K Tuffney v South Central Ambulance Service NHS Foundation Trust: 1402689/2022
EMPLOYMENT TRIBUNALS
Case No 1402689/2022
Between
K TuffneyClaimantSouth Central Ambulance Service NHS Foundation TrustRespondent
Before
Employment Judge HousegoIn person for claimantDate 3 August 2023
JUDGMENT
[1]It was reasonably practicable for the Claimant to present her claim for unfair dismissal within the time limit and it is struck out.[2]It is not just and equitable to permit the Claimant’s discrimination claim, submitted outside the time limit, to proceed and it is struck out.
REASONS
[1]The Case Management Order calling this hearing stated that it was either an application to strike out or a preliminary hearing to decide whether to extend time for the claims, it being clear that they were presented outside the three-month time limit. It seemed to me that this was better set out as a preliminary hearing to decide that issue. This does not affect the way the hearing was conducted. I set out the issue for the Claimant, who then gave evidence. Both parties made submissions, and I gave an ex tempore judgment. Full reasons are required, as after I delivered that judgment the Respondent said that a written costs application would follow, and the judgment might be relevant to that application. Law[2]A claim for unfair dismissal must be presented within 3 months of the effective date of termination1, extended in a variety of ways by the requirement to obtain an Early Conciliation Certificate from Acas before filing a claim. What the extension is depends on when the notification is given by the Claimant and when the certificate is issued2. If not so filed, time may be extended for such further time as is reasonable, but only if it was not reasonably practicable for the claim to have been filed in time.[3]General guidance for the parties about the approach of the Tribunal in such cases (not all will be applicable) is: The test for extending time has two limbs to it, both of which must be satisfied before the Tribunal will extend time:• first the Claimant must satisfy the Tribunal that it was not reasonably practicable for the complaint to be presented before the end of the three-month primary time limit;• if the Claimant clears that first hurdle, she must also show that the time which elapsed after the expiry of the three-month time limit before the claim was in fact presented was itself a 'reasonable' period.[4]Hence, even if the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the three-month time limit, if the period of time which elapsed after the expiry of the time limit was longer than was 'reasonable' in the circumstances of the case, no extension of time will be granted.[5]As regards the first limb of the test, it is quite difficult to persuade a Tribunal that it was 'not reasonably practicable' to bring a claim in time. A Tribunal will tend to focus on the 'practical' hurdles faced by the Claimant, rather than any subjective difficulties such as a lack of knowledge of the law, an ongoing relationship with the employer or the fact that criminal proceedings are still pending. The principles which tend to apply are:• section 111(2)(b) ERA should be given a liberal construction in favour of the employee• it is not reasonably practicable for an employee to present a claim within the primary time limit if he was, reasonably, in ignorance of that time limit• however, a Claimant will not be able to successfully argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal, if he has consulted a skilled adviser, even if that adviser was negligent and failed to advise him correctly 1 Employment Rights Act 1996 S 111 Complaints to employment tribunal.(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) 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. 2 S207B of the Employment Rights Act 1996.• there may be exceptional circumstances where that principle may not apply, namely where the adviser's failure to give the correct advice about time limits is itself reasonable, for example, where both the Claimant and the adviser have been misled by the employer as to some material factual matter such as the date of dismissal• where a claimant has consulted skilled advisers, such as solicitors, the question of reasonable practicability is to be judged by what he could have done if he had been given such advice as they should reasonably in all the circumstances have given him• the question of reasonable practicability is one of fact for the Tribunal, and should be decided by close attention to the particular circumstances of the particular case• a Claimant can rely on failure to act in reliance on advice from, for example, Tribunal employees or government officials. In DHL Supply Chain Ltd v Fazackerley [2018] UKEAT 0019_18_1004 the EAT held that the Employment Tribunal did not err in finding that it was not reasonably practicable for the claimant to have brought proceedings in time when he relied on incomplete advice from Acas that he should exhaust an internal appeal process first before considering starting a Tribunal claim• it is not reasonably practicable to bring a claim if a Claimant is unaware of the facts giving rise to the claim. However, once they have discovered them, a Tribunal will expect them to present the claim as soon as reasonably practicable, rather than allowing three months to run from the date of discovery• if a Claimant knows of the facts giving rise to the claim and ought reasonably to know that they had the right to bring a claim, a Tribunal is likely not to extend time. If the Claimant has some idea that they could bring a claim but does not take legal advice, a Tribunal is even less likely to extend time• if a letter is posted by first class post, it is reasonable to assume that it will be delivered two days later (excluding Sundays and Bank Holidays). If it is not, a Tribunal is likely to extend time. However, the onus is on the Claimant to ensure that it does arrive in time: he must take all reasonable steps to check. Claimants' representatives should therefore always make a note of when they would expect to receive a response from the Tribunal (or Acas) and to chase if it has not been received• if an employee makes a mistake on a claim form which means that it is rejected by an Employment Tribunal (such as incorrectly stating the early conciliation certificate number) and thereafter the time limit for the claim expires while he is labouring under the misunderstanding that he has not made a mistake, that misunderstanding—provided it is reasonable in the circumstances—may justify an extension to the time limit on the basis that it was not reasonably practicable for him to have brought the claim in time• where an error on the part of solicitors leads to an initial employment tribunal claim being rejected and a corrected resubmitted second claim being presented out of time, in deciding whether it was ‘not reasonably practical’ for the resubmitted claim to be presented in time, the Employment Tribunal must assess the