Mr J Swires v Nisa Retail Limited OPEN PRELIMINARY HEARING — 2021

This was an open preliminary hearing before Employment Judge Flint sitting alone on 9 September 2021. The Claimant said he had been unfairly dismissed on 18 December 2020. The Respondent said the dismissal was by reason of redundancy and that the procedure had been fair, but the hearing was confined to limitation issues rather than the merits of dismissal.

The parties agreed that the effective date of termination was 18 December 2020 and that the ACAS certificate was issued on 22 March 2021. On that basis, the tribunal found that the claim had to be presented by 22 April 2021. The claim was in fact presented on 11 May 2021, which the tribunal found was 19 days out of time. The Claimant said he did not know about the time limit until an ACAS officer told him on 4 May 2021.

Applying s.111 Employment Rights Act 1996 and s.207B Employment Rights Act 1996, the tribunal found it was reasonably practicable for the Claimant to present the claim in time. It accepted that he was not legally trained and was unfamiliar with tribunal proceedings, but found he knew he had a right to bring a claim and knew to contact ACAS. The tribunal also found there was no illness, vulnerability, emergency, or other intervening factor explaining the delay, and that he was reasonably capable of making basic enquiries, including by internet search, to discover the time limit.

Relying on Wall’s Meat Co Ltd v Khan, the tribunal concluded the claim was out of time and should be dismissed. It also found that, even if it had accepted that the claim could not reasonably have been presented by 22 April 2021, the Claimant should have filed it by 6 May 2021 after learning on 4 May 2021 that he was already out of time; his failure to do so until 11 May 2021 was unreasonable. The tribunal rejected the submission that the claim should proceed in the interests of justice, stating that it had no residual discretion once it had found the claim was out of time and outside its jurisdiction.