Ms H Fynn-O’Neill v Study Group UK Ltd: 1807152/2020
EMPLOYMENT TRIBUNALS
Case No 1807152/2020
Between
Ms H Fynn-O’NeillClaimantStudy Group UK LtdRespondent
Before
Employment Judge BrainMiss N Brown (instructed by Solicitor) for respondentDate 12 May 2021
JUDGMENT
[1]Upon the claimant’s claims brought under the Equality Act 2010 and with reference to paragraph 21 of the claimant’s draft amended statement of case (at pages 81 to 90 of the respondent’s hearing bundle): 1.1. The extant complaints in sub- paragraphs (c), (d), (f), (g), (m), and (o) were presented to the Employment Tribunal outside the limitation period provided for by section 123 of the 2010 Act. 1.2. It is just and equitable to extend time to vest the Tribunal with jurisdiction to deal with the extant complaints identified in paragraph 1.1. 1.3. The claimant has permission to amend her claim to include the issues identified in sub- paragraphs (a), (b), (e), (h), (i), (j), (k) and (l). 1.4. The claimant’s application to amend her claim to include the matters at sub- paragraphs (n), (p) and (q) is refused.[2]Upon the claimant’s complaints under the Employment Rights Act 1996: 2.1. The extant claim that the respondent made an unauthorised deduction from the claimant’s wages contrary to Part II of the 1996 Act in respect of wages said to be payable at around the end of 2019 was presented outside the limitation period provided for in section 23(2) of the 1996 Act in circumstances in which it was reasonably practicable to have presented the complaint within the limitation period. Accordingly, the Tribunal has no jurisdiction to consider the complaint. 10.5 Reserved judgment with reasons – rule 61 1 March 2017 2.2. The claimant’s application to amend her complaint to include one that the respondent made an unauthorised deduction from her wages by failing to pay her for 511 hours of work undertaken between October 2019 and August 2020 inclusive is refused.
REASONS
[1]In Chandhok v Turkey [2015] IRLR 195, EAT Langstaff P (as he then was) said in paragraph 16 that, “the claim, as set out in the ET1, is not something to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning … the claim as set out in the ET1.”[2]He went on to say in paragraph 18 that, “… a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost a jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”[3]The prescience of the-then President’s words of the need for parties to ensure that the entirety of their pleaded case is set out in the ET1 is well illustrated by the complex procedural history of this matter. Although matters were not assisted by the loss of time this morning due to missing documentation and technical issues, such was the complexity that there was simply insufficient time for me to deliver Judgment within the time allocated for this open preliminary hearing.[4]I shall now set out the procedural history of the matter. Mandatory early conciliation as required by section 18A of the Employment Tribunals Act 1996 was both commenced by the claimant and finished on 11 September 2020. An early conciliation certificate (reference number R191616/20/16) was issued to the claimant that day.[5]The claimant presented her claim form on 9 December 2020.[6]The matter benefited from a case management preliminary hearing which was held in private and came before Employment Judge Cox on 17 February 2021. In the annexe to the record of that hearing sent to the parties on 19 February 2021, Employment Judge Cox identified the claimant’s complaints. It is worth setting these out in full: 10.5 Reserved judgment with reasons – rule 61 2 March 2017 “Race discrimination The claimant alleges that, because she is black, she was treated less favourably than a white person was or would have been treated in the following ways:[1]In June 2019, Claire Heke, head of centre, decided not to appoint her to the role of head of department. A white person, Debbie Lea, was appointed.[2]In June 2019, in response to a request by the claimant for feedback on why she did not get the head of department job, Claire Heke told her that she could not handle pressure.[3]In July 2019, Claire Heke decided not to appoint the claimant to the role of programme leader. Mike Towers, a white person, was appointed to the role.[4]In July 2019, Claire Heke refused the claimant’s request to work part time.[5]In January 2020, when the claimant entered the staff room at the beginning of the day, Claire Heke said to her: “you look like you are high on drugs”.[6]In March 2020, Claire Heke refused the claimant’s request for compassionate leave. Alisa Campbell, who is white, was granted compassionate leave. Unauthorised deduction The claimant alleges that at the end of 2019 the respondent agreed to pay her for developing a module at the rate of £18 per hour. She completed 100 hours and so was due £1800, payable at or around the end of 2019”.[7]In her grounds of claim which accompanied her ET1, the claimant set out the factual background. This opens with an explanation for the delay in submitting her complaint. I shall deal with this issue later on in these reasons.[8]The claimant then went on to say that her case is “based on treatment at work that amounts to constructive dismissal”. (The claimant acknowledges that as she remains in the employment of the respondent there is no basis for her to pursue a complaint of constructive dismissal).[9]In her grounds of claim, the claimant complained about the following matters: 9.1. Unfair treatment in workload. 9.2. Unreasonable changes to her working patterns. 9.3. A failure to pay her an agreed amount. 9.4. Racial discrimination.[10]She goes on, in her grounds of claim, to give particulars of these four matters. I shall now give a brief description of the matters at 9.1, 9.2 and 9.4.[11]The unfair treatment around her workload essentially comprises of two complaints. The first is that she was allocated a disproportionate amount of 10.5 Reserved judgment with reasons – rule 61 3 March 2017 work between January and September 2019. At that time, she was employed to work upon a full-time basis as an academic tutor. The second limb of this allegation is that following a decision which she took to work part-time with effect from October 2019, her workload remained high and, she says, she was effectively working as a full-time tutor notwithstanding her part-time status.[12]The complaint about an unreasonable change to her working pattern centres upon her case that she was given a deadline to create an online learning compatible module specification for three modules. She was assigned this task on 6 August 2020 with a deadline of 11 August 2020.[13]Under the heading “racial discrimination” the claimant complained of the following matters (in addition to those identified by Employment Judge Cox): 13.1. Claire Heke remarked on at least two other occasions upon the claimant’s inability to handle pressure. 