Mrs U Bano v Cambian Childcare Ltd and others: 1800102/2022
EMPLOYMENT TRIBUNALS
Case No 1800102/2022
Between
Mrs U BanoClaimantCambian Childcare Limited (First Respondent) Sarah Hutchinson (Second Respondent) Sue Fitzsimmons (Third Respondent) Shazad Ali (Fourth Respondent) Cambian Group Limited (Fifth Respondent) Jade Rawnsley (Sixth Respondent) Rida Ranzan (Seventh Respondent) Bethany Lamont (Eighth Respondent) Arif Yakub (Ninth Respondent) Emily Spurden (Tenth Respondent)Respondent
Before
Employment Judge ShoreIn person for claimantDate 8 July 2022
JUDGMENT
[1]At all material times, the claimant met the definition of disabled person as defined in section 6 of the Equality Act 2010.[2]The claimant’s claim of unfair dismissal contrary to section 95 of the Employment Rights Act 1996 was not presented within the time limit set out in section 111 of the Employment Rights Act 1996. It was reasonably practicable for the claim to have been presented in time. The claim is struck out as the Tribunal does not have jurisdiction to hear it.[3]The claimant’s claim of harassment related to the protected characteristic of race, contrary to section 26 of the Equality Act 2010 was not presented within the time limit set out in section 123 of the Equality Act 2010. It was not just and equitable to extend the time limit. The claim is struck out as the Tribunal does not have jurisdiction to hear it.[4]The claimant’s claim of harassment related to the protected characteristic of disability, contrary to section 26 of the Equality Act 2010 was not presented within the time limit set out in section 123 of the Equality Act 2010. It was not just and equitable to extend the time limit. The claim is struck out as the Tribunal does not have jurisdiction to hear it.[5]The claimant’s claim of discrimination arising from disability, contrary to section 15 of the Equality Act 2010 was not presented within the time limit set out in section 123 of the Equality Act 2010. It was not just and equitable to extend the time limit. The claim is struck out as the Tribunal does not have jurisdiction to hear it.[6]The claimant’s claim of failure to make reasonable adjustments, contrary to sections 20 and 21 of the Equality Act 2010 was not presented within the time limit set out in section 123 of the Equality Act 2010. It was not just and equitable to extend the time limit. The claim is struck out as the Tribunal does not have jurisdiction to hear it.[7]All the claimant’s claims are struck out.
REASONS
[1]The claimant was employed by the first respondent, a company that provides services including care, education and behavioural health services to children and young people, as a Residential Care Worker, mainly working at the first respondent’s Listerview home, from 12 September 2018 until 28 August 2021 (which was the effective date of termination). Early conciliation started and ended on 14 January 2022. The claim form was presented on 17 January 2022. The other respondents were colleagues of the claimant at the first respondent[2]The claimant provided a lengthy list titled “Incidents” with her ET1 that set out a series of allegations against the various respondents. She identified what claims are made in respect of each incident as either acts of race discrimination, disability discrimination and/or steps on the way to a final straw that led the claimant to resign on 28 July 2021, giving notice to expire on 28 August 2021.[3]In resepct of her race discrimination claims, the claimant self identifies as British Pakistani. She speaks Punjabi and English with equal fluency, but part of her race discrimination claim concerns criticism of her about using Punjabi at work.[4]In resepct of her disability discrimination claim, the claimant says she met the definition of ‘disabled person’ because of the physical impairment of Lymphedema.[5]There was a private preliminary hearing (TPH) by telephone in this case before me on 25 March 2022. In my case management order (CMO) dated 29 March 2022, I set out a comprehensive summary of the claimant’s claims and respondent’s response. My CMO, was in the Bundle for this hearing [56-94].[6]I had gone through the claims that the claimant had indicated on her ET1 and discussed the law with her on each. I listed today’s hearing to consider the following issues: 6.1. To determine whether the claimant’s claim of unfair dismissal was presented in time and, if not, whether it was reasonably practicable for her to have presented it within the 3-month time limit in section 111(2) of the Employment Rights Act 1996 and, if it was not, whether the claim was presented in a reasonable additional period. The issues (questions that the Tribunal would have to find the answers to) are: 6.1.1. Was the claim made to the Tribunal within three months of the effective date of termination? 6.1.2. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 6.1.3. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 6.2. To determine if any of the claimant’s claims of disability and race discrimination were presented out of time and, if they were, whether it would be just and equitable to extend time to allow the matters to proceed. The issues (questions that the Tribunal would have to find the answers to) are: 6.2.1. Were the disability and race discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 6.2.1.