Claimant v Liberty Steel Dalzell Ltd — 2021

The claimant brought a claim of unfair dismissal arising from the termination of his employment on 21 June 2019, which the respondent said was redundancy. The preliminary hearing was concerned only with time limits under section 111(2) of the Employment Rights Act 1996, namely whether the ET1 had been presented out of time and, if so, whether it had nevertheless not been reasonably practicable to present it within the ordinary three-month period.

The tribunal found that the claimant had gone to the CAB in or around June/July 2019 and had been advised to contact ACAS. Early conciliation was initiated on 7 August 2019 and ACAS issued a certificate dated 16 September 2019, together with an email stating that ACAS could not advise when a tribunal claim should be submitted and that it remained the claimant's responsibility to ensure any claim was in time. The ET1 was not submitted until 3 March 2021, by the claimant's friend Stewart Smart.

The tribunal did not accept the claimant's evidence that he had submitted a claim to ACAS and that ACAS were dealing with it on his behalf. It found his account contradictory and confused, particularly because the ET1 itself said he had assumed ACAS were dealing with matters on his behalf, and because Mr Smart's evidence was that he had helped with early conciliation and later submitted the ET1, but was not a lawyer and did not know the time limits. The tribunal also rejected the contention that depression prevented the claim from being lodged in time, noting that there was no medical evidence and no credible explanation for the delay.

Applying section 111(2) ERA 1996 and the approach in Marks & Spencer plc v Williamson-Ryan and Pora v Cape Industrial Services Ltd, the tribunal held that the claimant was, or ought to have been, aware of the time limit after receiving CAB advice, making early conciliation, and receiving the ACAS communication. It found it would have been reasonably practicable to present the claim in time, so the unfair dismissal claim was dismissed.