Mrs T Hartley v HM Courts and Tribunal Service: 1300974/2018
EMPLOYMENT TRIBUNALS
Case No 1300974/2018
Between
Mrs T HartleyClaimantHM Courts and Tribunal ServiceRespondent
Before
Employment Judge MaxwellIn person for claimantMs Williams (instructed by Counsel) for respondentDate 14 November 2018
JUDGMENT
[1]The Tribunal has no jurisdiction to determine the claimant’s non-dismissal discrimination claims and these are dismissed.
REASONS
[2]The hearing today was listed by order of REJ Pirani on 13 August 2018, to determine: 2.1. whether it is just and equitable to extend time for the non-dismissal related complaints of direct race discrimination against the respondent.
Background
[3]By a claim form received at the Tribunal on 7 July 2014, the claimant made claims of race discrimination and unfair dismissal against the respondent. With respect to discrimination, the claimant complained of: 3.1. being excluded from meetings; 3.2. not being promoted; 3.3. not being supported in training; 3.4. being dismissed.[4]The claimant’s employment terminated on 28 February 2014 (the “EDT”). She contacted ACAS to commence early conciliation (“EC”) on 8 May 2014 (“Day A”) and received a certificate on 8 June 2014 (“Day B”). Accordingly, taking into account the extension provided by EC, her complaint about dismissal was in-time, having been presented within 3 months of the EDT.[5]When the claimant’s claim was made, the Employment Tribunal fees regime operated. The claimant applied for and was refused fee-fee-remission. Her claim was then dismissed on 14 August 2018, following her non-payment of a £250 fee.[6]By a letter of 24 November 2017, the Tribunal wrote to the claimant advising that in light of the Supreme Court’s decision in R (on the Application of Unison) v Lord Chancellor [2017] UKSC 51 she might apply for her claim to be reinstated.[7]On or about 3 January 2018, the claimant responded to indicate she did wish to have her claim reinstated.[8]By a letter of 16 January 2018, the Tribunal wrote to the claimant thanking her for confirming that she wished to apply for her case to be reinstated, stating that her original claim form could not be found and asking her to complete a new one.[9]On 26 February 2018, the Tribunal received the claimant’s reinstatement request and her new claim form, in which she named various additional individual respondents who had not been respondents to the original claim; a copy of which had subsequently been obtained.[10]A preliminary hearing for case management by telephone took place before REJ Pirani on 13 August 2018. In the course of this, the claimant agreed to withdraw her claims as against the new respondents and these were dismissed. The non-dismissal race discrimination claims were also clarified as direct discrimination, namely: 10.1. failing to promote her in April 2011 and November 2012, the perpetrator being Ms Louise Bull; 10.2. Being left out of staff meetings relating to health and safety training between 2012 and 2013, the perpetrator of being Mr Ian Haygarth; 10.3. Not being supported in training, not being given time to prepare, no feedback or adequate support, between 2011 and the end of 2013, the perpetrator being Mr Haygarth.[11]Given the non-dismissal complaints were, at latest, concerning matters in 2013, the claimant’s claims in this regard were presented outside the 3-month time limit. Furthermore, the decision to dismiss the claimant was not made by either Ms Bull of Mr Haygarth, and as such there was no basis for a counting act. The question of jurisdiction, therefore, would depend upon whether it was just and equitable to extend time. Facts[12]I heard evidence from: 12.1. Tracey Hartley, the claimant; 12.2. Hardip Sira, an employee within the respondent’s Human Resources department:[13]I was provided with an agreed bundle of documents. During the course of giving evidence the claimant said she had additional documents to disclose and these were added before page 1, paginated a-f.[14]The claimant had been employed by the respondent as a Tribunal clerk, working in Social Security.[15]The claimant explained that she did not present a claim sooner because she did not want to “look bad” or be seen as a “trouble-maker” in her employment.[16]The claimant also referred to feeling “depressed”, “isolated” and having a “breakdown. The claimant disclosed medical records, starting in January 2014 when she was referred by her GP for counselling. There were no medical records for the period prior to 2014 and no evidence that the claimant required to be absent from work in connection with a mental health problem. The claimant also said “I enjoyed my job” and “at the time it was my life”. Her employment was terminated by the respondent dismissing her. I do not find that any health problem prevented the claimant from presenting an earlier claim about the non-dismissal matters.[17]Asked whether she had complained at the time to her employer about the matters she now wishes to pursue, the claimant’s answers were somewhat unclear; although she appeared to say that she had done so in writing to Mr John Carline (a manager) and Ms Linda Payler (HR). Asked whether she had copies of this and intended to disclose them, the claimant said she yes and today. The claimant retrieved correspondence form her folder and gave out copies [added to the bundle at a-f]. On reading the new documents, it was clear these did not refer to any of the matters she is now seeking to pursue as race discrimination, but instead concerned a warning she was given in 2011 for excessive mobile phone usage.