Mr J Wildman v Office for National Statistics: 1601243/2020
JUDGMENT
[1]The claimant’s claim that he was unfairly dismissed is dismissed as the tribunal does not have jurisdiction to hear it (the claimant still being employed by the respondent);[2]The claimant’s following claims are dismissed upon withdrawal by the claimant:a. Breach of contract;b. Breach of the public sector equality duty.[3]The claimant’s claims of disability discrimination are dismissed having been presented to the tribunal out of time in such circumstances that it would not be just and equitable to extend time to the date of their presentation. Case No.:1601243/2020 (Admin Code: V – video)REASONS
[1]The preliminary judgment dealt with the claimant’s claim that he was unfairly dismissed, that the respondent breached his contract of employment and Public Sector Equality Duty, and his claims of disability discrimination (including a related claim of harassment). I set out below my reasoning for each part of the judgment.[2]Unfair Dismissal: This claim was dismissed because the claimant remains in the respondent’s employment, he has not been dismissed, he is not subject to notice of dismissal. His claim was presented in error or was misconceived. The claimant is not eligible to pursue this claim. In accordance with the overriding objective of the tribunal, to deal with cases fairly and justly, I dismissed the claim.[3]Breach of Contract and Public Sector Equality Duty: The claimant withdrew these claims at the outset of the hearing. He indicated that he “no longer claimed” these matters; I explained to him that if he withdrew the claims, I would dismiss them. The claimant confirmed withdrawal of both claims. I dismissed them.[4]Disability Discrimination (including harassment): 4.1. The claimant makes 16 claims, that despite being selected for the respondent’s Fast Stream Programme, a career development programme, (and I list the complaints without making findings as to them, but only related findings where I indicate): 4.1.1. There was no change to his grade, pay or duties. 4.1.2. He was not given a suitable post. 4.1.3. He was not paid at a higher rate. 4.1.4. He was criticised at a year-end review. 4.1.5. That a potential secondment was cancelled, and a colleague (ED) was gleeful about it. 4.1.6. A manager (TD) took no action about the claimant’s complaint about 4.1.5. 4.1.7. That a manager, KK, raised issues with him unfairly. 4.1.8. That the respondent failed to support him in a technical interview. 4.1.9. That his grievance about the above matters was not dealt with properly and 4.1.10. neither was his appeal against the grievance outcome when it was rejected in November 2015. Having heard evidence from the claimant, including under cross-examination, considered relevant documents and heard submissions from the parties, I find that the claimant’s above complaints all therefore came to a head (crystallised) by November 2015. 4.1.11. In January 2016 the claimant was criticised by ED who said that he was “not proactive”. 4.1.12. Some two years and three months later in April 2018 ED said that the claimant was “not statistical”. 4.1.13. Between September 2018 – March 2019 there was “pernicious behaviour from a colleague at Tichfield”; Tichfield was another of the respondent’s sites and not the claimant’s usual place of work. Having heard evidence from the claimant, including under cross-examination, considered relevant documents and heard submissions from the parties, I find that he knows of no link between the behaviour of the colleague at Tichfield and the other matters of which he complains (and alleges none save that he says they all amount to a form of disability discrimination). 4.1.14. In March 2018, a Deputy Director and a line manager not previously cited above did not facilitate a project that would have assisted the claimant’s professional progress. 4.1.15. Some 8 months later, on 28th November 2018 the respondent reviewed the claimant’s progress against known competencies and decided to end the claimant’s placement on the Fast Stream and to regrade him. The consequence of this was that he would be graded as an HEO while retaining his salary on a marked time basis, a pay freeze; he would not receive further pay-rises until his commensurate HEO salary matched what he had latterly been paid on the Fast Stream. Having heard evidence from the claimant, including under cross-examination, considered relevant documents, and heard submissions from the parties, I find that on or by 28th November 2018 all of the claimant’s prior complaints came to a head. It was decided that he was not being retained on Fast Stream, which to his mind was the culmination of the criticism and lack of support or progression of which he complains at paragraphs 4.1.1 – 4.1.14. 4.1.16. The claimant did not receive a pay-rise on 19th February 2020 when he expected to receive one. Having heard evidence from the claimant, including under cross-examination, considered relevant documents and heard submissions from the parties, I find that this was the consequence of the decision made and notified to the claimant on 28th, or notified at latest 29th, November 2018.[5]The primary time limit in respect of a complaint relating to events culminating on 29th November 2018 at the latest would normally expire, unless extended, on 28th February 2019.[6]The claimant commenced ACAS early conciliation on 6th March 2020.[7]The claimant obtained an Early Conciliation Certificate on 20th April 2020.[8]The claimant presented his claim to the tribunal on 20th May 2020.