reasonableness of the solicitors’ original error. This involves taking into account all the circumstances (eg in North East London NHS Foundation Trust v S M Zhou UKEAT/0066/18/LA the claimant had completed her own ET1 form to save costs and her solicitors did not spot her error in respect of the early conciliation certificate number) and a recognition that not every omission, however technical, is unreasonable. In accordance with the principle in Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 CA: ◦ if the error which led to the first claim being rejected was reasonable, and the claimant and her solicitors thereby believed a valid claim had been presented in time, the Tribunal may find that it was not reasonably practicable to present the second claim in time, however ◦ if the error on the part of the solicitors was not reasonable, then the claimant is bound by their error, and it would have been reasonably practicable for the claim to have been presented in time[6]If the first limb of the test is satisfied, the Claimant must then satisfy the second as well: even if a Tribunal concludes that it was not reasonably practicable for a Claimant to present the claim within the three month time limit (or extended period where the requirement for early conciliation applies) no extension of time will be granted unless the claim was presented within a 'reasonable' time (judged according to the circumstances of the case) thereafter.[7]If a Tribunal concludes that the extent of the delay between expiry of the primary three-month limitation period (or extended period where the requirement for early conciliation applies) and the date the claim was presented was objectively unreasonable, the fact that the delay was caused by the Claimant’s advisers rather than by the Claimant makes no difference, and hence a time extension will be refused.[8]The law is clearly set out by Eady J in Paczkowski v Sieradzka (Jurisdictional Points: Extension of time: reasonably practicable) [2016] UKEAT 0111_16_1907 at paragraphs 18-22, and I have applied it. The essence is that the issue of reasonable practicability is largely one of fact and falls to be determined on the particular circumstances of the case.[9]The test for discrimination claims (which have the same time limit) is whether it is just and equitable to extend time to permit the claim to proceed3. There is a similar extension of time for the Acas early conciliation procedure.[10]I have considered the case law summarised and explained in Robinson v Bowskill & Ors (p/a Fairhill Medical Practice) (Jurisdictional Points : Claim in time and effective date of termination) [2013] UKEAT 0313_12_2011 and the factors in section 33 of the Limitation Act 1980 which is referred to in the BCC v Keeble [1997] IRLR 336, cited in Robinson. 3 S123 Equality Act 2010 Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.[11]The most recent Court of Appeal guidance is in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23: “37. The first concerns the continuing influence in this field of the decision in Keeble. This originated in a short concluding observation at the end of Holland J's judgment in the first of the two Keeble appeals, in which the limitation issue was remitted to the industrial tribunal. He said, at para. 10: "We add observations with respect to the discretion that is yet to be exercised. Such requires findings of fact which must be based on evidence. The task of the Tribunal may be illuminated by perusal of Section 33 Limitation Act 1980 wherein a check list is provided (specifically not exclusive) for the exercise of a not dissimilar discretion by common law courts which starts by inviting consideration of all the circumstances including the length of, and the reasons for, the delay. Here is, we suggest, a prompt as to the crucial findings of fact upon which the discretion is exercised." The industrial tribunal followed that suggestion and, as we have seen, when there was a further appeal Smith J as part of her analysis of its reasoning helpfully summarised the requirements of section 33 (so far as applicable). It will be seen, therefore, that 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 tribunals' approach to decisions under section 123 (1) (b). I do not regard this as healthy. Of course the two discretions are, in Holland J's phrase, "not dissimilar", so it is unsurprising that most of the factors mentioned in section 33 may be relevant also, though to varying degrees, in the context of a discrimination claim; and I do not doubt that many tribunals over the years have found Keeble helpful. But rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language (as occurred in the present case – see para. 31 above). 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 (as Holland J notes) "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.” 38.I am not the first to caution against giving the decision in Keeble a status which it does not have. I have already noted the Judge's reference to the decision of this Court in Afolabi. At para. 33 of his judgment in that case Peter Gibson LJ said: "Nor do I accept that the ET erred in not going through the matters listed in s. 33 (3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a check-list … in many cases, I do not think that it can be elevated into a requirement on the ET to go through such a list in every case, provided of course that no significant factor has been left out of account by the ET in exercising its discretion." In Department of Constitutional Affairs v Jones [2007] EWCA Civ 894, [2008] IRLR 128, Pill LJ at para. 50 of his judgment referred to Keeble as "a valuable reminder of factors which may be taken into account" but continued: "Their relevance depends on the facts of the particular case. The factors which have to be taken into account depend on the facts and the self-directions which need to be given must be tailored to the facts of the case as found." That point was further emphasised by Elisabeth Laing J, sitting in the EAT, in Miller v Ministry of Justice [2016] UKEAT 0004/15: see paras. 11 and 29-30 of her judgment. In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194, Leggatt LJ, having referred to section 123, says, at paras. 18-19 of his judgment: "18. … [I]t is plain from the language used ('such other period as the employment tribunal thinks just and equitable') that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see [Keeble]), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see [Afolabi]. …[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)." Although the message of those authorities is clear, its repetition may still be of value in ensuring that it is fully digested by practitioners and tribunals.” 12. In Owen v Network Rail Infrastructure Ltd EA-2022-000609-JOJ, heard on 27 June 2023 and promulgated on 01 August 2023, Auerbach J held that the absence of an explanation did not mean that overall it might still be just and equitable to extend time in a discrimination case. This means that it is not a precondition of the just and equitable consideration that an explanation must be given. 