Mr M Gray v The Chief Constable of Devon and Cornwall Police: 1402356/2020 and 1401254/2021
EMPLOYMENT TRIBUNALS
Case No 1402356/2020, 1401254/2021Venue BristolHearing 28 June 2021
Between
Mr M GrayClaimantThe Chief Constable of Devon and Cornwall PoliceRespondent
Before
Employment Judge J BaxMr N Smith (instructed by Counsel) for claimantDate 7 December 2021
JUDGMENT
[1]At all times material to the claims, the Claimant was not disabled by reason of a physical or mental impairment, namely hypothyroidism and depression.[2]The Tribunal does not have jurisdiction to hear the claims of direct discrimination, discrimination arising from disability and harassment and they are dismissed.[3]The claims of automatically unfair dismissal and detriment for making protected disclosures are dismissed upon the Claimant’s withdrawal.
REASONS
[1]On 7 May 2020, the Claimant presented his claim of disability discrimination and detriment for making a protected disclosure. The Claimant subsequently resigned with effect on 17 December 2020 and presented a second claim on 30 March 2021. The Respondent disputes that he was disabled at the material times.
Background
[2]On 13 July 2020, the Claimant was ordered to confirm the nature of his disability and provide to the Respondent medical evidence on which he relied and a disability impact statement. They were provided to the Respondent. On 1 September 2020 the Respondent confirmed that it disputed the Claimant was disabled and provided their reasons for it.[3]At a case management hearing on 14 January 2021, before Employment Judge Roper, the Claimant confirmed that he was alleging that he was disabled by reason of depression and hypothyroidism. He confirmed that he was bringing claims of direct discrimination, discrimination arising from disability and harassment. The claim was listed for a preliminary hearing to determine whether the claimant was disabled within the meaning of the Equality Act 2010 and whether he made a protected disclosure on 13 June 2019. At this stage the second claim had not been presented.[4]At a further case management hearing on 26 March 2021, before Employment Judge Livesey, the Claimant had still not presented his second claim. An additional issue of whether the claims had been presented in time was added, subject to the Judge at the preliminary hearing having discretion to determine that it was best for time limit issues to be determined at the final hearing and therefore postpone the issue. The Claimant was ordered to provide a witness statement for the preliminary hearing containing everything relevant to be determined. It was clearly stated that ‘parties will not be permitted to add to their statements unless the Tribunal agrees’. The Claimant was also given permission to use further documents and to create a bundle for the hearing.[5]The second claim repeated the earlier allegations and raised further matters culminating in what the Claimant says was a discriminatory constructive dismissal and/or automatically unfair dismissal for making protected disclosures on 10 December 2018 and 16 May 2019. He brought claims of disability discrimination and victimisation.[6]On 16 June 2021 the claim of detriment for making a protected disclosure, in the first claim, was withdrawn. During the course of the hearing on 28 June 2021, the Claimant also withdrew his claim of automatically unfair dismissal.[7]On 24 June 2021, the Claimant applied to postpone the preliminary hearing on the basis that he needed to obtain a specialist medical report on depression and hypothyroidism. The application stated that a report had been received, and that it was clear that a report was required from a specialist.[8]By a letter dated 25 June 2021, the Respondent opposed the application. Among other things it said that the Claimant had been ordered to provide medical evidence in July 2020 and that there was a separate opportunity, given by employment Judge Livesey, to provide evidence to be relied upon. Further the Claimant had been aware of the preliminary hearing since January 2021 and the application was very late.[9]On 25 June 2021, Regional Employment Judge Pirani refused the application. This was on the basis that the application said that a medical report had been received, but a further report was required. The hearing had been listed on 14 January 2021 and a further catch up case management hearing had taken place on 26 March 2021 to ensure compliance with directions. There was no explanation as to the steps taken to obtain further evidence. The evidence was not attached to the application so it was not possible to assess when it would have been apparent that more evidence was required. The chronology illustrated that the Claimant had been twice ordered to disclose evidence which would have been included in any medical report in a nine-month period. The application did not provide evidence that supported any contention that a medical report would support the Claimant’s case or assist on the issues at all. It was neither in the interests of justice or in accordance with the overriding objective to postpone the hearing.[10]At the start of the hearing, it was confirmed that the allegations of discrimination spanned between 23 July 2018 and 17 December 2020. Postponement applications made by the Claimant[11]At the start of the hearing Mr Smith applied to postpone the hearing again. This was on the basis that the case had been very poorly prepared by those instructing him. It was submitted that the Claimant’s disability impact statement and witness statement were deficient and were missing key points, on which Mr Smith had taken instructions over the weekend. Further, there was material prejudice to the Claimant in that his case had not been properly prepared. It was accepted that not much had changed, but it was submitted that the application was different, because it was on the basis that the case had been poorly prepared.[12]The Respondent opposed the application and repeated its earlier opposition as set out in its letter. It was submitted that there was not a material change of circumstances and that it would be contrary to the overriding objective to postpone.[13]There was also a secondary application in relation to the time limits issue. Counsel for the Respondent submitted that the hearing had been listed to consider whether the second claim was also out of time. She also relied upon e-mails which had been sent to the Claimant’s representatives, although they were not provided to the Tribunal. The listing of time issues in relation to the second claim, in the order of Employment Judge Livesey, was not apparent to me. On checking Employment Judge Livesey’s notes it was not recorded that issues of time for the second claim would be considered. I spoke to Employment Judge Livesey, before the hearing started, and he could not recollect whether the Respondent was correct. When the order was made, the second claim had not been presented. Mr Smith was unaware that it was being alleged that the second claim was out of time, or that time would be an issue.