13.2. Claire Heke, when initially refusing the claimant’s request to work part-time, also commented that the claimant must remain as fulltime or resign her position. 13.3. The claimant met with Claire Heke to discuss why the claimant had not been considered for other positions within the business, law and social sciences department where she worked. She was told that this was because she had been “simply overlooked”.[14]At the preliminary hearing held on 17 February 2021, Employment Judge Cox directed the claimant send to the respondent and to the Tribunal a statement of the remedy being sought. The claimant complied with this Order.[15]On 10 March 2021 the respondent, as directed by Employment Judge Cox, presented to the Tribunal and served upon the claimant the respondent’s amended response following the clarification of the claimant’s claims.[16]Employment Judge Cox directed there to be a preliminary hearing to take place today with a time allocation of three hours in order to consider the following matters: “16.1. Whether the Tribunal has jurisdiction to hear the allegations in the light of the statutory time limits for the presentation of claims. 16.2. Consider any application the claimant may make to amend the claim. 16.3. Consider whether the claim should be the subject of judicial mediation. 16.4. Make Orders as necessary and appropriate for the preparation of the claim for hearing”[17]On 26 March 2021, the claimant sent to the Tribunal and served upon the respondent’s solicitor a proposed amendment statement of case along with a schedule of loss upon the premise of the proposed amended statement of case. The claimant’s representative also served a witness statement from the claimant together with a bundle of evidence for today’s hearing. 10.5 Reserved judgment with reasons – rule 61 4 March 2017[18]The application to amend the claimant’s case is dated 6 April 2021 and is at pages 100 to 107 of the respondent’s hearing bundle.[19]Miss Brown presented helpful submissions ahead of today’s hearing. She observed (in paragraphs 60 and 61) that the claimant was seeking to pursue 11 further allegations of race discrimination (to be found in paragraph 21 of the draft amended statements of claim at pages 81 to 90 of the respondent’s hearing bundle). (In fact, as Miss Brown pertinently observed, the number of new allegations is greater than 11 because those at paragraph 21(a)(b) and (n) are broken down into sub-paragraphs. It follows therefore that 18 new allegations of race discrimination are sought to be added).[20]In addition, the claimant seeks to plead that the allegations in paragraph 21(c) to (q) inclusive may be brought in the alternative as complaints of harassment related to race.[21]For the sake of completeness, the claimant also sought to add a further allegation against the respondent that the respondent had made an unauthorised deduction from the claimant’s wages for some 511 hours of unremunerated work undertaken by the claimant in her part-time role between October 2019 and August 2020.[22]It is, I think, worth reciting briefly the respondent’s reply in the amended grounds of resistance in answer to the claimant’s claim as clarified by Employment Judge Cox. These are at pages 74 to 80 of the respondent’s bundle. Taking matters in the same as they appear above in paragraph 6: 22.1. Debbie Lea was appointed to the position of head of centre as she was deemed to be the most suitable candidate based on her skills, experience and performance at interview. (I observe that the respondent originally pleaded, at paragraph 29 of the response form submitted on 13 January 2021, that the claimant did not meet the specific qualification requirements for the role and therefore acknowledged that she was not qualified for the post. This pleading appears not to have been repeated in the amended grounds of resistance). 22.2. Miss Heke says that she has no recollection of making a remark to the effect that the claimant could not handle pressure. 22.3. Mr Towers was appointed to the role of programme leader (which the respondent says is not a promotion) because at the material time he did not have additional responsibilities (in contrast to the claimant, who was programme lead in other areas). The respondent says that Mr Towers had a significant background in policies which was relevant to the course and that the claimant does not have the appropriate post-graduate qualification to teach international relations (in contrast to Mr Towers). 22.4. The respondent accepts that initially Claire Heke refused the claimant’s request to work part-time but this refusal was subsequently reconsidered. (I observe that the initial refusal to convert to part-time worker status appears to have precipitated the claimant’s decision to resign her post. The resignation then appears to have been rescinded by mutual consent and the claimant was permitted to work part-time with effect from October 2019). 10.5 Reserved judgment with reasons – rule 61 5 March 2017 22.5. The respondent denies that Claire Heke made a comment to the effect that the claimant looked like she was “high on drugs”. 22.6. The respondent says that they had an awareness of personal issues which precipitated the claimant’s request for compassionate leave. The respondent says that Alisa Campbell was on sick leave and not on compassionate leave and was, in contrast to the claimant, open with the respondent about her needs.[23]In both iterations of the grounds of resistance, the respondent has taken the point that the Tribunal does not have jurisdiction to consider any of the claimant’s claims because they have been brought outside the relevant limitation periods. Such an issue goes to the jurisdiction of the Tribunal to hear the claimant’s claims and therefore, even had the respondent not taken the time points, it would have been incumbent upon the Tribunal to consider the issue anyway.[24]I shall start with the consideration of the relevant law upon limitation periods for the purposes of the unauthorised deduction of wages claim. By section 23 of the 1996 Act, a worker may present a complaint to an Employment Tribunal that their employer has made a deduction from their wages. A Tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with:(a) In the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or(b) In the case of a complaint relating to a payment received by the employer, the date when the payment was received.[25]Where a complaint is brought in respect of a series of deductions or payments, time starts to run from the time of the last deduction or payment in the series or to the last of the payments so received.[26]Where the Tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of three months, the Tribunal may consider the complaint if it is presented within such further period as the Tribunal considers reasonable.