[18]The claimant said she had kept copies of other correspondence with Mr Carlin about the non-dismissal matters, but had been unable to find this. The claimant could not explain her inability to produce this material, beyond offering that she had changed laptops. A change of laptops would not, however, obviously account for why C had copies of correspondence from late 2011 but not later correspondence, say in 2012 or 2013.[19]The mechanism for raising a grievance under the respondent’s procedure was explained to the claimant by Ms Payler in response to the claimant’s email about excessive mobile phone usage. The claimant did not take those steps, either in relation to the mobile phone usage or the matters she now wishes to pursue in the Tribunal.[20]Ms Sira gave evidence as to the enquiries she had made: 20.1. Ms Caroline Dowler: 20.1.1.attached emails where C was invited to health and safety meetings; 20.1.2.said it was difficult to respond on training because of the lack of dates; 20.2. Ms Bull: 20.2.1.said she did not recall the claimant applying for a promotion in the period and would expect that any paperwork created had now been destroyed; 20.2.2.said she had been able to find one email relating to a health and safety meeting on 8 October 2013; 20.3. Mr Haygarth: 20.3.1.said he had left the department and had no documentation; 20.3.2.said he helped the claimant make applications for roles, which were successful; 20.4. Ms Sharon Studholme / Mr David Pearce: 20.4.1. had found minutes of health and safety meetings on 26 June 2013 and 22 September / October 2013. Law[21]The relevant legal principles applying to the exercise of discretion, which may allow for claims presented under the Equality Act 2010 (“EqA”) outside the usual 3-month time limit, were set out in the order of REJ Pirani and are summarised below.[22]EqA section 123 provides: (1) Subject to sections 140A and 104B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[23]An Employment Tribunal applying section 123 has a broad discretion and, pursuant to the decision in British Coal Corporation v Keeble [1997] IRLR 336 EAT, the factors relevant to its exercise may include those under section 33 of the Limitation Act 1980, in particular: 23.1. the length of and reasons for the delay; 23.2. the extent to which the cogency of the evidence is likely to be affected by the delay; 23.3. the extent to which the party sued had cooperated with any requests for information; 23.4. the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.[24]The balance of prejudice between the parties will always be an important factor.[25]There is, however, no presumption that time will be extended; see Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 343 CA, per Auld LJ: 25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. […][26]Most recently, the Court of Appeal considered the exercise of this discretion in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, per Leggatt LJ: 18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2008] EWCA Civ 374; [2009] 1 WLR 728, paras 30-32, 43, 48; and Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para 75. 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Discussion Late Claims
Discussion
[27]The claimant’s claim was presented on 7 July 2014. The non-dismissal claims she now seeks to pursue relate to events which occurred between 2011 and late 2013. The claimant does not give precise dates for these complaints, which must, therefore, range from being several months to several years late. Reason[28]The claimant has failed to provide any good reason for her claims being late. The claimant said that she didn’t want to look bad and didn’t want to be a trouble-maker; such concerns will always be present whenever an employee considers bringing a Tribunal claim against their current employer and do not, generally, operate to excuse late claims. As set-out above, I have not found any health impediment to an in-time claim. Prejudice[29]For the reasons set out below, the balance of prejudice weighs firmly against the respondent.[30]Because the claimant did not raise a grievance in connection with the nondismissal matters, there was no opportunity for the respondent to investigate them at the time and record the product of such a process in writing.[31]Some relevant documents are likely to have been destroyed.[32]Memories (on both sides) are likely to have faded.[33]Given the vague nature of the claims pursued, lacking precise dates or other relevant detail, the respondent’s potential witnesses have little with which to prompt or revive their recollection.[34]Whilst the claimant will be prejudiced if she is not allowed to pursue the nondismissal claims, such prejudice will be limited: 34.1. her claims in that regard may be difficult to prove: 34.1.1. they are vague; 34.1.2. some relevant documents are likely to have been destroyed; 34.1.3. witness evidence (including that from the claimant) is likely to be adversely affected by fading memories); 34.2. she will be able to pursue her unfair dismissal and direct race discrimination claim with respect to dismissal in any event; 34.3. any significant financial award is likely to attach to the complaint about dismissal, rather than to earlier events.
