Ms I Newsome v Brake Bros Ltd Hampshire County Council: 1402207/2021

EMPLOYMENT TRIBUNALS

Case No 1402207/2021

Between

Ms I NewsomeClaimant

Brake Bros Ltd Hampshire County CouncilRespondent

Before

Employment Judge P Cadney

In person for claimant

Ms D Fawzi-Perrin for respondent

Date 25 July 2022

REASONS

[1]By a claim form dated 18th June 2021 the claimant brings claims of sex discrimination. She alleges that she was the victim of sexual harassment by a former manager between spring and autumn 2020. Attached to her claim form was a statement which alleged that the events complained of began in April/May 2020, with the last occurring on 21st October 2020, following which she lodged a complaint/grievance with the respondent.

[2]The case came before EJ Livesey on 5th May 2022 for a TCMPH. In the light of the combination of the date of submission of the ET1 and the dates of ACAS Early Conciliation (see below) he 1 of 8 concluded that any act occurring before 22nd January 2021 was out of time. This on the face of it would suggest that all of the claimant’s claims had been submitted out of time. Accordingly he listed the claim for a Preliminary Hearing to determine: i) Whether the claims were brought in time; and if not ii) Whether time should be extended. Facts

[3]The internal timeline is that the claimant lodged her complaint/grievance on 28th October 2020. The outcome was relayed to the claimant on 20th November 2020. It was partially upheld but she was dissatisfied with the outcome and indicated she wished to appeal on 25th February 2021. The appeal was concluded on 22nd April 2022 but was unsuccessful. She resigned on 22nd July 2021 but no claim arises from the termination of her employment.

[4]The claimant contacted ACAS on 15th December 2020 and on 16th December was issued with an ACAS Early Conciliation certificate giving those two dates as dates A and B. Given that the primary limitation period did not expire until 20th January 2021 the effect of the ACAS EC certificate would have been to trigger the clock stopping provisions and extend the limitation period by one day. Although neither the tribunal or the respondent has a copy of it (the tribunal does not keep copies of rejected claim forms) the claimant has stated, and I accept, that she submitted a claim form on 26th January 2021. This would in any event have been five days out of time. It appears that she did not include the ACAS early conciliation certificate number on the form and ticked Box 2.3 which contains one of the exceptions to the requirement to have an ACAS EC certificate number to commence the claim, that ACAS does not have the power to conciliate. In respect of a claim for sex discrimination this is incorrect. On 22nd February 2022 the tribunal wrote asking her to clarify why she had ticked Box 2.3. She replied that she had been attempting to resolve this without a tribunal, which at least implied that she had not entered ACAS early conciliation. On 19th April 2021 her ET1/Claim form was rejected as it did not contain an ACAS EC certificate number as was required.

[5]Two days later on 21st April 2021 the claimant entered a second period of ACAS Early Conciliation which concluded on 2nd June 2021, the day the second ACAS EC certificate was issued. On 16th June the claimant contacted her conciliator to ask how to make a claim, and was advised how to do so by a different conciliator the same day. On 18th June 201 she submitted her claim using the second ACAS EC certificate number. 2 of 8

[6]In respect of the first question of whether the claims were submitted in time; the primary limitation period expired on 20th January 2021. As ACAS EC conciliation did not begin until 21st April 2021 the claimant does not get the benefit of any extension of time. It follows automatically that the claims have been presented out of time. For the avoidance of doubt even if she were able to rely on the first certificate any extension of time would have long passed and the claim would still have been submitted out of time.

[7]The respondent has submitted a detailed written submission. In summary it contends that the discretion to extend time should not be exercised in this case for the following reasons.

[8]In respect of the question of whether time should be extended, the tests I have to apply are set out in greater detail below, but essentially the respondent’s argument is based on the proposition that it is not a proper use of the discretion to rescue the claimant from the consequences of her own errors in submitting the first claim form. It points to the fact that by the 15th of December 2020 the claimant had become aware both of the fact of ACAS early conciliation and the requirement to enter into it. There is no requirement actually to conciliate with the other party and it is perfectly legitimate to do as the claimant did and contact ACAS and effectively immediately terminate the conciliation resulting in a certificate being sent in which day A is the 15th of December 2020 and date B the next day. It does not criticise the claimant for doing this, but submits that the only conclusion that can be drawn is that the claimant by this stage had a relatively sophisticated understanding of the ACAS early conciliation process, and understood that while she needed a certificate to commence proceedings she did not in fact need in reality to conciliate with the respondent at all. Similarly by, at the latest, the 26th of January 2021 she had discovered both the fact of the mechanism for presenting a claim to the tribunal and had in fact done so in respect of the same allegations that form the basis of this claim. For reasons that are not at all clear, in completing the claim form she contended that she did not have an ACAS EC certificate number but that her claim fell within an exemption to that rule as ACAS did not have the power to conciliate in respect of her claims. Whilst she was clearly wrong in failing to provide the ACAS EC certificate number, which would have led to the claim being accepted, and wrong to assert that ACAS did not have the power to conciliate she did submit a claim form within days of the expiry of the primary limitation period.

