Employment Judge MaxwellIn person for claimantMs Akers (instructed by Counsel) for respondentDate 3 January 2025
JUDGMENT
It is just and equitable to extend time for the Claimant's sex discrimination complaint, only to the extent set out in the reasons below.
REASONS
[1]In her claim form, the Claimant complained of:1.1 Unfair dismissal;1.2 Sex discrimination.[2]A case management preliminary hearing took place before EJ Meichen on 26 February 2024. His summary included: The respondent told me today that’s its reason for dismissing the claimant was capability, as the claimant had been off sick from October 2022 until she was dismissed in June 2023. The respondent mentioned that a number of managers who had been dealing with the claimant’s case have now left.[6]The claimant alleges that the following two matters were discriminatory:(i) In February 2021 the claimant was moved departments; from delivery to large electricals. In delivery she had been working regular hours Monday to Friday 9 am – 5.30 pm. In large electricals however she was required to do shift work and weekend work. The claimant found this difficult as she sis a single mother with a caring responsibility for her son, who has health issues related to his heart. The claimant requested to change her hours back to 9 – 5.30. This was refused by Laura Jenkins in May 2021. The claimant pursued the matter until her request was again refused by another manager, Marshall, in April 2022.(ii) In July 2022 the claimant requested leave as her son had a cardiologist appointment abroad. This was refused by Katrine Redpath. The claimant confirmed today that she was only alleging that the above two matters were discriminatory. 3. EJ Meichen ordered a preliminary hearing in the following terms:[10]In these circumstances I decided to list an open preliminary hearing. At the open preliminary hearing the Judge may decide at their discretion the following issues: 10.1 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:10.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?10.1.2 If not, was there conduct extending over a period?10.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?10.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:10.1.4.1 Why were the complaints not made to the Tribunal in time?10.1.4.2 In any event, is it just and equitable in all the circumstances to extend time? 4. The matter was listed before me today for a determination of these preliminary issues. 5. The Respondent provided:5.1 a bundle of documents running to 119 pages;5.2 a skeleton argument;5.3 a case management agenda;5.4 a list of issues. 6. The Claimant provided witness evidence by way of 3 emails she had sent to the Tribunal on 5 April 2024. She also gave oral evidence under oath and was subject to cross-examination. 7. Both parties made oral closing submissions. 8. There was a delay at the beginning of the hearing. The Claimant had difficulty joining and when both parties were present, they did not have each other’s documents (either to hand or at all). Once these matters were resolved, the hearing got underway. There being insufficient time for me to deliberate, I reserved my decision. Facts 9. The Claimant was employed by the Respondent from 8 November 2020 as a customer service agent. 10. In February or March 2021, the Claimant requested a change in her working hours. She raised this to Ms Jensen, Team Manager, by email on 16 March 2021. The Claimant explained that her current hours 12-9pm were not suitable because of childcare responsibilities and she sought to vary these to 9am5.30pm.