[9]Having heard evidence from the claimant, including under cross-examination, considered relevant documents and heard submissions from the parties, I further find that during the period from the claimant’s commencement of employment on 20th July 2009 to the latest date that he knew he was being removed from the Fast Stream programme, with a consequential pay freeze, the claimant: 9.1. Raised and appealed the outcome of a grievance citing all the above complaints save those post-dating November 2015. 9.2. He joined two different trade unions with a view to pursuing all the above complaints. 9.3. He sought and obtained advice from those trade unions about his complaints and how he ought to progress them, if he ought to do so. 9.4. Both Unions obtained legal advice for the claimant and passed it on to him, including as to whether any claim to the tribunal was out of time. 9.5. The claimant wrote directly to two managers about whom he complains above and met with them to address his concerns and complaints. 9.6. The claimant wrote to and met personally with the Permanent Secretary to the Minister, who was the claimant’s mentor, about all the above matters and complaints. 9.7. The claimant obtained legal advice, independently from his Union, in particular at a Legal Speakeasy centre.[10]It is accepted by both parties that the claimant had litigated two claims in an Employment Tribunal prior to commencement of his employment with the respondent. He has, throughout the above chronology, known how to present a claim to the tribunal and all applicable time limits.[11]Having heard evidence from the claimant, including under cross-examination, considered relevant documents and heard submissions from the parties, I further find that the claimant did not present this claim earlier than he did because: 11.1. He was critical of FDA, union, for being slow and not sufficiently proactive. 11.2. The second union that he joined would not support his claims citing that he had not been a member long enough, and they had taken and provided advice on time limits. 11.3. He was incapacitated from work by ill-health, being exhausted, at times between August 2016 – January 2017. 11.4. He had been long-term unemployed before his employment by the respondent, such that obtaining the job was a relief to him. In those circumstances he wanted to put the two earlier tribunal claims and litigation behind him. 11.5. The claimant decided to prioritise his return to paid employment over litigation. 11.6. He did not want to present a claim until March – May 2020. 11.7. He would have preferred to resolve his complaints “in-house”.The Law
[12]Section 123 Equality Act 2010 (EqA) provides that a claim of unlawful discrimination may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates or such other period as the Employment Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period.[13]The respondent’s submissions on law: 13.1. The respondent reminded me of authority indicating that a one-off decision, such as not to increase pay, does not form part of a continuous course of conduct with a later payment in consequence of that decision; that each pay date when pay is not increased does not extend time by creating a series of discriminatory acts (starting with the decision to remove the claimant from the programme and to time mark his pay). 13.2. Furthermore, the respondent submitted, relying on authorities, that for acts to be linked, to form a series, there must be evidence of continuing discrimination, that may not be so where there are isolated acts involving different people in different places; a tribunal must not be too literal or restrictive in viewing those acts and what amounts to a series. 13.3. A just and equitable extension is an exception and not the rule.[14]The claimant’s submissions on the law: 14.1. The tribunal must look at all the circumstances including whether the respondent was responsible for a state of affairs causing or contributing to delay, such as a continuing state of affairs amounting to unlawful discrimination. 14.2. The Law Commission is looking into applicable time limits and may recommend their extension or relaxing tests for extensions of time; that might be persuasive and should be considered.[15]I approved the above submissions save for reservations about 14.2. I am bound by the law as it applies now and by precedent set by higher courts. I noted what the claimant submitted but was not persuaded by it to disapply s.123 EqA or the cited authorities upon it. My decision as to whether the claim is in time:[16]The last act of discrimination alleged was the decision to end the claimant’s placement on the Fast Stream project, leading to re-grading and a pay freeze. That decision was made on 28th November 2018. The claimant was aware of that decision no later than 29th November 2018.[17]The fact that the claimant did not receive a pay-rise in February 2020 was a consequence of the November 2018 decision. It was not in itself an act or omission that could be the basis of a discrimination claim. If there had been any unfavourable or less favourable treatment, detriment, harassment or victimisation because of or related to the protected characteristic of disability as alleged, it occurred prior to 29th November 2018. The respondent denies there was any; that is not for me to decide today.