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 6.2.1.2. If not, was there conduct extending over a period? 6.2.1.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 6.2.1.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 6.2.1.4.1. Why were the complaints not made to the Tribunal in time? 6.2.1.4.2. In any event, is it just and equitable in all the circumstances to extend time? 6.3. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: 6.3.1. Did she have a physical impairment: Lymphedema? 6.3.2. Did it have a substantial adverse effect on her ability to carry out day-to-day activities? 6.3.3. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 6.3.4. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 6.3.5. Were the effects of the impairment long-term? The Tribunal will decide: 6.3.5.1. did they last at least 12 months, or were they likely to last at least 12 months? 6.3.5.2. if not, were they likely to recur? and 6.4. What additional case management orders should be made? Housekeeping Matters 5. The parties produced an agreed bundle of 352 pages. If I refer to any documents from the bundle, I will indicate the appropriate page numbers in square brackets. 6. The hearing was conducted remotely by video with the agreement of the parties. My CMO required the claimant to file a witness statement.[7]At the start of the hearing, Mr Khan advised me that the second respondent was yet to instruct solicitors or file a response. I discussed the matter with the parties, who agreed that the absence of the second respondent should not delay this hearing.[8]I asked Mr Khan about the issue of disability, as I had read the documents in the case. He confirmed that although the respondent had written to the Tribunal on 16 May 2022 indicating that disability was in dispute, he was now instructed that the respondents that he represented accepted that Mrs Bano met the definition of ‘disabled person’, although it was not accepted that the respondents he represented had knowledge of her disability, or ought to have had such knowledge.[9]The claimant had provided an impact statement about her disability, but had not submitted a witness statement about the other substantive matters that we were going to cover in this hearing - the time limits. Mrs Bano said she had prepared a document that ran to 7 pages. She sent copies to the Tribunal and Mr Khan and said that she wished the document, which was titled “Case Management Orders”, to be considered as her witness statement. I gave Mr Khan and I some time to consider the document. The claimant gave evidence on affirmation. She was asked questions by Mr Khan. I asked the claimant a few questions.[10]I then heard closing submissions from Mr Khan, followed by closing submissions from Mrs Bano. At the end of the submissions, I considered my decision over lunch and delivered an oral Judgment to the parties. Relevant Law Time Limits in Unfair Dismissal
Relevant Law
[11]The provisions on time limits in unfair dismissal is set out in section 111 of the Employment Rights Act 1996, which states that: 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. (2A)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).[12]The basic law is explained by decisions of the courts that hear appeals against Tribunals: The Employment Appeal Tribunal; the Court of Appeal; and the Supreme Court. These decisions explain how the law is to be interpreted and bind the Employment Tribunal. These cases are called precedents.[13]It was agreed that the effective date of termination of the claimant’s employment was on 28 August 2021. Under section 111(2) of the Employment Rights Act 1996, the claimant should have issued proceedings before midnight on 27 November 2021. Because she did not start early conciliation with ACAS until 14 January 2022, she cannot benefit from the ‘freezing’ of time that the ACAS process provides. It therefore appears to me that the claimant will have enormous difficulty showing that the claim was made in time. That then means that she will have to go on to the next part of section111(2).[14]The test in section 111(2) is in two parts: 14.1. First, the claimant has to show that it was not reasonably practicable to send her claim in by 27 November 2021; and 14.2. Second, if the claimant shows that it wasn’t reasonably practicable to get her claim in on time, the Tribunal has to be persuaded that the further time between the date that the claim should have been presented (27 November 2021) and the date that it was actually presented (17 January 2022) was reasonable.[15]The burden of proof is on the claimant to show that it was reasonably practicable to present the claim in time. She has to show a reason or more than one reason for the delay.[16]The explanation that Mrs Bano gave for not submitting the claim on time was that the investigation into her grievance took the first respondent 5 months to complete. If the investigation into her grievance had been fair and thorough, Mrs Bano said she would have been happy. The decision about her grievance was sent to the claimant on 10 January 2022. She issued these proceedings on 17 January 2022.