[9]In those circumstances the respondent essentially submits that it would be an improper exercise of my discretion to rescue the claimant from the consequences of her own actions, and that however sympathetic I am to the claimant, that the decision cannot simply be based on sympathy. 3 of 8

[10]Moreover they point to the reference to the earlier claim in the second claim form (R Written Skeleton para 12) in which she clearly misrepresents the position, asserting that she had not previously entered into conciliation as she wasn’t aware of how the process worked when she clearly had: “At section 8.2 of her ET1 C provided the second ACAS Certificate reference number but omitted any details of the first conciliation reference. Indeed C stated “I previously started a claim however I hadn’t been through conciliation as I wasn’t aware of how the process worked. I have since been through conciliation, unfortunately we have been unable to come to an agreement so I would like to proceed to tribunal”. This of course is untrue as the Claimant had been through the conciliation process between the period 15-16 December 2020”.(Respondent’s underlining)

[11]The respondent submits that the claimant’s evidence should be approached with a degree of scepticism. In relation to the first claim either the claimant had herself researched the position and gained an understanding of the process; or she must have been advised by someone else who had; and the assertion in the second claim that she had not previously been through conciliation is demonstrably untrue and must have been known to be untrue by the claimant as she had two separate EC certificates in identical form covering different periods.

[12]In giving her evidence the claimant was very tearful and upset. She said that she had no real recollection of how she had come to contact ACAS and had then come to present the first claim form. She did not remember why she had completed it as she had and why she had not supplied the original ACAS EC certificate number. She had not had any legal advice and had not conducted any of her own research on the internet but had advice from a family member. She did not understand the process or the distinction between ACAS and the employment tribunal, and asserted that she had not terminated the first conciliation period but had simply received an e-mail from ACAS doing so, and had no recollection of submitting the original claim form or how and why she had come to do so. She had no recollection of how or why the second claim form had contained incorrect information but vehemently denied that she had been deliberately untruthful.

[13]Her evidence essentially is that all stages following the rejection of the original claim form she did what she thought was correct on the advice she received. On being informed that her original claim form had been rejected for the absence of an ACAS EC certificate she within two days contacted ACAS and commenced conciliation during which she genuinely attempted to resolve the issue with at the respondent. Early conciliation finished on the 4 of 8 2nd of June and she understood that in submitting a claim form on the 18th of June that she had had submitted it within time. She did not understand any of the questions she was asked by Ms Fawzi-Perrin as to the technicalities of the process, and at each stage had simply done what she thought and understood was required of her.

[14]The burden of proving that it is just and equitable to extend time to enable a claim to proceed is on the person seeking the extension. In Robertson v Bexley Community Centre t/a Leisure Link

(2003) IRLR 434

, the Court of Appeal stated that when employment tribunals consider exercising the discretion under s123 Equality Act 2010, ‘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 claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’

[15]Some relevant factors can be derived from s33 Limitation Act 1980 (as identified in British Coal Corporation v Keeble

(1997) IRLR 336

). S 33 Limitation Act 1980 requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, to:(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[16]However, the ET has a broad discretion and those factors should not be applied mechanistically; as is set out in Adedeji v University Hospitals Birmingham NHS Trust

(2021) EWCA Civ 23

:- “Keeble did no more than suggest that a comparison with the requirements of section 33 might help "illuminate" the task of the tribunal by setting out a checklist of potentially relevant factors. It certainly did not say that that list should be used as a framework for any decision. However, that is how it has too often been read, and "the Keeble factors" and "the Keeble principles" still regularly feature as the starting-point for 5 of 8 tribunals' approach to decisions under section 123 (1) (b). I do not regard this as healthy... “ and “Rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion... The best approach for a tribunal in considering the exercise of the discretion under section 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular ….. "the length of, and the reasons for, the delay". If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking”.

[17]In addition at Paragraph 24 Underhill LJ stated that the selfdirection that there was “…a public interest in the enforcement of time limits and that they are applied strictly in employment tribunals” is a correct statement of the law.

