Mr A K Tourkmani v Aneurin Bevan University Local Health Board: 1601713/2023
EMPLOYMENT TRIBUNALS
Case No 1601713/2023
Between
Mr A K TourkmaniClaimantAneurin Bevan University Local Health BoardRespondent
Before
Employment Judge S JenkinsIn person for claimantMs J Williams (instructed by Counsel) for respondentDate 3 July 2024
JUDGMENT
[1]The Claimant is permitted to amend his ET1 Claim Form to include a different address.[2]The Claimant’s claim should not be struck out as having no reasonable prospect of success given his failure to include his address in the ET1 Claim Form.[3]The Claimant’s unfair dismissal complaint was not brought within the period of three months beginning with the effective date of termination of his employment. It was not reasonably practicable for the complaint to have been brought within that period, but the complaint was not brought within a further reasonable period. The complaint is therefore dismissed.[4]The Claimant’s compliant of direct race discrimination, and any complaint of victimisation he may have been permitted to pursue by way of amendment, were not brought within the period of three months beginning with the date of the latest act to which his complaints related, and it is not just and equitable to extend time. The direct race discrimination complaint is therefore dismissed, and, to the extent that the Claimant may have been permitted to amend his claim to add a complaint of victimisation, that complaint would also have been dismissed.
REASONS
Issues
[1]The issues to be determined in this preliminary hearing had been set out in a Notice of Hearing sent to the parties on 6 June 2024, the parties having been given prior notice of them by way of an email dated 4 March 2024, sent at Employment Judge Harfield’s directions.[2]Those issues were:(a) Whether the Claimant is granted permission to amend his ET1 Claim Form to amend his address;(b) Whether the Claimant’s claim should be struck out as having no reasonable prospect of success given the failure to put his address in the ET1 Claim Form; Case Number: 1601713/2023 2(c) Whether the Claimant is granted permission to amend his ET1 Claim Form to bring complaints of (i) constructive unfair dismissal; (ii) direct race discrimination; (iii) victimisation;(d) Whether the Claimant’s claim should be dismissed because the Tribunal has no jurisdiction to consider the claim; or that the claim or parts of the claim have no reasonable prospect of success;(e) Was the unfair dismissal complaint made within the time limit in Section 111 of the Employment Rights Act? If not, was it reasonably practicable to present complaint within the time limit? If not, was it presented within a reasonable period; and(f) Were the discrimination and victimisation complaints made within the time limit in Section 123 of the Equality Act 2010? If not, would it be just and equitable to extend the time limit for presenting the complaints?[3]I indicated, at the outset of the hearing, that we would initially focus on the concerns regarding the address the Claimant had included in his Claim Form, as, if I decided that the claim should be struck out on that basis, there would be no need for me to consider the other issues.[4]I then indicated that, whilst the wording of issue (d) was not entirely clear, it seemed to me that the reference to potential dismissal of the claim due to lack of jurisdiction arose due to the potential conclusion that the Claimant’s complaints had been brought out of time. I therefore proposed to deal with the time limit issue after the address issue, before returning, if I considered that the claims had been brought in time or that time should be extended, to issue (c) and the question of whether the Claimant should be permitted to amend his claim.[5]With regard to the address issue, the Claimant was able to confirm that his initial Claim Form, submitted on 14 August 2023, had recorded the address at which he worked, Royal Gwent Hospital in Newport, as his address. The Claim Form was therefore, it seemed to me quite correctly, rejected, pursuant to Rule 10 of the Employment Tribunal Rules of Procedure, on the basis that it did not contain the Claimant’s address.[6]The Claimant then corrected the problem by inserting an address in Cardiff, even though, at that stage, he was living in Qatar. His claim was then treated as accepted from the point at which the issue was rectified, 24 September 2023.