[14]In relation to the time limits issue, the order of 26 March 2021 did say that time limits for the second claim would be considered and the Claimant had not prepared to deal with the issue. It would also be unusual to a list claim, which was not before the Tribunal, for a hearing. That was not to say that Ms Gyane’s recollection was incorrect. For a jurisdictional point to be heard, the Claimant must be given proper and sufficient notice of it. I was not satisfied this had occurred and it was contrary to the interests of justice for the Tribunal, at the hearing on 28 and 29 June 2021, to determine whether the second claim was out of time. The issues between the two claims were interrelated and the Claimant alleged a course of conduct or a discriminatory state of affairs which spanned the time frame of both claims. Evidence would need to be heard in relation to the reasons for the timing of the presentation of both claims. It would be inappropriate and contrary to the interests of justice if the time limit points were considered at separate hearings. It was therefore in the interests of justice and in accordance with the overriding objective to postpone and relist the time limit issues.[15]In relation to the renewed application to postpone the disability hearing, the application was refused. Employment Judge Pirani had refused the previous application and the correct way to challenge the decision was to appeal it. Counsel for the Claimant, Mr Smith, accepted that there was not really anything new that he could say. He relied upon poor preparation by the Claimant’s solicitors and that he had advised that things should be done, in relation to expert evidence, but they were not. In order to revisit the application, there must be a material change of circumstances. It was submitted that the application was being made on a new ground, however the basis of the original application was that the Claimant was not ready, and the application on 28 June was that he was not ready for an additional reason. The renewed application was effectively on the same basis as on 24 June 2021. Mr Smith, when he said not much had changed, was acknowledging that this was not a material change of circumstances.[16]The case had been through 2 case management hearings. The Claimant provided a disability impact statement and a witness statement. He was aware of the issue since the filing of the ET3. He was represented by lawyers who were able to advise him on what he should do. The Respondent had prepared for the hearing. The Claimant was asking for a third opportunity to provide evidence of disability at the preliminary hearing. It was necessary to avoid delay and expense, which a postponement would not achieve. To grant the Claimant the adjournment would place the parties on an unequal footing, in that the Claimant already had two opportunities to put his house in order. To vacate the hearing would not be a good use of Tribunal resources and is notable that there are a large number of other Claimants with their own cases who also need to use those resources.[17]The Claimant failed to show a material change of circumstances. He may have been prejudiced, but was professionally represented. The Respondent is entitled to know the case it has to meet and for the claim to be heard in a timely manner. Accordingly, to permit an adjournment of the issue would have been contrary to the overriding objective and contrary to the interests of justice. The application was therefore refused. Further preliminary case management issues[18]There was a further application for the Claimant to be given permission to orally amplify his witness statement as evidence in chief. Mr Smith relied upon the poor preparation of the Claimant’s case and that if he is not given permission to amplify it he would be significantly prejudiced. The Claimant was seeking to provide evidence as to the effect on his normal day to day activities and on what he could not do. The Respondent opposed the application. The Claimant had two previous opportunities, in his witness statement and impact statement, to set out what the effects of his alleged disability were on his ability to undertake normal day to day activities. He had not set out the details of the effects on him. I accepted that it appears that the Claimant might have been poorly represented, however the Respondent was entitled to know the case it had to meet and should not be expected to try and hit a moving target. The purpose of case management directions is so that all parties know the issues in the case and for them to fairly prepare for the hearing, and in the case of witness statements to prepare cross-examination. If the Claimant was given permission to essentially provide a third witness statement, by giving oral evidence, the Respondent would have had no advance notice of what was being said and it would make a mockery of the earlier case management orders. The orders were there to be complied with and were not aspirational. The purpose of orders is to provide fairness to the parties and certainty. The Claimant had those opportunities to provide his evidence and failed to take them properly. He was in a difficult situation and there was a significant amount of prejudice for him. However, there was also prejudice to the Respondent, in that this would be the third time that the Claimant sought to explain his case on disability. In the circumstances, balancing the factors between the parties, the balance was tipped more in favour of the Respondent. There was a need to comply with orders and need to deal with cases fairly and justly. The balance fell against the Claimant being permitted to effectively advance a wholly new case on disability and therefore the application was refused. Further application to postpone[19]After the applications had been determined, Counsel for the Claimant sought a further postponement based on the Claimant’s health. It was submitted that the decisions had come as a shock to him. The application was opposed on the basis that a break could be taken, and the issue determined in the afternoon or the following day. On checking with the Claimant, he confirmed that he would like a break. It was agreed that the claim would be adjourned until 2pm. At 2pm the Claimant confirmed that he was well enough to proceed with the hearing.
The evidence
[20]I was provided with a joint bundle of documents of 218 pages, which included the Claimant’s disability impact statement. Any reference in square brackets, within these reasons, is a reference to a page in the bundle. I was also provided with a witness statement from the Claimant. The Claimant was sworn in and he proved his statements. The Respondent did not cross-examine the Claimant.