[18]I have set out the factors I have taken into account below but for the avoidance of doubt the claimant does not rely on the ongoing internal investigation as an explanation of the delay in presenting the claim. Self-evidently a claim had been presented in January 2021 following the obtaining of the ACAS EC certificate in December 2020. Secondly any claim by the claimant of ignorance as to her rights is at least very difficult to establish given that she was able to obtain an ACAS EC certificate within the primary limitation period, and although she lodged her initial claim a few days out of time there is no evidence that it could not have been lodged earlier, and therefore that there was any impediment to her having presented the claim in time.

[19]Accordingly in my judgement this is a case in which there is no good reason for the late presentation of the claim, which although not determinative is a factor I am entitled to take into account.

[20]One of the issues which I am bound to take into account it is the question of the relative prejudice or hardship. As set out above the respondent conducted an internal grievance investigation and interviewed a number of witnesses as to the events of which the claimant complaints. There is therefore relatively contemporaneous written evidence as to those events. It does not however follow that there is no prejudice to the respondent in permitting the case to proceed to hearing, in that oral evidence would still be required as to the events as the tribunal would have to make findings of fact and would not be bound by the conclusions of the internal investigation or the evidence given to the internal investigation. In addition in this case it will be necessary for the tribunal to make findings not simply about what was or was not said but of the extent to which there was a degree of participation and acceptance of a level of sexualised 6 of 8 conversation. Whilst therefore this is a case in which the respondent does not stress the evidential prejudice to it, it is not a wholly irrelevant consideration.

[21]This is in some ways a difficult case to resolve as the starting point is a somewhat unusual one. There is no explanation before me as to why the claimant asserted in her original claim form that she did not have an ACAS EC certificate number and that ACAS did not have the power to conciliate when she had already entered into conciliation only a month earlier and did have a certificate. Equally it is difficult to understand why when the tribunal queried her assertion, that she did not reply that in fact she did have an EC certificate number. Equally the assertion in the second claim form that the claimant had not previously entered into conciliation is plainly incorrect. There is simply no explanation before me of any of those matters. That gives the tribunal the difficulty that the burden lies on the claimant to demonstrate that is just and equitable to extend time, in circumstances in which it should never have been necessary to have submitted a second claim, and in which the circumstances in which the first claim was in the form it was is entirely unexplained.

[22]Looked at overall the primary factors in the respondents favour are that there is no good reason for the delay in that the reasons for it are essentially entirely unexplained, and that the claimant has essentially placed nothing before the tribunal from which the tribunal could properly exercise the discretion to extend time, but simply throws herself on the mercy of the tribunal.

[23]The primary factor in the claimants favour is the relative absence of prejudice, and the fact that there is relatively contemporaneous written evidence in the records of the internal investigation.

[24]Whilst this is not been an easy case to resolve, given that the burden is on the claimant to demonstrate that this case should be an exception to the ordinary rule that claims must be presented within the primary time limit, and given that the claimant has not been able to advance any explanation as to why it was not, weighing the factors set out above in the balance I am not persuaded on the information before me that any such extension is justified.

[25]Accordingly I am bound to dismiss the claimant’s claims as having been presented out of time. 7 of 8 Note; online publication of judgments and reasons The ET is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The ET has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the ET for an order to that effect under Rule 50 of the ET's Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness. EMPLOYMENT TRIBUNALS Claimant: Ms I Newsome Respondent: Brake Bros Ltd Before: Employment Judge P Cadney Representation: Claimant: Written Submissions Respondent: Reconsideration Judgment The judgment of the tribunal is that- i) The claimant’s application to reconsider and revoke the Judgment is dismissed.

[1]On 21st July 2022 I heard a preliminary hearing at which I determined that the claimant’s claims had been presented out of time, and that it was not just and equitable to extend time; and that in consequence it was dismissed as having been presented out of time. The claimant sent what I understood to be a reconsideration application which I rejected by a written decision dated 10th October 2022. In fact the claimant asserted that that was not a full reconsideration application. She has made a full reconsideration application dated 29th November 2022.

[2]The application is out of time, the time limit being 14 days. The claimant contends that her disability makes it impossible for her to make an application within 14 days , and that time should be extended. Whilst the application is very considerably out of time I have decided to extend time and consider the reconsideration application. For completeness sake I have included 1 of 4 consideration of each application and have repeated at paras 3 – 8 below my conclusions from the earlier application; and have set out thereafter any further points not already discussed. 10th October Decision

[3]The claimant has applied for reconsideration of that decision. The basis of the application is that “I grossly misunderstood what was required from the prehearing and believed I had entered into a tribunal in December so thought the claim was well within time.” In addition she states that although the last allegation of harassment relates to the end of October 2020 that she was following “Brake’s internal processes and they were taking their time.”