[27]Whether the act of presentation of the claim form was reasonably practicable does not entail simply looking at what was possible but to ask whether on the facts of the case as found it was reasonable to expect that which was possible to be done to have been done.[28]I now turn to a consideration of the law of limitation under the 2010 Act. By section 123 of the 2010 Act proceedings 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. Conduct extending over a period is to be treated as done at the end of the period.[29]The discretion for Tribunals to hear out-of-time claims within whatever period they consider to be “just and equitable” is clearly broader than the discretion to allow late claims to proceed where it was “not reasonably practicable” to present in time.[30]While Employment Tribunals have a wide discretion to allow an extension of time under the “just and equitable” test in section 123, it does not 10.5 Reserved judgment with reasons – rule 61 6 March 2017 necessarily follow that exercise of the discretion is a foregone conclusion. In Robertson v Bexley Community Centre trading as Leisure Link [2003] IRLR 434, CA, the Court of Appeal said that when Employment Tribunals consider exercising the discretion under section 123(1)(b), “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 it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule”. However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law simply requires that an extension of time should be just and equitable.[31]In British Coal Corporation v Keeble and Others [1997] IRLR 336, EAT there was a suggestion that in determining whether to exercise discretion to allow the late submission of a discrimination claim, Tribunals would be assisted by considering the factors listed in section 33(3) of the Limitation Act 1980. That section deals with exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all of the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once they knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain the appropriate advice once they knew of the possibility of taking action.[32]In London Borough of Southwick v Afolabi [2003] EWCA Civ 15, the Court of Appeal said it was not necessary to adhere to the section 33 checklist slavishly. The Court of Appeal considered the matter again in Department of Constitutional Affairs v Jones [2008] IRLR 128, CA. There, it was held that the section 33 checklist is a valuable reminder of what may be taken into account, but the relevance of it depends on the facts of the individual case and Tribunals do not need to consider all of the factors in each and every case.[33]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ cautioned against giving the decision in Keeble a status which it does not have. He cited with approval the Judgment of Leggatt LJ in Abertawe Bro Morjannwg University Local Health Board v Morgan [2018] EWCA Civ 640 where he said (in paragraph 19) that, “the factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) The length of, and reasons for, the delay and(b) Whether the delay has prejudiced the respondent (for example), by preventing or inhibiting it from investigating the claim while matters were fresh.”[34]Upon the question of the length of and reasons for the delay, the Court of Appeal in Abertawe held that the discretion under section 123 of the 2010 Act for an Employment Tribunal to decide what it thinks to be just and equitable is clearly intended to be broad and untethered. There is no 10.5 Reserved judgment with reasons – rule 61 7 March 2017 justification for reading into the statutory language any requirement that the Tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation for the delay from the claimant. The most that can be said is whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the Tribunal ought to have regard. However, there is no requirement for a Tribunal to be satisfied that there was a good reason for the delay before it could conclude that it is just and equitable to extend time.[35]A Tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted their claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent. There must be weighed in the balance the prejudice to the claimant of the loss of a valid claim as against any prejudice caused to the respondent. Some prejudice will always be caused to the employer if an extension of time is granted given that the case would otherwise be dismissed. However, the prejudice caused needs to be more than simply that.[36]In taking into account the balance of prejudice the Tribunal may consider the prospective merits of the claim. Of course, the Tribunal should not, at this stage, conduct a mini-trial. The exercise entails considering whether the claimant is able to make out a prima facie case which appears to have reasonable prospect of succeeding.[37]The Tribunal had the benefit of hearing evidence from the claimant. Some of her witness statement goes to the substantive issues in the case. Miss Brown did not cross-examine the claimant upon the merits of the claim. For the avoidance of doubt, this shall not be held against the respondent and it is open to the respondent to cross-examine the claimant upon the substantive issues to which this case gives rise in due course.[38]The latter part of the claimant’s witness statement focuses upon the issue of the steps taken to investigate her claim and then present it to the Employment Tribunal in paragraphs 13 to 25. The claimant’s evidence-inchief may be summarised as follows: 38.1. The claimant considered that she was experiencing race discrimination during 2019 but considered that she could “tolerate it”. She also says that she had “an eye for leaving” and hoped that things would get better. 38.2. She decided against raising the issue informally or formally as a grievance until August 2020. She decided against this because “going through the grievance made it personal”. 38.3. After she raised her informal grievance in August 2020, she returned to work following a period of annual leave to find a schedule of work for the new academic year as heavy as before. This triggered a panic attack. The claimant went on sick leave from 2 September 2020. Sick notes covering the period between 14 September and 3 January 2021 following a diagnosis of depression may be found at pages 22 to 25 inclusive of the claimant’s bundle. 10.5 Reserved judgment with reasons – rule 61 8 March 2017 38.4. The claimant says (in paragraph 17 of her witness statement) that, “as a result of the breakdown, I could barely look after myself let alone feel mentally capable to do anything else. I only hoped to get better. This is when I knew I had to do something about the workload, race discrimination and harassment.” 