[17]The Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [ [1984] IRLR 119, [1984] ICR 372, CA (at [35]) that the correct enquiry is into 'what was the substantial cause of the employee's failure to comply'. The focus will then be on whether, in light of the substantial cause, it was not reasonably practicable to meet the time limit. The case of Wall’s Meat Co Ltd v Khan [1978] ICR 52 stated: ''The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive''[18]The Court of Appeal in Schultz v Esso Petroleum Ltd [1999] IRLR 488 identified that when asking whether it is reasonably practicable to lodge a claim within three months the overall limitation period is to be considered but 'attention will in the ordinary way focus upon the closing rather than the early stages'. Thus, the fact that there is no impediment to lodging a claim within the first part of the limitation period may not lead to a finding that it was reasonably practicable to lodge the claim in time, if it became not reasonably practicable to lodge it in the later stages of the three months. As such, tribunals should consider carefully any change in the claimant's circumstances throughout that primary limitation period, and at which point of the limitation period those changes occurred.[19]Ignorance of the law and time limits is not a reason that is successful very often. Appeal cases have frequently rejected claimant’s claims because the claimant ought to have known of their rights and the time limits associated with them.[20]Relying on poor advice from a professional or skilled advisor will not succeed as a reason for submitting a claim following the case of Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520. Some cases have found trade union officials to be skilled advisors.[21]Ill health or disability can be a reason for it not being reasonably practicable to present claim in time.[22]A number of cases have dealt with internal appeals being the reason for failing to present the claim on time. However, in the case of Bodha (Vishnudut) v Hampshire Area Health Authority [1982] ICR 200 stated that: ''There may be cases where the special facts (additional to the bare fact that there is an internal appeal pending) may persuade an [employment] tribunal, as a question of fact, that it was not reasonably practicable to complain to the … tribunal within the time limit. But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not “reasonably practicable” to present a complaint to the … tribunal'.” Time Limits and Extensions in Discrimination Claims[23]The law on time limits in discrimination cases is set out in section 123 of the Equality Act 2010, which states: 123. 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.(2) Proceedings may not be brought in reliance on section 121(1) after the end of — (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.(3) For the purposes of this section — (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something — (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[24]The principles on extensions of time on a just and equitable basis are best set out in Robertson v Bexley Community Centre [2003] EWCA Civ 576. In that judgment, Auld LJ (§25) stated that: “It is also of importance to know that the 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 a failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[25]The burden of persuading the Tribunal to exercise its discretion to extend time is on the claimant.[26]In the case of Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13, it was noted that a litigant can hardly hope to satisfy the burden on him to show that time should be extended unless he provides an answer to two questions (§52): “The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.”[27]There is no requirement on a Tribunal to hear the full merits of the case before determining whether the Tribunal has jurisdiction to hear it.[28]The claimant is also recommended to read the guidance contained in the case of Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 about the tests to be used in assessing whether it is just and equitable to extend the time for bringing a claim of discrimination under section 123 of the Equality Act 2010. In that case, Underhill LJ approved the words in Leggatt LJ’s judgment (§§18-19) in Abertawe Bro Morgannwg University Local Health Board v Morgan that emphasised the discretion of the Tribunal in determining applications to extend time on the just and equitable basis and affirmed the authority of the case of British Coal Corporation v Keeble [1997] UKEAT 496/98.[29]The discretion to grant an extension of time under the “just and equitable formula” does therefore not require a Tribunal to go through the list of issues to be considered by section 33 of the Limitation Act 1980, but to consider all the relevant issues, such as the length of and reasons for the delay and whether the delay has prejudiced the respondent from investigating the claim whilst the matters were fresh. The only requirement on the Tribunal appears to be that it does not leave a significant factor out of account (per London Borough of Southwark v Afolabi [2003] EWCA Civ 15).[30]I considered the guidance in the recent case of Wells Cathedral v Souter EA – 2020 – 000801, which concerned the extension of time in a discrimination case. Issues[31]The issues (questions that I had to find the answers to in order to make a decision) are set out in paragraph 6 above.