13. I have also taken note of the judgment of Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 (again cited in Robinson): "25. 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”. Chronology 1. In this case: 1.1. The Claimant resigned on 31 March 2022 by email with immediate effect. 1.2. The Acas early conciliation process started on 14 April 2022. 1.3. The Acas certificate is dated 11 May 2022. 1.4. The claim form was lodged on 19 August 2022. 2. The three-month period, without the Acas early conciliation period, would have ended on 30 June 2020. 3. The Acas early conciliation period “stops the clock” in a variety of ways, depending on when that period occurs during the standard three-month period. 4. In this case the period was wholly within those three months, and so the number of days in the Acas early conciliation period is added on to the end of the standard period. 5. That is 27 days. 6. 30 June 2020 plus 27 days is 27 July 2022. 7. The claim form was lodged on 19 August 2022, and so was was lodged over three weeks out of time. Late filing of the claim – Claimant’s explanation and findings of fact and observations on it 8. Ms Tuffney’s witness statement, which she adopted in oral evidence says: 8.1. On 01 May 2022 she was invited to take part at Bishops Walton Fayre as a part of her dog training business, and that took a lot of time and mental effort. (Her claim form states that she started this business in May 2021.) 8.2. On 10 May 2022 she joined a pain clinic zoom course which took place every Wednesday from 11 May 2022 to 06 July 2022. 8.3. On 18 May 2022 she attended a meeting about her application for universal credit, which had been refused. 8.4. On 11 June 2022 she was supporting a dear friend whose dog had died, it being bred from her own (late) dog. 8.5. On 02 July 2022 she had to cancel the dog training class by reason of ill health and call in sick at the care company where she was due to work. 8.6. She was not able to return to work until 13 July 2022, but was still feeling unwell. 8.7. After 14 July 2022 she was unable to run her dog training classes as it was too hot. This was stressful as she felt she was letting people down, and as she was not earning this added financial pressure. 9. In her oral evidence Ms Tuffney said that she had financial pressures and needed to work, which meant running her dog training classes and training for her care job, including shadowing shifts and working there. 10. Ms Tuffney accepts that for the whole period, apart from when it was, she decided, too hot to do so she was running dog training classes. 11. Ms Tuffney tried to set up a website for her business during this period. She found that too difficult to accomplish, but the point is that while she was doing that she could have been putting in her claim. 12. Ms Tuffney accepts that for almost the whole time she was working at a care home. Her claim form states that she started work there on 08 April 2022. 13. There is no medical evidence of any medical reason affecting Ms Tuffney’s ability to file an Employment Tribunal claim. Ms Tuffney says that by reason of her conditions she gets very tired and is unable to work a full day and for some of the time was affected by Covid-19. She does not say that any medical condition stopped her from lodging her claim at any time. Nothing changed between her leaving work for the Respondent and the filing of the claim. 14. Ms Tuffney does not say that she was wrongly advised about time limits. 15. Ms Tuffney accepts that the letter from Acas sending the early conciliation certificate has in bold type in a larger font and in a different colour the warning that there are time limits, and it is for the claimant to check what they are. Ms Tuffney accepts that she should have done so. She said that she could not afford legal advice, but accepted that she did not, and could have, asked the Citizens Advice Bureau. She has a computer and internet access, and she accepted that there was no reason why she could not have done an internet search for “Employment Tribunal time limit” or similar which would have been the work of a moment and immediately provided the information. 16. The Respondent made efforts to persuade Ms Tuffney to change her mind about resignation at a meeting on 11 April 2022, but that was well before the expiry of the time limit, and Ms Tuffney had no intention of returning, and so that was not the cause of any delay. 17. Ms Tuffney was not able to offer any clear reason why she lodged her claim when she did: there was no particular trigger for her to do so. She got round to it after she visited her aunt on the occasion of her aunt’s birthday and her aunt urged her to get on with it. Late filing of the claim for unfair dismissal discrimination claim 18. The essence of what Ms Tuffney says is that she was too busy with other things to get round to her claim. 19. She was at work at the care home most of the three-month period.[20]She was running dog training classes almost all of the three-month period, and when she was not, because of the heat, she could have used that time to fill in the claim form. She stopped her dog training classes on 02 July 2022, which was well within the limitation period.[21]The attempt by the Respondent to persuade Ms Tuffney to stay is not relevant because she was determined to leave and because it was long before the expiry of the limitation period.[22]Ms Tuffney had Employment Tribunal proceedings in mind by 14 April 2022, because that was when the Acas early conciliation period started: she approached Acas solely about the prerequisite of the Acas early conciliation certificate for starting a claim. She accepted that this was the case.[23]Ms Tuffney may well have issues with tiredness arising from medical conditions, but they do not preclude her from all sorts of activity. Some of the effort that went into her work could have gone into lodging the claim.[24]Perhaps the clearest example of that was when Ms Tuffney cancelled her dog training classes in July 2022, before the expiry of the limitation period. She then had free time when she could have put in her claim.[25]The Acas period ended on 11 May 2022 and the claim was issued on 19 August 2022. That is over three months after the end of the early conciliation period.[26]There is no adequate explanation for the delay. It was reasonably practicable for Ms Tuffney to have devoted time to filing a claim. She handwrote her claim form, and it is in narrative form. It is not that there was any technical difficulty for her. It was reasonably practicable for her to have lodged her claim within the limitation period.[27]Accordingly, I dismiss the claim for unfair dismissal. Late filing of the discrimination claim[28]The Tribunal has an obligation to be fair to both parties. The long and the short of this claim is that Ms Tuffney just did not get round to putting in her claim, as she was too busy with other things.