Conclusion
[35]For the reasons set out above, namely the absence of any good reason for the late claims and the prejudice to the respondent, it is not just and equitable to allow the claimant to pursue the late non-dismissal claims.[36]I have taken into account the delay in progressing the matter occasioned by the unlawful fees regime and the need for the claimant to apply to reinstate her claim, which will likely have adversely affected the availability of documentary evidence and the cogency of witness evidence. Whilst this was not the claimant’s fault and ought not to be held against her, neither can it, fairly, operate against the respondent so as to override the difficulty it would now face in responding to these old claims.[37]I am reinforced in my conclusion by the consideration that, hypothetically, had the claimant’s claim not been dismissed and a preliminary hearing taken place to determine jurisdiction in late 2014 or early 2015, the same conclusion, that it is not just and equitable to extend time, is likely to have been reached: 37.1. the claims would still have been several months or several years late; 37.2. the claimant would still have lacked a good reason for her late clams; 37.3. the respondent would likely still have been prejudiced by the passage of time (albeit to a lesser extent) in circumstances where no grievance had been raised to cause a crystallisation of the relevant evidence.[38]The Tribunal has no jurisdiction to hear the non-dismissal discrimination claims and these are dismissed. Case Management[39]A 1-hour telephone preliminary hearing for case management will be listed to address the future conduct of the claims relating to dismissal.
The Issues
[40]As a result of the investigation a report was prepared by Ms. Dass [115-130] We are satisfied that the report is balanced and thorough.[41]The claimant was invited to attend a disciplinary hearing by letter dated 11 February 2014 [131-134] and she was provided with all the relevant documentation beforehand.[42]The disciplinary hearing took place on 28 February 2014 and Mr. Dave Pearce conducted the hearing. The claimant was present with her trade union representative. The hearing followed a reasonable course and one which was entirely consistent with the terms of the disciplinary policy. We interject here that there is no provision in the policy for calling witnesses to the hearing on behalf of the management side. We are somewhat surprised by that but no point is taken by the claimant in respect of it. There was, however, complaint that the claimant had not been asked to identify her own witnesses to the investigator for interview. We find that a reasonably competent trade union representative would have known that it was open to the claimant to ask for a witness to be interviewed at any time and it is really rather surprising that complaint was made about it.[43]In any event we find that the two witnesses who were mentioned as being potential witnesses for the claimant were Caroline Davies who had apparently borrowed money for a taxi from the same security guard and Sue Townshend who had fallen out with the same individual. Mr. Pearce considered whether either of those witnesses could provide meaningful evidence and he concluded they could not. We consider his reasoning to be reasonable bearing in mind the suggested evidence they could give and the lateness of the request. It had never been suggested that Ms. Davies had pressurised the security guard to lend her money for the taxi. The facts in the claimant’s case were very different: she had taken all of the security guard’s money for an unspecified reason. She had asked for £70 but she had taken all he had i.e. £29.13. And in so far as Ms Townshend was concerned, she was not a witness to any interaction between the claimant and the security guard. Furthermore, in relation to the second allegation there was corroborative evidence of the event and neither of the claimant’s witnesses was able to speak to those facts.[44]The claimant was dismissed in respect of the two allegations set out in the outcome letter and above. [146-148] The respondent reasonably considered that they were serious matters. Pressurising someone to lend them money was viewed as wholly unacceptable conduct as was making someone read out an apology in the circumstances in which it occurred. We accept that the respondent reasonably considered that the allegations amounted to a serious breach of the respondent’s Standards of Behaviour. Other allegations were not upheld which is consistent with a careful appraisal of the evidence and inconsistent with a hostile animus on the part of Mr. Pearce.[45]The claimant appealed the dismissal. [149] We are satisfied that at the appeal on 14 April 2014 the Claimant was given a full and comprehensive hearing. [160-163] The appeal was dismissed. [165-172][46]At no time during the disciplinary investigation or disciplinary process did the claimant assert that she felt that the process was being conducted in a particular way because of her race. Nor did she assert in her appeal that she had been dismissed because of her race.[47]We find that in her witness statement there is vague reference to “Richard”. It transpires that the claimant says that this individual i.e. RG who is white at some time swore at her in front of a judge and he was simply made to apologise. That is the extent of the evidence she gave.[48]We find that the position of RG as far as we can discern was not remotely similar to the position the claimant found herself in. The claimant was accused of demanding that she be given money by a third party’s employee and bullying and humiliating him.
