Mr S Gasson v Mind National Association for Mental Health — 2020

The case was heard on 27 January 2020 at East London Hearing Centre before Employment Judge Burgher. The claimant, Mr S Gasson, did not attend. He telephoned the Tribunal at around 2.00pm to say that he was feeling ill and would be late, but did not say that he would not attend. When the clerk later tried to contact him there was no response, and the Tribunal proceeded in his absence.

The Tribunal treated the two presented claims, issued on 3 October 2019 and 21 October 2019, as combined for this preliminary issue. It noted that the claimant ended his employment with the respondent on 31 March 2014 and started work with another employer on 1 April 2014, so the claims were brought more than five years after termination. The reasons addressed section 23 Employment Rights Act 1996 and the three-month time limit for unlawful deduction claims, together with the extension where it was not reasonably practicable to present the claim in time.

Applying the reasonable practicability guidance in Palmer and Saunders v Southend-on-Sea Borough Council, the Tribunal found no clear and compelling evidence that it had not been reasonably practicable for the claimant to present the claims within time. It noted correspondence referring to severe chronic fatigue/ME, but also noted the claimant’s move straight into other employment after termination. The Tribunal therefore held that the claims were out of time and struck them out for lack of jurisdiction.

The Tribunal also observed that section 23(4A) ERA 1996 prevents consideration of deductions more than two years before presentation, and it did not dismiss the claims because the claimant might pursue them in the County Court, where a six-year limitation period applies. No monetary award was made.