38.5. The claimant says that it was this which prompted her to look into matters. She telephoned ACAS on 11 September 2020. (It will be recalled that she obtained the early conciliation certificate that day). The claimant’s evidence is that she was told to make a formal grievance and then proceed with the claim if matters were not resolved. (It appears that the claimant was under the mistaken impression that she needed to get an early conciliation certificate from ACAS before pursuing matters formally with the employer). 38.6. The claimant submitted a formal grievance on 21 September 2020. The grievance outcome was sent to her on 25 November 2020. She then appealed on 30 November 2020. The grievance appeal outcome was sent to her on 22 January 2021.[39]The claimant sought to criticise the respondent for the length of time taken to deal with the formal grievance. In the Tribunal’s judgment, this criticism is misplaced. We can see from the grievance outcome letter of 25 November 2020 (at pages 36 to 44 of the claimant’s hearing bundle) that her grievance was acknowledged on 2 October 2020. The respondent suggested meeting with the claimant on 7 October 2020. However, due to the claimant’s union representative’s non-availability this was not possible. The grievance handler, Deborah Stoke was then away on annual leave between 9 and 16 October 2020. Therefore, the grievance meeting took place on 23 October 2020. The five issues raised in the grievance were discussed. They are of some complexity. They were then investigated by the respondent. In my judgment, the respondent did not take an unreasonable length of time to undertake the grievance investigation and prepare a report upon it.[40]The following evidence emerged from the cross-examination by Miss Brown of the claimant: 40.1. The claimant said that she was seeking to pursue her claim for unpaid wages (due at the end of 2019) internally. She says that she did so in or around March 2020. Although the claimant does lecture in law, she denied any specialist legal knowledge. She says that she delivers law lectures only to foundation students. 40.2. She is studying for a PhD but has not yet had time to complete it due to her workload. 40.3. She denied that, when she spoke to ACAS, mention was made of limitation periods or time limits. That said, she acknowledged that she had an awareness of time limits. Indeed, she refers (in paragraph 18 of her witness statement) to logging on to the ACAS website and noting reference to a time limit for a claim to be made within three months less one day of the event in question. 40.4. Miss Brown put to the claimant that the ACAS website (in particular the extract that we can see at page 109 of the respondent’s hearing 10.5 Reserved judgment with reasons – rule 61 9 March 2017 bundle) recommends complainants seek legal advice. The claimant said that she had endeavoured to obtain advice. She approached several pro bono legal charities after the University and College Union declined to represent her in September 2020. The UCU declined representation on 10 September 2020 upon the basis that the matters arose before she joined the union. She approached the University of Law Legal Advice Centre in December 2020 (page 70 of the claimant’s bundle). This document refers to her having spoken to somebody there “around two weeks prior to 4 December 2020” following, it seems, an earlier conversation a few weeks prior to that. She says in paragraph 25 of her witness statement that she was then re-directed to the Leeds Free Legal Representation who contacted her in February 2021. It is through that organisation that Mr Sachdev comes to represent the claimant.[41]I now turn to my conclusions upon the time limit issue. I shall start with the complaint brought under the 1996 Act that the claimant suffered an unauthorised deduction of wages (referred to in paragraphs 6 and 9.3 above). The claimant’s case, as set out in her grounds of complaint under the heading “not being paid an agreed amount without good reason” is that the respondent agreed to pay her for developing materials for one of the modules because it was not possible to develop the material within her parttime hours. As recorded by Employment Judge Cox, the claim is for 100 hours of work at £18 per hour payable at or around the end of 2019.[42]On any view, this complaint has been presented outside the limitation period provided for in section 23(2) of the 1996 Act. On the claimant’s case, the wages were due to be paid to her at the end of 2019. She did not commence the early conciliation process until 11 September 2020. On her case, the remuneration was to be paid to her at the end of 2019 and therefore the limitation period expired on or around 31 March 2020. Prior to that date, the claimant needed to commence the early conciliation process and then present the claim to the Employment Tribunal within the applicable time limits.[43]In my judgment, it was reasonably practicable for the claimant to have presented her claim in time. There was simply no evidence that it was not reasonably practicable for the claimant to have presented the claim in time. The claimant’s ill health following her return to work in September 2020 was, plainly, many months after the expiry of the limitation period. Nothing said by the claimant said comes close to showing that it was not reasonably practicable for her to have presented her claim in time. In my judgment, not only was it possible for her to have presented the claim in time it was also reasonable to expect her to have done so.[44]I accept that the claimant is not an expert in employment law. She teaches law to foundation students. However, she is plainly a very intelligent individual. She works as a lecturer in a prestigious institution and is studying for a PhD. To her credit, the claimant did not protest that she was ignorant of her ability to pursue the matter before the Tribunal. Had she sought to argue that, I would have been dubious as to whether her ignorance was reasonable. However, I need not make any factual findings about ignorance of her rights given that no evidence was presented to me upon that matter. 10.5 Reserved judgment with reasons – rule 61 10 March 2017[45]It follows therefore that the Tribunal has no jurisdiction to consider the unauthorised deduction from wages claim. It is of course open to the claimant to pursue the matter through the county court should she so choose.[46]I now turn to the complaints brought under the 2010 Act. I agree with Miss Brown that these matters have been presented outside the time limit provided for by section 123 of the 2010 Act. Upon the claimant’s case, all of the six allegations of race discrimination are linked by the involvement of Claire Heke. Therefore, on the face of it, there is a continuing course of conduct ending in March 2020. At the most generous, therefore, time would start to run against the claimant on 31 March 2020. Again, no steps were taken to initiate tribunal proceedings until 11 September 2020 when the claimant entered into mandatory early conciliation.