Conclusions
[49]The Tribunal applies the legal principles to the facts as found. The parties are in dispute as to the reason for the dismissal. We find that the sole reason for the dismissal was ‘conduct’. The respondent’s dismissing officer and appellate officer genuinely believed the claimant had committed the misconduct found against her. Of course, the conduct which was found to have caused the claimant’s dismissal was as set out above.[50]Accepting, as we do that the respondent had a genuine belief that the claimant had committed the alleged misconduct the next matter the Tribunal needs to resolve is whether the respondent formed its belief on reasonable grounds.[51]Of course, we remind ourselves again that it is not for us to substitute our own views of the actions of the employer but we should apply the range of reasonable response test to the investigation.[52]We therefore conclude in light of all of the above that the respondent carried out as much investigation as was reasonable in all the circumstances and that it was a reasonable investigation in the manner it was conducted. We are not satisfied that the contentions made by the claimant in respect of process particularly as set out in paragraph 11 of the preliminary hearing order of 30 May 2019 are valid. We also do not accept that whatever concerns were raised by the claimant previously had any bearing on the decisions of Mr. Pearce or Ms. Woods and that was not suggested to them at any time. We are entirely satisfied that the claimant was dismissed because of the findings that she had committed the misconduct as set out by Mr. Pearce in his letter of dismissal. [147][53]Furthermore, we are entirely satisfied that the respondent had reasonable grounds for forming its belief in the claimant’s guilt in respect of both allegations for which it dismissed her. There was sufficient evidence which it was open for the respondent to accept that the claimant had behaved in the manner alleged against her.[54]Finally, we are entirely satisfied that any employer who believed that its employee had behaved as it had found would have been acting reasonably in considering that dismissal was one of the appropriate outcomes in respect of that conduct. Notwithstanding the length of service and her apparently unblemished disciplinary record the matters which the respondent found proven were indeed serious breaches of the relevant Standards and the respondent acted in accordance with its own disciplinary policy in treating them as sufficient reason to dismiss. Accordingly, we accept that dismissal was within a band of reasonable responses to that conduct.[55]Therefore, we find that the claimant’s dismissal was fair and we dismiss the claim for unfair dismissal. If we are wrong about that we now consider the question of contributory fault. The respondent has not led any direct evidence to support findings of wrongdoing and the claimant denies any wrongdoing i.e. she denies pressurising the security guard or humiliating him by making him read out a letter of apology. In the absence of direct evidence from witnesses to prove that she did commit the acts of misconduct alleged against her we could not find any contributory fault.[56]Turning now to the direct race discrimination claim. The Tribunal is satisfied that there is absolutely no evidence of less favourable treatment because of race in this case. The actual comparator floated by the claimant really is an afterthought (he was not mentioned as late as May 2019) and a complete non-starter as his circumstances such as we understand them to be were materially different. As for the hypothetical comparator we are satisfied that any individual whether sharing the protected class or not would have been treated in exactly the same way. There is not a jot of evidence to suggest otherwise. The reason the claimant was dismissed was because she had committed acts of misconduct which were so serious that they justified the summary termination of her employment. We note that at no time did the claimant ever complain that she was receiving less favourable treatment because of her race.[57]This is a case in which the claimant has not proved any facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an unlawful act of discrimination against the claimant: the burden of proof simply does not shift to the respondent.[58]Accordingly, the claimant’s claim of direct race discrimination must fail and is dismissed.
Introduction
[1]This claim was heard at Bristol on 20-22 January 2020. The Tribunal gave its Judgment and reasons orally to the parties on the morning of 22 January 2020 and thereafter the judgment and reasons were sent to the parties.[2]On 18 January 2021 the Claimant corresponded with the Employment Tribunal by email. REJ Pirani considered that the correspondence may amount to an application for reconsideration of the original judgment. On 22 January 2021 the Claimant confirmed that she wished her email to stand as her application for reconsideration.
