Employment and Discrimination Tribunal

 

Case number:

[2017]TRE145

 

 

Date:

6th November 2017.

Before:

Mrs Hilary Griffin, Chairman, sitting alone.

 

 

Claimant:

Mr Paul Cowgill

Respondent:

States Employment Board

 

 

For the Claimant:

In Person.

For the Respondent

Attendance not required.

 

 

Tribunal Judgment

Background

1.        The Respondent employed the Claimant as a Catering Officer at HMP La Moye between 6 June 2008 and 22 June 2017 when the Claimant was dismissed on the grounds of capability.

2.        On 24 August 2017, the Tribunal received a Claim Form from the Claimant claiming that he had been unfairly dismissed by the Respondent. The time-limit for submitting a claim for unfair dismissal expired on 16 August 2017. The Claimant therefore filed his claim eight days outside the statutory time-limit as set out in Article 76(2) of the Employment (Jersey) Law 2003 (“Employment Law”).

3.        Article 76(2) of the Employment Law states:

“… The Tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

(a)       before the end of the period of 8 weeks beginning with the effective date of termination;

(b)       within such further period as the Tribunal considered 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 8 weeks."

 

4.        At the Claimant's request, the Tribunal convened a Hearing to consider whether to exercise its discretion under Article 76(2)(b) of the Employment Law and accept the Claimant’s complaint of unfair dismissal. The hearing was attended only by the Claimant.

Facts

5.        The Claimant referred the Chairman to his email of 29 August 2017, which set out his grounds for requesting that the Tribunal exercise its discretion.

6.        The Claimant explained that the Effective Date of Termination of his employment was 22 June 2017 (“EDT”). The Claimant appealed against the decision to dismiss him and the appeal hearing was convened on 27 June 2017. On 3 July 2017, he received written confirmation that the decision to terminate his employment had been upheld.  The Claimant submitted that the dismissal process therefore continued until the appeal outcome was known to him on 3 July 2017.

7.        The Claimant confirmed that he sought advice from JACS shortly after the EDT.  He confirmed that the red stamp on the top of his Claim Form (advising the Claimant to "submit within 56 days of 22 June 2017") was placed there by the adviser at JACS.

8.        The Claimant explained that the principal reason for the delay was that he had been "hesitant” to submit a claim to the Tribunal as he was concerned about his health and did not want to bring more stress upon himself.  He was mindful that he was effectively taking on a large employer, and he found this intimidating. He explained that it was "a big decision" but he had eventually been encouraged to submit a claim by friends. He explained that he submitted his Claim Form as quickly as he could after deciding to pursue his claim.

The Law

9.        In order for the Tribunal to accept a late claim for unfair dismissal under Article76(2)(b), a Claimant must successfully persuade the Tribunal of each component of the two-stage test as set out in that Article. In this case, the Claimant must demonstrate:

(a)       that it was not "reasonably practicable" for him to submit his complaint to the Tribunal in time.  The burden is on the Claimant in this regard; and

(b)       having satisfied the first limb of the test, the Claimant must also satisfy the Tribunal that the time within which the claim was presented was reasonable in the circumstances.

10.      The Tribunal noted the case of Skrzat v Jersey Telecom Group Limited (2001) JET 1005-66/11 in which it makes it clear that the Tribunal will only accept a submission that it was not "reasonably practicable" for a claimant to file a complaint within the relevant time limits in the "most exceptional circumstances for example where some highly unusual and unforeseen event intervenes in the time between the EDT and filing of the [Claim Form]… or where a [claimant] genuinely did not know of the time limit or his rights."

11.      The Tribunal also kept in mind the English Court of Appeal case of Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470 and the Jersey Employment Tribunal case of Jones v Royal Bank of Scotland International Limited JET 1408125/06, both of which state that the word "practicable" should be given a liberal interpretation in favour of the employee.

THE DECISION

12.      The Claimant did not satisfy the burden placed upon him as he did not show that it was not reasonably practicable to have presented his claim within the limitation period. Indeed it was clear that, very soon after the EDT, the Claimant was fully aware of the time-limit. However, he delayed submitting the claim because he was undecided on whether to proceed.

13.      Whilst the Chairman has sympathy for the Claimant's predicament, the 8-week time-limit exists so as to provide a framework and certainty to all users of the Employment Law. Indecision and concern about the potential health impact of submitting a claim against a large employer, whilst understandable, do not amount to ‘exceptional circumstances’.

14.      The Tribunal does not have jurisdiction to hear the Claimant's claim for unfair dismissal and this claim is dismissed.

Authorities

Employment (Jersey) Law 2003

Skrzat v Jersey Telecom Group Limited (2001) JET 1005-66/11

Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470

Jones v Royal Bank of Scotland International Limited JET 1408125/06

 

 

 

 

 


Page Last Updated: 07 Nov 2017