Ms Urszula DundaClaimantMeiyume (UK) LimitedRespondent
Before
Employment Judge E FowellDate 9 December 2022
JUDGMENT
[1]The following complaints were presented out of time and are dismissed: a) Direct discrimination on grounds of race b) Harassment related to race c) Victimisation
REASONS
[1]These written reasons are provided at the request of the claimant following oral reasons given at the hearing.[2]This hearing was listed to decide whether the above complaints were brought in time. The other complaints presented are as follows: a) unfair dismissal b) pregnancy related unfair dismissal c) direct discrimination on grounds of pregnancy and maternity.[3]According to the claim form Ms Dunda was harassed at work by a Mr Da Silva from 1 November 2020 to 28 February 2021. At the last case management hearing on 10 October 2022, Employment Judge Livesey set out the 15 allegations of race discrimination, four allegations of harassment and four of victimisation, at paragraphs 5, 6 and 7 respectively of the case management order. The thrust of the allegations is that Mr Da Silva disliked Mr Dunda speaking Polish at work and picked on her as a result.[4]It is common ground that Ms Dunda went off sick on 28 February. During her absence she was invited to a disciplinary hearing regarding her absence record, and then various allegations of misconduct were raised, resulting in her dismissal. It is said that she had bullied other employees of British national origin.[5]There are therefore two distinct episodes in this case: in the first, Ms Dunda was at work in the factory. In the second, she was off sick, or suspended, while the disciplinary and grievance processes played out. Her allegations of race discrimination (which include harassment and victimisation) all belong to that first period.[6]Discrimination claims are governed by the Equality Act 2010. Section 123 provides for a three month time limit. That three month period is now extended to allow for time spent in early conciliation before the claim is presented.[7]The claim form was presented on 23 June 2021, within a month of the end of efforts at early conciliation through ACAS. That period began on 26 May 2021 and so any act or omission which took place more than three months before that date, i.e. before 27 February 2021, is potentially out of time.[8]There are two exceptions. One is where there is “conduct extending over a period.” If so, it is treated as done at the end of that period. In other words, the employee has three months from the end of a campaign of harassment to bring a claim. The second is where it is just and equitable to extend time.[9]Directions were given at the last hearing for witness statements on each side, although in time-limit cases it is really a matter for the claimant to explain why the claim form was not submitted earlier. However, no witness statement has been provided by Ms Dunda, and she did not attend this hearing.[10]That is not necessarily fatal. There was a bundle of documents running to 155 pages, and the question of whether it would be just and equitable to extend time is a broad one, which can be decided on the basis of submissions and the available documentary evidence. Submissions[11]There were no written submissions but I heard oral submissions from each side. Those on behalf of Ms Dunda were relatively brief. Ms Pankowski essentially urged me to allow the extension of time on the basis that it was only a short period and that there would be no real prejudice to the respondent.[12]In response to a question from me about Ms Dunda’s health, she referred me to a sick note in the bundle at page 144, dated 7 March 2021, which refers to an absence of six days on the basis of low mood. She also advised me that Ms Dunda gave birth in September that year, and that there was a period of serious ill health when complete bed rest was ordered.[13]Mr Shellum drew my attention to the work roster at page 137 which shows that 28 February was a Sunday. Ms Dunda worked shifts and she was not at work for the two days before that, Friday and Saturday. These were her regular days off. Hence her last day at work was in fact Thursday 25 February 2021.[14]On that basis I have to conclude that the claimant has not shown a prima facie case that there was a course of conduct extending over a period and ending on or after 27 February. The only remaining question therefore is whether it would be just and equitable to extend time. The just and equitable test[15]In Robertson v Bexley Community Centre [2003] EWCA Civ 576, Lord Justice Auld held that: “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.”[16]More recently, the Court of Appeal has revisited the correct approach to this test in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 EWCA Civ 23. Tribunals were cautioned against relying on the factors listed in s.33 of the Limitation Act 1980 as a checklist. The main questions were: a) the length of the delay, b) the reasons for the lateness, and c) the potential prejudice to the other party.[17]I will deal with these three points in turn: Delay[18]The delay in this case is very modest. It is a question of two days only.[19]The simple fact is that no reason has been given for the delay. That presents a real difficulty in finding in Ms Dunda’s favour on this issue. The respondent has submitted from the outset, in the Grounds of Resistance, that these complaints are out of time, and I can see no explanation from the claimant at any stage. In the Further Information submitted on 29 November 2021, she disputes that her claims are late, but no reason is given.[20]It was only in response to my question about that the potential relevance of ill health that this was mentioned, and there is only this single medical certificate in the bundle. I have however reviewed the agreed background facts. A detailed narrative was set out in the grounds of resistance. It is clear from this that Ms Dunda remained off sick or suspended until her dismissal. On 8 March 2021 she was invited to a disciplinary hearing in relation to her absence record, which included absences as long ago as March 2020. A hearing to consider that record was arranged for 10 March 2021 and then adjourned because Ms Dunda was still off sick. Then, on 15 March, allegations of racial bullying were raised against her. She was suspended the next day. The original disciplinary hearing then took place on 17 March, during which Ms Dunda informed the company that she had been suffering pregnancy complications. They offered her additional medical support and suggested an occupational health appointment. On 20 March she informed the company that she had suffered a haemorrhage, had been seen by her doctor and that strict bed rest had been ordered. Those facts do not appear to be in dispute. Consequently, ill health is a more significant concern than a short period of absence for low mood.