EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
PRACTICE AND PROCEDURE – Costs
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Reconsideration – claim struck out as out of time – correct early conciliation notification and impact on time limit – whether presentation of claim in time reasonably practicable.
Costs – finding of use of ET claims as ‘device’ – whether Claimant given opportunity to address
The Claimant had pursued claims against the Respondents of unfair dismissal, of protected disclosure detriments and of race and disability discrimination. At an earlier Preliminary Hearing, the ET struck out the claims as having been brought out of time. On the Claimant’s subsequent application for reconsideration, the ET was unable to see that any ground was disclosed on which there was any reasonable prospect of that decision being varied or revoked. It further made an award of costs against the Claimant of over pounds 11,000, considering it appropriate to do so as, in part, he had pursued his discrimination claims as a ‘device’, without any genuine sense of grievance or belief in those claims. The Claimant appealed.
Held: allowing the appeal in part
The ET had previously found the Claimant’s first early conciliation (‘EC’) notification to have been effective; that meant that his ET claim had been presented outside extended time limit allowed by the early conciliation procedure. In applying for a reconsideration of the striking out of his unfair dismissal claim, the Claimant sought to rely on a later EC notification he had made. That, however, went nowhere: the ET had permissibly found that the first EC notification validly complied with the requirements of section 18A Employment Rights Act 1996 (as amended) (Mist v Derby Community Health Services NHS Trust [2016] ICR 543 EAT applied); a subsequent EC notification was of no effect and could not serve to further extend the time limit (see Commissioners for HMRC v Serra Garau UKEAT/0348/16/LA)
As for the question of reasonable practicability, the reconsideration application added nothing to the case that the ET had already considered and (permissibly) rejected at the earlier hearing.
Although the ET’s reasons for rejecting the reconsideration application were short, they adequately referenced the correct legal test and demonstrated that the ET had had regard to the Claimant’s grounds. Given that the point raised in respect of the later EC notification could go nowhere, the ET had not been required to add to its earlier full reasoning in its Judgment on the Preliminary Hearing.
Turning to the question of costs, it was noted that the Respondents had not put the application on the basis of dishonesty or bad faith on the part of the Claimant but that was the effect of the ET’s finding that he had used the discrimination claims as a ‘device’, without any genuine grievance either in respect of race or disability and without belief in the claims he had made. Although the Claimant had the opportunity to explain the background to the claims, he was not on notice that it was being suggested that he had pursued the discrimination claims for improper reasons (Cannock Chase District Council v Kelly [1978] 1 WLR 1 CA, page 6E-F applied). By taking into account its apparent finding of bad faith the ET had, therefore, had regard to an irrelevant factor, which rendered the decision on costs unsafe. The matter would be remitted to a different ET for consideration afresh.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0298 – 16 – 2104
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 March 2022; Ref: scu.590413