Conclusions
[7]The fact that the Claimant’s corrected address was not, in fact, his actual home address at the time appears to have been an issue that caused Case Number: 1601713/2023 3 Employment Judge Sharp some concern at a preliminary hearing held on 18 December 2023, as the Claimant, in January 2024, in addition to complying with Judge Sharp’s direction to provide more detail of his claim and an application to amend, also provided his address in Qatar, although he appears now to have returned to the UK.[8]In discussing this issue, Ms Williams on behalf of the Respondent, pragmatically and helpfully recognised that the Employment Tribunal Rules only require a Claimant to provide an address in the Claim Form, it does not require the Claimant to provide the most appropriate address referable to his home residence at the time. She also noted that the Claimant had provided an address in his resubmitted Claim Form in September 2023, and that there would be no difficulty in permitting the Claimant to amend the Claim Form to record his address in Qatar.[9]As far as the question of whether the Claimant’s claim should be struck out as having no reasonable prospect of success due to his failure to put his address in the Claim Form was concerned, Ms Williams accepted that there had been no material consequences, beyond the initial rejection and resubmission, on the management of the case. The Claimant had included his email address and had expressed a preference for communications to be effected by that method.[10]Ultimately therefore I granted the Claimant permission to amend his Claim Form to include his address in Qatar; Zone 69, Street 352, Building 5, Apartment 408, Lusail. I also concluded that the Claimant’s claim should not be struck out because of the Claimant’s failure to include his address in his claim form.[11]I then moved on to consider the time limit issues. Law Unfair dismissal[12]Section 111 of the Employment Rights Act 1996 (“ERA”) provides that an Employment Tribunal should not consider a complaint unless it is presented before the end of the period of three months beginning with the effective date of termination, or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of that three month period.[13]The three-month period is to be extended by virtue of any time spent pursuing early conciliation with ACAS, which essentially means that a Case Number: 1601713/2023 4 claimant must make contact with ACAS for the purposes of early conciliation during that three months.[14]There has been a considerable amount of case law on this point over the years, and one point that has been made clear is that it is a strict test. It is for a claimant to justify the conclusion that the claim was not able to be reasonably practicably brought within time, and that then it was brought within a reasonable time thereafter.[15]The cases have made clear that a number of reasons for delay can arise in assessing the reasonable practicability question, including whether the claimant was aware of the right to pursue matters before the Tribunal and the fact that the claimant may have been unaware of factual matters which might justify a claim.[16]The issue of reasonable practicability includes an assessment of the Claimant’s ignorance of rights, but any ignorance must be reasonable. Scarman LJ (as he then was), in Dedman -v- British Building Engineering Appliances Limited [1974] 1 WLR 171, noted that a Tribunal must ask the questions of, “What were [the claimant’s] opportunities for finding out that [they] had rights? Did [they] take them? If not, why not?”[17]The Court of Appeal also noted, in Porter -v- Bandridge Limited [1978] ICR 943, that the test was not whether the Claimant knew of his or her rights, but whether he or she ought to have known of them.[18]The Court of Appeal in Dedman also noted that where any delay arises through ignorance or fault of a skilled adviser, it will have been reasonably practicable for the claims to have been brought in time.[19]The appellate courts have also made clear that where a claimant is generally aware of their rights, ignorance of a time limit will rarely be acceptable as a reason for delay.[20]In terms of ignorance of fact, the Court of Appeal in Machine Tool Industry Research Association -v- Simpson [1988] ICR 558, noted that the claimant must establish three things; that their ignorance of the fact relied upon was reasonable, that they reasonably gained knowledge outside the time limit that they reasonably and genuinely believed to be crucial to the case and to amount to grounds for a claim, and that the acquisition of this knowledge was in fact crucial to the decision to bring the claim.[21]Underhill P (as he then was), in the Employment Appeal Tribunal in Cambridge and Peterborough NHS Trust -v- Crouchman [2009] ICR 1306, further distilled the relevant principles to be taken into account in assessing the issue of reasonable practicability where a claimant initially is Case Number: 1601713/2023 5 not aware they have a viable claim, but changes their mind when presented with new information after the expiry of the primary time limit. These include(i) That ignorance of a fact that is crucial or fundamental to a claim will in principle be a circumstance rendering it impracticable for a claimant to present that claim.(ii) That a fact will be crucial or fundamental if it is such that when the claimant learns of it their state of mind genuinely and reasonably changes from one where they do not believe they have grounds for the claim to one where they believe that the claim is viable.