[47]The claimant’s explanation for taking no action earlier is that she essentially decided to keep her head down with a view to tolerating matters and then looking to move on to pastures new. Her decision to take action was precipitated by the impact upon her health which manifested itself in September 2020. In the grounds of claim which accompanied her claim form, she mentions going on sick leave in September 2020 and receiving counselling because of the issues at work. She refers to the culture and attitude of the respondent’s management.[48]Plainly, were the Tribunal to be applying the reasonable practicability test, the claimant may have faced some difficulty. There was sufficient, on her case, to warrant at least investigating matters and then instituting proceedings following the incidents of June and July 2019 (being the first four matters referred to in paragraph 6 above). However, this is not the test for complaints under the 2010 Act.[49]To repeat, there is no requirement that the Tribunal must be satisfied that there was a good reason for the delay let alone that time cannot be extended in the absence of an explanation for the delay from the claimant. The explanation or reason for the delay and the nature of any such reason are relevant matters to which the Tribunal ought to have regard.[50]In my judgment, the explanation given by the claimant for not taking any action until 11 September 2020 is one that weighs in the balance in her favour. She took the decision to soldier on. On her case, she was placed in an invidious position and decided to tolerate matters and seek a move elsewhere. When this did not come to pass, she was faced with a significant amount of workload which precipitated a period of ill health.[51]The claimant then endeavoured, during that period of ill health, to obtain legal advice. I accept that she is modestly paid and is unable to afford to instruct a solicitor privately. I also take judicial notice of the fact that legal aid is greatly restricted and pro bono legal charities are thin on the ground. The claimant was endeavouring to find legal representation in difficult circumstances where she had a heavy workload and was coping with a period of ill health due to depression. In my judgment, the claimant made reasonable efforts to seek advice given the circumstances. 10.5 Reserved judgment with reasons – rule 61 11 March 2017[52]There was no evidence from the respondent that the cogency of evidence was impacted by the delay. Although there was such a suggestion in Miss Brown’s submission, there was no evidence that key witnesses or documentation had been lost because of the delay such as to prejudice the respondent’s ability to defend the complaints. Indeed, to the contrary, this appears on the face of it to be document-heavy case. The claimant raised grievances about the matters which she now brings to the Tribunal. The issues had been investigated by the respondent. In those circumstances, the risk of memory fade is limited.[53]I may take into account the apparent merits of the claim. Plainly, I have not heard all of the evidence and, as I have observed, the claimant’s account upon the substantive issues was not (quite properly) challenged by Miss Brown. On the face of it, it cannot be said that the claimant is seeking to pursue a wholly unmeritorious or weak claim.[54]The prejudice to the claimant of a refusal to extend time to vest the Tribunal with jurisdiction to entertain her complaints brought under the 2010 Act is significant. It will drive her from the judgment seat. Her claims will not be heard. The only prejudice to the respondent, on the other hand, is having to defend a case which otherwise stand dismissed. As I observed, the prejudice caused to the respondent needs to amount to more than simply that. Therefore, the balance of prejudice favours the claimant.[55]Taking into account the length of and reason for the delay and the balance of prejudice, in my judgment it is just and equitable to extend time to vest the Tribunal with jurisdiction to consider the complaints identified by Employment Judge Cox on 17 February 2020.[56]I now turn to the claimant’s application to amend her claim. The Tribunal has jurisdiction only to determine the case put before it and not some other case. Should the claimant therefore wish the Tribunal to consider matters other than those in the claim form, an application for amendment is required.[57]In Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT, Mummery J (as he then was) said that in determining whether to grant an application to amend, the Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment.[58]Mummery J explained that the relevant factors would include: 58.1. The nature of the proposed amendment – applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels to the facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action. 58.2. The applicability of time limits – if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that claim or cause of action is out of time, and if so whether the time limit should be extended. 10.5 Reserved judgment with reasons – rule 61 12 March 2017 58.3. The timing and manner of the application – an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it has now been made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. 58.4. The merits of the claim – it may be appropriate to consider whether the claim, as amended, has reasonable prospects of success. There is no purpose in allowing an amendment to add an utterly hopeless case. However, there should be an assumption upon the face of it that a case is arguable unless there is material before the Tribunal which appears to indicate that it is implausible or otherwise unmeritorious (Woodhouse v Hampshire Hospital NHS Trust EAT 0132/12).[59]In Selkent, Mummery J suggested that the nature of the proposed amendment should be considered first. It is only necessary to consider the question of time limits where the proposed amendment in effect seeks to add a new complaint as distinct from re-labelling an existing claim. Nevertheless, whatever type of amendment is proposed the core test is the same: namely reviewing all the circumstances including the relevant balance of injustice in deciding whether or not to allow the amendment.[60]The fact that there is a new cause of action does not of itself weigh heavily against amendment. When considering applications to amend that arguably raise new causes of action the focus should be not on questions of formal classification but rather on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old. The greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. Any mislabelling of the relief sought is not usually fatal to a claim. Where the effect of the proposed amendment is simply to put a different legal label on facts that are already pleaded, permission will normally be granted.