[29]In assessing whether to extend time for a discrimination claim the effect on the Claimant of the events complained about is relevant. That Ms Tuffney did not give the bringing of a claim priority over, for example, going to Bishops Walton Fayre does not suggest any great degree of anguish over her treatment by the Respondent. I put this to Ms Tuffney who did not disagree.[30]The timing of the resignation indicates that Ms Tuffney resigned when it was pointed out to her that her flexible working request, based on not being able to work before 2pm for medical reasons, was not consistent with the dog training classes which she was running commercially at 11am. This is not a strong claim. It is fair to add that Ms Tuffney says that she could manage an hour’s dog training course at 11:00, but not 6 or 8 hour shift at the Respondent.[31]Time for the claim for failure to provide auxiliary aids runs, on Ms Tuffney’s own account, from 02 February 2022 and so that is about three months out of time, for which no clear explanation was given, and I can see no reason why it is just and equitable to extend time for that claim.[32]From the facts set out above it cannot be just and equitable to extend time for the presentation of any part of the discrimination claim. Accordingly, I dismiss that claim also. Costs[33]Having delivered an ex-tempore judgment, Ms Casseley said that there would be a written application for costs. She was content for that to be determined on the papers.[34]I told Ms Tuffney that she would be sent that application and she should respond to it, sending that response to the Tribunal and to the Respondent. I said that I expected that the Respondent would refer to letters it had sent to her. When she responded she should comment on any letters she had received from the Respondent about costs. As there is discretion as to the amount of a costs order, should one be made, Ms Tuffney might wish to add detail of her financial circumstances.[35]Ms Tuffney also wished the costs application to be determined on the papers.[36]I note that the time point was an obvious one to take, but that the Grounds of Resistance goes into detail about the merits or otherwise of the claims made. If the Respondent seeks to make a claim for the entire cost of preparing the Grounds of Resistance it should deal with the point that this could easily have been raised as a preliminary jurisdictional matter, asking for a preliminary hearing and for leave to amend the Grounds of Resistance to deal with the merits if the case were permitted to proceed. My preliminary view is that would have been the way to adhere to the overriding objective.
Background
[39]Ms Mc Cafferty submitted that her client's liability for the costs was limited, as a matter of the construction of rule 14, by a requirement that the costs in issue were "attributable to" specific instances of unreasonable conduct by him. She argued that the tribunal had misconstrued the rule and wrongly ordered payment of all the costs, irrespective of whether they were "attributable to" the unreasonable conduct in question or not. The costs awarded should be caused by, or at least be proportionate to, the particular conduct which has been identified as unreasonable.[40]In my judgement, rule 14 (1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by Mr McPherson caused particular costs to be incurred. As Mr Tatton-Brown pointed out, there is a significant contrast between the language of rule 14(1), which deals with costs generally, and the language of rule 14(4), which deals with an order in respect of the costs incurred "as a result of the postponement or adjournment." Further, the passages in the cases relied on by Ms McCafferty ( Kovacs v. Queen Mary & Westfield College [2002] IRLR 414 at para 35 Lodwick v. London Borough of Southwark [2004] EWCA Civ 306 (at paras 23-27) and Health Development Agency v. Parish EAT/0543/03, BAILII: [2003] UKEAT 0543_03_2410, LA at para 26-27) are not authority for the proposition that rule 14(1) limits the tribunal's discretion to those costs that are caused by or attributable to the unreasonable conduct of the applicant.[41]In a related submission Ms McCafferty argued that the discretion could not be properly exercised to punish Mr McPherson for unreasonable conduct. That is undoubtedly correct, if it means that the indemnity principle must apply to the award of costs. It is not, however, punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct. As I have explained, the unreasonable conduct is a precondition of the existence of the power to order costs and it is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order. 8. For a costs order: 1. there is nothing in the wording of the ET Rules to limit the costs that may be awarded by an employment tribunal to those costs incurred at a particular stage of the proceedings or indeed to costs incurred after they have begun 2. the Tribunal's discretion to award costs where a party has conducted the proceedings in an unreasonable way is not limited to those costs that are caused by, or attributable to, the unreasonable conduct of that party 3. the Tribunal is not required to identify the particular costs caused by particular conduct; rather it should look at the whole picture of what happened in the case and the effects of such conduct 4. the conduct of the litigation by the party applying for the costs order can be taken into account 5. the conduct of a claimant in rejecting a ‘Calderbank’ type offer of settlement can be taken into account, provided the claimant is found to have been unreasonable in rejecting the offer 1 All the guidance is taken from LexisNexis PSL, and I acknowledge its derivation. Not all of it is relevant to this case, but it is helpful as it sets out the principles overall, which gives context. 6. although the CPR2 do not apply directly to Employment Tribunal proceedings, Tribunals should exercise their powers under the ET Rules in accordance with the same general principles which apply in the civil courts, but they are not obliged to follow the letter of the CPR in all respects. 9. Costs orders are not to be imposed for punitive reasons, and the Tribunal is entitled, but not obliged, to consider the ability of the paying party’s ability to pay. It should give reasons. The application and response 10. The costs application is full, and it is reproduced in the Schedule to this Judgment. I record that it is factually accurate, and the legal principles set out are also accurate. What that letter says about the correspondence between the parties is also accurate, as I have checked the contents of the letter against the original documents, copies of which were provided to me by the Respondent. 11. The Claimant responded on 21 September 2023, attaching documents: “I write in response to the costs application to defend and appeal any costs being issued to myself in relation to this case. I have attached supporting documents including an income and expenditure form (Issued to me by the Citizens Advice Bureaux) and bank statements. I would be grateful if this can be forwarded for Employment Judge Housego's attention. Apologies for any delay sending this across to you but I needed to liaise with the Citizens advice Bureaux and the earliest appointment I could get was 20/09/23.” 12. The Respondent then wrote to the Tribunal (and to the Claimant) on 04 October 2023: “We write further to the Claimant's email below and evidence attached, relating to the Respondent's costs application. Having now reviewed the Claimant's evidence, consisting of her bank statements for account number ending 857 and her Personal Budget Sheet, we would raise the following points:
