Mrs W Stelnicki v Hywel Dda University Health Board: 1600765/2017

EMPLOYMENT TRIBUNALS

Case No 1600765/2017

Venue Carmarthen

Hearing 15 January 2018

Between

Mrs W StelnickiClaimant

Hywel Dda University Health BoardRespondent

Before

Employment Judge NW Beard

In person for claimant

Mr Walters (instructed by Counsel) for respondent

Date 18 February 2018

JUDGMENT

The judgment of the tribunal is that the claimant did not present her claim of race discrimination within the time limits set out in the Equality Act 2010; it would not be just and equitable to extend time for the presentation of the claimant’s claim of discrimination and the claimant’s claim is dismissed.

REASONS

[1]The claimant represented herself the respondent was represented by Mr Walters. I heard oral evidence from the claimant. A small bundle of documents was provided by the respondent.

[2]The claimant claims race discrimination. The respondent contends that the claim is made out of time and the tribunal has no jurisdiction to hear it.

The Facts

[3]The claimant describes herself as being of Polish origin but that she became a naturalised British subject on 10 September 1992. The claimant has been employed by the respondent since 1996 as a Hotel Services Assistant. The respondent is an NHS Local Health Board.

[4]The claimant presented her complaint to the Employment Tribunal on 7 September 2017, having commenced the early conciliation process on 7 August 2017 concluding it on 23 August 2017.

[5]The claimant’s complaints begin almost at the commencement of her employment. The claimant contends that she was promoted to a team leader position and then instantly demoted. Her contention was that the demotion was instigated by a shop steward, Shirley Williams, and that her then manager, Simon Jones, went along with this. The claimant’s evidence was that she knew that colleagues and the shop steward “did not want to have a Polish team leader”. The claimant contended that she just knew this from working there she gave no evidence of a specific reason for her to reach this conclusion. The claimant was aware of her rights under discrimination law before her employment with the respondent. The claimant gave her reasons as to why she did not complain to a tribunal about this matter at the time as being persuaded by her manager not to.

[6]The claimant’s next complaint relates to 2005 and involves a “verbal attack” by Michelle Lewis a fellow employee. The claimant said that this individual had “chip on her shoulder” about Polish people, making remarks about Polish people in Llanelli. However, the verbal attack was that she accused the claimant of working hard and putting others to shame. The claimant indicated that she believed this was comment detrimental to her and was based on Michelle Lewis’ antipathy toward Polish people. The claimant said that she had made a complaint to her manager, Susan Davies, but gave no explanation as to why she had not pursued the matter further or brought tribunal proceedings.

[7]The claimant complains that when Gill Ferrara was appointed supervisor her attitude towards the claimant was bossy and patronising. The claimant contended that Ms Ferrara made changes to the work system and that this was always done in the absence of the claimant and was to the claimant’s disadvantage. The claimant was asked why she considered this treatment was because of Polish nationality, the claimant said in cross examination she could not think of any other reason for the treatment. The claimant also made a complaint about an event in 2012 where a padlock was applied to a fridge, that the claimant complained about this and that when the claim was investigated Ms Ferrara falsely claimed that the claimant had been given a key. In fact, the claimant contends that the key was provided only after that information had been given to the investigator.

[8]The next issue arises in November 2015 and this also involves Ms Ferrara. The claimant contends that Ms Ferrara started a hate campaign towards her after the claimant’s colleague had accused her of “picking and choosing” which jobs to undertake. The claimant complains that she had no ability to decide which work to take or refuse and had to work where she was told. She contended that the criticism was totally unfair and that Ms Ferrara, could have made it clear that the claimant did not have a choice of work. The claimant also contends that a complaint she made to her manager, Heather Williams, was ignored: however, when questioned she said that she had received a letter from her. The claimant was asked what the hate campaign amounted to; she gave no details in her answer. When asked why the claimant attributed this conduct to her Polish heritage the claimant responded “why else would they do it.

[9]Not set out in the details of claim section of the ET1 but included in the additional details section was the claimant’s next contention. This related to her being refused annual leave. The substance of this complaint is that on 12 June 2016 she requested annual leave for a short time later because a relative would be visiting. The supervisor, Gill Ferrara, refused this request a week later by giving the claimant an envelope and grinning as she did so. The claimant said she understood that under the policies a request could be refused so that sufficient staff were in place, but that the policy also made it clear that in exceptional circumstances leave could be granted. The claimant said that the decision should have been taken by a manager and not the supervisor. The claimant raised a written complaint about this under the respondent’s dignity at work policy in July 2016. The claimant told me that this was the worst incident and the one that led her to making a complaint to the tribunal. The claimant was dissatisfied with the outcome of that complaint.

