further. He chose not do so when he was told about the process.[27]The claimant was unable to recall matters clearly which was not surprising given the issues facing him. The documents created at the time were, however, clear and set out what had happened. The evidence of what was said at the time was important and clear and did not require the claimant to rely upon his memory given the terms of correspondence. The claimant knew about ACAS and could, if he wished, speak to them to progress his claim. He knew where to find details about time limits and the form to be completed.[28]The claimant alleged that he did not fully know about the process to challenge the decision but the position had been made clear for him. It was more likely than not that the claimant did know about the process but regrettably (and for obvious reasons at the time) chose to focus upon other matters in his life.[29]The claimant had initially said in evidence that the rejection of this claim had gone to the bottom of his to do list but later suggested this was not by choice. However, it was more likely than not that the claimant chose to focus on other issues which required his attention, for good reason. It was more likely than not that he could have dealt with the rejection and raised a claim (following the process set out for him twice). He chose instead to try and persuade the respondent to change its mind and when that did not happen, he focused upon the other issues in his life at that time. He did put the pursuit of this claim to the bottom of his to do list and did not deal with it expeditiously.[30]The claimant alleged that he believed he was still in a conversation with the service and that somehow a final decision had not been taken but the correspondence made it clear that his claim had been rejected with the process to challenge having been clearly set out. The claimant understood this notwithstanding the issues facing him.[31]One of the key issues in this case was the claimant’s mental health. He had anxiety and was subject to considerable stress. The claimant argued his mental health position was such that he was not following the process and that he was not able to do so. I carefully took his evidence into account. The claimant noted that he had not been asked to provide any evidence as to the position but this was the claimant’s claim and it was up to him to provide whatever evidence he wished to support his position. Previous case management orders had made it clear that documents relied upon should be exchanged. The claimant had ample opportunity to seek and produce relevant evidence to support his position. The claimant is articulate and intelligent.[32]The claimant was capable of managing a large number of complex issues in life at the time. The claimant was clearly dealing with a large number of really challenging and distressing issues affecting him and his mental health clearly was adversely affected. However, I did not accept that the claimant was incapable of dealing with this issue nor that he did not comprehend the process. It was more likely than not that he understood what required to be done but instead was focussing on other matters in his life at that time.[33]The claimant’s mental health clearly had an impact upon his decision making powers and I took that into account in assessing the position and the evidence. I was able to assess the position in light of what the claimant did at the time. The correspondence he issued at the time and the way in which he was dealing with the issues demonstrated his capacity to engage and challenge the second respondent. There were undoubtedly occasions when the claimant may not have been able to deal with matters, but there were equally occasions when the claimant clearly was able to do so and did so. This was not a case where the claimant was labouring under an impairment which prevented him from progressing matters. While on occasion he was so impaired, the evidence showed that there were many occasions during the intervening period where the claimant could have progressed matters to protect his position. His mental health impacted upon the claimant but did not prevent him from taking steps to protect his position at the time. The claimant was capable of lodging his claim at the end of the limitation period had he chosen to do so.[34]It was clear that in July 2025 the clamant understood the decision taken and the reasons for it. He then focused on other matters. When his wife reminded him in September about time limits the claimant revisited the issue and eventually contacted ACAS and eventually initiated early conciliation. It was the existence of the other matters in the claimants life at the time, which naturally the claimant considered more important, which he focused upon, rather than taking steps to protect his position in relation to this claim.[35]I also took care in making my decision to balance the other issues affecting the claimant. The issues facing the claimant were considerable and clearly severe. The claimant had to choose what to focus on. The other issues facing the claimant, from the evidence led, even taking into account the claimant’s mental health, did not reasonably prevent the claimant from taking steps to protect his position in relation to this claim.The law
[36]Time limits go to the jurisdiction of the Tribunal which means that a claim presented after the time limit has expired cannot be considered at all on its merits, unless the Tribunal can be persuaded to extend time under the limited discretionary powers to do so conferred by the relevant statute.[37]Part XII of the Employment Rights Act 1996 provides rights to employees where employers become insolvent. Section 182 et seq sets out what sums can be claimed from the Secretary of State and section 188 states that an Employment Tribunal shall not consider a complaint unless it is presented before the end of 3 months beginning with the date on which the decision of the Secretary of State was communicated to the claimant or within such further period as is reasonable where it was not reasonably practicable to have presented the complaint before the end of the 3 month period.[38]In Palmer v Southend-on-Sea Borough Council 1984 ICR 372 the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 said: ‘The relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’. And in Lowri Beck Services Ltd v Brophy 2019 EWCA Civ 2490 Lord Justice Underhill summarised the law:a. the test should be given a liberal interpretation in favour of the employeeb. the statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was ‘reasonably feasible’ for the employee to present his or her claim in time. (Underhill LJ commented that the reference to ‘feasibility’ in the case law did not seem to a particularly apt way of making the point that the test is not concerned only with physical impracticability)c. if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable. If it is not, then it will have been reasonably practicable for the employee to bring the claim in time. However, it is important to note that, in assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have maded. the test of reasonable practicability is one of fact and not of law.