Mrs N Kiani v University Hospitals Birmingham NHS Foundation Trust: 1308584/2023
JUDGMENT
(REASONS
[1]Oral reasons for the above judgement were given to the parties at the time. These written reasons are provided pursuant to a request from the claimant dated 26 March 2025.[2]The claimant in this case is Mrs Nasim Kiani who has been employed by the respondent, University Hospitals Birmingham NHS Foundation Trust, as a Bilingual Interpreter, since 31 December 2010. The respondent’s employment is continuing.[3]By a claim form presented to the tribunal on 6 December 2023, the claimant brings claims against the respondent for discrimination on the grounds of disability and sex. She also brings claims for unpaid wages and other unspecified payments. Prior to the presentation of her claim form the claimant notified ACAS of her claim on 26 September 2023 and her ACAS EC certificate was issued on 7 November 2023. 4 the claim form was accompanied by a timeline of events in the last event identified in that timeline which is potentially an active discrimination on the grounds of sex or disability occurred in May 2022. The incidents complained of begin in 2012.[5]The Claimant’s claims were considered by Employment Judge Perry at a preliminary hearing held on 23 September 2024. At that hearing Judge Perry identified 3 areas of complaint in the discrimination claims:(a) A complaint of sex discrimination involving the claimant’s manager, Riaz Janjua saying to the Claimant (when she raised issues) ‘…it’s a woman thing what do you want me to do?’ Since Mr Janjua left R’s employment in June 2020 (see page 80) the conduct complained of must have pre-dated June 2020.(b) A non-specific complaint of disability discrimination involving the removal of additional hours in October 2020 that the Claimant had been given in April 2020. This appears to be a one off event which happened in October 2020.(c) A disability discrimination complaint relating to the respondent’s alleged failure to provide Claimant with support in relation to her grievance which she initiated in June 2022.[6]The claim for unlawful deduction from wages relates to the alleged removal from the claimant of additional hours in October 2020. And also to alleged failures in the payment of her sick pay during periods of sickness absence. The claimant was absent on long-term sickness absence from January until November 2021 and from June 2022 until January 2024.[7]Judge Perry listed the case for hearing today at a preliminary hearing to be heard in public essentially for me to consider the following:(a) Whether to strike out some parts or all of the claim on the basis that a fair trial is impossible.(b) Whether having regard to the time limits set out in Section 23(2) of the Employment Rights Act 1996, the tribunal has jurisdiction to hear the claim for unlawful deduction from wages.(c) Whether having regard to the time limit set out in Section 123 of the Equality Act 2010, the tribunal has jurisdiction to hear the discrimination claims.[8]The claimant has provided a witness statement. She was available to give oral evidence and to be cross examined but Mr Hignett had no questions for her. I was provided with a hearing bundle running to some 307 pages. I have considered those documents from within the bundle to which I was referred by the parties during the hearing. I heard oral submissions from the claimant. I had a skeleton argument supplemented by oral submissions from Mr Hignett.[9]It is clear that in respect of all of the claims the claim form has been presented outside the primary time limit of 3 months. It is highly unlikely that the discrimination claims form part of a continuing act but even if they do the most recent act complained of is still out of time.[10]It follows therefore that the only basis on which the discrimination claims can be found to have been presented within time it if I find that it is just and equitable for time to be extended.[11]Regarding the unlawful deduction from wages claim, the only basis upon which this could be found to be within time is if I was satisfied that it was not reasonably practicable for the claim to have been presented in time and that it was presented within a reasonable period thereafter.[12]The claimant was absent from work due to ill-health from 6 June 2022 until mid-January 2024. But there is no evidence before me from which I could conclude that during this period she was so unwell that she could not have contacted ACAS or presented a claim form. To the contrary, during this period the claimant persistently raised complaint with the respondent’s CEO and senior managers the documents show that she was supported by a friend and by mental health services. The documents further show that before April 2022 the claimant had been in touch with CAB and had been signposted to organisations which could help and the claimant told me that she had joined a trade union in July 2020 and have had a meeting with her trade union rep about these problems shortly afterwards.[13]The “just and equitable” test which applies in the discrimination claims has to apply to both sides. I cannot provide justice and equity to the claimant by making a decision which is unfair to the respondent. It is for the claimant to demonstrate that it is just and equitable to extend time. In this case the claimant had advice available to her from a variety of sources and she was clearly not so unwell that she could not seek that advice and as stated she made repeated complaints to the respondent. Accordingly, my judgement is that there is no basis upon which I could conclude that it would be just and equitable to extend time in the discrimination claims which are accordingly dismissed for want of jurisdiction.[14]The reasonable practicability test which applies to the unlawful deductions claim is a stricter test. If the claimant was able to make contact with CAB, to meet with her trade union, and to pursue a variety of complaints, it must have been practicable for her to present a claim form significantly earlier than she did, and certainly before the onset of her sickness in June 2022. Accordingly, I am not satisfied that it was not reasonably practicable for her to present that claim. Therefore that claim too is dismissed for want of jurisdiction.[15]It is unnecessary for me to determine whether or not the case should be dismissed because a fair trial is impossible. But I do observe that the respondent would be in considerable difficulty attempting to defend the claims going back as far as 2012. Mr Hignett has produced information to the effect that many relevant members of staff are no longer employed by the respondent and they could hardly be expected to have clear recollections of events occurring up to 13 years ago.