(iii) The ignorance of the fact in question will not render it not reasonably practicable to present a claim unless the ignorance is reasonable and the change of belief in light of the new knowledge is reasonable.[22]If the decision is that it was not reasonably practicable for the claim to have been brought in time then the EAT confirmed, in Cullinan -v- Balfour Beatty (UKEAT/0537/20), that consideration of whether the claim is brought within a further reasonable period will require an objective consideration of the relevant factors causing the delay and what period should reasonably be allowed in the circumstances having regard to the strong public interest in claims being brought in time. Discrimination[23]The provisions relating to time limits in discrimination cases, which will include victimisation cases, are set out in section 123 of the Equality Act 2010 (“EqA”). That provides that discrimination complaints within section 120 may not be brought after the end of the period of three 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.[24]There have been a number of appellate court decisions on the issue of extending time in discrimination cases over the years. The Court of Appeal, in Robertson v Bexley Community Centre [2003] IRLR 434, noted that, whilst the test is not as strict as that for the reasonable practicability test for unfair dismissal, there is nevertheless no presumption in favour of extending time in discrimination claims and it is for the Claimant to convince the tribunal that it is indeed just and equitable to extend time.[25]The Employment Appeal Tribunal, in British Coal Corporation v Keeble [1997] IRLR 336, noted that the provisions of section 33 of the Limitation Act 1980, which apply to civil claims, should also be applied in relation to tribunal claims. That involves an assessment of the prejudice to each party and an assessment of all the circumstances of the case which include: the Case Number: 1601713/2023 6 length of and reasons for the delay, the extent to which the cogency of evidence is likely to be affected, the extent to which the party sued has cooperated with requests for information, the promptness with which the Claimant acted once he knew of the facts and the steps taken by the Claimant to obtain advice. It is clear however that an assessment of all the circumstances is to be undertaken.[26]The Court of Appeal provided further guidance, in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, that the guidance provided in the Keeble case should not be treated as a checklist, as that would lead to a mechanistic approach to what is meant to be a very broad general discretion. The Court of Appeal’s guidance was that the best approach for a Tribunal in considering the exercise of its discretion is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including, in particular, the length of, and the reasons for, the delay.[27]The Court of Appeal had also previously noted, in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, that factors which are almost always relevant to consider when considering the discretion are the length of and reasons for the delay, and whether the delay has prejudiced the Respondent.
Findings
[28]I heard evidence from the Claimant on his own behalf, and from Ms Ruth Madine, the Respondent’s Deputy Head of HR, on its behalf, by way of written statements and answers to questions.[29]My findings relevant to the issues I had to determine, i.e. whether the Claimant’s complaints had been brought in time, and, if not, whether time should be extended, which I reached on the balance of probability where there was any dispute, are set out below. I make reference in passing to the events giving rise to the Claimant’s complaints, particularly his complaint of direct race discrimination, but I heard no evidence in respect of them, and my references should not therefore be taken as formal findings of fact.
Background
[30]The Claimant is a Consultant Ophthalmologist, and he commenced work for the Respondent in July 2017. Between March 2021 and May 2022, the Claimant was the Respondent’s Clinical Lead for Ophthalmology, based in the Royal Gwent Hospital in Newport. His employment ended on 6 October 2022 Case Number: 1601713/2023 7 Matters relevant to time limits[31]The Claimant raised a grievance regarding issues that had arisen in the workplace. Although that grievance itself was not before me, the outcome letter in response was, and that had been drafted by setting out the concerns the Claimant had raised and then responding to them. The concerns were seven in number and referenced events taking place since the Claimant’s appointment as Clinical Director in March 2021. Reference was made to bad behaviour by four named colleagues, and to what the Claimant perceived to have been the “final straw” leading to his resignation as Clinical Director, relating to issues surrounding the appointment of two consultants.[32]The Claimant had resigned as Clinical Director whilst continuing his role as a Consultant Ophthalmologist. It was not precisely clear when this took place; there were references in documents to it having happened in May 2022, but it may have been in early June 2022.[33]In an email sent by the Claimant to Dr Tom Morgan-Jones, the Divisional Director for Scheduled Care on 9 June 2022, the Claimant noted, “I’ve made my mind that I’m leaving not only my CD role but also my substantive post here. The only question is when I will resign for my substantive role, as I have to wait for the right job and the right location, and give notice according to trust policies”.