Findings of Fact
[32]All findings of fact were made on the balance of probabilities. If a matter was in dispute, I will set out the reasons why I decided in favour of one of the parties. If there was no dispute over a matter, I will either record that with the finding or make no comment as to the reason that a particular finding was made. I have not dealt with every single matter that was raised in evidence or the documents. I have only dealt with matters that I found relevant to the issues I have had to determine. No application was made by either side to adjourn this hearing in order to complete disclosure or obtain more documents, so I have dealt with the case on the basis of the documents and evidence produced to the Tribunal. I make the following findings.[33]The important dates in the case were agreed by the parties: 33.1. The claimant began work for the respondent on 12 September 2018; 33.2. The claimant resigned on 28 July 2021; 33.3. The claimant gave notice of her resignation, so her effective date of termination was 28 August 2021; 33.4. The claimant submitted a grievance to the first respondent on 20 August 2021; 33.5. The claimant says she received the outcome of her grievance on 10 January 2022; 33.6. The claimant started early conciliation with ACAS and obtained a conciliation certificate on the same day – 14 January 2022; and 33.7. The claimant presented her ET1 on 17 January 2022. Unfair Dismissal Claim[34]The only written evidence produced by the claimant about the circumstances of how she came to present her ET1 in respect of her unfair dismissal claim on 17 January 2022 is a single sentence at the beginning of her statement. She states that the investigation of the complaint she had submitted by email on 20 August 2021 [195-198] took 5 months, so it was not reasonably practicable to submit the ET1 by the limitation date: 27 November 2021.[35]The claimant produced no evidence of any medical condition or other circumstance that explained the late submission of the ET1. I find that the ET was submitted on 17 January 2022, which was approximately six weeks after limitation had passed. Because the ET1 was submitted after the limitation date, the claimant cannot take advantage of the pause in time that early conciliation brings.[36]The claimant’s evidence was that she had been advised by a full-time trade union official from around March 2021. The claimant said that she was aware of the concept of employment rights and that people can seek to enforce their rights through the Employment Tribunal. Both those statements are accepted as findings of fact, as they were unchallenged by Mr Khan.[37]The claimant’s oral evidence was that she was not told about time limits in Employment Tribunal proceedings until her union representative told her around the time of a meeting she and her representative had with Mr Bailey of the respondent on 1 December 2021. I find that evidence not to be credible on the balance of probabilities. I make that finding because: 37.1. By 1 December 2021, the limitation period for unfair dismissal (and the claimant’s discrimination claims, to which I shall return) had expired; 37.2. I find it very unlikely that a full-time trade union official would not have advised Mrs Bano that time limits apply in Employment Tribunals and that she would not have been told what the relevant dates are; 37.3. I find it very unlikely that a trade union official would tell Mrs Bano on or around 1 December 2021 what the time limits were, when the limits had already passed; 37.4. The claimant’s email of complaint dated 20 August 2021 was copied to her union representative and to two other email addresses at her union. It raised allegations of bullying, harassment and victimisation, together with an allegation that she had been “left with no other option but to resign”, which I find to be an allegation of constructive unfair dismissal; so 37.5. I find that it is more likely that the claimant was aware of the relevant time limits on 20 August 2021 than her case, which is that she was not.[38]I find that the claimant’s sole explanation for the delay in submitting an application for early conciliation and/or her ET1 – that she was awaiting the outcome of the respondent’s investigation into her complaint of 20 August 2021 – was not credible. I make that finding because: 38.1. The claimant’s oral evidence was that she submitted her letter of complaint with the intention of getting justice and a fair hearing. She specifically said that she did not submit the letter with the intention of obtaining compensation from the respondent. I find her evidence on this point to be credible; 38.2. I do not find the claimant’s evidence that she only decided to issue the ET1 when her complaint was rejected on 10 January 2022, and that it was at that point that she decided to seek compensation through the Tribunal to be credible. I make that finding because the claimant had had the advice of her union throughout and repeat my findings above that Mrs Bano was aware of her right to claim and her union would have advised her of her of the relevant time limits; 38.3. I find that the respondent never made any suggestion to the claimant that she could start Employment Tribunal proceedings after the complaint had been dealt with, or that time had stopped running. I find the respondent did not deceive the claimant in any way; 38.4. I find that the respondent’s investigation did take an unreasonable amount of time, but that it engaged with the claimant when she chased updates and progress.