Facts
[11]Ms Jensen replied the following day: When you applied for customer service at the start of November, it was advertised as a fully flex role (8am-9pm) however due to training and things, the team remained on 9:00-5:30 Mon-Fri shifts. Once you were moved to TS, the shifts remained the same (9:00-17:30 Mon-Fri) as you are in training/grad bay for the first few weeks and that is the scheduled rota for training for that period however, once you have completed the grad-bay the teams are placed on a rotation shift pattern meaning that as a campaign, we can cover the shifts between 8am and 9pm fairly meaning that on occasion you might have to work a later/evening shift. All agents are required to be fully flexible at recruitment stage for John Lewis and we appreciate that you have child care to attend to however the request that you are proposing is not possible for this contract and sadly I cannot approve you to only work Mon-Fri 9-5 for example. We can accommodate any appointments that you may need to attend and potentially move your break times around for school pick-ups etc if necessary but we will not be able to implement a permeant rota change for yourself as the one you are suggesting. […][12]Ms Jensen also wrote to Ms Holtom of the Respondent's HR department: Just to make you aware that Aiste Kvedariene on JL has requested a change in shift pattern to myself, Rob and Zoe which sadly we cannot accommodate due to the fact that the JL role is fully flex whereas she would like to remain Mon-Fri 9:00-5:30 or even drop down to part time hours because of attending appointments (which we are always happy to approve for her) and sorting dinner out etc for her teenage son. I believe Rob and Zoe have both declined this request which has since lead to Aiste coming to me with the request and she is not happy with the response. She has informed me that she will now escalate this to HR so I just wanted to prepare you on the chance she does call.[13]Ms Holtom replied: Thanks for letting me know, any FWR that are going to be declined need to come through HR as there are set reasons as to why a FWR can be declined which can leave us in hot water Do you know why they declined it?[14]The Claimant completed a formal flexible working request on 26 March 2021.[15]During a discussion with a manager on 11 May 2021, the Claimant complained about the Respondent's stance on her request. A note summarising this meeting included: ‘I will seek the law. No respect for employee. Little money. 0 consideration. We are asked of these hours. Must provide business reasons by letter. Ignoring that I’m a parent and have a child. Provide me with an appeal.’ Cannot commit to working late at night while looking after her son – school runs and after school Does not want to leave this role – will seek HR advice if nothing can be done to support[16]During her evidence at this hearing the Claimant admitted saying “I will seek the law” and I am satisfied that she did.[17]A “documented discussion" took place on 17 May 2021. The Claimant was told by Mr Wright that her flexible working request was declined because she had not worked for the Respondent for the 26 weeks required under the legislation. The Claimant's reply included: AK: Yes I know about the 26 weeks, although I find it hard to believe as I spoke to a few TMs and Rena’ did not see a problem that it was less than 26 weeks, also spoke to Rob and Laura (Laura declined it straight away). But Rena’ advised this would be okay.[18]The Claimant had carried out online research into the law on flexile working requests and discovered the 26-week requirement for herself. She also looked into parental leave rights. One of the resources she used was the www.gov.uk website. The Claimant was also aware she could go to the CAB.[19]The documents before me included no outcome letter with respect to the Claimant's request.[20]There were further discussions between the Claimant and Mr Wright about her hours, including on 18 and 24 May 2021. Whilst Mr Wright indicated a willingness to consider different hours or patterns of work for the Claimant.[21]I was shown no further correspondence for 2021 and the documents resume with an email from Mr Davey to the Claimant of 4 April 2022, in which he asks her to confirm his notes of their conversation and says he will refer her flexible working request to HR. The Claimant replied on 11 April 2022: […] I do agree with a lot of notes I read through but I do not agree with the part where it says Gareth did not agree to hours.I did not have to come back to him I had to arrange hours with Andreas and these hours were agreed 200% with Gareth giving me a few options to choose from in fact.I do have full recorded conversation with him in my email.These hours were agreed 100% and all I had to do is give the form to Andreas.These hours caused a lot of stress in my life disrupted routines these hours are not suitable for single parents kids must be in bed 9 pm if its busy one can not get away from laptop and even then its not busy you can not really leave laptop..Flexible working hours must be agreed in big companies for single parents etc and if they are not business must provide explanation in writing.I find it upsetting I have to go through same difficult stressful situation where I been before only till I got to Gareth through quite a lot of ordeal dealing with little experience and understanding how these things work managers.Our request were declined numerous times till I got to Gareth then they instantly agreed collegues request and mine too.They can not decline it now. […][22]This email suggests there may have been a period subsequent to her discussion with Mr Wright where the Claimant was allowed (whether by way of positive agreement with a manager or simply in practice what occurred) to work hours that were more convenient to her and then in April 2022, the Respondent sought to change these back and the Claimant objected. This would tend to explain the lack of intervening correspondence and on the balance of probabilities I find it is what occurred.