Mr L Sebe v Modus Care (Plymouth) Limited OPEN PRELIMINARY HEARING — 2022

Mr Sebe had been employed by Modus Care (Plymouth) Limited as a support therapist for about eleven years and was dismissed with effect from 3 August 2021. The respondent said the reason was that he had not provided evidence of a continuing right to work in the UK. The claimant disputed that account and said the real reason was that he had raised whistleblowing concerns about care standards. He also pursued a notice pay claim. The hearing was a preliminary hearing on whether the tribunal had jurisdiction because the claims were presented out of time.

The tribunal found that the primary limitation period expired on 2 November 2021. The claimant entered early conciliation on 23 November 2021, ACAS issued the certificate on 8 December 2021, and the ET1 was presented on 23 December 2021, around seven weeks late. Applying section 111(2) of the Employment Rights Act 1996, and the similar provisions referred to for the automatic unfair dismissal and breach of contract claims, the tribunal held that the claimant had not shown that it was not reasonably practicable to present the claims in time.

The tribunal accepted that the claimant had access to union advice and found that by 22 October 2021 he understood the three-month deadline. It rejected his explanation that he delayed because he still hoped the respondent would reinstate him, and it did not accept language difficulties as a valid excuse given his length of residence and work in the UK and his ability to give clear written and oral evidence in English. The tribunal also noted that, even if the first test had been met, the claims were not brought within such further time as was reasonable, because he knew by 8 December 2021 that the primary time limit had been missed but still delayed further.

The tribunal referred to the Dedman principle, Wall's Meat Co Ltd v Khan, and Porter v Bandridge Ltd in concluding that any delay caused by union advice did not excuse late presentation. It therefore dismissed the claims of unfair dismissal, automatic unfair dismissal and breach of contract in respect of notice pay for want of jurisdiction. No remedy was awarded.