[18]Even giving the claimant the benefit of any doubt that he might establish a course of conduct by the respondent or that there was a series of acts of discrimination stretching all the way back to the earliest of his complaints, or from a later date, the primary time limit expired on 28th February 2019; that is 3 months from his certain knowledge of the last act that could be discrimination in respect of the claimant’s involvement in the Fast Stream Programme. He was no longer on that programme after November 2018; a consequential pay-freeze did not re-vitalise the old claims or re-set the clock. Series of Events/Course of conduct:[19]As I have found above, the fact that the claimant did not receive a pay-rise in February 2020 was a consequence of decisions made at latest on 29th November 2018; the matters complained of range in time from the claimant’s commencement on the Fast Steam Programme to the decision to remove him from it, which had the previously notified effect on pay in February 2020. The claimant had been told of this consequence in November 2018.[20]The claims listed above are of a disparate nature involving different people working at different sites, without any suggestion or evidence of relevant communication between them let alone collusion or conspiracy. They involve different aspects of the claimant’s career. While there is clearly suspicion in the claimant’s mind that the alleged events and words to which he takes exception were linked and related to disability, there is no prima facie evidence of any such connections. It can be difficult for claimants to prove facts from which a tribunal could find that there was discrimination and I have taken this into account; also, and more importantly today’s hearing is not about whether the claimant was or was not discriminated against. The issue is one of time. Even if some of the matters raised amounted to unlawful discrimination (although I cannot make a determination on that issue today) and formed a series of acts or course of conduct, that chain ended in November 2018. There is no series or course that continues to February 2020; again, what happened then, or did not happen, was merely a consequence of an earlier decision that may have been actionable but was not actioned by the claimant in good time (by way of making a claim). My decision as to any just and equitable extension of time:[21]The claimant’s claims having been presented out of time I had to consider whether, in all the circumstances it would be just and equitable to extend time to the date of presentation. I looked at all the circumstances including as detailed above and additionally: 21.1. The reason for the delay: ultimately this was a matter of the claimant’s choosing. He had various priorities at different times as I have detailed above. Notwithstanding a period of ill-health when he was absent from work the timing of the claimant’s claim was in his hands. He cited several reasons why he chose not to present another tribunal claim. I have listed them above. The reason for the delay was that it suited the claimant for several personal reasons none of which was in the control of the respondent or was influenced by it. 21.2. The length of the delay: There was a substantial delay. The claimant’s allegations date back to 2009 and his claim was presented on 20th May 2020. Matters about which he complained came to a head twice, namely the rejection of his grievance and the appeal against that in November 2015, and again when he was removed from the programme in November 2018. They at least were opportunities or prompts to action, albeit he says that there were a number of intervening acts of discrimination about which he did nothing other than grieve. The claimant delayed beyond those key dates until May 2020 (or 6th March 2020 for his accessing early conciliation). That delay is significant, especially when the reason for it is that the claimant did not want to do anything more about it. 21.3. The balance of prejudice: 21.3.1. the claimant could have acted sooner, but for his own reasons chose not to do so; he has not been prejudiced in that he was in control and just did not want to act. He will lose the chance to litigate in the light of my decision and that is a significant detriment, but it is consistent with his protracted period of wilful inactivity as far as litigation is concerned. He has chosen to create this situation. 21.3.2. On the other hand, the respondent would suffer a greater prejudice, not of its making, if the claim proceeded. The allegations it must defend include in respect of remarks and gestures said to have been made over seven years ago or thereabouts, more likely to be well over 8 years old allegations by the time this would get to trial. That could be very difficult as a result of the delay; the quality of the evidence will be degraded. 21.3.3. Furthermore, the respondent has taken two very deliberate managerial steps, rejection of the grievance and appeal, and deciding to remove the claimant from the programme. It could reasonably have expected a challenge, and even litigation, from the claimant within a reasonable time after either or both decisions. None was forthcoming within 3 months of the decisions of which the claimant complains. In those circumstances the respondent was entitled to certainty of management and to believe that it could follow through on the natural implications and consequences of those decisions. Time limits are at least in part to provide security and certainty; they are not elastic at the whim of one party as that would be unfair and detrimental to the other party. The respondent’s employees need to move on and to manage in new circumstances to the advantage of its venture and their colleagues without looking over their shoulder waiting for a challenge at some uncertain time of a claimant’s choosing. 21.3.4. The balance of prejudice is therefore against the respondent.[22]I considered all these points above. In all the circumstances I do not consider that it would be just and equitable to extend time to the presentation of the claim.[23]As the claims are out of time and I do not extend time, they are dismissed.