[21]It is not clear how long that strict bed rest lasted. It does then appear that there must have been some improvement since a disciplinary hearing in connexion with the bullying allegations was arranged for 30 March 2021. She was ultimately dismissed at a hearing on 23 April. On 28 April she raised a lengthy and detailed grievance and submitted an appeal. There was then an appeal hearing on 18 May. The grievance outcome letter is dated 25 May, and Ms Dunda contacted a CAS about early conciliation the following day. From this it seems that she was active in fighting her corner throughout April and May 2021.[22]I have set all that out for completeness. The simple fact is that Ms Dunda did not advance her health as a reason for failing to submit the claim on time until prompted or questioned about it.[23]Mr Shellum submitted that in those circumstances I am not entitled to take it into account. He referred me to the case of Basildon Academies Trust v Ms P Polius-Curran EAT 0055/15, where the Employment Appeal Tribunal said: “There are a number of objections to that finding. First, that was not a factor advanced before the Tribunal. I have been shown the respective written closing submissions of the parties’ representatives below; there were no oral submissions.”[24]This seems to be a passing remark, making the point that tribunals should not decide matters on the basis of points which have not been raised before them. It does not prevent a tribunal from raising its own questions as long as the parties have an opportunity to respond. Prejudice[25]One point which Mr Shellum makes is that the alleged harasser, Mr Da Silva, no longer works for the respondent and so it will be more difficult for them to defend these claims. That is a significant factor in the context of this case, which does not depend to any extent on written material but on their personal interactions on the factory floor.[26]I note that the respondent raised disciplinary allegations against Ms Dunda concerning her own behaviour during that period, but that has not been raised as an issue by the claimant, and for the reason set out in the Basildon case, it would be wrong for me now to take that into account. I have no real detail of those incidents, and in any event Ms Dunda is available to give evidence about them.
Conclusions
[27]Drawing those threads together, there is: a) a very short period of lateness, b) some reliance now being placed on ill health, although this does not appear to have prevented Ms Dunda taking part in disciplinary proceedings and raising her appeal and grievance, and c) some clear prejudice to the respondent given their lack of the key witness to respond to these complaints.[28]There is certainly nothing compelling in those factors in Ms Dundas favour. The guidance in Bexley already quoted makes clear that it is for Ms Dunda to satisfy the tribunal that it would be just and equitable to allow an extension of time. Given the very real failure to engage with this hearing and put forward any positive case justifying the extension of time, she has not in my view discharged this burden. Accordingly, I do not accept that it would be just and equitable to extend time.
Conclusions
[1]By Rule 72(1) of the Employment Tribunal Rules of Procedure 2013, a party can only apply for a reconsideration if it is required “in the interests of justice”. Under the previous version of the Rules a number of reasons could be invoked, i.e.:(a) that an administrative error had resulted in a wrong decision(b) that the party did not receive notice of the hearing(c) that the decision was made in the absence of the party(d) that new evidence was available, and finally(e) that the interests of justice required a review.[2]Now all of these situations are covered by the single “interests of justice” test. The Employment Appeal Tribunal in AB v Home Office UKEAT/0363/13/JOJ held that the new wording was broadly to the same effect, i.e. it was intended to cover the sort of situations as in (a) to (d) above, where something has gone badly wrong with the decision making process.[3]This application for reconsideration raises a number of points which were either raised at the hearing or which it was open to the claimant to raise at that stage. The only points which might give rise to reconsideration are: Page 1 of 3(a) the claim that none of the documents requested by the claimant appeared in the bundle for the hearing and(b) the assertion that the tribunal was in error in finding that claimant’s last day of work was 25 February 2022.[4]The first of these is not supported by the emails provided with the application which show that there were exchanges with the respondent’s solicitors about the composition of the bundle and that the claimant’s representatives was invited to include relevant documents.[5]The second point is based on the pay slips now disclosed. They are said to show that the claimant was working overtime during February 2022, and so to support the her claim that her last day at work was in fact Saturday 27 February.[6]The last pay slip on which any overtime is shown is for March 2022 and since it is common ground that the claimant did not work in March 2022 the overtime shown is likely to have been worked in February. However, no dates are shown. The pay slip in question simply records that 10 hours were paid at double time and 0.25 hours at time and a half. No overtime is recorded on the roster on which the respondent relied at the hearing, so this new evidence opens up the possibility that overtime was indeed worked on 27 February 2022.[7]However, this is evidence which was available to the claimant before the hearing and which could with reasonable diligence have been provided. The point could then have been argued at the hearing. It is not therefore “new evidence” so as to form a basis for reconsideration.[8]Secondly, the pay slip itself merely shows that some overtime was worked in February (or perhaps earlier) and is not sufficient to show on balance that it was worked on any particular day.[9]Thirdly, the claimant had not previously put forward a positive case that she worked on Saturday 27 February, merely that she went off sick on Sunday 28 February. According to her normal pattern of work, her last day at work would have been Thursday 25 February. The claimant did not attend the hearing or provide a witness statement so there was no positive case presented that she worked on Saturday 27 February, even though it was clear that this was the cut-off date for the claim to have been presented in time. This is therefore a new point which ought to have been raised at the previous hearing.[10]In the absence of a suitably compelling reason of the type set out above, such as the discovery of new evidence which could not have been obtained previously with reasonable diligence, and which contradicts a key finding, there has to be some Page 2 of 3 finality of litigation. This is not such a case and so the application for reconsideration is refused.