[61]As I have said, the applicability of time limits is a factor which only arises where the proposed amendment raises what it is effectively a brand-new cause of action. Where the amendment is simply changing the basis of or re-labelling of an existing claim, it raises no question of time limitation.[62]The discretion to permit amendment is not constrained necessarily by limitation. The applicant for the amendment need only demonstrate a prima facie case that the primary time limit or alternatively the reasonably practicable or just and equitable ground for extension is satisfied. The doctrine of “relation back” does not apply in the Employment Tribunal. In other words, for the purposes of considering the applicability of time limits, the Tribunal must consider matters by reference to the date of the application to amend and not the date upon which the originating application (in the form of the ET1) was presented to the Tribunal. 10.5 Reserved judgment with reasons – rule 61 13 March 2017[63]Upon the issue of the timing and manner of the application, delay may count against an applicant because the overriding objective requires cases to be dealt with expeditiously and in a way which saves expense. Undue delay may well be inconsistent with these objectives. The later an application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment.[64]The Tribunal will need to consider: why the application is made at the stage at which it is made; why it was not made earlier; whether, if the amendment was allowed, delay will ensue; whether there are likely to be additional costs because of the delay; the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if the additional costs are unlikely to be recovered by the party that incurs them; and whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier.[65]The key paragraph in the proposed amended statement of case is, as I have already said, to be found at paragraph 21. The extant claims (which have been allowed to proceed out of time) may be found at paragraph 21 (c) (Issue No 1 in paragraph 6); (d) (Issue No 2); (f) (Issue No 3); (g) (Issue No 4); (m) (Issue No 5) and (o) (Issue No 6).[66]Paragraphs 21(a), (b), (i), (j), (k) and (l) are pleaded in the grounds of claim which accompanied the ET1 by way of factual background to these six claims. These sub-paragraphs of the draft amended particulars are to be found in the grounds of claim as summarised in paragraphs 9 to 13 above.[67]The claimant’s application to amend her claim to include the six matters referred to in paragraph 66 cannot therefore be categorised as the making of entirely new factual allegations which change the basis of the existing claim. The claimant is seeking to pursue claims upon the basis of these matters which hitherto she had been content to rely upon by way of background evidence in support of the six extant claims in paragraph 6 of these reasons.[68]The claimant is not seeking to undertake a re-labelling exercise of claims already pleaded upon these matters. This is because they were not pleaded as claims when the ET1 was presented. What the claimant is in fact seeking to do is attach a legal label to them in order to pursue them as claims.[69]This may be considered a point of formal classification. In the final analysis, the parties would have had to call evidence upon the background information in any case. Pleading these matters as claims as opposed to background evidence is therefore not likely to involve substantially different areas of enquiry than hitherto. These factors point in favour of the claimant’s application.[70]Also in favour of the claimant’s application is that the amendment application has been made at a relatively early stage of the proceedings. Employment Judge Cox gave limited case management directions pending the outcome of the open preliminary hearing which I have heard today. No directions were given for disclosure, the preparation of hearing bundles, the exchange of witness statements or for the listing of the case for hearing. No trial date is jeopardised by the amendment application. 10.5 Reserved judgment with reasons – rule 61 14 March 2017[71]I also need to take into account why the application has made at the stage which it has. When recounting the claimant’s factual evidence, I recorded that she made efforts to find legal help and was referred to Mr Sachdev in February 2021. Upon seeking skilled legal advice from him her wish is to present a better pleaded and more focused claim encompassing the additional matters that are subject of the amendment application. Additional costs are unlikely to be incurred by the respondent in having to meet these claims because evidence will have to be adduced upon them in any case. Further, there is no evidence to indicate that the cogency of the evidence relevant to the new issues is no longer available or rendered of less quality than it would have been had the claimant presented her claim in the form of the proposed amended statement of case last December in any event.[72]Had the claimant presented a new claim upon these matters, then such a complaint would of course have been presented outside the time limit provided for by section 123 of the 2010 Act. The proposed amended statement of case was presented on 26 March 2021 and the application to amend was made only on 6 April 2021. Therefore, these new complaints are around four months further out of time than the extant claims identified by Employment Judge Cox.[73]However, for the same reasons as I extend time to consider the extant claims, it is my judgment that the claimant is able to demonstrate a prima facie case that the just and equitable ground for extending time is satisfied.[74]That only leaves me to consider the issue of the apparent merits of the claims. Upon the authority of Woodhouse, I am to assume that the case is arguable unless there is something before the Tribunal to demonstrate that the complaint has no reasonable prospect of succeeding or is in some way implausible.[75]In my judgment, it cannot be said that any of these complaints displace the assumption which I am to make. The matters at paragraph 21(i) and (j) are further instances of adverse remarks from Claire Heke about the claimant’s inability to handle pressure. That allegation will turn upon the evidence and is very much of the same flavour as the extant claim number 4. The claim at paragraph 21(k) (that the claimant should resign or carry on working full- time) is closely tied to the issue of the refusal of the claimant’s request to work part-time. The allegation of paragraph 21(l) that the claimant was overlooked for other positions within the BLSS department is closely aligned with the decisions taken not to appoint the claimant to the role of head of department (upon which the respondent’s position has changed) and the programme leader role.