[34]Ms Madine indicated in her evidence that the Claimant verbally gave notice of resignation from his substantive role, i.e. notice that he would leave the Respondent’s employment entirely, on 7 July 2022, but that was disputed by the Claimant. There was some support for Ms Madine’s contention from the fact that the Claimant’s employment ultimately ended on 6 October 2022, i.e. three months after 7 July 2022. Also, the Claimant himself, in an email to Dr Morgan-Jones on 30 July 2022 stated, “Yes I’ve given formal notice as of 7 July”.[35]Whether verbal notice was given on 7 July 2022 or not, written notice was given on 4 August 2022 by the Claimant, by letter to the Ophthalmology Directorate Manager. In that, the Claimant referred to a conversation with the Manager on 7 July 2022 with regard to his intention to leave, and that, as he and the manager had discussed, they agreed that notice would be set as of 7 July 2022, i.e. it would expire on 6 October 2022.[36]During July 2022, the Claimant had discussions via email with Dr Morgan- Jones and another colleague regarding the Claimant continuing to provide two sessions of work to the Respondent each week, remotely from Qatar. In an email of 12 July 2022, the Claimant noted that the options open to him were to resign (I presume from that he meant resign completely), to take an Case Number: 1601713/2023 8 overseas career break, or to work part-time for the Respondent doing virtual clinics from abroad.[37]Dr Morgan-Jones then replied, on 25 July 2022, noting that he could not support a change in job plan which provided only two sessions a week. He noted that his answer was supported by the Medical Director.[38]Further discussions took place by email between the Claimant and Dr Morgan-Jones in late July and early August, in which the latter reiterated that the Claimant’s request to work two sessions per week remotely was not accepted, and the Claimant then provided formal written notice of resignation on 4 August 2022.[39]Subsequently, with regard to the Claimant’s request to work for two sessions a week from Qatar, the Claimant emailed the Respondent’s Medical Director and Deputy Medical Director on 7 February 2023, asking if the prospect of him working in that manner had been discussed with them. The Deputy Medical Director replied the same day, noting that it was not something that the Divisional Team had raised with him. The Medical Director replied on 21 February 2023, noting that the matter had not been discussed with him specifically, and that if it were, he would not rule it out, but would want to clearly understand the governance arrangement to manage complaints and clinical concerns.[40]The investigation of the Claimant’s grievance commenced in June 2022, the investigator meeting the Claimant on 30 June 2022, and continued for several months, with the outcome being provided to the Claimant by letter on 5 April 2023. That outcome was that two of the Claimant’s concerns were upheld, but five were not. It was noted that a programme of support would be provided to the department to ensure that behavioural issues were eradicated, and that some of the relationship barriers identified during the investigation were addressed.[41]The Claimant submitted an appeal against the grievance outcome, and then met the Appeal Manager, the Respondent’s Deputy Director of Operations, by video on 13 May 2023. The Appeal Manager then undertook further investigations, including meeting additional witnesses that the Claimant had suggested, and provided the appeal outcome by letter dated 14 July 2023. In that, he noted that although, as concluded by the grievance decisionmaker, there was evidence of inappropriate behaviour in the Ophthalmology workforce, there was no evidence that any of that behaviour had racial connotations. The Claimant’s appeal was therefore not upheld.[42]The Claimant subsequently, on 4 August 2023, received copies of the statements of the meetings with the individuals interviewed during the appeal. Case Number: 1601713/2023 9[43]The Claimant undertook Early Conciliation with ACAS between 27 and 31 July 2023. As noted, he initially submitted his Claim Form on 14 August 2023 but that was rejected. He then resubmitted the Claim Form on 24 September 2023, when it was accepted. The Claimant’s claim[44]The Claimant’s Claim Form, in which he noted he was pursuing complaints of unfair dismissal and race discrimination, provided very little detail. That was noted by Judge Sharp in the Preliminary Hearing on 18 December 2023, and she issued a strike-out warning, noting that the Claimant had failed to set out any basis for a claim. She indicated that the Claimant needed to set out any objection to the strike-out by 15 January 2024. She further noted that the Claimant could apply to amend his claim by setting out each head of claim, each act complained of, and who was involved and when, in writing to the Tribunal and the Respondent by 15 January 2024.[45]Whilst the particular document included in the bundle was not dated, I presumed it was sent in by the Claimant on or before 15 January 2024. In that, he indicated that he was pursuing a complaint of victimisation, based on the grievance he had raised, although he did not specify the protected act he said that he did for the purposes of such a claim. The Claimant also indicated that he was pursuing a complaint of direct race discrimination, again referencing the concerns he had raised in his grievance.