Background
Background
[1]Whilst the Claimant has included figures for rent and other household bills on her Personal Budget Sheet, we cannot see that those outgoings are evidenced by the screenshots of her bank statement. We would ask the Claimant to either identify these payments on the screenshots below, or confirm whether she has another bank account from which these payments are made, and if so to provide copies of those bank statements also.[2]Additionally, the income the Claimant appears to be receiving from her dog training business, "Kazzis Cosmic K9", is evidenced on her bank statements but is not separately listed on her Personal Budget Sheet, which references state benefits as her only income. We would ask the Claimant to confirm whether, in addition to her benefits, she also receives £250-£260 per month from her dog training business. 2 Civil Practice Rules To allow the Tribunal to determine the application for costs as swiftly as possible, we would ask the Claimant to provide this evidence to us and the Tribunal by no later than 18 November 2022. We have copied the Claimant into this email.[13]It appears that no action was taken by the Tribunal about the application and the Respondent wrote again on 24 January 2024: “We write further to the thread of emails below and in relation to the Respondent's outstanding application for costs from the Claimant, attached. On 4 October 2023, we notified the Tribunal of two discrepancies we had identified between the Claimant's financial evidence and her Personal Budget Sheet, provided by her on 21 September 2023. We asked that the Claimant provide clarification on these issues and her financial circumstances by no later than 18 November 2023. The Claimant has not replied to this request to date. As set out in the Respondent's costs application attached, the Tribunal is not obliged or required to consider the Claimant's ability to pay when determining a costs application: Rule 84 of the Employment Tribunal Rules of Procedure 2013 states this "may" be considered. This was confirmed by the case of Jilley v Birmingham & Solihull Mental Health Trust UKEAT/0584/06. We would ask that the Claimant respond to this email before 31 January 2024, clarifying the discrepancies identified in our email below and providing any further relevant financial evidence. If that is not received by then, on the basis that the Claimant has to date failed to provide a complete and accurate picture of her financial circumstances, we submit that the Tribunal should disregard the Claimant's evidence provided on 21 September 2023 and determine the Respondent's application without taking into account her ability to pay, as it is permitted to do. We have copied the Claimant into this email.”[14]The Claimant further responded on 06 March 2024: “Please find attached further screen shots of the proof requested. August and September rent payments, I used my credit card for one transaction, please see screen shot Proof of my business account Universal credit statements I do not have other ‘work’ my dog training business is the only work I do (currently signed off) Please also see highlighted on the screenshots proof of payments for the bills” Decision and reasons[15]The Judgment is as the basis predicted by the Respondent in its costs warning letter to her dated 19 July 2023.[16]The essence of the Claimant’s explanation for filing her claim out of time was that she was too busy doing other things and was unwell.[17]The first of these reasons is merely to say that the claim was lower in her list of priorities than the things she was doing. The second is not backed by any medical evidence and is contradicted by the fact that she was well enough to do other things.[18]This was spelled out to her in the Respondent’s letters to her about costs, dated 19 July 2023. That letter, which followed a Case Management Hearing on 15 June 2023, set matters out fully. That letter urged the Claimant to seek advice about the contents of the letter and signposted her to the Citizens Advice Bureau for free advice and included a hyperlink (it was sent by email) to make it very easy for her to seek that advice.[19]The Claimant did not seek advice. She replied on 25 July 2023 stating: “It is in my view that I do have a good chance of succeeding this case. My claims were out of time but as stated in my witness statement I had a number of issues I was dealing with at the time.”[20]This failed to address the points clearly made in the costs warning letter, and as the Respondent points out this made matters worse for the Claimant as she accepted that her claims were out of time and indicated that the reason was that she was busy with other things. It is fair to say that she added: “Even though I was able to undertake several activities, mainly starting a new job, trying to build on my business and setting up with universal credit, as you are aware I do suffer with significant health conditions which are chronic and long term.” However, these do not undermine the two points above – she was not so ill that she could not start a new job, and she was spending time and effort on a new business.[21]The Respondent followed this by a clear email of 26 July 2023 setting out that costs would be claimed. It pointed out that: “…it was not ours or our client's intention to place undue pressure on you with the 'drop hands' offer. It was necessary to make you aware of my client's intentions should your claims not succeed on time points, and inform you of the likely costs involved. The offer was advanced as a way of you avoiding the risk of our costs being awarded.”[22]The Claimant’s claims never had any chance of succeeding. The Claimant accepted that they were filed out of time. There was no way that it could be argued that it was not reasonably practicable for the claim for unfair dismissal to be filed before the time limit expired. The Judgment sets out the factual matrix. It was bound to be dismissed as out of time. The disability discrimination claim has a different test, but it was never going to be just and equitable to extend time in the circumstances set out in the Judgment.[23]In addition, the claims themselves were weak, as set out in the Judgment.