Miss S Zandy v UK Language Solutions Ltd: 1802264/2020
EMPLOYMENT TRIBUNALS
Case No 1802264/2020
Between
Miss S ZandyClaimantUK Language Solutions LtdRespondent
Before
Employment Judge LittleIn person for claimantDate 26 May 2021
JUDGMENT
[1]Assuming for present purposes that any employment relationship which existed between the parties was terminated, I find that the effective date of termination was 22 August 2019.[2]It follows that the complaints that the alleged dismissal was unfair and discriminatory should have been presented no later than 21 November 2019 whereas they were not presented until 24 April 2020.[3]It was reasonably practicable for the unfair dismissal complaint to have been presented in time.[4]It would not be just and equitable to extend time for presentation of the disability discrimination complaint until the actual date of presentation, or at all.[5]It follows that the Tribunal does not have jurisdiction to hear the unfair dismissal complaint or the disability discrimination complaint and accordingly those two complaints are dismissed for want of jurisdiction. Case No: 1802264/2020[6]Nothing in this Judgment relates to any such complaint as there might be in respect of unauthorised deduction from wages. Case management orders are given in a separate document about this possible complaint. JUDGMENT having been sent to the parties on 2 June 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]These reasons are requested by the claimant in her email of 16 June 2021.[2]At a case management hearing on 8 July 2020, Employment Judge Lancaster had identified that the claimant was bringing complaints of unfair dismissal and direct disability discrimination. In fact it appeared that the claimant was also bringing a complaint in respect of unauthorised deduction from wages. Employment Judge Lancaster identified various preliminary issues in respect of the unfair dismissal and disability discrimination complaints. Essentially those issues were whether the complaints had been presented in time and if not whether time should be extended; whether the claimant was an employee so as to give her the right to pursue an unfair dismissal complaint; whether the claimant was an employee within the meaning of the Equality Act 2010 and whether in any event the direct disability discrimination complaint had reasonable prospects of success.[3]In the event, having determined the time issues at my hearing, it was unnecessary for me to deal with any of the other preliminary issues.[4]It is to be noted that there has been a substantial delay between the case management hearing in July 2020 and the effective preliminary hearing in May 2021. Without going into great detail, that was occasioned by several earlier unsuccessful attempts to conduct the preliminary hearing by reason of either technical reasons in relation to video hearings and then a health issue on the claimant’s part (suspected Coronavirus).[5]Evidence I have heard evidence from the claimant. She had prepared and served a five page witness statement which covered matters relevant to the various preliminary issues but went on to deal with the merits of her claim. The claimant was asked some questions about her evidence by the respondent’s director and she also answered various questions which I posed. The respondent had served a witness statement by Rachelle Butler, administration assistant. That was a signed statement. However Ms Butler did not attend the hearing. In those circumstances I explained to Mr Zamir that, subject to any objection expressed by the claimant, I would probably only be able to give Ms Butler’s statement such weight as I thought appropriate as she was not present to be asked questions and so that her evidence could be tested. I declined Mr Zamir’s suggestion that Ms Butler’s statement could be regarded also as a statement from Mr Zamir so he could give evidence. I decided that it would be appropriate for me to read Ms Butler’s statement and then give it such weight as I saw fit.[6]Bundle I have had before me an agreed bundle which ran to 45 pages.[7]Overview Nothing which follows in this paragraph is to be regarded as a finding of fact. My fact finding at this hearing is limited to those matters which are relevant to the preliminary issues and primarily that means making a decision about the date when the relationship between the claimant and the respondent was terminated. The claimant is an interpreter in the Kurdish language. She had undertaken work for the respondent, who is a provider of translation and interpreting services, since approximately 2011. The respondent contends that the claimant undertook work on a freelance basis and was not employed by them. The claimant however contends that she was an employee or at least a worker. The last assignment which the claimant worked for the respondent was the provision of interpretation where the end users were a firm of solicitors and their client at Chesterfield County Court on 16 August 2019. The respondent alleges that the claimant breached the terms and conditions which governed the assignment because they believe that the claimant, during the course of attending at the County Court, attempted to procure further interpreting work directly from the firm of solicitors rather than through the respondent. The claimant will deny that she did or sought to do that. She contends that statements given by another interpreter, a Miss Ali, who had been double booked in error and which primarily led the respondent to its belief, are false statements. In any event, the respondent subsequently indicated to the claimant that they would no longer be using her services. The claimant contends that that amounted to a dismissal.[8]Findings of fact in relation to the preliminary issues before me What was the effective date of termination? 8.1. For the purposes of dealing with this particular issue I have assumed (but not made any finding) that the claimant was an employee for the purposes of both her unfair dismissal and disability discrimination complaints. I have therefore used the terminology “effective date of termination” which has a particular meaning within the context of the Employment Rights Act 1996 and the Employment Tribunal’s jurisdiction in respect of unfair dismissal, with that proviso. The claimant in her claim form gives the date of termination of employment as 3 January 2020. It can now be seen that that is a reference to Ms Butler’s email to the claimant of that date which appears in the bundle at page 3. That email includes the following passage: “It seems you are forgetting the reason for our decision in the first place. We have taken the choice to no longer use your services as you have broken our terms and conditions of bookings”. However in the claimant’s witness statement prepared for today’s hearing the claimant contends that the effective date of termination was in fact the 4 December 2019. She bases that contention on another email from Ms Butler, again of that date and which appears at page 4 in the bundle. That email includes the following: “After having spoken to the managing director and looking into these issues we have decided to stand by our decision of no longer using your services.” 