[46]With regard to the Claimant’s complaint of constructive unfair dismissal, he noted that he had raised an allegation of fraud, (which he had referenced in his original Claim Form), which he felt had not been thoroughly investigated. He mentioned that he had decided to look for another job, as the working environment was insufferable for him and he did not feel he had the true support from his employer. He referenced his desire to have kept his substantive post at reduced hours working remotely, but that that had been rejected by the Divisional Director, who had mentioned that he was supported by the Medical Director. He commented that the Divisional Director had essentially forced him to decide whether to stay full time or fully leave, knowing that the environment was not healthy for the Claimant to consider staying as a full time employee. He noted that the Divisional Director had lied by saying that he had discussed the Claimant’s request with the Medical Director. The Claimant’s reasons for not submitting the claim in time[47]With regard to time limits, the Claimant indicated that the reasons why he had not raised his claim earlier were:(i) That he had trusted that his former employer would treat his claim fairly, honestly, unbiasedly and openly, so that early conciliation with Case Number: 1601713/2023 10 ACAS would suffice, and it was only on receipt of the investigation outcome that he could notice it had been superficial, unfair and biased.(ii) That he could only gather the evidence that would point towards unfair dismissal upon receiving the outcome of both the investigation and the appeal.[48]In his oral evidence, the Claimant confirmed that the trigger for him considering that he had been constructively unfairly dismissed had been the emails he had received from the Medical Director and Deputy Medical Director in February 2023, confirming that the Divisional Director had not discussed the Claimant’s part-time remote working request with them. The essence of his concern appeared to me to be that his ultimate decision to resign in August 2022, driven by the Divisional Director’s refusal of his request to continue working on a part-time basis whilst overseas, which the Claimant had understood had been supported by the Medical Director, had been procured under false pretences, when the Medical Director had not, in fact, supported the Divisional Director’s response. Other relevant findings[49]In several emails to employees of the Respondent, both whilst still employed and subsequently, the Claimant made reference to having legal support and union support from the BMA. In an email of 16 July 2023 to Ms Madine, he referred to having a “legal team”, and in a further email to Ms Madine on 4 March 2023, he noted that “further communication will be through my legal team”.[50]In his oral evidence, which I saw no reason not to take at face value, the Claimant confirmed that he had ultimately not been able to obtain assistance from the BMA as the matters he was complaining about predated his membership.[51]The Claimant also confirmed that the core source of his legal advice had been from Race Equality First, which is an advice agency supporting individuals who feel they have been discriminated against. It is not an organisation which provides specific legal advice.[52]The Claimant did however confirm in his oral evidence that he had taken advice from a solicitor, although he could not say when that had happened or the extent of the advice he received. He noted that “at some point” he contacted a solicitor to ask questions, but had not been fully confident that the person could represent him appropriately, and there was also the restraint of costs. Case Number: 1601713/2023 11 Conclusions[53]Taking into account my findings and the applicable legal principles, my conclusions on the issues I had to address were as follows. Constructive unfair dismissal[54]Time limits in unfair dismissal claims run from the effective date of termination, which was, in this case 6 October 2022. That meant that the claim should have been brought, or at least that contact should have been made with ACAS, by 5 January 2023. In the event, contact was not made with ACAS until 27 July 2023, and the claim was not validly brought until 24 September 2023. Even taking into account the ineffective presentation of the claim initially, that was not done until 14 August 2023. The complaint of constructive unfair dismissal was therefore clearly brought significantly out of time.[55]The initial question for me to consider therefore was whether it had been reasonably practicable for the Claimant to have brought the claim in time, i.e. to have progressed matters with ACAS by 5 January 2023.[56]A core element of any constructive unfair dismissal claim is the question of what triggered the Claimant’s resignation. In this case, the Claimant referenced the concern he raised about fraud, and that he had also raised a grievance regarding bullying behaviour by his colleagues. Those matters were known to the Claimant by June 2022 at the latest, when he raised his grievance, and presumably were the matters which led the Claimant to seek alternative employment. The Claimant then focused on the outcome of his discussion with Dr Morgan-Jones regarding his request to work part-time as the trigger for his ultimate resignation on 4 August 2022.[57]The Claimant was clear in his evidence that, following his understanding that his request had been properly considered, i.e. in conjunction with the Medical Director, he did not consider that he had had any basis to consider that he had been constructively unfairly dismissed. It was only when he received the emails from the Medical Director and Deputy Medical Director in February 2023 that he understood that his request had not been properly considered, and felt, as I have noted, that his resignation had effectively been procured under false pretences. It was only then that he considered that he had been constructively unfairly dismissed.