[76]During the course of the hearing, I expressed some concerns about the comparator issues upon allegations 21(a) and (b). By way of reminder, the allegation at paragraph 21(a) is that the claimant was allocated a disproportionately high workload as a full-time tutor. She identifies Alisa Campbell as a comparator who was also at the material time a fulltime tutor but with a lower workload. The claimant is therefore able, on the face of it, to at least point to a difference in the protected characteristic of her and Miss Campbell and to a difference in treatment. Of course, to found a complaint of direct discrimination something more than simply a difference of treatment and difference in protected characteristic or status is required. 10.5 Reserved judgment with reasons – rule 61 15 March 2017 However, should the claimant’s evidence come up to proof upon some or all of the matters pleaded, then it will be open to her to invite the Tribunal to draw an adverse inference against the respondent that the reason why she was overworked was because of race. There will then be a burden upon the respondent to show that race in no sense whatsoever was the cause of the less favourable treatment of the claimant around workload.[77]The allegation at paragraph 21(b) is that while working part-time, she was undertaking a full- time workload. She compares her treatment with that of Mr Towers who is white and a full-time tutor. I am less convinced that Mr Towers is an appropriate comparator upon the allegation at 21(b) than is Miss Campbell upon the allegation at 21(a). The claimant appears to be complaining that the respondents treated her the same as Mr Towers by allocating both of them a full-time workload.[78]In my judgment, upon the allegation at paragraph 21(b) the appropriate comparator will be a white part-time tutor or lecturer whose workload is not as demanding as that of the claimant. The claimant has pleaded, in the alternative, her case upon the basis of a hypothetical comparator. It is not, of course, enough for her simply to make an assertion that a hypothetical part-time white tutor would not be given as heavy a workload as she was. There must be some evidence upon which for the Tribunal to construct how a hypothetical white part-time tutor would have been treated. Again, however, should the claimant’s case come up to proof (in whole or in part) it will in my judgment be open to her to invite the Tribunal to draw an inference that the respondent would not have treated a part-time white tutor as she was treated as a part-time black tutor.[79]I now turn to the complaints in paragraphs 21(e), (h), (n), (p) and (q). These are wholly new allegations which do not feature (whether as claims or background information) in the claimant’s grounds of claim.[80]The allegation in paragraph 21(e) is that on 10 June 2019, Claire Heke made an adverse remark which the claimant believed was targeted at her. The allegation in paragraph 21(h) is that Claire Heke and Sarah Abbey did, on 1 July 2019, discuss with the claimant a list which the claimant had prepared to allege academic misconduct amongst students. The claimant’s case is that Sarah Abbey and Claire Heke believed that the claimant created a fake list because the names of students were organised in alphabetical order.[81]In my judgment, these allegations are linked to or arise out of the facts in the original claim. The common thread running through them is the involvement of Claire Heke in what the claimant would have is a course of discriminatory conduct particularly in June and July 2019. Those are of course the relevant months for the first four of the extant claims as identified by Employment Judge Cox.[82]From that perspective, while these are new allegations, they are very much of the same flavour and character as the extant allegations (and allegations 21(i), (j), (k) and (l) allowed to proceed by way of amendment). The respondent doubtless will be calling Claire Heke and Sarah Abbey to give evidence. In the course of taking their proofs of evidence, the two additional matters in paragraph 21(e) and (h) can easily be canvassed at little additional cost to the respondent. Again, there is no suggestion that the 10.5 Reserved judgment with reasons – rule 61 16 March 2017 cogency of the evidence from Claire Heke or Sarah Abbey is in any way impacted by the additional four-months’ delay in the presentation of these additional complaints.[83]Allowing these matters to proceed by way of amendment will not, as I have said, cause any delay to the trial timetable (which has not yet been set in any case). On the face of it, there is nothing to displace the assumption which I am to make that the claimant’s case upon these issues is arguable. Indeed, there is a litany of complaints against Claire Heke which demonstrates at least a prima facie case around a pattern of behaviour on her part towards the claimant. (I emphasise of course that the claimant’s case is unchallenged at this stage and it may well be that upon hearing the evidence the Tribunal dismisses the claimant’s complaints about her).[84]For the same reasons as already given, I am satisfied that the claimant is able to demonstrate a prima facie case that the just and equitable ground for extension is satisfied in relation to these two matters (21(e) and (h).[85]I take a different view in relation to the matters referred to in paragraphs 21(n), (p) and (q). The allegation in paragraph 21(n) is that between January 2020 and August 2020 Sarah Abbey interfered with the claimant’s management of the project study module as module leader upon four separate occasions. The allegation at paragraph 21(p) is that on 20 March 2020 Sarah Abbey telephoned the claimant to inform her that the “enhancing talent and skills” module taught to first year undergraduate students from the university of Leeds would be “taken away” from the claimant. Paragraph 21(q) refers to an alleged incident in August 2020 in which Deborah Lea remarked to the claimant’s colleague Eddie Udo that “you don’t really want to work on that module do you” when referring to the claimant’s project study module. Mr Udo, according to the claimant, informed her about the remark.[86]There is, on the face of it, much in Miss Brown’s observation that these three allegations have been included with one eye on bridging the gap between the preponderance of the incidents the subject of the claim on the one hand and the date of presentation of the ET1 on the other. Given my findings upon the time limits and the just and equitable extension, the claimant does not need to rely upon these three matters to overcome time issues in any case.