[10]The claimant’s final complaint was about a verbal assault on 14 October 2017. This involved a work colleague, Maureen Esposito. The verbal assault was brought about by the claimant asking this colleague if she was working upstairs (because if not the claimant would need to carry out that work). The claimant complained to her manager, Susan Davies, by e-mail bit did not receive a reply. The claimant was asked why she related this treatment to her Polish heritage, the claimant said it was because this person did not speak to her much before.

[11]The claimant made a generalised complaint that the issue of her Polish heritage was “always in the air” that she was a “different species” but gave no more details in support of that than already set out. The claimant said that she had always “rejected the theory that this was hatred of me as a Polish person” until the holiday incident

[12]The claimant commenced a grievance process complaint on 8 February 2017. This complaint referred to all the matters that are raised before the tribunal. The decision in that grievance was given in July 2017. The claimant said that she thought she should finish the “local procedure” before bringing a tribunal claim. The claimant told me she was fully aware of her right to bring employment tribunal proceedings from before the commencement of her employment. The claimant said that she had not previously brought a claim because she did not want to admit that the treatment was because of racism. She said her final decision to bring matters to a tribunal was because the witnesses had been telling lies in the respondent’s internal processes.

The Law

[13]Although I am not dealing with an application to strike out the claim whether the claimant has either no reasonable prospect of establishing her claims can play some part in deciding whether it is just and equitable (or could be just and equitable) to extend time. In Ezsias v North Glamorgan NHS Trust

[2007] 4 All ER 940

Maurice Kay LJ said “(T)hat what is now in issue is whether an application has a realistic as opposed to a merely fanciful prospect of success”

[14]I am required to consider section 123 Equality Act 2010, and in particular subsection 3 whether the claimant’s complaints equate to an act extended over a period. In Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

it is demonstrated that the claimant is required to establish that incidents of discrimination are linked and there is evidence of a continuing state of affairs. In dealing with those issues I have to find sufficient facts to establish when time could begin to run, and when limitation has brought that primary period to a close.

[15]Finally, I must consider whether it could be just and equitable to extend time. In dealing with issues as to whether a claim was presented in time Robertson v Bexley community Centre

[2003] IRLR 434

, makes it clear that there is no presumption that the tribunal should exercise its discretion to extend time, and that the onus is always on the claimant to convince the tribunal to do so. It was said in that case by Auld LJ that: "the exercise of discretion is the exception rather than the rule"

Analysis

[16]The claimant could, potentially, show that the acts which she complains about is an act extended over time. This is because she speaks about the issue “always being in the air”. I cannot say that is fanciful but it is an extremely weak case for a continuing act. However, given the number of people involved the differences in the circumstances of the incidents themselves and the lack of any substantive evidence relating the treatment to the claimant’s Polish heritage, I consider the chances of this being considered treatment which occurred because of the claimant’s race virtually non-existent.

[17]Starting from the point that these amount to an act extended over a period does not particularly assist the claimant. That is because, on the basis of her own case, in order to be in time, the claim should have been subject of early conciliation by no later than 14 January 2017. If the maximum period for conciliation is considered then at the latest her complaint should have been presented to tribunal by 14 March 2017, it was actually presented almost six months after that. This claim was presented out of time.

[18]The claimant was fully aware of her rights. The annual leave matter was the issue which made her decide that she should pursue a tribunal. She was aware her employer had decided matters against her on that issue by February 2017. Although the claimant said that she thought she should exhaust the domestic processes first, being aware of her rights she did nothing to find out about time limits to protect her rights. In my judgment, the claimant has not provided an adequate explanation as to why the tribunal should extend time. I add into this the balance of prejudice between the parties. The respondent is placed in a clearly prejudicial position of having to deal with issues of some antiquity if the case is to proceed. The claimant has, as I have indicated, a weak case on an act extended over a period and a fanciful case on treatment being on the grounds of race based on the evidence I have heard and the facts relied on in the case she brings.

[19]In my judgment because the claim has been presented significantly out of time and where the explanation for doing so is inadequate, in circumstances where the balance of prejudice falls clearly in the respondent’s favour it would not be just and equitable to extend time to bring the claim. On that basis the tribunal has no jurisdiction to consider the claimant’s claims. Judgment posted to the parties on 22 February 2018