[58]Whilst there may be some conceptual difficulties in the Claimant establishing a constructive unfair dismissal on that basis, I proceeded with my analysis on the basis that he could potentially establish a constructive unfair dismissal by reference to subsequently acquired knowledge of behaviour on the part of the Respondent that could be considered to be a repudiatory breach of contract. Case Number: 1601713/2023 12[59]I noted the guidance provided in the cases of Simpson and Crouchman, and concluded that the Claimant could not have known that his request had not been put to the Medical Director until February 2023. I also concluded that the knowledge he then gained could be said to have genuinely and reasonably changed his state of mind from one where he did not believe he had a claim to one where he believed a claim was viable.[60]I was therefore satisfied that it had not been reasonably practicable for the Claimant to have brought his claim within the relevant three-month time limit, i.e. by 5 January 2023. I then needed to consider the subsidiary question of whether it was then brought within a further reasonable period. I noted that, even taking the latest possible date of knowledge on the part of the Claimant, 21 February 2023, there was still a period of over five months before he contacted ACAS, and seven or just short of six months, before he submitted his Claim Form, whether effectively or ineffectively.[61]I noted the guidance provided by the EAT in Cullinan, that I needed to objectively consider the factors causing the delay, and what period should reasonably be allowed in the circumstances, having regard to the strong public interest in claims being brought in time.[62]I noted the Claimant’s contention that, whilst the emails from the Medical Director and the Deputy Medical Director provided him, as he put it, with some of the pieces necessary to consider he had been constructively unfairly dismissed, he had not had all the pieces until the conclusion of the grievance appeal in July 2023, and the provision of the additional witness statements on 4 August 2023.[63]However I was not satisfied that those matters provided the Claimant with any further information relevant to a potential constructive unfair dismissal claim. The appeal and the statements dealt with the Claimant’s grievance, effectively his allegation of bullying. The Claimant could not provide any indication of any additional information that he received from the appeal outcome or the witness statements which, in any way, advanced his state of knowledge in relation to a potential constructive unfair dismissal claim.[64]There was no cogent explanation as to why the Claimant had delayed for some five months in progressing his constructive unfair dismissal claim from the point at which he became aware of information which caused him to consider that he had been constructively unfairly dismissed. He pointed to the pressure of work and of having a young child, but whilst those might potentially have justified a short period of delay, I did not consider that they remotely justified a delay of five months.[65]Ultimately I concluded that the Claimant had not brought his constructive unfair dismissal complaint within a reasonable further period, and that it should therefore be dismissed. Case Number: 1601713/2023 13 Discrimination[66]Taking into account the scope of Section 123 of the Equality Act 2010, I first had to consider the date of the act complained of. In that regard, I noted that the Claimant’s complaint of workplace bullying, which he contended had been racially motivated, must have taken place at the latest by 9 June 2022. Indeed, many of the Claimant’s concerns appeared to relate to incidents which occurred in late April 2022, but the incident which he described as the “final straw”, which led him to step down from the Clinical Director role, the interview for two consultant posts, took place, by reference to the Claimant’s own timeline, in May/June 2022.[67]I noted that the Claimant’s further particulars did not reference the grievance outcome or the appeal outcome as further acts of discrimination. Even if it had, it would seem difficult for him to establish that the investigation and the appeal were themselves discriminatory. The courts have made clear that the fact that a grievance raising concerns of discrimination is not upheld does not, without more, mean that the decision is itself discriminatory.[68]As far as I was concerned therefore the latest I could consider the Claimant’s assertions of discriminatory treatment occurred was 9 June 2022. I therefore concluded that the complaint was clearly out of time and my focus moved to whether I considered it just and equitable to extend time.[69]The Court of Appeal in Robertson confirmed that it is for the Claimant to convince the Tribunal that it is just and equitable to extend time. The Court of Appeal also confirmed in Adedeji and Morgan that I should assess all the factors relevant to the exercise of my discretion, and that the relevant factors that are almost always relevant are; the length of and reasons for the delay, and whether the delay has prejudiced the Respondent.