[39]My conclusion, therefore is that it was reasonably practicable for the claimant to have presented her unfair dismissal claim on or before 27 November 2021. Her claim was out of time and the Tribunal has no jurisdiction (authority) to hear it. The unfair dismissal claim is dismissed. Discrimination claims[40]The claimant identified five separate claims of discrimination contrary to the Equality Act 2010 at the last preliminary hearing. I find that these allegations related to events on: 40.1. 19 February 2021 – section 15 complaint that the claimant’s request for a full-time post had been rejected; 40.2. Undated – section 20/21 complaint that the claimant was required to work more than 8.5 hours without a break. As a matter of logic, the last date that this allegation could have happened was the claimant’s last day at work on 28 August 2021; 40.3. 23 July 2021 – section 26 (disability related harassment); 40.4. 10 August 2021 – section 26 (disability related harassment); and 40.5. 3 March 2021 (wrongly recorded at 3 March 2021 in my previous CMO) – section 26 (race related harassment).[41]I repeat all my findings in paragraphs 35 to 38 above.[42]I find that the claimant has not shown on the balance of probabilities that the sole allegation of race discrimination (which it is alleged took place on 3 March 2021) can be part of a connected series of events because it is the only allegation of its type.[43]I find that this claim, therefore was presented more than six months after time had expired.[44]I have given the claimant the benefit of the doubt that the allegations of disability discrimination could be part of a connected series of events, and therefore find (for the purposes of this hearing) that the clock began to run on the disability discrimination claims on 28 August 2021.[45]I find that it would not be just and equitable to extend the time for presentation of the claimant’s claim of indirect sex discrimination. I make that decision because: 45.1. I read and considered the claimant’s evidence carefully; 45.2. I considered the closing submissions of both parties carefully; 45.3. I make the same finding about the credibility of the claimant’s stated case that she delayed because she was waiting for the outcome of the respondent’s investigation into her complaint of 20 August 2021; 45.4. The claimant was advised by a full-time trade union official at all times and was aware of the ability to claim and that there were time limits involved. I repeat my finding that the claimant was more likely to have been advised of when the limits were by her trade union representative around the time of her complaint on 20 August 2021 than her stated date of around 1 December 2021; 45.5. I find that the ET1 was presented outside the time limit set out in section 123 of the Equality Act 2010; 45.6. The claimant cannot rely on any extension of time because of ACAS early conciliation; 45.7. The onus is on the claimant to establish that it would be just and equitable to extend time; 45.8. In Robertson v Bexley Community Centre [2003] EWCA Civ 576 Lord Justice Auld stated (§25): “…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.” 45.9. There are many authorities on what a Tribunal should consider when deciding whether to exercise its jurisdiction to extend time on a just and equitable basis. In this case, I have decided to consider: 45.9.1. The length of and reasons for the delay; 45.9.2. The extent to which the cogency of the evidence is likely to be affected by the delay; 45.9.3. The extent to which the party sued had co-operated with any requests for information; 45.9.4. The promptness with which the Claimant acted once he knew of the facts giving rise to the action; 45.9.5. The steps taken by the Claimant to obtain advice once he knew of the possibility of taking action. 45.9.6. The merits of the claim; and 45.9.7. The balance of prejudice between the parties; 45.10. The length of the delay is considerable – 6 weeks; 45.11. There is a risk of the cogency of the evidence being degraded because two of the respondents no longer work for the first respondent and ta considerable amount of time has elapsed. The chance, however, is small; 45.12. The claimant had no medical or other social circumstances that prevented her from issuing the proceedings; 45.13. The claimant had legal advice from March 2021 until December 2021 at the earliest. She confirmed that she was aware of time limits and hr ability to make a claim to the Tribunal; 45.14. The respondent had provided the claimant with the information she needed to make this claim as part of the grievance procedure, in answering a DSAR and in preparing the bundle for this hearing. No fault lies with the respondent for the claimant’s failure to present her claim in time; 45.15. I find that the claimant did not act promptly once she knew of the facts giving rise to the action. I make that finding because she was aware of the facts on 20 August 2022 at the very latest; 45.16. I understand that the claimant will be prejudiced by being denied the opportunity to proceed with this claim, but I find that prejudice is, on balance, less than the prejudice caused to the respondents of having to defend a claim that was brought months out of time. Time limits are limits, not targets.[46]I find that the claimant has not shown on the balance of probabilities that it would be just and equitable to extend time to allow her claims of race and disability discrimination to proceed. Those claims are struck out because the Tribunal does not have jurisdiction to hear them.