The facts
[21]I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[22]The effects the Claimant attributed to depression were set out in his disability impact statement as: intolerant to the stressors of daily life, inability to cope with stressors of everyday life, not wanting to socialise, not wanting to leave the house, anxiety and anxiety attacks, anxiety pains, shortness of breath, chest pains, lack of motivation, weight gain, lack of confidence, acting out of character, fear of things going wrong, forgetfulness, not being able to trust people and poor concentration. He did not provide any examples of these matters nor an indication of the severity and nor when and over what timescale they happened.[23]The effects the Claimant attributed to the hypothyroidism were set out in his impact statement as: being required to take medication every day for the rest of his life, exhaustion and fatigue, short tempered, intolerant of usual life stresses or day to day stresses, irritability, acting out of character, inability to cope with unexpected change, disruption to sleeping patterns, weight gain, muscle aches, no motivation to do things that make him happy, loss of interest in family activities. He did not provide any examples of these matters nor an indication of the severity and nor when and over what timescale they happened[24]In his witness statement he said that the depression continues to affect him daily and referred to the following matters. “I cannot concentrate for long periods. I struggle to relax. I cannot watch TV as my mind wanders. I lack confidence and do not like to socialise. I would not feel confident enough to apply for a job. I can have days when I cannot motivate myself to do anything. I have really struggled to look at the paperwork for this as it reminds me of everything that has gone wrong. I do not enjoy many of the things I used to enjoy. I used to enjoy keeping fit but cannot motivate myself to do this and have put on weight. I would really like to come off medication for depression but do not feel I can do this at the moment. All of this affects me on a day to day basis and impacts my ability to do normal everyday tasks.” This was a description of the Claimant’s situation at the time of the preliminary hearing.[25]I reviewed the documentary evidence, and the following matters were relevant.[26]On 20 February 2018, the Claimant attended his GP and was recorded as having symptoms of depression. He was less motivated, enjoying activities less and was irritable. At this time the Claimant says he was suffering from tiredness and struggling with his workload, but he provided no specific examples.[27]On 12 June 2018, in an e-mail, he said things were becoming harder to deal with. He referred to a combination of stress at work and mild depression because of his hand were causing him concern. His family had noticed a change in character. He asked for assistance or advice.[28]On 27 June 2018, the Claimant reported to his GP that he felt exhausted. He was not sleeping well and had thoughts about work all of the time. He was prescribed Zopiclone, a sleeping tablet. A blood sample was taken.[29]He was signed off work until 26 July 2018 with fatigue and was then further signed off work until 14 June 2019 for work related stress.[30]On 29 June 2018, the blood test was recorded as suggestive of subclinical hypothyroidism and he was trialled on a low level dose of Levothyroxine and his bloods repeated.[31]On 4 July 2018, the Claimant reported to his GP that he ‘felt very tired today and intolerant of things and grumpy. Wife notices back to old self: lasted until today. The Claimant remained signed off work. There was a further reference to ‘being all over the place, can’t control moody and temper – threatening to kill himself – rang patient he clarified that he did not say this he wanted to end what he was experiencing and not his life.’ It was queried whether it was depression.[32]In an occupational health report dated 5 July 2018, it was reported that the Claimant said he was struggling with both physical and psychological symptoms and on review of his medical records his thyroid function was noted. He was referred to Depression and Anxiety referral services The Claimant was also referred to occupational health. It was considered he was temporarily unfit for work.[33]On 11 July 2018 his medical notes recorded that things had improved.[34]On 27 July 2018, the Claimant saw his GP. He had been in contact with work and realised he was not very well. His wife had noticed during his time off glimpses of his old self. If anything challenged him he struggled. He wanted to trial anti-depressants. He was diagnosed with minor depression, which was said to be a new episode. The Claimant was prescribed Sertraline, an anti-depressant. This followed an outburst in which he had threatened a senior officer.[35]On 30 July 2018 in an occupational health referral, it was recorded that he was struggling with depression. References to unusual behaviour were made in that on two occasions he had threatened violence towards senior managers. It was queried whether this was related to his current condition and suggested that there was a need for thigs to be handled sensitively.[36]On 6 August 2018, Occupational Health reported that the Claimant felt he had not made the progress he expected, and his psychological symptoms remained exacerbated. He was temporarily unfit for work. The notes of the meeting recorded the Claimant as feeling emotionally low and not as robust as he would like. He was feeling irritable and exhausted and had an inability to tolerate anything around the home.[37]On 7 August 2018, blood tests were repeated for a thyroid function test, and his bloods were considered to be within a normal range. The Claimant’s prescription of Levothyroxine was continued, and he was required to have blood tests on an annual basis.[38]On 22 August 2018, the Claimant described to his GP that he had lost his temper recently. He did not think that the Sertraline was having any effect other than making him drowsy and giving him a headache. It was recorded ‘on reflection on some days has more fatigue than when he left job.’ There was a trial to stop the Sertraline.