8.2. The respondent contends that the relationship between the parties was terminated when an email was sent to the claimant on 22 August 2019. There is a copy of that email on pages 7 to 8 in the bundle. In that email Ms Butler says that the respondent had been informed that the claimant had given her contact details to a client with a view to making a booking directly. Ms Butler went on to point out that that was in breach of the terms and conditions and she went on to write: “As a result of your direct breach of these terms and conditions you will be receiving a letter from our solicitor. Furthermore we will no longer be using your services in any capacity and will stop all outstanding payments to you.” I understand that in fact the claimant did not subsequently receive a letter from any solicitors, however it is the words used by the respondent itself in the 22 August email that I need to construe. 8.3. Following the claimant’s receipt of the 22 August email, the claimant sought clarification of the allegation which had been given as the reason for the respondent’s decision. It is perhaps fair to say that the 22 August email had already explained the breach which the respondent understood had occurred at Chesterfield County Court on 16 August 2019. 8.4. There was a further email exchange between the parties during October and November 2019. The claimant was invited to give her version of events so that there could be a further investigation. The claimant did this in her email to Ms Butler of 14 November 2019 (pages 5 and 6). This correspondence included the email from Ms Butler 4 December 2019 that I have already referred to. The claimant replied to that email on 19 December 2019, again disputing that she had been in breach and it was that email to which Ms Butler replied in her email of 3 January 2020 to which I have already referred. 8.5. In the claimant’s witness statement she says that it was on receipt of the 4 December 2019 email that she knew that she would not be re-engaged and at that point “it became obvious to me that my dismissal was both unfair and the result of discrimination.”[9]My conclusions on the effective date of termination 9.1. I find that the claimant had, even on her account, been aware of the reason for the termination (which the claimant within these proceedings contends was discriminatory) since the receipt of the respondent’s 22 August 2019 email. It is clear from the claimant’s email of 14 November 2019 that the claimant had already reached the conclusion or developed the theory that she had been dismissed for discriminatory reasons because of what she had allegedly been told by the other interpreter, Ms Ali whilst at court on 16 August 2019 and what she conjectured had been conveyed by Ms Ali to the respondent and/or her acceptance that what Ms Ali allegedly said about the respondent was true. In her 14 November email the claimant contended that Ms Ali, who apparently was undertaking her first assignment for the respondent, asked the claimant whether the respondent knew about the claimant’s disabilities and then allegedly went on to say that she was sure that they could not know because that agency did not offer any jobs to anyone with disabilities. The claimant’s case is based upon her contention that Ms Ali actually volunteered those statements to the claimant; that they accurately reflected the respondent’s stance on employees with disabilities and that Ms Ali, as the claimant apparently believes, (Ms Ali) reported back to the respondent that the claimant was a wheelchair user. 9.2. In the claimant’s email of 19 December 2019 (page 4) she wrote: “I have therefore concluded that your decision to take me off your list of interpreters is the result of discrimination against me because of my disabilities.” 9.3. I find that Ms Butler’s email of 22 August 2019 to the claimant is perfectly clear when it says that the respondent will no longer be using the claimant’s services in any capacity and would not be making any further payments to her. It is hard to see how the recipient of such a message could be in any doubt that the relationship between the parties, whether that be one of employment or otherwise, had been brought to an end by the respondent. I find that the subsequent correspondence which passed between the parties and which culminated in Ms Butler’s email of 3 January 2020 was in the nature of an informal appeal process. Accordingly I find that the 3 January 2020 email was not the notification of dismissal but rather the last in a series of communications between the parties in which the respondent had been adamant that it would not change it’s mind or alter the decision which had been communicated on 22 August 2019. The same comments apply equally to the respondent’s email of 4 December 2019. In these circumstances I find that the “effective date of termination” was 22 August 2019.[10]My conclusions in respect of the time issues On the basis that the direct disability discrimination complaint is limited to the less favourable treatment of dismissal, it follows that both this complaint and the unfair dismissal complaint should have been presented to the Tribunal no later than three months after the effective date of termination. That means that the last date for presenting the claim in time would have been 21 November 2019. However the claim was actually presented on 24 April 2020, some five months out of time. As the claimant did not approach ACAS for early conciliation until 28 February 2020, well after the normal limitation period had expired, she is not entitled to any extension under the scheme set out in, for instance, the Employment Rights Act 1996 section 207B. 10.1. Should time be extended for the unfair dismissal complaint? The Employment Rights Act 1996 at section 111(2) provides “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.” In terms of reasonable practicability, the claimant has told me that when she approached ACAS initially, possibly in December 2019, they told her that she should try to resolve her dispute with the respondent directly, and so in effect the claimant is suggesting that ACAS advised her that she could hold off from bringing formal proceedings within the Employment Tribunal. It is to be noted that although Employment Judge Lancaster had set out the issues in relation to reasonable