[39]While the case law relates almost entirely to unfair dismissal claims the Employment Appeal Tribunal made it clear in GMB v Hamm EAT 0246/00 that the words ‘not reasonably practicable’ are to be given the same meaning whenever they appear in an equivalent context in comparable legislation, so similar considerations will apply to all other statutory employment claims using the same formula.[40]Lady Smith in Asda v Kauser EAT 0165/07 found that mere stress — as opposed to illness or incapacity — is unlikely to be sufficient. In that case the Tribunal found that it was not reasonably practicable to have presented the claim timeously because the claimant thought that she could not present a claim until the police enquiries were complete and she was “very stressed” while those enquiries were ongoing. The Employment Appeal Tribunal overturned the decision, holding that it was not sufficient that the claimant was ‘very stressed’ and ‘in some turmoil’ during the period. According to Lady Smith, something more than mere stress was required to avoid the effect of the statutory time limit. The Court of Appeal had made clear in Schultz v Esso [1999] IRLR 488, that consideration should be given to the closing stages of the limitation period and according to Lady Smith, had the tribunal done so, it would have found that it was reasonably practicable the claim to have been presented in time.[41]In Cygnet Behavioural Health Ltd v Britton 2022 IRLR 906 the Tribunal concluded that it was not reasonably practicable for the claimant to have presented his unfair dismissal claim in time because of depression and dyslexia, combined with ignorance of the time limit. He had limited mental and physical energy and his primary focus during the relevant time was on a regulatory investigation into his fitness to practise as a physiotherapist. Overturning that decision, the Employment Appeal Tribunal observed that, notwithstanding his conditions, he had been able to do a great deal during the period between his dismissal and the expiry of the time limit, including appealing against his dismissal, contacting Acas about his potential claims, working as a locum and then in a temporary post, moving house, and engaging in great detail with the regulatory investigation. While he had been very busy, the Appeal Tribunal considered that it would be ‘the work of a moment’ to ask somebody about unfair dismissal time limits or to type a short sentence into a search engine. There was no rational explanation or justification in the tribunal’s judgment as to why his conditions prevented him from finding out about the time limit. Thus, the tribunal’s decision was perverse and the claim was dismissed as having been presented out of time.[42]Ultimately it is a question of fact to be determined in light of the evidence applying the statutory test to the facts. Discussion and decision[43]The parties accepted that the claim was lodged late. The respondent issued the decision on 8 July 2025. The claimant had until 7 October 2025 to bring a claim. The rules as to early conciliation do not apply to this claim but by the time the claimant commenced early conciliation - 17 October – the claim was already late.[44]The key issue in this case is therefore whether it was reasonably practicable for the claim to have been lodged in time, applying the law as set out above. In reaching this decision I take full account of the claimant’s mental health and the challenges he faced at the time. I carefully considered the evidence led by the claimant and full factual matrix in reaching my decision. I also look at matters at the closing stages of the limitation period given the authorities.[45]The claimant had been told of the time limit to challenge the decision in the letter of 8 July 2025 which he read and understood. He knew his claim was rejected and could take Tribunal action to challenge it formally. While he wanted to persuade the respondent to change its mind, it was clear that the decision stood. That remained the case even when the claimant had provided further information and he was reminded of the time limits and process.[46]The claimant was able to instruct solicitors in connection with other matters, which were naturally more pressing, such as protecting the family home and dealing with persona guarantees and threats. He was able to seek legal advice, research matters online and make decisions. There were occasions when things got too much and the claimant did nothing. Those instances passed and the claimant was thereafter able to engage with the various agencies dealing with the insolvency situation that arose. There was no impairment that reasonably prevented the claimant from challenging the decision to reject his claim.[47]The claimant was able to deal with an appeal against the decision. The claimant knew in late September of the risk his claim was or would soon be time barred. He could have taken urgent action to protect his position at that time. There was no impediment at that time to him doing so. Instead he dealt with other issues facing him at that time.[48]It was only on 7 October 2025 that the claimant decided to contact ACAS. Regrettably the claimant did not commence his claim. He did not follow the instructions given by ACAS in response to his email to commence early conciliation. He could have done so that day. The message he received from ACAS gave the claimant instructions as to what to do but the claimant delayed progressing matters. There was no impediment at that time to him commencing his claim urgently in light of what he had been told and knew.[49]There was no reason why the claimant could not have commenced his claim when he contacted ACAS – on 7 October or sooner. Had he done so, (that is instead of simply sending an email, or after having sent the email and followed up from the information given to him by the emailed response) his claim would have been in time. The claimant chose instead to wait for some time before entering early conciliation and then lodging a claim. The email he sent led to an automatic reply that the claimant could have followed up that day. Given the time limits which he knew applied in this case, the claimant ought to have taken urgent steps to protect his position. He chose not to do so. That was a decision the claimant took. From the facts in this case it was reasonably practicable for him to have lodged his claim on 7 October 2025, or sooner.[50]Taking the full factual matrix into account and taking a step back in light of the evidence, applying the statutory test, I have concluded that it was reasonably practicable for the claimant to have commenced his claim in time. The circumstances were similar to those in Cygnet with the claimant being able to attend to other issues in his life and did so instead of attending to the claim which he later chooses to pursue. In this case the claimant had been told twice about the process and time limits, about which he knew. The claimant faced a number of difficulties in his life. It was entirely understandable that the claimant focused on other issues facing him within the 3 month period but the statutory test is clear and must be applied.[51]On the facts of this case, it was reasonably practicable for the claimant to have commenced his claim in time and given he did not do so, it is dismissed.