[39]On 18 September 2018, the Claimant spoke to a GP and said that ‘being moved to a different police dept, knocked his resilience, now no longer able to return to work.’ He was signed off work.[40]On 19 September 2018, the Claimant’s police representative e-mailed Sgt Bayliss and said that it was clear that the Claimant was not in a good place at the moment.[41]On 28 September 2018, occupational health reported that the Claimant said that the last few months were challenging but he felt he was now progressing well despite a few hiccups with treatment which appear to have settled. He was temporarily unfit for work. The notes said he reported elevated anxiety and his sleep was disrupted.[42]On 13 October 2018, his medical records recorded, ‘not in work, was going to be moved to another department. When told this simply closed down. Seems was given too much expectations too soon which knocked his confidence. Ruminating on meeting and angry about it.’ He was wondering about anti-depressants but had a bad reaction to Sertraline previously. He was diagnosed with work related stress.[43]In the occupational health report dated 29 October 2018, the Claimant was considered physically and psychologically fit to return to his role in public order.[44]On 9 November 2018, the Claimant reported to his GP ‘still feels tired, but feels good in self. Started using running machine. Every time he thinks about work or speaks to work struggles.’ It was observed ‘seems a dissonance between his perception of work and his experience of reality of work. Does not want to go back to work. Lost trust in superiors.’[45]After a request from the Claimant, Dr Douglas wrote a letter on 26 November 2018, outlining the earlier medical history. It was summarised that he had been experiencing a number of stresses through work. They manifested in some symptoms which lead to a diagnosis of depression, but he experienced side effects of the antidepressants. He had just commenced a prescription of Citalopram. Subclinical hypothyroidism had been found. The Claimant had differences between his ideas and expectations for his return to work and what he actually experienced. It was wondered whether counselling would help.[46]On 6 December 2018, the Claimant raised a grievance. he said he had suffered feelings of fatigue, exhaustion and irritability and had sought advice due to fatigue and symptoms of depression. On 23 July 2018, he was struggling to cope with anything going wrong, social interactions and situations and at that point he stopped leaving the house. In September 2018 he had been invited into work but did not feel up to socialising. In the meeting on 18 September 2018, he had tremors and found it hard to write. No further details of the effects on the Claimant were given.[47]In an occupational health report dated 26 February 2019, the Claimant was considered fit for work in the public order unit. He had made further progress psychologically.[48]On 20 December 2019 the Claimant’s dose of citalopram was increased.[49]The Claimant was signed off work between 24 April 2020 and 4 May 2020 and also between 21 May 2020 and 2 June 2020 for work related stress.[50]The Claimant handed in his resignation on 19 November 2020.[51]There were references in the Claimant’s medical records to fatigue, irritability and struggling to cope if things went wrong, but there were not any specific details. There was one specific example of acting out of character at the meeting in July 2018, which was evidence of difficulty with social interaction and that appeared to be continuing until September 2018, which was an effect on his day to day activities for that period. The Claimant had provided broad assertions without examples and I was otherwise not satisfied, on the balance of probabilities, that the Claimant had proved specific effects on day to day activities or when they occurred. The Claimant was also signed off as being unable to attend work, however the sick notes detailed the reason as stress at work. The Claimant was having difficulty with rationalising his perception of what should happen with the reality, there was no evidence that this was symptomatic of depression or hypothyroidism. The Claimant was unhappy with the situation at work. The medical report of Dr Douglas did not provide evidence as to the why the Claimant was signed off work. I was not satisfied, on the balance of probabilities, that he was signed off work due to his depression, rather that it was because that he found the work situation stressful and was dissatisfied with what was occurring and therefore did not feel able to return. The Claimant did not provide any other examples of things that he either could not do or had difficulty doing.
The Law
[52]Section 6 and Schedule 1 of the Equality Act 2010 define disability for the purposes of the Act. A person has a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person, or if it has ceased to have a substantial adverse effect it is to be treated as continuing to have that effect if it is likely to recur.[53]In addition, I considered the ‘Guidance on the Definition of Disability’ as required under Schedule 1, Part 1, paragraph 12.[54]The time at which to assess the disability is the date of the alleged discriminatory act (Richmond Adult Community College v McDougall [2008] ICR 431 (para 24) and Cruickshank v VAW Motorcast Ltd 2002 ICR 729, EAT).[55]In Goodwin-v-Patent Office [1999] IRLR 4, the EAT gave detailed guidance as to the approach which ought to be taken in determining the issue of disability. A purposive approach to the legislation should be taken. A tribunal ought to remember that, just because a person can undertake day-to-day activities with difficulty, that does not mean that there was not a substantial impairment. The focus ought to be on what the Claimant cannot do or could only do with difficulty and the effect of medication ought to be ignored for the purposes of the assessment.[56]The step approach in Goodwin was approved in J v DLA Piper UK LLP [2010] ICR 1052 (paragraph 40). It was said at paragraph 38, “There are indeed sometimes cases where identifying the nature of the impairment from which a Claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for the tribunal to park that issue and to ask first whether the Claimant's ability to carry out normal day-today activities has been adversely affected – one might indeed say “impaired” – on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from a condition which has produced that adverse effect — in other words, an “impairment”. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred.”[57]The EAT also said at paragraph 42 and 43 “42. The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at para 33(3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness—or, if you prefer, a mental condition—which is conveniently referred to as “clinical depression” and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or—if the jargon may be forgiven—“adverse life events”. We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians—it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case—and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the Claimant’s ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering “clinical depression” rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally longlived. 43. We should make it clear that the distinction discussed in the preceding paragraph does not involve the restoration of the requirement previously imposed by paragraph 1(1) of Schedule 1 that the Claimant prove that he or she is suffering from a “clinically well recognised illness”;…”[58]In cases involving mental impairments, it has been held that the use of terms such as ‘anxiety’, ‘stress’ or ‘depression’, even by GPs, would not necessarily amount to proof of an impairment, even if such terms, or similar, had been referred to as part of one of the World Health Organisation International Classification of Diseases (Morgan-vStaffordshire University [2002] IRLR 190 and J-v-DLA Piper UK LLP [2010] IRLR 936). In Morgan, at paragraph 20, it was said, “Whilst the words ‘anxiety’, ‘stress’ and ‘depression’ could be dug at intervals out of the copies of the medical notes put before the tribunal, it is not the case that their occasional use, even by medical men, will without further explanation, amount to proof of a mental impairment within the Act, still less as proof as at some particular time. Even GPs, we suspect, sometimes use such terms without having a technical meaning in mind and none of the notes, without further explanation, can be read as intending to indicate the presence of a classified or classifiable mental illness…”[59]The EAT in Morgan underlined the need for a Claimant to prove his or her case on disability; tribunals were not expected to have anything more than a layman's rudimentary familiarity with mental impairments or psychiatric classifications. The use of labels such as ‘anxiety’, ‘stress’ or ‘depression’ would not normally suffice unless there was credible and informed evidence that, in the particular circumstances, so loose a description nevertheless identified an illness or condition which caused the substantial impairment required under the statute.[60]Nevertheless, it is not always possible or necessary to label a condition, or collection of conditions. The statutory language always had to be borne in mind; if the condition caused an impairment which was more than minor or trivial, however it had been labelled, that would ordinarily suffice. In the case of mental impairments, however, the value of informed medical evidence should not be underestimated.[61]Appendix 1 to the EHRC Code of Practice of Employment states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment and not the cause. This endorsed the decision in Ministry of Defence v Hay [2008] ICR 1247.[62]Normal day-to-day activities included those which were normal for the particular Claimant as long as they were not specialised activities, as defined in paragraphs D8 and 9 of the Guidance. The correct approach involved a consideration of all matters, but particular attention had to be paid to those activities that the Claimant could not do (Leonard-v-Southern Derbyshire Chamber of Commerce [2000] All ER (D) 1327).[63]Substantial is defined in S.212(1) EqA as meaning ‘more than minor or trivial’.[64]In Goodwin v Patent Office 1999 ICR 302, EAT, the EAT set out its explanation of the requirement of substantial adverse effect as follows: “What the Act of 1995 is concerned with is an impairment on the person’s ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts.”[65]This approach reflects the advice in para 9 of Appendix 1 to the EHRC Employment Code that account should be taken not only of evidence that a person is performing a particular activity less well but also of evidence that ‘a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation’[66]In Aderemi v London and South Eastern Railway Limited [2013] ICR 591, the EAT held that the Tribunal “ has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”[67]It was clear from paragraph 2 of Schedule 1 of the Act that an impairment was long term if it had lasted for 12 months or more, or was likely to have lasted that long of the rest of the life of the Claimant. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as having that effect if it is likely to recur. As to the question of likelihood, I had to ask whether it could well happen (see Guidance, paragraph C3 and SCA Packaging Ltd v Boyle [2009] IRLR 746). It is also possible that the way in which a person can control or cope with the effects of an impairment may not always be successful (Guidance C9 and C10). I was also reminded of paragraph C2 and that the cumulative effect should be taken into account.[68]An impairment can vary in its effects over time, and it is a matter for the Tribunal, having regard to all the evidence, to consider whether it has been established that there has been a substantial adverse effect over the relevant period (Sullivan v Bury Street Capital Ltd UKEAT/0317/19/BA).[69]Likelihood of the effect lasting 12 months or more is to be assessed at the time of the alleged contravention as confirmed by the Court of Appeal in All Answers Ltd v W & R [2021] EWCA Civ 606 at paragraph 26: “The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. I note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.” Conclusions Was there an effect on the Claimant’s ability to carry out normal day to day activities?