[24]In summary the claims had no prospect of success, and it was unreasonable to pursue claims which were clearly out of time with no rational argument as to why time should be extended.[25]Therefore, I must consider making an order for costs.[26]The Claimant gave much documentation about her means, but it is opaque. There are multiple screen shots, but they are partial. There are other bank statements and an assertion that she is in receipt of universal credit, but nothing to show how much and from when. It appears that she rents her home, but I could discern nothing about her family circumstances (such as whether her living expenses are met in whole or in part by another). Despite providing much documentation it is not possible to form a clear picture of her economic circumstances.[27]In any event, the facts of this claim are so stark that a costs order is warranted because of the way the Claimant has acted. The Respondent had no choice but to defend the claims and should not have had to do so having pointed out in clear terms why they must fail.[28]As to the amount of a costs order, the point I made in the Judgment about taking the time point first is immaterial to the amount of a costs order because the order sought is of only just over a quarter of the costs incurred by the Respondent. Had it been a relevant point I would have accepted what the Respondent says about it.[29]The costs claimed are modest (not to the Claimant, I appreciate) in the context of the total costs incurred. The total costs incurred were not excessive.[30]While recovery may well be an issue for the Respondent, that is not a reason of itself to limit the costs order.[31]The amount sought is clearly explained in the costs application and it is reasonable amount in the circumstances of this claim. I see no reason to order a lesser figure, and every reason to award the amount claimed, £4,305.48 and so order the Claimant to pay that sum to the Respondent. Schedule – costs application [note: copying the text has altered the format somewhat.] Our Ref: HAT002-2108761 Claim Number: 1402689/2022 13 September 2023 Employment Judge Housego Bristol Employment Tribunal Bristol Civil and Family Justice Centre 2 Redcliff Street Bristol BS1 6GR Dear Judge, Karen Tuffney -v- South Central Ambulance Service NHS Foundation Trust Claim No. 1402689/2022 Application for a Costs Order pursuant to Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("the Rules") We write on behalf of the Respondent to make an application pursuant to Rule 76 of the Rules for an order for the Respondent’s costs incurred in defending the Claimant's unfair dismissal and discrimination claims (limited to £4,305.48) on the grounds that: 1. the Claimant acted unreasonably in bringing the proceedings (Rule 76(1)(a) and the Claimant's conduct in proceedings were unreasonable; and 2. the claims had no reasonable prospect of success (Rule 76(1)(b) as the claims were issued outside the limitation period for the respective claims, as found by the Tribunal at the conclusion of the preliminary hearing of this case on 3 August 2023, and as detailed in the judgment and written reasons sent to the parties on 18 August 2023 (the “Judgment”). In summary our application and reason it should be allowed is:
Background
Background
Background
[1]The Claimant acted unreasonably in bringing the proceedings out of time in circumstances where she was "too busy with other things to get round to her claim" [para 18 of the Judgment] and where there was "no adequate explanation for the delay" [para 26 of the Judgment]. Further, the Claimant’s conduct in proceedings has been unreasonable, given her actions during settlement correspondence, in that she rejected the Respondent's 'drop hands' Without Prejudice Save As To Costs settlement offer of 19 July 2023 ("the Offer") on the basis that she considered she had "a good chance of succeeding this case". Had she accepted the Offer, the parties would have walked away from the claim and the open Preliminary Hearing on 3 August 2023 ("the Preliminary Hearing") would have been vacated. The Claimant's rejection of the Offer saw the Respondent and the Tribunal wasting valuable time on continuing to defend the claim and hearing the issue of time points respectively, and saw the Respondent waste significant cost in continuing to defend the claim to the Preliminary Hearing. The Respondent notes that Kopel v Safeway Stores Plc [2003] IRLR 753, Raggett v John Lewis plc UKEAT/0082/12/RN confirm that whilst there is no ‘Calderbank’, an unreasonable refusal of a settlement offer can lead to a costs award;[2]The Tribunal should exercise its discretion in this case. The Respondent contends that since it filed its Response on 4 October 2022, to which the Claimant was copied, it will have been clear to the Claimant that her claim was very likely to be struck out or dismissed on time points. The Respondent submits that the weaknesses in her position will have been even more apparent to the Claimant following the Respondent's offer letter of 19 July 2023 ("the Offer Letter") – see below. The issue of timing was also discussed at the Case Management Preliminary Hearing with Judge Dawson on 15 June 2023. Within the Judgment, Judge Housego commented that "the time point was an obvious one to take". We encouraged the Claimant to seek legal advice on the Offer. It is evident that the Claimant did not do this, and instead adopted a blinkered and unreasonable view of her position.[3]The Respondent, a public sector employer, is only claiming sums from the date of the Offer Letter and has in fact applied a discount to this too, and so the sum of £4,305.48 is appropriate even having regard to the assumed financial position of the Claimant. Grounds for the application and relevant background The relevant factual and procedural background to this application is as follows:
Background
Background
[1]On 19 August 2022, the Claimant issued her claims.[2]On 4 October 2022, the Respondent filed its Response to her claims. The Particulars of Response included clear arguments that the Tribunal did not have jurisdiction to hear the Claimant's claims as they had been issued prima facie out of time. This was reiterated in the Respondent's covering email to the Tribunal of the same date. A Preliminary Hearing was requested to determine the application to strike out the claims. The Claimant was copied to that email.[3]On 27 October 2022, the Tribunal accepted the Response. This was copied to the Claimant.[4]On 15 June 2023, a Case Management Preliminary Hearing took place, at which the issue of time points was discussed. The Claimant was asked for her position on this, and in particular why she had filed her claim late. Our note of the Case Management Preliminary Hearing shows that the Claimant apologised for filing her claim late, and said it was a "mistake" on her part. The Preliminary Hearing was listed as a result.[5]On 5 July 2023, we received the Claimant's witness statement and supporting evidence in relation to time points.