[70]As I have noted, the Claimant did not contact ACAS until 27 July 2023, and did not submit his Claim Form, even giving him the benefit of the doubt that his ineffective presentation should not be held against him, until 14 August 2023. Ultimately therefore there was a period of over a year between the events about which the Claimant was complaining and him taking steps to pursue his claim before the Employment Tribunal. There was therefore a considerable delay.[71]I could see no discernible material reason advanced by the Claimant as to why he delayed that long. He referred in his further particulars to having trusted the Respondent to have dealt with his concerns fairly and properly. However, it is the concerns themselves that he complained about in his Claim Form, and an anticipation that an employer will fairly and openly investigate concerns does not justify a delay in enforcing those concerns Case Number: 1601713/2023 14 through legal means, particularly where, as here, the three-month time limit expired long before the concerns were responded to. In any event, the Claimant had the grievance outcome on 5 April 2023 and did not take matters further for some three months more.[72]As I noted in relation to the Claimant’s constructive unfair dismissal claim, I did not consider that the Claimant’s work and personal obligations justified such a long delay.[73]As far as prejudice to the Respondent is concerned, I noted that Ms Madine in her witness statement focussed on two areas; the disruption to the Respondent’s patients caused by the need for its staff to prepare for and attend a lengthy hearing, and the fact that the Ophthalmology department is now in a settled state, which could be disrupted by having to re-examine historic issues.[74]I was not satisfied that either justification advanced was particularly compelling. Any employer will be faced with disruption when having to deal with complaints at a potentially lengthy final Tribunal hearing, and if the Claimant had brought his claim in time that disruption would have been unavoidable. Similarly, the fact that the department is now in a settled state would not have been a factor if the claim had been brought in time.[75]I noted however the considerable time that has passed from the events concerned. Over two years have now elapsed, and it will be likely that at least a further six months, possibly up to a further year, would elapse before a final hearing could be scheduled. Memories will therefore be likely to have faded, and I considered that that would be a relevant prejudice. Whilst I noted that the Claimant contended that he himself would face the same prejudice, I considered that it would be likely that he would have stronger and more entrenched memories of the concerns he had raised as opposed to those about whom he had complained.[76]Overall therefore, taking into account the considerable delay in the Claimant pursuing his complaints, the absence of any material justification for that delay, and the prejudice that would be likely to arise due to the passage of time, I consider that it would not be just and equitable to extend time. The Claimant’s complaint of direct race discrimination, and any complaint of victimisation, had I considered could be included by way of amendment, therefore fell to be dismissed. Case Number: 1601713/2023 15 _________________________________ Employment Judge S Jenkins Dated: 6 September 2024
Background
[1]The Claimant's letter attached to his email of 22 September 2024 set out his application for reconsideration of the Judgment. In that Judgment, I had concluded that the Claimant’s various claims had not been brought within the applicable time limits, that I should not exercise discretion to extend time, and therefore that all the claims should be dismissed. Issues and
Law
[2]Rule 70 provides that reconsideration of a judgment will take place where the Employment Tribunal considers that it is necessary in the interests of justice to do so.[3]Rule 71 provides that applications for reconsiderations of judgments should be presented in writing within 14 days of the date on which the written record was sent to the parties, or the date on which written reasons were sent (if later) and should explain why reconsideration is necessary.[4]Rule 72 notes that the Employment Judge who made the original decision shall consider any application for reconsideration made under rule 71, and Case No: 1601713/2023 2 that if the Judge considers that there is no reasonable prospect of the original decision being varied or revoked then the application shall be refused, and the Tribunal shall inform the parties of the refusal. Alternatively, rule 72 sets out the process that is then to be followed for further consideration of the application.[5]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, HHJ Eady QC (as she then was) indicated that the wording “necessary in the interests of justice” in Rule 70 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. She confirmed that that discretion must be exercised judicially, “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”. The Application[6]The Claimant made his reconsideration application under five headings, to which I have assigned numbers, as follows: 1) “The timing to read my conclusion.” 2) “Whereas it was not reasonably practicable to present all/some of the claims within the time limits, the claims were presented within a reasonable time period after the time limits.” 3) “How the outcome of the appeal of the internal investigation in ABUHB is in itself discriminatory and how the acts of discrimination continue still today, by the respondent not applying the necessary corrective measures.” 4) “The evidence of racial discrimination.” 5) “Why it is just and equitable to extend time limits and take my claim to a full hearing.”