[23]A meeting to discuss the Claimant’s flexible working request took place on 22 April 2022 with Mr Marshall. In the course of explaining why she sought this variation, the Claimant said: […] If you decline the request I want you to send me as you are pushing me towards a constructive dismissal. […][24]Following an adjournment, the refusal of the Claimant’s flexible working request was explained in the following terms: RM – Thanks for coming back on the call, I wanted some time to read through the notes before making the decision, because you have been adhering to the contract since joining and there has been no concerns until now and with the mitigation you have given this doesn’t meet the needs of the business and so the flexible working request is declined. What we can do is book out all medical appointments as we have been doing and if the hours are too much we could look at reducing the hours to help if this helps support your situation?[25]The Claimant was unhappy with this decision and in responding to it said: […] I simply feel not welcome and you want me out, I will try to do that. The situation must be understood and we shouldn’t even be discussing this. I think I gave you good reasons. You don’t want to help. I will need from you in writing how it affects your business when you have masses of agents, I can then seek advice with that. […][26]Although the notes said an outcome letter would be provided, none was in the hearing bundle.[27]The Claimant's witness evidence was provided by way of 3 emails sent by her on 5 April 2024. Her failure to present a claim within 3 months of the acts complained of was explained on the basis:27.1 she did not know she could take her employer to the Tribunal whilst still employed;27.2 she did not know the time limit for bring a Tribunal claim;27.3 she was confident that she could bring a claim once her employment terminated.[28]During cross-examination the Claimant said it was not logical to bring proceedings against her employer whilst still employed as this would destroy their relationship and it did not even cross her mind that she might be able to do so. The Clamant said this factor prevented her from carrying out online research into how she might bring a claim. I do not accept the Claimant’s evidence on this point. There are numerous references in the contemporaneous documents to the Claimant's understanding of her legal rights. She plainly undertook research in this regard on several occasions, including at www.gov.uk. It is likely that in the course of this she saw references to bringing a claim in the Tribunal, none of which would have said she had to wait until after her employment terminated. My finding is that the Claimant did not look further into bringing a claim because she did not wish to damage the relationship with her employer. The Claimant had not found it easy to find suitable employment and wished to retain the job she had with the Respondent, albeit on different hours. This is the same calculation that many employees make. Whilst they believe their rights have been infringed and are aware of the entitlement to bring a Tribunal claim, they do not take this further at the time because they fear commencing legal proceedings will cause ill-feeling on the part of their employer and make matters worse. Once their employment has ended, that impediment to a claim is removed and they proceed late.[29]The Claimant then had a period of sick leave. She was dismissed in June 2023.[30]The Claimant contacted ACAS on 21 July 2023, received a certificate on 1 September 2023 and commenced proceedings on 1 October 2023.
Law
[31]So far as material section 123 of the Equality Act 2010 (“EqA”) 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. Just and Equitable[32]An Employment Tribunal applying section 123 has a broad discretion. A useful summary of the case law and multifactorial approach was given by the EAT in Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283 per HHJ Peter Clark: 11. A useful starting point is the judgment of Smith J in British Coal Corpn v Keeble [1997] IRLR 336. That was a case concerned with the just and equitable extension of time question in the context of a sex discrimination claim. Smith J, sitting with members, in allowing the employers' appeal and remitting the just and equitable extension question to the employment tribunal, suggested that in exercising its discretion the tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980, the provision for extension of time in personal injury cases. The first of those factors, as Mr Peacock emphasised in the present appeal, is the length of and reasons for the delay in bringing that claim.12. However, as the Court of Appeal made clear in Southwark London Borough Council v Afolabi [2003] ICR 800, in deciding the just and equitable extension question, a tribunal is not required to go through the matters listed in section 33(3) of the Limitation Act 1980, provided that no significant factor is omitted. That principle was more recently reinforced in a different context by the Court of Appeal in Neary v Governing Body of St Albans Girls' School [2010] ICR 473, where the leading judgment was given by Smith LJ. There, it was held that a line of appeal tribunal authority requiring a tribunal to consider the factors in the CPR, rule 3.9(1), as it then was, when deciding whether or not to grant relief from sanction following non-compliance with an unless order, was incorrect. Following Afolabi it is sufficient that all relevant factors are considered.13. Section 33(3) of the 1980 Act does not in terms refer to the balance of prejudice between the parties in granting or refusing an extension of time. However, Smith J referred to the balance of prejudice in Keeble, para 8, to which Mr Peacock has referred me. That, it seems to me, is consistent with the approach of the Court of Appeal in the section 33 personal injury case of Dale v British Coal Corpn, where Stuart-Smith LJ opined that, although not mentioned in section 33(3), it is relevant to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. That passage neatly brings together the two factors which, Mr Dutton submits, were not, but ought to have been, considered by this tribunal in the proper exercise of its discretion: prejudice and merits. I shall return to those factors in due course.14. What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] ICR 279 ) involves a multi-factoral approach. No single factor is determinative.15. Returning to the balance of prejudice, this concept arises elsewhere in our jurisdiction. For example, in deciding applications to amend the form ET1, the Selkent principle: Selkent Bus Co Ltd v Moore [1996] ICR 836.