Conclusions
[70]The burden of proof is on the Claimant to show that he is disabled. This required the Claimant to demonstrate that there was an effect on his ability to carry out day to day activities. Counsel for the Claimant submitted that the matters set out in the impact statement and witness statements, although assertions, are corroborated by the medical records. He relied upon the global picture that the Claimant was having problems and required medication to combat them. There were many references to tiredness, irritability, lack of motivation and struggling to cope, however the medical records were very scant in terms of the effects on day to day activities. There was corroborated evidence about acting out of character in July 2018 and that the Claimant was having problems with social interaction between July 2018 and September 2018. He was absent from work for a protracted period, however I did not conclude that it was due to depression or hypothyroidism. There was a lack of specific examples at the various material times as to how the Claimant’s day to day activities were affected. The focus must be on what the Claimant cannot do or can do with difficulty, however he did not set out what such things were. There was some effect on his ability to cope with things going wrong, lack of motivation and tiredness, but no evidence as to what the effect was on day to day activities. The Claimant’s expectation as to what should have happened at work and the reality were different and he was frustrated by this, however there was no evidence to suggest that this was related to depression or hypothyroidism. Were such effects substantial?[71]Substantial means, more than minor or trivial and this is a low threshold. It is also necessary to take away the effect of any medication. The Claimant was diagnosed with sub-clinical hypothyroidism and was given a low dose of thyroxine. His bloods returned to normal quickly. There was no medical evidence before the Tribunal that explained the effect of a low dose or whether his symptoms would have been any different beyond August 2018. The Claimant described his depression in June 2018 as mild and the diagnosis in July 2018 was for minor depression. He stopped taking Sertraline after about a month and he doubted that it was having any effect. He was started on Citalopram at the end of November 2018. The references in the medical records were that the Claimant struggled with things going wrong and when he thought or spoke about work. There was not any evidence to say what those struggles were. It was not possible to conclude, without some medical evidence, whether the antidepressant medication made any difference.[72]There was a lack of evidence as to the effects on the Claimant’s ability to undertaken normal day to day activities. The Claimant had been signed off work for work related stress. The Claimant was dissatisfied with what was occurring at work, but there was no evidence that the dissatisfaction was because of depressive or thyroid related symptoms. The outburst in July and lack of desire to socialise from then until September 2018 was something which was more than minor or trivial and it is notable that this effect had stopped prior to the prescription for citalopram. Otherwise, I was not satisfied that the Claimant had established that any effects were more than minor or trivial. Were such effects long term?[73]Whether effects are likely to last 12 months are to be assessed on the basis that it could well happen. The time for assessment is the time of the discrimination and the Tribunal is not entitled to take into account subsequent events to determine whether the impairment was likely to last at least 12 months. The Claimant’s witness statement spoke to his current situation and not the effects in the past. The vague references in his GP records did not assist to ascertain when any period of disability started. The outburst and difficulties with social interaction was for a period of 2 to 3 months. It is notable that the Claimant was considered fit for work in the occupational health report dated 26 February 2019. After being prescribed citalopram in November 2018, there was a lack of evidence as to any effects on the Claimant beyond December 2018. In the circumstances it was not possible to identify a 12 month period, during the material times, in which there was a substantial adverse effect on normal day to day activities.[74]The Claimant submitted that it was clear from the time of the outburst that the effect would be long term and referred to the need for medication showing that it could well happen that the effects would last for at least 12 months, I rejected that submission. The lack of examples and the categorisation of the symptoms as minor by the Claimant’s doctor were significant. Although a patient may be started on an antidepressant that does not mean that they will be taking it for a protracted period of time. The Claimant was suffering from work related stress. The outburst was an isolated incident and in the light of the diagnosis of subclinical or minor conditions I was not satisfied that it could well happen that the outburst and lack of social interaction would last at least 12 months. The Claimant failed to establish that at any stage during the material times, it could well happen that the effects of his conditions on normal day activities would last 12 months or more. Did the Claimant have an impairment which was either physical or mental?[75]The Claimant’s medical records referred to sub-clinical hypothyroidism and minor depression, however the medical certificates referred to stress at work. I was satisfied that the Claimant was experiencing minor mental impairments and minor physical impairments in terms of tiredness.
Conclusion
[76]The Claimant was unable to establish that any effects of his sub-clinical hypothyroidism and minor depression had more than a minor or trivial influence on his abilities to undertaken normal day to day activities, save to the limited extent in relation to the outburst and lack of social interaction. He failed to establish that any such effects lasted at least 12 months or were likely to last at least 12 months at any point during the material times. Accordingly, the Claimant failed to prove that he was disabled between July 2018 and December 2020.
Conclusion
[1]This Tribunal does not have jurisdiction to hear the claimant’s unfair constructive dismissal claim, and it is hereby dismissed; and[2]The claimant’s claim of victimisation was presented out of time, and it is hereby dismissed. RESERVED REASONS
Conclusion
[1]This is the judgment following a Preliminary Hearing to determine(i) whether this Tribunal has jurisdiction to hear the claimant’s unfair constructive dismissal claim on the basis that he was an officeholder and not an employee; and(ii) whether the claimant’s claims for constructive unfair dismissal and victimisation were presented within time.[2]I have heard from the claimant, and I have heard from Mr Zaman on behalf of the claimant. I have heard from Ms Gyane on behalf of the respondent. I find the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to any factual and legal submissions made by and on behalf of the respective parties.[4]The claimant worked for the respondent as a Police Officer from 4 November 2002 and was promoted to Police Sergeant. He resigned on 19 November 2020 and his engagement with the respondent terminated on 17 December 2020.