[6]On 19 July 2023, having reviewed the Claimant's evidence, the Respondent wrote to the Claimant on a Without Prejudice Save As To Costs basis to advance the Offer, i.e. they offered not to pursue the Claimant for their costs in continuing to defend the claim if she withdrew on or before 26 July 2023 (the Offer Letter). The Respondent made clear the reasons why this offer was being advanced, in particular that: a) All the claims had been issued prima facie out of time; b) ACAS had advised the Claimant to seek advice on the time limit and she did not. She could have looked online or spoken to the Citizens Advice Bureau for free; c) The Claimant had been able to undertake numerous activities between her resignation and the limitation date of 26 July 2022. As such, it was not at all clear why she had been unable to also file her claim in that period, particularly as there had been significant blocks of time where she had no specific commitments; d) One of her complaints dated back to December 2021 and so was significantly out of time. The fact that she had been able to work for the Respondent since then significantly undermined any argument that she had not been able to file that complaint in time.[7]The Offer Letter also explained the legal tests the Claimant would need to overcome in order for her claims to proceed. Reference was made to discussions had at the Case Management Preliminary Hearing, where Judge Dawson had explained the two different tests. The letter made clear that mere ignorance of the time limit would not be enough to surpass these tests.[8]In an attempt to encourage the Claimant to appreciate the weakness in her claims, we also briefly set out our view of the claim's merits. This is because, per the case of Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, merits is a factor the Tribunal may take into account when determining the 'just and equitable' test.[9]We then set out the Respondent's anticipated costs in continuing to defend the claim. We highlighted that the Respondent is a publicly funded NHS Trust and cannot afford to waste time and cost on claims which have little or no prospects of succeeding, such as this. We informed the Claimant that the anticipated costs of continuing to defend the claim to Preliminary Hearing would be £2,500 plus VAT, including counsel's fees of £1,500 plus VAT.[10]We advised the Claimant to seek independent legal advice on her position, and / or speak with her local Law Centre or Citizens Advice Bureau, who would be able to offer some support for free. A link to Citizens Advice Bureau was also provided.[11]On 25 July 2023, the Claimant responded, rejecting the 'drop hands' offer. She accepted her claims were issued out of time, but stated "I had a number of issues I was dealing with at the time". We had already pointed out to the Claimant that, in her case, this fact went against her. She asserted that she had been dealing with her various conditions during this period, but had provided no medical evidence to confirm this, or to suggest her conditions had become any worse since she had been employed and was working for the Respondent.[12]On 26 July 2023, we acknowledged the Claimant's rejection of the 'drop hands' offer and reiterated that, if her claims were struck out at the Preliminary Hearing, we would pursue her for the Respondent's wasted costs. We then continued to liaise with the Claimant to ready the case for the Preliminary Hearing. Relevant case law Unreasonable behaviour
Background
[1]The key question is whether in all of the circumstances the Claimant has conducted the proceedings unreasonably. For that purpose the Tribunal should examine the course of the proceedings and the Claimant's conduct in them in detail, see McPherson Mummery LJ §4 and 30 and Barnsley Metropolitan Borough Council Mummery LJ §41.[2]Where a party makes an offer to settle a case, a costs order can be made if in refusing it a party has acted unreasonably, see Kopel v Safeway Stores plc [2003] IRLR 753 and Raggett v John Lewis plc UKEAT 0082/12 (2012). A fortiori, rejecting or ignoring an obvious legal deficiency or impediment to the case, which has been pointed out may be unreasonable. In the same way the pursuit of a futile, hopeless or frivolous case may be unreasonable, see Stein v Associated Dairies Ltd [1982] IRLR 447 and Carr v Allen-Bradley Electronics Ltd [1980] ICR 603.[3]To determine whether the Claimant has acted frivolously, it is necessary to examine what the Claimant knew or ought to have known if she had gone about the matter sensibly, properly advised, see Cartiers Superfoods Ltd v Laws [1978] IRLR 315, Philips J §18 and Beynon v Scadden [1999] IRLR 700, EAT.[4]The discretion of the Tribunal is wide. it is not fettered by any requirement to link the award to particular costs incurred as a result of specific conduct which is unreasonable, see McPherson Mummery LJ §40 and Barnsley Metropolitan Borough Council Mummery LJ §40-42. No reasonable prospect of success[1]No reasonable prospect of success is a lower standard than the test of 'frivolous' under the previous Rules, it does not require unreasonable behaviour of the Claimant, see Balamoody v UK Central Council for Nursing etc [2002] ICR 646 §46 and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 §25. The threshold simply requires establishing that the claim or part of it had no reasonable prospect of success or was misconceived, which have the same meaning.[2]Whether a claim had no reasonable prospect of success is an objective issue and does not depend on the Claimant's belief in it, Vaughan v London Borough of Lewisham [2013] IRLR 713 §14(6) and Harvey Para 1090. Ability to Pay 1. In deciding whether to make a cost’s order and the amount of any such order the Tribunal may have regard to the Claimant's ability to pay. Rule 84 of the Rules provides as follows Rule 84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. 2. The Tribunal is not obliged nor is there any absolute duty to take the Claimant's ability to pay into account but if it does it should give succinct reasons for doing so, see Jilley v Birmingham & Solihull Mental Health Trust UKEAT/0584/06[2008] All ER (D) 35 (Feb) HHJ Richardson §44. Costs Between 19 July 2023 (the date of the Offer) and today's date, the Respondent has incurred £2,087.90 plus VAT plus counsel's fee of £1,500 plus VAT in the defence of the claims. This is a total of £4,305.48 (£3,587.90 plus VAT). The reasons that this is higher than the anticipated total costs of £2,500 plus VAT (total £3,000) stated in the Offer Letter are:[1]Following receipt of the Claimant's letter dated 25 July 2023 we needed to seek further instructions from our client, particularly in light of the assertion that the failure to provide the Claimant a wrist support had continued up to February 2022, as opposed to December 2021 per the List of Issues. This was necessary to ensure that we were prepared for the Case Management aspect of the Preliminary Hearing, should the claims have succeeded;[2]We advised our client on the merits of the Claimant's