[33]Importantly, there is 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. […][34]The Court of Appeal considered the exercise of this discretion again 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. […] 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). Continuing Act[35]The question of what amounts to a “continuing act” was considered by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, per Mummery LJ: 52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. [...]Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. Conclusion Primary Time Limit – issue 10.1.1
Conclusion
[36]Time for the Claimant to bring a complaint about the refusal of her flexible working request between February 2021 and April 2022, ended at latest in July 2022. Because the time-limit had already expired, ACAS conciliation did not serve to extend the time for her claim. As such, her claim in October 2023 was at least 15 months late.[37]Time for the Claimant to bring a complaint about the refusal of her leave request in July 2022 expired in October 2022. Once again and for the same reason, ACAS conciliation did not extend time. As such, her claim in October 2023 was circa 12 months late. Continuing Act - issue 10.1.2 & 10.1.3[38]Having canvassed the matter with the parties, neither of whom disagreed with my provisional view, I decided it was not appropriate to make a determination of the continuing act question. EJ Meichen had listed the matter on the basis the Judge today would decide the extent to which it was appropriate to determine the issues he had identified.[39]In order to decide whether the matters complained of as occurring between February 2021 and July 2022 were a continuing act of discrimination, it would first be necessary to make findings of fact as to what had occurred and whether this amounted to unlawful discrimination. It was not appropriate for me to determine that point, in circumstances where the Claimant had only been ordered to provide brief evidence about the contentious events and the Respondent given no opportunity at all in that regard.[40]In any event, the latest matter about which the Claimant complains is said to have occurred in July 2022 and even if there were a continuing act, this would still be out of time, subject to an extension on just and equitable grounds. Just and Equitable – issue 10.1.4[41]As set out above, the claims were presented late because the Claimant decided not to look to pursue the matter sooner because she believed this would damage the employment relationship. As such, she did not look further into how to bring a Tribunal claim at the time. I did not accept the Claimant had a contemporaneous belief that she could not (i.e. as a matter of law rather than choice) bring a claim whilst her employment was ongoing.[42]Whilst the choice made by the Claimant is understandable and many employees proceed in the same way, it is not a terribly good reason for bringing her claims a year or more after the time prescribed by Parliament.[43]Given the Claimant believed she had been discriminated against, had the means to undertake legal research and did so to some extent, her failure to find out about the time limits for bringing a claim in the Tribunal was unreasonable. The same is true of any confidence the Claimant had that she could bring a claim at the end of her employment. As Ms Akers pointed out in cross examination, that might be years or even decades later. The Claimant did not, in response to this proposition, say she had believed that was the case, rather she had said she had not intended to stay with the Respondent for so long. Her personal intentions with respect to the Respondent cannot, reasonably, have informed her view of what the law on time limits was or might be.[44]The absence of a good reason for bringing a late claim is not, however, an answer to the question of whether it is just and equitable to extend time. I must consider all of the relevant circumstances. In particular, I must take into account the balance of hardship and injustice.[45]If I refuse to extend time, the Claimant will not be able to pursue her sex discrimination complaint with respect to the refusal of her flexible working request and of leave for an overseas medical appointment. This will be a diminution in the scope of her claim. The Claimant has said her complaints are of indirect sex discrimination.[46]Whilst the Claimant has not identified the PCPs, these would appear to be:46.1 the requirement to work 12-9pm;46.2 the requirement to work rather than take leave.[47]Most of the focus at this hearing was on the flexible working request, which engages the requirement to work from 12-9 pm. The Claimant would have little difficulty showing group and individual disadvantage in this regard, a Tribunal taking judicial notice of women workers shouldering the greater burden with respect to childcare responsibility. Subject to justification, therefore, this complaint appears arguable. Refusing an extension of time would, therefore, deny the Claimant and otherwise arguable
claim.
