North Lanarkshire council lorry driver loses appeal against refusal of unfair dismissal claim due to time bar

About this case:

• Citation:
  [2024] EAT 194
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Lord Fairley

Paul Douglas was employed as a driver by North Lanarkshire Council from 6 April 1993 to 25 February 2020. He presented a claim of unfair dismissal, later amended to introduce new grounds based on having made protected disclosures, to the Employment Tribunal in May 2020, which was dismissed on the ground that the ET did not have jurisdiction to consider his claim outwith the 3-month time limit.

The appeal was heard by Lord Fairley, with Mark Allison, advocate, appearing for the appellant and Graham Mitchell, solicitor, for the respondent.

Implicitly decided

Initially the appellant was employed as a bin lorry driver, but after developing a chronic health condition in 2012 his regular duties were changed to driving skip lorries. In March 2019, he had a disagreement with one of his supervisors over proposed changes to his driving duties and shift patterns, including a proposal to move him back to driving bin lorries. At that time, the appellant was also concerned about the fairness of the allocation of overtime and about health and safety issues to do with other drivers, resulting in him emailing the respondent’s Business Manager for Regulatory Services to express his concerns.

After he was confronted by a colleague at work who had heard about his complaints, the appellant felt intimidated and was certified as unfit for work by his GP due to stress. It was agreed in May 2019 that his duties would remain unchanged, but nonetheless he did not return to work and failed to attend several scheduled absence management meetings. He did attend a formal meeting with the respondent’s Operations Manager on 25 February 2020, at which concerns about his future attendance record were expressed. The appellant was dismissed on that date.

Following his dismissal, the appellant brought proceedings in the ET for unpaid wages and unfair dismissal. Two months after the presentation of the claim in May 2020, he sought to amend his application to introduce a complaint of automatically unfair dismissal as a result of having made protected disclosures.

Having heard evidence, the ET found that the appellant had been subjected to detriment for making the disclosures but concluded that the claim had been brought outwith the primary time limit as the last of these detriments occurred on 23 March 2019. It further concluded that the appellant had failed to discharge the burden of showing it would not have been reasonably practicable for the claim to be brought within the primary time limit.

The appellant submitted that, in accepting the amendment introducing the protected disclosures claim, the ET had implicitly decided the issue of time bar in his favour. Counsel, citing the EAT’s decision in Amey Services v Alridge (2016), submitted that it was not open for a tribunal to reserve the issue of time bar when allowing an amendment. For the respondent it was submitted that the approach taken in Galilee v Commissioner of Police of the Metropolis (2018), where such a reservation was deemed competent, should be preferred.

Lack of clarity

In his decision, Lord Fairley said of the appellant’s case: “The Employment Judge who considered the amendment application in January 2022 concluded that the new claim was simply a re-labelling exercise. In some respects – for example in relation to those aspects of the absence management procedure that were founded upon both as alleged detriments and in the unfair dismissal claim – that was correct. As already noted, however, those alleged detriments were either found not have been established, or not to have been causally connected to the making of the protected disclosures.”

He continued: “It cannot reasonably be inferred that the Employment Judge who considered the amendment application in January 2022 applied his mind to time bar in relation to what were ultimately identified at the start of the full hearing as the March 2019 detriments. Rather, his conclusion that the amendment was simply a re-labelling exercise suggests that he did not realise that there might be a time bar issue that required to be addressed.”

Assessing whether the approach in Amey or Galilee ought to be preferred, Lord Fairley noted: “Neither Amey nor Galilee applies in a situation where the issue of time bar has clearly been overlooked at the stage when the amendment was considered and allowed. That situation can arise where – as here – there was a material lack of clarity in the claimant’s pleaded case. Were it necessary to resolve the apparent tension between Amey and Galilee, however, the approach taken in Galilee respectfully seems to me better to reflect the reality of written pleading in the Employment Tribunals.”

He concluded on unfair dismissal: “The tribunal did not err in law in concluding that the respondent had reasonable grounds for the belief that the appellant would not, in future, maintain satisfactory levels of attendance. In part, that belief was instructed by past attendance records, but an important factor was also the terms of the Occupational Health reports of October 2019 and February 2020. The former stated that a return to work by the appellant was not assessed to be likely until the appellant believed that the issues he had raised had been resolved to his satisfaction.”

The appeal was therefore refused.