Mr S Kerr v The Hain Daniels Group Ltd — 2021

Mr S Kerr presented a claim for unfair dismissal on 3 August 2020. He said his employment ended on 15 April 2020, while the respondent said notice of summary dismissal was served on 20 April 2020. The tribunal recorded that ACAS Early Conciliation began and ended on 11 June 2020, so there was no pause to time under s.207B(3) ERA 1996 and no extension under s.207B(4) ERA 1996 because more than one month remained in the primary time limit. On either termination date, the claim should have been presented by mid-July 2020, but it was not filed until 3 August 2020.

Applying s.111(2) ERA 1996 and the authorities it cited, including Robertson v Bexley Community Centre, Palmer v Southend on Sea BC, Dedman v British Building and Engineering Appliances Ltd, M&S plc v Williams-Ryan, Times Newspapers v O’Regan and Stratford upon Avon v Hughes, the tribunal asked whether it was reasonably practicable to present the claim in time and, if not, whether it was then brought within a reasonable further period. It considered the claimant’s email explanation that the claim was late because he did not have an ACAS certificate number and had contacted his union representative about it. The tribunal held that he could have contacted ACAS directly to obtain the certificate number sooner, and that if he relied on his union representative, that fault was attributable to him. It therefore found that it was reasonably practicable to present the claim in time and struck it out.

The tribunal also dealt with the claimant’s non-attendance at the hearing under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It noted that the hearing had been moved between 10am and 2pm on 21 April 2021, that communications were sent to the correct email address in part but one email was mistyped, and that the claimant had known about the hearing since January 2021. After attempted contact by email and telephone, the tribunal proceeded in his absence when he did not attend either listing time or respond further.