Mr A Watts v C&D Cleaning Services Limited — 2024

The Claimant, employed by the Respondent as a cleaning operative from 6 August 2021 until 12 December 2022, sought to bring two automatically unfair dismissal claims. Employment Judge Omambala KC, sitting at Nottingham on 13 December 2023, held that the primary time limit under section 111(2) of the Employment Rights Act 1996 expired on 11 March 2023 and, after the early conciliation extension under section 207B(4), on 27 April 2023. The first claim was presented on 11 May 2023 and the second on 28 September 2023, both out of time. Applying HMRC v Serra Garau and Science Warehouse Ltd v Mills, the Tribunal found the second EC certificate had no effect on the limitation period because the second claim related to the same matter.

The Tribunal found that the Claimant had been aware since 22 December 2022 that a time limit applied and had access to ACAS and online information about bringing a claim. While he had received incorrect telephone advice that he had three months from receipt of the EC certificate to submit the claim, the Tribunal concluded it was reasonably practicable for him to have obtained further advice and clarification, and the burden under the reasonably practicable test was not discharged. The Tribunal added that, even if that test had been met, it would not have exercised its discretion to extend time, as the subsequent further delays were not reasonable. The Tribunal therefore held it had no jurisdiction to hear the claims and dismissed them.

On costs, the Respondent applied under rule 76(1)(a) and (b) for £3,480 (a revised figure from an original £6,670 exclusive of VAT). The Tribunal refused the application, finding the Claimant's conduct in bringing and pursuing the claims, and in relation to the trial bundle, did not amount to unreasonable conduct, and noting that the claims had not been struck out for having no reasonable prospect of success but dismissed for want of jurisdiction. Had the threshold been met, the Tribunal would in any event have declined to exercise its discretion, having regard to the Claimant's good faith, limited means and health conditions.