Miss A Johns, Counsel v Respondent — 2020

The claimant worked for the respondent as a Community Payback Supervisor from 16 March 2017. He said he was refused breaks contrary to the Working Time Regulations 1998. The tribunal recorded the respondent's case that the last day he worked all day supervising was 30 May 2018, that he was then absent sick, and that he later worked only part-time and then in a doubled-up arrangement so both workers could take breaks.

The tribunal found there was no evidence that the claimant had been refused a break at any time, and that in cross-examination he accepted he had never requested a break in the period from 24 January 2019 to 3 February 2019. It assumed in his favour that he had requested a break on 30 May 2018 and had been refused, but held that this was the last day on which any relevant refusal could have occurred. On that basis the relevant time limit ran from 30 May 2018, with the last date for starting early conciliation identified as 29 August 2018.

The claimant started early conciliation on 20 May 2019 and presented his ET1 on 25 May 2019. He argued it was not reasonably practicable to present the claim earlier because he was waiting for grievance outcomes and because of sickness absence. The tribunal rejected that argument, finding the substantial cause of the delay was his own inaction, that he could have raised the matter earlier, that his sickness did not prevent him from starting early conciliation sooner, and that waiting for the grievance outcome was not reasonable. It also noted he had legal expenses insurance but did not use it or make enquiries until late.

Applying the authorities it cited on the 'reasonably practicable' test, including Wall's Meat Co Ltd v Khan and Palmer and Saunders v Southend-on-Sea Borough Council, the tribunal held the claimant had not established that it was not reasonably practicable to present the complaint in time. It therefore had no jurisdiction and dismissed the claim. It added that even if the claim had been in time, it would have considered strike out because the claimant fell within the Regulation 21 exception and/or because he never asked for a break.