practicability in his Order and had indicated that the claimant’s witness statement should include an explanation for the delayed presentation of her claim, the claimant’s witness statement in fact says very little, if anything, about that topic. She does contend that it would have been reasonable for her to give the respondent the opportunity to explain their original decision and then to review it. On the material before me I find that it would have been reasonably practicable for the claimant to have presented her claim within the normal three month time limit. There was nothing to stop the claimant presenting the claim to the Tribunal but then, in parallel , entering into correspondence with the respondent in the quasi appeal process. Today the claimant has told me that she did not want to further damage her relationship with the respondent by starting legal proceedings. However bearing in mind that the respondent had made a robustly expressed decision in August 2019 and that the claimant had subsequently accused the respondent of disability discrimination, it is hard to see that there was any relationship left in existence to damage at the relevant time. As I have concluded that it was reasonably practicable for the claim to have been presented in time in respect of unfair dismissal, whereas it was not, this means that the Tribunal does not have jurisdiction to hear the unfair dismissal complaint which must therefore be dismissed. 10.2 My conclusions in respect of the time limit for the disability discrimination complaint The Equality Act 2010 provides, at section 123, that proceedings on a complaint of discrimination may not be brought after 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. Because of my earlier finding it is clear that the complaint was not brought within the period of three months starting with the date of the act complained of (the alleged dismissal) and so the question I have to consider is whether it would be just and equitable to extend the normal time limit to the date of actual presentation on 24 April 2020. In so far as the claimant has been able to explain the reasons for her delay, these have been recited in an earlier part of this Judgment. The claimant has offered no further explanation as to why it would be just and equitable to extend time. I conclude that there are in fact various factors which militate against any extension of time for this complaint. Those matters are: (a) The length of the delay – some five months; (b) The effect that passage of time is likely to have on the memory of those who would be required to give evidence and so the cogency of that evidence. Assuming the merits of this case could be heard this year, that would be some two years after the events which are relevant to the claim.(c) I consider that it is also appropriate to have some regard to the likely or apparent merits of the disability discrimination complaint. As noted above, it appears that the case is based upon the claimant’s theory that what Ms Ali allegedly told her about the respondent’s attitude to disabled employees was true; that Ms Ali then went on to inform the respondent that the claimant was a wheelchair user (which appears to be pure speculation on the claimant’s part) and this despite the actual content of Ms Ali’s email of 16 August 2019 to the respondent. This email is at page 11 in the bundle. In this email Ms Ali is critical of the claimant, suggesting that some of the interpreting that she did was not quite right and says that she, Ms Ali, was ignored. She also makes the allegation that at the end of the session at the Chesterfield County Court on 16 August 2019 there was a conversation between the solicitor and the claimant from which Ms Ali deduced that the two intended to be in direct contact with each other and which Ms Ali thought was “a bit strange because interpreters usually call by the agency”. Ms Ali makes no reference what so ever in her email to the claimant being disabled or being a wheelchair user. I also consider that the respondent appears to have reasonable prospects of establishing that it had a non-discriminatory reason for terminating the relationship – that is the alleged breach of the terms and conditions by the claimant. In these circumstances I find that there is no basis for me to exercise my discretion to extend time on the just and equitable ground. It follows that the Tribunal does not have jurisdiction to entertain this complaint which must also be dismissed.[1]The claimant in her application contends that “at the time I was not compos mentis to proceed earlier. I was not mentally capable of making the application in time”. This is the first time that the claimant has alleged that she was not able to present her claim to the Employment Tribunal in time because of health issues.[2]She therefore had made no reference to it in her witness statement for the preliminary hearing. Nor did she refer to that issue in her oral evidence at the preliminary hearing.[3]It follows that there was no medical evidence before me at the preliminary hearing. Whilst the claimant now says that she has “requested a full medical report” to confirm, presumably her new allegation that she was not mentally capable of presenting the claim in time, there is no reason given as to why that medical evidence could not have been obtained so as to be available at that hearing. That is particularly so in circumstances where the preliminary hearing was originally scheduled to take place on 5 October 2020 and thereafter on 14 October 2020 and then 23 March 2021 when in 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 1802264/2020 each case for various reasons those hearings did not proceed. The only assumed reason for there being no medical evidence at the preliminary hearing in May 2021 was because competency to present a claim on health grounds was not at that stage part of the claimant’s case.[4]It is not appropriate for me to comment on the claimant’s allegation in her 16 June 2021 email that she was not “able to perform adequately” at the hearing before me on health grounds; nor the allegation that I was informed of that but disregarded it; nor the allegation that the claimant had a panic attack during the hearing; nor the allegation that in that context (or in fact any other) I disallowed assistance for the claimant from her friend Mr Watson who accompanied her. If the claimant wishes to pursue such matters that would have to be by means of an appeal to the Employment Appeal Tribunal rather than within the context of an application for reconsideration which is what I am dealing with here. However, for the record, the absence of any comment from me on these allegations is in no shape or form to be regarded as an acceptance of the veracity of these allegations.