EMPLOYMENT TRIBUNALS Claimant Respondent Mr Z Mussajibai v (1) Angard Staffing Solutions Limited (2) Royal Mail Group Limited

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Posted in News for information as this case highlights the process - You do not need to exhaust the internal process before starting the process for a tribunal, but the internal and mediation process needs to be exhausted before the case is heard.

JUDGMENT ON PRELIMINARY HEARING
1. The claimant’s complaint that he was unfairly dismissed by the second
respondent is struck out. The second respondent was not the claimant’s
employer.
2. The claimant’s complaint of unfair dismissal against the first respondent is
struck out because the claim was presented out of time. It was reasonably
practicable for the claim to have been presented in time.
3. The claimant’s complaint that he was the victim of unlawful discrimination
on the protective characteristic of disability proceeds.
REASONS
1. The claimant was employed by the first respondent as an agency worker
working at the second respondent from 31 October 2014 until his dismissal
on 19 June 2017.
2. The claimant confirmed that at all times he was employed by the first
respondent and not the second respondent. On the basis of that
admission, he accepted that he could not pursue a claim for unfair
Case Number: 3300050/2018
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dismissal against the second respondent and accordingly that claim was to
be struck out.
3. The claimant was dismissed on the stated ground of gross misconduct on
19 June 2017 and his dismissal took effect that day. The claimant entered
into early conciliation on 7 November 2017 on which date he presented
early conciliation information to Acas. The period of early conciliation
ended on 7 December 2017 and the claimant presented his claim on 3
January 2018.
4. The claimant was dismissed on 19 June 2017 and thus the period of time
in which he could present a complaint of unfair dismissal under s.111 of
the Employment Rights Act 1996, was (subject to any extension provided
by the early conciliation process), 18 September 2017.
5. The claimant commenced early conciliation against the first respondent on
7 November 2017, seven weeks after the expiry of the three month period
referred to in s.111 of the Employment Rights Act 1996.
6. The claimant’s evidence regarding delay was confused. He referred to
having contact with Acas who told him that he could not present his claim
to the Employment Tribunal until he had exhausted all of the appeal
stages within the respondent’s internal procedure. He says he was told
this about three or four times. He was uncertain as to when he had first
contacted Acas, initially he stated that it was before the decision had been
taken to dismiss him, but then changed that until definitely before
December 2017, before settling on “about October 2017” which is
consistent with the provision of early conciliation information to Acas on 7
November.
7. The claimant also said, however, that he had contacted solicitors about
this matter and had been advised that he had missed his deadline for
presenting a claim by some of them. He said he had contacted 10 or 12
different law firms. He referred to one particular law firm (Landau Law)
that he had contacted on 3 August 2017. He also confirmed that he had
had representation from his Trade Union at internal meetings but they had
not advised him about going to a tribunal or the three month time limit. He
accepted that he had heard about Employment Tribunals and had heard
about unfair dismissal claims, that he had access to the internet and that
he did not carry out any research to identify what to do and when. He
accepted that he had been told in August 2017, by solicitors, that he did
not have to wait until all internal procedures had been completed before
presenting his claim to the tribunal. He had also received advice from a
Mr Suleman (apparently providing advice at a community level paid for by
the local authority), after the claimant’s dismissal but before the hearing of
his first appeal.
8. The claimant was clearly not ignorant of his rights. He was aware of the
existence of the Employment Tribunal and of his ability to bring a
complaint of unfair dismissal.
Case Number: 3300050/2018
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9. I was reminded of the case of Porter v Bandridge Ltd. [1978] ICR 943,
where the Court of Appeal confirmed that in relation to issues of
reasonable practicability the test is not whether an individual knew of (for
example) time limits, but whether they ought to have known of them and
the case of Asda Stores Ltd. v Kauser (Employment Appeal Tribunal
165/07), stating that the question for the tribunal to ask was whether on
the facts found it was reasonable to expect that that which was possible
would be or was done.
10. In the circumstances of this case, the claimant has not satisfied me that it
was not reasonably practicable for him to present his claim in time. He
was aware, at the latest, in August 2017 that he did not have to wait until
all internal procedures were completed before presenting his claim, but he
failed. He could and should have made enquiry as to how long he had to
present his claim given that he knew he did not have to wait and had
access to sources of advice which would have provided him with that
information.
11. For those reasons the claim of unfair dismissal against the first respondent
is dismissed. The claimant presented his claim out of time and the tribunal
has no jurisdiction to hear it.
12. The claimant’s last complaint regarding his claim to have suffered unlawful
discrimination on the protected characteristic of disability relates to his final
appeal which was presented and heard on 6 September 2017, in respect
of which he says he has received no decision. Failure to provide a
decision within a reasonable time constitutes, he says, an act of
discrimination. That complaint is not out of time and the claimant says it is
part of a series of events. Accordingly, the last part of the complaints of
disability discrimination has been presented in time and proceeds,
although it will be a matter for the final tribunal to determine whether there
was a connected series of acts and whether some, all or any of the earlier
complaints have been presented in time.