[48]As far as the leave request for medical treatment is concerned, this engages the requirement to be at work. The Claimant’s need was based on the particular health needs of her son and the decision she made to seek overseas healthcare. In these particular and unusual circumstances it seems unlikely she would be able to show group disadvantage for women workers, generally. And, to the extent the Claimant did establish such a group disadvantage, a general requirement to be at work rather than on leave, would be easy to justify. It is difficult to see how this complaint could succeed.[49]In terms of prejudice to the Respondent in the event time were extended, the Respondent argues that two relevant witnesses, Ms Redpath and Mr Davey, are no longer employees and unavailable as witnesses. A third witness, Mr Marshall, is leaving the Respondent this month and whilst it will do its best to secure his attendance, persuading him to use annual leave in his new employment to attend as a witness may be difficult. The Respondent would be in a stronger position to advance this point if it had produced evidence of attempts to contact Ms Redpath and Mr Davey, but I do accept that in practice obtaining evidence from ex-employees is often far from easy. As far as Mr Marshall is concerned, the Respondent has had ample opportunity to prepare a witness statement. It has known of the Claimant’s complaint in this regard, in so far as this relates to Mr Marshall, since February 2024. A witness order may be sought in the event that Mr Marshall, subsequently, becomes uncooperative.[50]Ms Akers’ other point was based on the difficulty witnesses may have in recalling the circumstances behind the refusal of the Claimant’s flexible working request. In this regard, it is apparent from the contemporaneous documents that the Respondent’s explanation was based on the expectations of the Claimant’s role and general business need. This is a matter that a number of managers with experience of the department in which the Claimant worked ought to be able to speak. HR witnesses were also involved. This is not a case in which the Claimant made a request and it was refused at a single point, rather there was much to and fro between 2021 and 2022. Furthermore, it is the PCP which the Respondent would need to show was proportionate means of achieving a legitimate aim, rather than focusing on its specific application to the Claimant. The position would be different if the Claimant were pursuing direct sex discrimination claims, in which case the Respondent would be severely prejudiced by not having the decision-maker as a witness, but that is not the case here.[51]Weighing these matters in the balance, I have come to the conclusion that it is just and equitable to extend time for the Claimant to bring her indirect sex discrimination claim with respect to the refusal of her flexible working request between February 2021 and April 2022. Notwithstanding the absence of a good reason for her delay, the balance of hardship and prejudice favours allowing the claim to proceed. If time were not extended, the Claimant would lose the benefit of an arguable indirect sex discrimination claim. The prejudice to the Respondent in allowing such an extension is limited, given that a number of witnesses ought to be able speak to the general business need for employees to work 12-9pm.[52]It is not, however, just and equitable to extend time for the Claimant’s complaint about being refused leave for overseas medical treatment. The balance here goes the other way. The Claimant loses little, given she is likely to struggle to show group disadvantage for the relevant PCP. And, whilst the Respondent would, here as before, be required to justify the PCP rather than focusing on its specific application to the Claimant, given the somewhat unusual circumstances relied upon by her in this regard, the difficulty in obtaining evidence from Ms Redpath is a more significant consideration. Signed by: EJ Maxwell Signed on: 3 January 2025