Appeal No. UKEATPA/0107/13/GE
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
15 July 2013
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MR
B WILLIAMS APPELLANT
DHL
SERVICES LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
SUMMARY
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Employment Judge could not be
faulted in finding that it was reasonably practicable for the Claimant to
submit his claim within three months, when he was almost a year out of time. He
failed to apply for written reasons in time. This was in character.
This judgment is provided at public
expense without the Claimant having to make a case for it, inexplicably in
times of austerity when the Claimant heard the judgment, given in line with
those of the Employment Judge and the EAT judge.
HIS HONOUR JUDGE McMULLEN
QC
1.
This case is about the striking‑out of an unfair dismissal claim
on the ground that it was presented outside the three‑month period. I
will refer to the parties as the Claimant and the Respondent.
Introduction
2.
It is an appeal by the Claimant in those proceedings, who represents
himself, against a Judgment of Employment Judge Vowles, sitting on
4 December 2012 at Ashford, Kent. The Respondent was represented by counsel.
The issue at the PHR was whether the claim had been presented within the three‑month
time limit in section 111(2) of the Employment Rights
Act 1996. The Judge determined that it was not, and the complaint was
therefore struck out. Oral reasons were given on the day. The Claimant
applied out of time for written reasons, and the Judge refused because they
were sought out of time.
3.
The appeal came before Singh J on the papers who said the
following:
“I do not think that the appeal has any reasonable prospect of
success. The Claimant wishes to appeal against the Employment Tribunal
judgment sent to the parties on 12 January 2013, in which it struck
out the claim of unfair dismissal on the ground that it was made outside the
normal time limit of three months and it was reasonably practicable for it to
have been presented within that time. The Employment Tribunal heard evidence
from the Claimant and considered all the other evidence before it. It reached
a decision of fact. It gave its reasons orally at the time of the decision on
4 December 2012. I note that the Claimant requested written reasons for
the Employment Tribunal’s decision but this request was refused because it was
made outside the 14 day limit. The Grounds of Appeal dated
17 January 2013 raise what are essentially complaints about the
merits of the decision (in particular that the Claimant was ill at the relevant
time).”
4.
The matter comes before me afresh under rule 3(10). I refer to my
Judgment in Cheema v Singh t/a JS Carpets v Kumar UKEATPA/0250/12
for my approach to this kind of hearing; I make my own decision.
The legislation
5.
The relevant provisions of the legislation are not in dispute. It is for
the Employment Tribunal to determine under section 111 whether or not it
was reasonably practicable for the claim to be put in within a period of three
months.
The appeal
6.
I will give my decision in relation to this on the basis of the material
presented to me. There are no written reasons. I today have not been asked
for written reasons to be sought, and I see no reason to challenge the
Employment Judge’s refusal.
7.
The chronology is stark. The Claimant signed a letter acknowledging
that his last day of working and his redundancy was 13 August 2011.
The Claimant had relied on 14 August, but he accepts before me that that
is not right and time begins to run on 13 August. So the claim form should
have been put in on or before 12 November 2011. It was not
put in until 18 September 2012, almost a year out of time.
8.
The Claimant relies throughout upon his certificated illness from
3 November 2011. I have seen a GP’s letter which indicates that he
had back pain for all of this period, and the Claimant tells me he was in bed
for that time. When he put his claim in, he acknowledged that he was
potentially out of time. The Respondent took the time point, and so that is
why there was a PHR.
9.
In the absence of reasons, I have to rely upon the material which was
exchanged. The sole basis now advanced before me by the Claimant is that
between 3 and 12 November 2011 he had back pain and could
not submit the form. That of course would correspond to it not being
reasonably practicable, other things being equal. But I bear in mind that he
had, prior to this time, some 11 weeks in which to put in the form.
10.
No explanation is given to me, or that I can deduce from the papers, as
to why he did not put the form in before that. He tells me he was stressed at
losing his job, but there is nothing in the documentation to cover those 11
weeks. It seems to me that the Employment Judge must have decided that it was
reasonably practicable from 13 August at least up to
3 November 2011 to put the claim in, and the Claimant did not. That
would defeat the appeal.
11.
I bear in mind that in a case like this there is intense scrutiny of the
last part of the three‑month period (see Schultz v Esso Petroleum Ltd
[1999] IRLR 488) and that there may well be a reason occurring only in the last
(on this footing) nine days. But I have not been told anything about this. I
am told this was put before the Judge and the Judge in his oral reasons failed
to see the Claimant’s point.
12.
At a subsequent stage in these proceedings, the Claimant received legal
advice, and then he received legal advice from what is said to be a charity
known as Employment Law Centres. They wrote on his behalf on 17 October 2012
raising for the first time the issue that the Claimant did not know of his
right to complain. There is no evidence at all to support this in the papers.
Nor does Mr Williams before the EAT in any of the many papers he has sent,
or orally today, make that point. I pay no attention to that point raised by
Employment Law Centres ostensibly on his behalf but now it seems without
instructions.
13.
The sole issue is whether throughout that period it was not reasonably
practicable, and it seems to me that the Judge’s holding is sufficient for the
period up to 3 November. It was reasonably practicable. Thereafter I can
find no reason why it was not reasonably practicable while the Claimant was in
bed. As he said, he was being taken care of. If he had already formed the
view the claim form should be put in, then it could have been put in at that
stage. I also bear in mind that this is a very substantial overrunning of the
period. The Claimant would have to say that he acted promptly as soon as he
knew that he was out of time, and yet he does not give any dates as to when he
was told that he should put his claim in.
Conclusion
14.
Mr Williams signed the document dating 13 August as being his
final date, and he agrees with me that time runs from 13 August to
12 November 2011. He was almost a year late. I see no reason to interfere
with the Judge’s decision on the factual finding as to what was reasonably
practicable. I now note the Claimant was out of time to seek reasons from the
Employment Judge. This is not out of character. This appeal is therefore
dismissed.
Transcript
15.
At substantial public expense this judgment is provided to the Claimant at
his request without any reasoned case for it. I question why the Practice
Direction still allows for this in times of austerity when the Claimant heard
me decide against him, as did Employment Judge Vowles and Singh J.