[4]The first point is a difficult contention to follow, as the Preliminary Hearing was preceded by a telephone case management hearing before EJ Livesey at which he set out that the claim was submitted on 18th June 2021 and the basis for considering that the claim may be out of time, which was one of the reasons it was listed for a preliminary hearing (paras (para 49 – 1.2). In addition the first claim (which according to the claimant’s evidence before me was submitted in January 2021) had been rejected, after which the claimant entered into ACAS early consideration for the second time and submitted the second claim. The contention that the claimant believed that the first claim was still a or the live claim was not one that was advanced before me. Moreover, as is set out in my reasons the claimant’s evidence was that she had little or no recollection of the events and could provide no explanation of how or why she had come to present the original claim form in the form that she did, before entering ACAS early conciliation for a second time and presenting the second claim in June 2021.

[5]The second point is not one that was advanced before me at the original hearing but in any event the problem remains for the claimant that she had submitted a claim, albeit one that had been rejected, whilst the internal processes were ongoing. It must follow that the internal processes had not in and of themselves prevented her from submitting a claim.

[6]Whilst the only issue in respect of an application for reconsideration is whether it is in the interests of justice, there should be finality in litigation and in this case the effect of the reconsideration application, if successful, would have to be that the judgment would be set aside and the case listed for re-hearing in order to give the claimant a second chance to present evidence that she did not submit at the first. In order for this to be considered in the interests of justice there would need to be a very powerful reason given the obvious potential injustice to the respondent of having to re-litigate the same point again. In addition the purpose of reconsideration is not simply to give the losing party a second chance to succeed having failed the first time.

[7]It follows that the claimant would need to show that she could present very powerful evidence that would at least possibly result in a different outcome. The claimant does not in the application set out what this evidence is or might be. This in my judgement is particularly significant given that, as is set out in my 2 of 4 decision, the evidence before me was that the claimant had little or no recollection of the events.

[8]There is on the basis of the application and information before me nothing from which I could conclude that there is any prospect of the original decision being varied or revoked, and so in my judgement the application must be dismissed. 29th November 2022 Application

[9]Ambit of the claim- The claimant’s first point is that the claim has been treated as having been submitted out of time as it relates to the allegations of sexual harassment of which the last is alleged to have occurred at in October 2020. The claimant asserts that her claim is much broader and includes claims against the respondent including the way it dealt with her grievance and “..forced me to go sick from work”; and a number of other matters she sets out in detail in the reconsideration application. She states that her belief is that time should have run from July 2021 when she left her employment.

[10]However at Box 8.2 in the claim form she states “The details are, in short – I was sexually harassed by my manager and have since been unable to return to work.” In addition she supplied a statement setting out the details of the claim which referred to events between July and October 2020. Moreover there was a case management hearing before EJ Livesey, the purpose of which is to clarify the claims being brought. In the CMO he records the claims as being those for sexual harassment (para 44) and he recorded claims for direct sex discrimination and/or harassment with factual basis being set out at para 49 / 3 / 3.1. In short the only claims recorded in the CMO relate explicitly to the allegations of sexual harassment and there is no claim asserted beyond those allegations. It was precisely because all the recorded allegations were on the face of it out of time that EJ Livesey listed the case for the preliminary hearing before me. The claimant has never suggested, at least until the current application, that EJ Livesey had mis-recorded the claims or that her claims were different from, and much wider than, those set out in the CMO.

[11]The claims I had to consider were limited to those set out above, and there was no application at or before the hearing to seek to amend her claim, and it is not open to the claimant to seek to widen the ambit of the claim in a reconsideration application. I repeat the point made above that there is a public interest in finality in litigation, and that this application, if successful, would require the case to effectively start again with a further preliminary hearing listed, and directions given for the claimant to make an amendment application to bring new claims before considering whether there are time points which would need to be considered.

[12]In addition she contends that the respondents position that she must have had a sophisticated understanding of EC conciliation, or was being advised by someone who had, in relation to the first conciliation process is unfair and that had she had such an understanding she would never have committed the procedural errors she did. Effectively she asserts that I should reconsider and conclude that at no stage did she have a proper understanding of the process and that the discretion to extend time should be exercised in her favour. The 3 of 4 difficulty for the claimant is that I took this into account in my original decision (see paras 12 and 13); and there is in my judgement nothing in the application which persuades me that there is any prospect of the decision being reversed were I to relist the case for a reconsideration hearing.

[13]It follows that whilst I remain of the view that I have considerable sympathy for the claimant, I am equally of the view that the reconsideration application must be rejected.