BACKGROUND
[3]The Claimant had commenced proceedings in the Bristol Employment Tribunal in July 2014 alleging unfair dismissal and direct race discrimination concerning that dismissal. For the reasons set out in the reasons accompanying the original Judgment this claim did not come on for final hearing until 20-22 January 2020.[4]After hearing the evidence and submissions from both parties the Claimant’s claims of race discrimination and unfair dismissal were dismissed.[5]The provisions governing applications for reconsideration are set out in rules 71-72 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (hereinafter referred to as the Rules).[6]Rule 71 requires a party who seeks reconsideration to send a written application to the Tribunal explaining why reconsideration is necessary within 14 days of the date upon which the original judgment had been sent to the parties.[7]Clearly, this application is made well outside the time limit. Indeed, it is almost 11 months out of time. However, I have a discretion to extend time under rule 5 of the Rules.[8]If I was to extend time for making an application then under rule 72 when considering an application for reconsideration I have to consider whether there is a reasonable prospect of the Judgment being varied or revoked. In that regard I note that in her application the Claimant stated that the Judgment was biased. Her reasons for that contention are, firstly, that on the day of the hearing she was presented with “case studies” which were not given in advance. She claimed she did not have much time to read them, but felt under pressure to continue. She points out that she did not have legal representation.[9]Secondly, the Claimant stated that she had disclosed evidence which was sent to a Tribunal “prior to the hearing for clarification, but these documents were not added to the papers. I had made it clear to [the Tribunal] that these documents were to [be] added to my case papers. During the hearing I had asked for a short break to sort these documents, but they could not be found. I also approached the respondent's, during the hearing about this, but she refused to say anything in the court on the day. All other clarifications were lodged, but mine were not.”
FINDINGS
[10]The Claimant in her correspondence with the Tribunal contends that she had contacted the Tribunal and spoke to someone called Hannah on 22 January 2020. The Claimant stated she told Hannah that she had not heard from the Tribunal regarding appealing against the Judgment and she was told that the Tribunal would be in contact.[11]The Claimant says she made further contact by email on the 1 February 2020 by email. As there was no response so she stated that she had contacted the Tribunal again by telephone but the “phone kept cutting off, so thought you had been closed during the 1st lockdown. As time was passing through I would chase it up again.”[12]I find that there is an abundance of information from the Employment Tribunal Service in the public domain about the rights of a party dissatisfied with a Tribunal Judgment. I am also somewhat surprised that she would have telephoned the Tribunal on the same day of the Judgment being handed down to complain she had not yet received anything in writing.[13]Even if the Claimant is correct that she contacted the Tribunal offices she had ample time to submit a formal application for reconsideration well before the Covid pandemic restrictions began to come into force. Thereafter, I find that no reasonable person would have considered that the Employment Tribunal offices were completely closed and, in any event, as the months proceeded it is quite apparent that the Claimant did absolutely nothing to further her application. She could have emailed her application for reconsideration or sent a letter which would have, in a sense, ‘stopped the clock’.[14]The Claimant has failed to provide any reasonable explanation for the delay in pursuing this matter. I find that she has delayed the application unnecessarily and without good reason. Furthermore, the Respondent is entitled to expect that that the decision given back in January 2020 was final unless it contained an appealable point of law and attempting to resurrect this claim almost a year after the decision was given risks an injustice to the Respondent in what is already a very stale case.[15]As to the merits of the application the case studies referred to by the Claimant in the application were a few authorities relied upon by the Respondent. The Tribunal notes that the submissions on the evidence did not take place until the second day of the hearing and the Claimant had sufficient time to prepare for any submissions she wished to make. The Claimant made no complaint that she had not had sufficient time to prepare her case.[16]As to documents missing from the bundle the Tribunal was not informed of any missing documents. No application was made by the Claimant for enquiries to be made as to their whereabouts and it is perhaps of some significance that the Claimant had not brought any such documents with her to the Tribunal on either the first or the second day of the hearing.[17]When considering her current application I asked for sight of the documents referred to by the Claimant. She sent in some documentation. I have read the documents referred to by the Claimant. In her application the Claimant makes no submissions on their relevance to the outcome of the original hearing and from my perusal of them they would not have made any difference to the outcome of the proceedings even if she had submitted them to the Tribunal.[18]The application for reconsideration is wholly without merit. There would be no prospect of the original decision being varied or revoked.[19]Considering and weighing up the relevant factors as set out above, I do not consider it just to extend the time for making this application. In any event, even if I had extended time the application for reconsideration would have been refused on its merits.