Miss Charlotte Dudman v Euro Garages Ltd — 2022

This was a preliminary hearing limited to whether the claim was in time. The claimant had been employed as a shift supervisor from 5 February 2018 and resigned by letter dated 22 April 2021 stating that she was resigning with immediate effect. ACAS Early Conciliation began on 23 April 2021 and ended on 4 June 2021, and the ET1 was presented on 4 November 2021. The tribunal held that the effective date of termination was 22 April 2021, rejecting any suggestion that the respondent’s HR department only realised the resignation later. It relied on Fitzgerald v University of Kent at Canterbury, Horwood v Lincolnshire County Council, and Calor Gas Ltd v Dorey for the proposition that the statutory EDT cannot be rewritten by the parties’ later understanding or conduct.

Applying section 111 ERA 1996, the tribunal found that the claim had to be presented by 31 August 2021 after allowing for ACAS Early Conciliation. It applied the “reasonably practicable” test discussed in Asda Stores Ltd v Kauser, with the burden on the claimant under Porter v Bandridge Ltd. The claimant’s case was that the process was stressful and confusing, that neither she nor her father knew the time limits, and that COVID-19 made it difficult to obtain advice. The tribunal also addressed the respondent’s point that the resignation letter showed awareness of constructive dismissal concepts, and accepted that the claimant and her father were aware of that concept because they had used an internet template referring to it.

The tribunal nevertheless concluded that it was reasonably practicable to have presented the ET1 in time. It noted that the claim was an online process and did not require face-to-face meetings, that there was no evidence that illness prevented action for the whole limitation period, and that the claimant and her father were able to submit the claim themselves on 4 November 2021. It also held that, even if it had not been reasonably practicable to present the claim by 31 August 2021, the delay until 4 November 2021 was not within a reasonable further period. The claim was therefore dismissed for lack of jurisdiction.