[5]The claimant has presented two claims to this Tribunal. The first claim was under tribunal reference number 1402356/2020 and is referred to as the First Claim. The claimant alleged direct disability discrimination, discrimination arising from a disability, harassment related to disability, and detriment arising from protected public interest disclosures. The claimant had already first made contact with ACAS under the Early Conciliation provisions in connection with this First Claim on 9 April 2020 (Day A), and this certificate was issued on the same day 9 April 2020 (Day B) (“the First Certificate”). This First Claim was presented on 7 May 2020.[6]This claimant’s second claim was presented under reference 1401254/2021. This is referred to as the Second Claim. The claimant alleged victimisation, harassment related to disability, discrimination arising from disability, and unfair constructive dismissal, including on the automatically unfair grounds of having protected public interest disclosures. Before commencing the Second Claim, the claimant made contact with ACAS again on 19 January 2021 (Day A), and the second Early Conciliation certificate was issued on 2 March 2021 (Day B) (“the Second Certificate”). The claimant presented this Second Claim on 30 March 2021.[7]There was a Preliminary Hearing on 28 June 2021 at which the claimant was held not to have been a disabled person at the relevant times. The claims for direct disability discrimination, discrimination arising from disability, and harassment related to disability arising under the First Claim, and harassment related to disability, and discrimination arising from disability under the Second Claim were all accordingly dismissed. The claimant then withdrew his claims for both dismissal and detriment arising from protected public interest disclosures. These claims were also dismissed.[8]This meant that the First Claim had been dismissed in its entirety, but that there were two remaining claims under this Second Claim which the claimant wished to pursue, namely a claim for ordinary unfair constructive dismissal, and for victimisation. This hearing was listed to determine whether this Tribunal has jurisdiction to hear the ordinary unfair constructive dismissal claim, given that the claimant was a Police Officer and apparently excluded from the unfair dismissal provisions, and (if so) whether this claim, and in any event the victimisation claim, were presented out of time, and if so, whether time should be extended. Other relevant background facts are as follows.[10]There was a case management preliminary hearing in connection with the First Claim on 14 January 2021. The claimant was represented by Mr N Smith of Counsel. It became clear that the claimant had recently resigned and wish to present the Second Claim. The hearing was therefore postponed until such time as the Second Claim could be prepared and presented, and it was relisted for 26 March 2021.[11]Meanwhile the claimant was seeking confirmation from his home insurers that he qualified for legal expenses insurance, and that they would appoint solicitors and pay for professional representation. In addition, the claimant wished to retain Mr Smith of Counsel, and was prepared to contribute towards this expense. With effect from mid-February 2021 solicitors already been instructed by the claimant through its legal expenses insurers, and the claimant, his solicitors, and his Counsel were all aware of the potential Second Claim, not least because it had been discussed at the case management preliminary hearing on 14 January 2021. On 24 February 2021 Mr Smith of Counsel gave written advice to the claimant and suggested that his advice was forwarded to the solicitors “Pronto” and made it clear that they would be responsible for drafting the originating application for the Second Claim which needed to happen as soon as possible.[12]The Second Certificate was then issued on 2 March 2021, and on the following day the claimant’s solicitor confirmed to the claimant’s partner that she would commence drafting the originating application, and that she would advise on limitation. By return email dated 3 March 2021 the claimant’s partner confirmed their instructions to the solicitor to present the originating application “as we do not wish to run out of time”. They also wished Mr Smith of Counsel to look at the originating application “if that is possible”.[13]In advance of the relisted case management preliminary hearing on 26 March 2021, the respondent sent a detailed email letter on that day expressing surprise that the Second Claim had not been presented, even though it had been discussed as long ago as 14 January 2021. They also commented that the claim appeared to be out of time.[14]Despite this warning there was still further discussion between the claimant, his solicitors, and Counsel to finalise the originating application, which was eventually presented on 30 March 2021. It is also clear from the correspondence that the claimant’s solicitors were relying on an extension of time under the Early Conciliation provisions, based on the Second Certificate.[15]Having established the above facts, I now apply the law.[17]The first relevant statute is the Employment Rights Act 1996 (“the Act”).[18]Section 200(1) of the Act which relates to Police Officers provides: … Part X (except sections 100, 103A and 134A …) … do not apply to employment under a contract of employment and police service or to persons engaged in such employment.[19]Section 111(2) of the Act provides that an employment tribunal shall not consider a complaint of unfair dismissal unless it is presented before the end of the period of three months beginning with the effective date of termination, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[20]This is also a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges victimisation under section 27 of the EqA. The protected characteristic relied upon is disability, as set out in sections 4 and 6 of the EqA.[21]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three 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. Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.[22]With effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings.[23]Section 207B of the Act provides:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.[24]I have considered the following cases, namely: The Commissioners for HM Revenue and Customs v Serra Garau [2017] ICR 1121 EAT; Palmer and Saunders v Southend-on-Sea BC [1984] ICR 372; Dedman v British Building and Engineering Appliances [1974] 1 All ER 520; British Coal v Keeble [1997] IRLR 336 EAT; Robertson v Bexley Community Service [2003] IRLR 434 CA; Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640; Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT; Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA; Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23;[25]Jurisdiction - Unfair Constructive Dismissal Claim:[26]It was conceded on behalf of the claimant for the first time at this hearing that this Tribunal does not have jurisdiction to hear his claim for unfair constructive dismissal under sections 94(1) and 95(1)(c) of the Act. This is because the right to bring a claim for unfair dismissal under Part X of the Act specifically excludes Police Officers by virtue of section 200(1) of the Act. I agree with that concession. Accordingly, the claimant’s claim for unfair constructive dismissal is hereby dismissed. Jurisdiction - Claims Presented Out of Time:[28]Given that the claimant’s unfair constructive dismissal claim has now been dismissed, there is no need to determine whether or not that claim was presented within time.