Conclusions
[7]I considered the Claimant’s contentions in turn. 1) “The timing to read my conclusion.”[8]The Claimant has noted that the case was listed for two days, and that he had anticipated making closing submission on the second day. The Claimant refers to indications on the “Gov.uk” website that he would have the opportunity to make submissions (he refers to them as “his conclusion”) at the end of the hearing, which he contends should have been at the end of the second day.[9]However, no prior indication was given to the Claimant as to the anticipated timetable for the hearing, and any Tribunal hearing will require time for the Tribunal or Judge to deliberate and draft the decision, with a Case No: 1601713/2023 3 view to delivering it orally at the end of the hearing, as happened in this case.[10]In this case, evidence conclude at 2:35pm on the first day. I then indicated that we would proceed with closing submissions, and asked the parties if they would be happy to proceed straight to submissions (the afternoon session of the hearing having proceeded only for some 50 minutes at that stage) or would like some time to gather their thoughts. The Respondent’s representative replied that she was content to proceed, but the Claimant indicated that he would like some time. As noted by the Claimant in his reconsideration application, I initially suggested a break of 15 minutes, and, following a discussion, indicated that a break of 30 minutes would be allowed.[11]Closing submissions then took place, and lasted, in total, just over an hour. The Respondent went first, in order to give the Claimant, as a non-legally qualified litigant in person, the advantage of being able to respond to points advanced on behalf of the Respondent, if he wished.[12]I then spent the remainder of the first day and the morning of the second day, reaching my decision and drafting my judgment, which I delivered orally at 2:00pm on the second day.[13]In my view, notwithstanding that he was a litigant in person, the Claimant should have been under no impression that his closing submissions would take place at the end of the hearing, i.e. at the end of the second day. He has noted the “Gov.uk” advice that closing submissions would be at the end of the hearing, and, for these purposes, the hearing ended at 2:35pm on the first day. Bearing in mind that there was then ample time, even with a break of 30 minutes, to conclude submissions that day, it was proportionate to proceed in that manner. Had we not, there would have been some two hours of “dead time”, out of a total hearing time of some eleven hours.[14]Regardless of that however, there was no indication that the Claimant was in any sense impaired by not being able to prepare submissions overnight. The points he raised were very largely the same as the ones he raises in relation to his second reconsideration ground. 2) “Whereas it was not reasonably practicable to present all/some of the claims within the time limits, the claims were presented within a reasonable time period after the time limits.”[15]As I have already noted, the points raised by the Claimant in relation to this ground largely reflect those he advanced during the hearing. To that extent, they do not form the basis for any reconsideration, as that would simply give the Claimant a “second bite at the cherry”. I do however make some observations on the Claimant’s highlighted points to try to be of assistance to the Claimant. I have allocated letters to each point for ease of reference.a. The Claimant’s point about the delay arising from the end of the three month time limit misses the point that the time limit in relation Case No: 1601713/2023 4 to the unfair dismissal claim actually r an from the date of termination of employment, i.e. 6 October 2022. Whilst I accepted that it had not been reasonably practicable for the Claimant to have brought the claim in time, I was then assessing whether he then brought the claim within a reasonable further period, where the overall delay was relevant.b. The Claimant gave evidence about his work and caring responsibilities at the hearing, and could have said more about it then had he wished. I do not consider that the further evidence set out in the Claimant’s his reconsideration application would have justified his significant delay in any event.c. The Claimant refers to evidence about the acts he asserted to be discriminatory coming into his possession on 4 August 2023, and he made that point during the hearing. However, as I noted in my Reasons, the Claimant’s discrimination allegations were those he raised in his grievance in June 2022. Even if the evidence that came into the Claimant’s possession in August 2023 might have assisted him in establishing his case, it would not have altered the Claimant’s fundamental initial case, which he advanced in his grievance, that the treatment he had received from others prior to June 2022 involved race discrimination.d. &e. Similarly, any delays on the Respondent’s part in providing documents to the Claimant would not have affected the Claimant’s view that the treatment he had received had been discriminatory. He complained about that in his grievance, and therefore could have advanced that complaint in a claim without the need for any further documents. 3) “How the outcome of the appeal of the internal investigation in ABUHB is in itself discriminatory and how the acts of discrimination continue still today, by the respondent not applying the necessary corrective measures.”[16]As I noted in my Reasons, the Claimant did not raise any concerns in his claim form or his further particulars document about the outcome of the appeal, or indeed any ongoing asserted acts of discrimination. I could only deal with the complaints that had been brought. 4) “The evidence of racial discrimination.”[17]The question of whether the Claimant would be able to adduce sufficient evidence to establish discriminatory treatment was not one I was considering during the hearing; I was only considering whether the discrimination complaint had been brought in time, and, if not, whether it would just and equitable to extend time. Additional information of the sort advanced by the Claimant would not have assisted me with that question. Case No: 1601713/2023 5 5) “Why it is just and equitable to extend time limits and take my claim to a full hearing.”[18]This point was fully aired during the hearing, and nothing raised by the Claimant would have led me to reach a different conclusion.[19]Overall therefore, I do not consider that there is any reasonable prospect of the Judgment being varied or revoked. The Claimant's application for reconsideration is therefore refused.