Mr Neil Phillips v Bristol City Council: 1403161/2018
JUDGMENT
The claims of discrimination are dismissed as outside the jurisdiction of the Tribunal. The claims were brought outside the statutory time limit and it is not just and equitable to extend time. JUDGMENT having been sent to the parties on 18 January 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]Evidence 1.1. The Tribunal heard from Mr Phillips and read the evidence referred to in the bundle.[2]Issues 2.1. The claimant claims discrimination on the grounds of gender reassignment and sexual orientation. 2.2. The claim was made late. The preliminary issue before the Tribunal to decide were whether it was just and equitable to extend time for the claims to be made.[3]Findings of Fact 3.1. Mr Phillips has been employed by the Respondent since May 2001. 3.2. He claims in respect of discrimination. The claims are in respect of incidents in June 2017, February 2018, early March 2018 and on 6/04/18. 3.3. Mr Phillips was off sick from early April 2018 with work-related stress. 3.4. He uses the internet at home and carried out his own research on this claim and the time limits. 3.5. He made an insurance claim on 13/06/18 in respect of bringing these proceedings. 3.6. Mr Phillips notified ACAS of the prospective claim on 28/06/18. 3.7. At that point, he was aware of the time limit precisely (38A) save as extended by the early conciliation procedure; as he wrote to his Union representative, “I have submitted an early conciliation form this morning to acas as discussed in my previous emails. This keeps me within the 3 months minus 1 day …..” 3.8. The ACAS certificate was issued on 13/07/18. 3.9. The usual time limit had expired during the conciliation period. 3.10. Mr Phillips was aware of some automatic extension by reason of participating in the early conciliation procedure. 3.11. The certificate was issued to Mr Phillips’ Union representative, Steve Davies, on 13/07/18 (43). Mr Phillips only saw it on 26/07/18. 3.12. Mr Phillips complains that he was having to badger Mr Davies, who was elusive and evasive. He wasn’t getting the support he needed or the explanations. 3.13. Mr Davies then gave him wrong advice. He advised that a grievance had to be filed. That was on 24/07/19. That was in spite of the ACAS certificate having been received (39). “We need to put the grievance in before Acas can continue with the case as we have to give the council the opportunity to resolve the issues themselves.” 3.14. In the meantime, there were two requests by the insurers for further information, the last one on 4/08/18 to which Mr Phillips responded on 8/08/18. 3.15. The time limit in respect of 6/04/18 and any continuing act including and earlier than that date expired on 13/08/18. 3.16. On 18/08/18, the insurers reviewed the file, but cover was not authorised. It was later authorised, on 7/09/18. 3.17. On 20/08/18, Mr Phillips asked to have advice from a full-time union official (47). His local representative was still telling him that there was nothing to worry about while the grievance was ongoing. Mr Phillips mistrusted that advice. 3.18. On 22 and 23/08/18, Mr Fish, a full-time officer, gave him advice. Mr Fish was categoric about the time limits. Mr Phillips was told in round terms, that his claim was already late. If he was to benefit from any extension of time, he needed to put the claim in immediately and without delay. Given the urgency, Mr Fish offered an immediate meeting (54g) to help him. 3.19. Mr Phillips did not find his attitude helpful. He says he was shouted at. But he agrees that the advice was that the time limit for putting in a claim had already expired. 3.20. Mr Phillips did not attend the offered meeting or accept that help with putting in the claim. Instead he then decided to go to a solicitor himself (54h). 3.21. Mr Fish repeated his advice on 24/08/18. (54f) 3.22. On 29/08/18, Mr Fish confirmed that he would not be submitting an ET1 for Mr Phillips (49). 3.23. Mr Phillips saw his own solicitor on 29/08/18. That had been the earliest appointment Mr Phillips could get, once he decided to seek legal advice on 23/08/18. She confirmed the advice that he was already late and that he had to put in his own claim. 3.24. On 30/08/18, Mr Phillips prepared and lodged his own claim.[4]Law Time Limits: Discrimination 4.1. In discrimination claims, the claim may not be brought “after the end” of the period of three months starting with the date when the act complained of was done. That is EA 2010 section 123(1). 4.2. For the extension of time, in discrimination cases, the test is whether it is just and equitable to extend time. 4.3. Time limits are applied strictly in employment cases. An extension of time is the exception rather than the rule. 4.4. The case of Robertson v Bexley Community Centre t/a Leisure Link [2003] (IRLR 434 CA) establishes that the discretion to extend time is a wide one. There is no presumption that the tribunal should exercise the discretion under section 123(1)(b) unless they can justify refusing to exercise it. On the contrary, the claimant must show that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule. 4.5. The case of British Coal Corporation v Keeble and others [1997] (IRLR 336 EAT) encourages tribunals to consider the factors listed in section 33(3) of the Limitation Act 1980. That guidance, in Southwark LBC v Afolabi [2003] (ICR 800 ), is extended: while the checklist in section 33 of the Limitation Act 1980 provides a useful guide for tribunals, it need not be adhered to slavishly, provided no significant factor is left out of account. The two key factors which are almost always relevant when considering the exercise of any discretion whether to extend time: the length of and reasons for the delay and whether the delay has prejudiced the respondent, for example, by preventing or inhibiting it from investigating the claim while matters were fresh. 4.6. Where the primary time limit has expired, the key question is why the claim was not brought earlier than it was. Abertawe Bro morgannwg University Local Health Board v Morgan UKEAT/0305/13.[5]Submissions 5.1. Mr Bromige gave a helpful written submission. 5.2. Ms Fryer gave a helpful oral summary of the facts with reference to cases mentioned above.