[29]The only remaining issue in connection with these proceedings is therefore whether this Tribunal has jurisdiction to hear the claimant’s remaining claim of victimisation. It was conceded today on behalf of the claimant that this claim was presented out of time, and the only live issue therefore is whether it would be just and equitable to allow an extension of time. Victimisation Claim - Presented Out of Time:[31]In this case the claimant resigned his employment on 19 November 2020 and his engagement with the respondent terminated on 17 December 2020. The claimant alleges that this was a constructive dismissal. This is the last act of alleged detriment arising under his victimisation claim as set out in paragraph 84 of his particulars of claim in his Second Claim. The normal time limit of three months therefore expired on 16 March 2021. The claimant had already first made contact with ACAS under the Early Conciliation provisions in connection with his First Claim on 9 April 2020 (Day A), and this certificate was issued on the same day 9 April 2020 (Day B) (“the First Certificate”). Before commencing the Second Claim, the claimant made contact with ACAS again on 19 January 2021 (Day A), and the second Early Conciliation certificate was issued on 2 March 2021 (Day B) (“the Second Certificate”). The claimant presented his Second Claim on 30 March 2021. This Second Claim was issued within one month of Day B under the Second Certificate, and therefore would be in time only if the claimant is entitled to rely on the Second Certificate.[32]However, it is clear from The Commissioners for HM Revenue and Customs v Serra Garau that the claimant is not entitled to rely on the Second Certificate which is in effect voluntary, and the only relevant ACAS Early Conciliation Certificate is the First Certificate. This predated the date of termination of the claimant’s engagement on 17 December 2020 and the claimant does not enjoy any extension of time by reason of that First Certificate. The normal time limit of three months therefore expired on 16 March 2021. The claimant presented this Second Claim on 30 March 2021 which was two weeks out of time.[33]The grounds relied upon by the claimant for suggesting that it would be just and equitable to extend time for presentation of the claim remain opaque. The claimant says that he was suffering from stress at the relevant times. However, the claimant has adduced no medical evidence to support any contention (if there be one) that he was precluded by illness from presenting the claim within time. I therefore reject any such assertion as giving rise to any reason that it would be just and equitable to extend time.[34]The more likely reason relied upon is the negligent advice of his solicitors to the effect that he was entitled to rely on the Second Certificate as extending the time within which he could present these proceedings, which as noted above, applying The Commissioners for HM Revenue and Customs v Serra Garau, is wrong in law. However, on closer examination of the chronology at the time, the claimant was not precluded from issuing these proceedings within time by any such negligent advice. In the Case Management Hearing dated 14 January 2021 at which the claimant was represented by Counsel it was agreed that the claimant would present the Second Claim which would be fully particularised. On 24 February 2021 Mr Smith of Counsel advised the claimant and his partner that the claimant’s solicitors should draft the originating application for the Second Claim as soon as possible. The claimant’s solicitors received the Second Certificate on 2 March 2021. On 3 March 2021 the claimant’s partner instructed the solicitors to submit the originating application “as we do not wish to run out of time”. On 11 March 2021 the claimant and his wife complained to their solicitors that they were becoming concerned about the timescales around the presentation of the claim and asked for an update. All of these events were within the limitation period for the Second Claim and any of the claimant, his solicitors, or his Counsel (if instructed to do so which is by no means clear) could have presented a simple holding originating application in order to preserve time. They did not do so. In addition, the Second Claim had not been presented before the case management preliminary hearing which took place on 26 March 2021, even though it was the relisted hearing which had been postponed from 14 January 2021 to allow the claimant time to do so. It is clear that during the next two weeks of so the Second Claim was prepared and then presented pursuant to the advice of the claimant’s solicitors that the time limit expired on 31 March 2021 (which was of course wrong advice because it relied on the Second Certificate which was ineffective).[35]I have considered the factors in section 33 of the Limitation Act 1980 which is referred to in the Keeble decision. For the record, these are the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the parties cooperated with any request for information; the promptness with which the claimant acted once the facts giving rise to the cause of action were known; and the steps taken by the claimant to obtain appropriate professional advice.[36]However, it is clear from the comments of Underhill LJ in Adedeji, that a rigid adherence to such a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. He observed in paragraph 37: “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.”[37]This follows the dicta of Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraphs 18 and 19: “[18] … 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 the circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list … [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).”[38]It is clear from the following comments of Auld LJ in Robertson v Bexley Community Service that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard: "It is also important to note that 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". These comments have been supported in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA.[39]In addition, per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan (at the EAT) before the Employment Tribunal will extend time under section 123(1)(b) it will expect a claimant to be able to explain firstly why the initial time period was not met and secondly why, after that initial time period expired, the claim was not brought earlier than it was.[40]However, As Sedley LJ stated in Chief Constable of Lincolnshire Police v Caston at paragraphs 31 and 32: “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. This has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that the limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact sound judgement, to be answered case-by-case by the tribunal of first instance which is empowered to answer it.”[41]It is the case that the delay in issuing proceedings was only about two weeks and the respondent has not made the case that the cogency of its evidence would have been affected by this delay. Nonetheless, the difficulty for the claimant in this case is that there were simply no barriers to this Second Claim being prepared and presented within the relevant limitation period. The claimant had obtained funding for this claim from his home insurers. He had engaged professional representation, both solicitors and Counsel, who were advising him at the time. He was aware of the potential claim because it was discussed at the hearing on 14 January 2021. The claimant had instructed his advisers to prepare and present the claim, and they did not do so in time. Applying Robertson v Bexley Community Service, 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. The burden of so doing is on the claimant, and in this case he has not satisfied me that it would be just and equitable to extend the time for presenting the Second Claim, and accordingly it is dismissed.[42]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 13; a concise identification of the relevant law is at paragraphs 16 to 23; and how that law has been applied to those findings in order to decide the issues is at paragraphs 25 to 41.