complaints, both in respect of the prospects of them succeeding past the Preliminary Hearing, and the prospects of them succeeding at Final Hearing;[3]We prepared the Agenda for the hearing, including careful consideration as to appropriate witnesses to answer the allegations of a failure to provide a wrist support and chair, and obtained dates to avoid; and[4]We reviewed and finalised the Preliminary Hearing bundle, which included liaising with the other side regarding a page limit extension, and filing a joint application with the Tribunal in respect of the same. The Tribunal will note that this application does not cover the Respondent's costs in defending the entire claim, which are in the region of £16,300 plus VAT, but rather is constrained to the costs incurred from the date of the 'drop hands' offer onwards. That said, when making a costs order on the ground of unreasonable conduct, as above, the discretion of the tribunal is not fettered by any requirement to link the award causally to particular costs which have been incurred as a result of specific conduct that has been identified as unreasonable: see McPherson v BNP Paribas (London Branch) [2004] EWCA Civ 569, [2004] ICR 1398 and Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117: - “The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular costs to be incurred” (McPherson, Mummery LJ §40). However, the above passage in McPherson does not mean that questions of causation are to be disregarded or that tribunals must 'dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as “nature” “gravity” and “effect”’ (Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, [2012] IRLR 78, Mummery LJ §40): “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects if had” (Yerrakalva, Mummery LJ §41). Whilst we are constraining our costs to those incurred from the 'drop hands' offer onwards, we do wish to address the comment at paragraph 26 of the Judgment, where Judge Housego provided his preliminary view that filing a detailed Response on 4 October 2022 addressing the merits of the claim may not have been in line with the overriding objective in this case, since the time points were obvious. Instead, he suggests the Respondent should have waited until if and when any of the claims survived the Preliminary Hearing, and then sought leave to apply to amend the Response to address merits thereafter. Per the timeline above, the Respondent did raise time points as a preliminary issue, both in the Response and the covering email of 4 October 2022. We also briefly addressed the issue of merits within the 19 July 2023 offer letter. This was for multiple reasons, mainly:[1]So that the Tribunal and the Claimant could clearly understand the Respondent's position in respect of the claims, and what further evidence it required to be able to fully respond. The Claimant provided further and better particulars prior to the Case Management Preliminary Hearing, which narrowed the issues and led to the dismissal of the sexual orientation discrimination claim. The Respondent's view is that this approach facilitated discussions at the Case Management Preliminary Hearing;[2]So that the Tribunal could consider the merits of the case when determining the issue of time points, if it considered that appropriate, per Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, and avoid the risk of an adverse inference being drawn that a lack of response meant a lack of defence. It appears that the Tribunal did take merits into account in this case, for example at paragraph 30, Judge Housego stated that "this is not a strong claim"; and[3]So that any 'drop hands' offer advanced to the Claimant had the best prospect of achieving the desired result: had we not addressed merits or responded to the Claimant's claims at all, it is submitted there would be a higher risk of the Claimant (or any claimant) refusing to engage in negotiations on a mistaken assumption that the lack of response implied a lack of defence. The Respondent sought leave to amend the Response at the Case Management Preliminary Hearing "if so advised". Having taken advice, the Respondent decided not to file an amended Response at that stage. Considering the overriding objective, it was decided that it would be most proportionate to wait until after the Preliminary Hearing to file an amended response, if any claims proceeded. In light of the above, it is respectfully submitted that any cost incurred by the Respondent in relation to the merits of the claims is legitimately and appropriately incurred and can be included as part of this costs application. However, as already noted above, only legal fees from the date of the Offer Letter are being sought by the Respondent. This significantly limits the amount sought. The Respondent’s case in summary is that:[1]The Claimant was unreasonable not to accept the Offer. The Claimant ought to have accepted that she did not have any good reason why she could not have filed her claims in time;[2]The Claimant was on notice of this application prior to the Preliminary Hearing. The Claimant's claims were struck out at the Preliminary Hearing and so did not “better” the Respondent’s offer.[3]We understand that the Claimant is now employed by Right at Home care company and has been since at least 25 April 2023.[4]In unreasonably rejecting the Offer, the Respondent was required to attend the Preliminary Hearing thereby incurring significant legal fees (see details enclosed). This is not simply a case of failure to better an offer but the unreasonableness in relation to settlement offers was such that there really was no reason for the parties to attend Tribunal. Details of costs sought: The Respondent seeks an order that the Claimant make a payment in respect of £4,305.48 of legal fees, including VAT, that the Respondent has been required to incur since 19 July 2023. For the avoidance of doubt, the Respondent does not seek its full costs in defending this case, which surpass £16,300 plus VAT. For the avoidance of doubt, the Respondent is an NHS Trust, and is unable to claim back VAT on litigation. The normal rules that VAT on litigation is recoverable as a business expense do not apply to NHS Trusts. We enclose a schedule of costs to support this application, and other supporting documentation. We understand that it is the Judge’s intention to determine this application on the basis of written representations. For the avoidance of doubt, we confirm that the Respondent does not request a hearing, in order to avoid the need to incur the additional associated costs. In accordance with Rules 30(2) and 92 we have copied the Claimant into this application. She is reminded of the Judge Housego’s direction that any objections to this application should be sent (along with supporting documents) to the Tribunal (with a copy to us) as soon as possible. She is also reminded that she may wish to include details of her financial circumstances. Yours sincerely, DAC Beachcroft LLP CC. Karen Tuffney, the Claimant Enc.