[87]These three issues are wholly new matters. They are not linked to nor do they arise from the facts as set out in the grounds of complaint which accompanied the ET1. The issue at paragraph 21(n) in particular will involve the respondent in investigating factual issues unrelated to the extant claims and the claims which I have allowed to proceed by way of amendment. Although Sarah Abbey did have some involvement in the alleged incident around academic misconduct, Claire Heke (whom the claimant contends was at the centre of her treatment) was also involved in the misconduct issue. There appears to have been no involvement upon the part of Claire Heke in the alleged interference with the claimant’s management of the project study module at all. There appears therefore not to be nothing that links the matter complained of in paragraph 21(n) on the one hand with the extant claims and the claims allowed to proceed by way of amendment on the other. 10.5 Reserved judgment with reasons – rule 61 17 March 2017[88]Upon the issue at paragraph 21(p), it is not clear the basis upon which this is said to be an act of race discrimination. No actual comparator is cited by the claimant. These deficiencies persuade me that the Woodhouse assumption that the case is arguable should be displaced upon this issue. It appears simply to be a makeweight with no apparent link to any of the other pleaded allegations.[89]Similar observations may be made about the incident at paragraph 21(q). This is the first occasion upon which Debbie Lea is cited as involved in any acts of discrimination against the claimant. (She was of course the successful candidate for the head of centre post but was not the alleged perpetrator of discrimination against the claimant). Again, it is not understood how this in any way relates to the claimant’s race.[90]I see no basis for making a finding other than that the claimant may demonstrate a prima facie case that the just and equitable ground is satisfied for the purposes of limitation upon these three issues. However, that is not in and of itself sufficient to persuade the Tribunal that the amendment application ought to be granted. Taking into account the nature of the proposed amendment and that it opens up the vista of a whole new scope of factual enquiry and the apparent weakness of these three claims, I refuse the claimant’s application to amend her claim to include them.[91]I now turn to the application to amend the claim to include one that the respondent made an unauthorised deduction from wages by not paying her the 511 hours which she worked without remuneration.[92]By section 13(3) of the 1996 Act, where the total amount of wages paid by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions) the amount of the deficiency shall be treated for the purposes of Part II of the 1996 Act as a deduction made by the employer from the worker’s wages on that occasion.[93]The determination of what is “properly payable” on any given occasion will generally involve Employment Tribunals in the resolution of disputes of what the worker is contractually entitled to receive by way of wages. The payment in question must be capable of quantification in order to constitute wages properly payable under section 13(3).[94]The principle that the amount payable must be capable of quantification was applied by the Court of Appeal in Coors Brewers Ltd v Adcock and Others [2007] ICR 983, CA where it was held that the claimants could not rely on Part II of the 1996 Act to claim losses resulting from their employer’s alleged failure to introduce a new incentive scheme that it had promised. Since there were a number of schemes that could have been chosen using different combinations of targets and incentives, it would be impossible to say what amount would have been payable under the scheme. The payment due was therefore incapable of quantification and there was no date on which the claimants could say that the employer had made an unlawful deduction of a quantified amount from their wages as the 1996 Act requires. The claims were really damages claims for the loss of the chance that the claimants would have received some benefit if an appropriate scheme had taken place. 10.5 Reserved judgment with reasons – rule 61 18 March 2017[95]The task of measuring the loss of chance was outside the jurisdiction of the Tribunal because the claimants in the case remained employed. (Breach of contract claims may of course not be brought before the Employment Tribunal while ever the relationship subsists. It was upon this basis that Mr Sachdev rightly withdrew the claimant’s complaint of breach of contract).[96]In Coors Brewery, Wall LJ recognised that for there to be an unlawful deduction claim under the 1996 Act, the complaint by the employee must be that they have not been paid an identified sum. There may be a dispute as to what the sum is and a number of possible defences raised requiring findings of fact by the Tribunal, but the underlying premise on which such a claim is brought is that the employee is owed a specific sum in wages. In his view, Part II of the 1996 Act is essentially designed for straightforward claims where the employee can point to a quantified loss.[97]The claimant’s case is that in January 2020 Sarah Abbey informed her that the respondent would pay her for an additional 6.5 hours per week where the claimant had to teach the September 2019 and January 2020 cohorts concurrently and she was paid £3500 for 125 additional hours of work completed between January and June 2020. However, her case is that excluding the 125 additional hours, she worked in total 511 hours without pay between October 2019 and August 2020.[98]There was no evidence from the claimant that the respondent agreed to pay anything to her over and above the agreement reached in January 2020 about the 6.5 extra hours per week for which the claimant in due course received payment.[99]In my judgment, the claimant’s claim is one for a quantum meruit. This is a term that can be applied where a party that has provided services wishes to recover a sum of money in return for the services supplied. It may be relevant for example where the parties have not agreed a valid contract covering the work to be performed or where the contract does not contain an agreed sum for payment. It can also apply where the parties have agreed a contract but since then have undertaken further work outside the scope of it. The claim is contractual in nature in circumstances where a contract is in place but no sum for the services has been fixed. A quantum meruit claim aims to address the unjust enrichment of one party at the expense of the other. The remedy in a quantum meruit claim will be the payment of a reasonable sum in respect of the services supplied. The starting point for valuing services will usually be the objective market value of the service provided.[100]Therefore, in my judgment, the claimant’s claim is not properly one that may be brought under Part II of the 1996 Act. The question of how much, if anything, the claimant should be paid by the respondent for the additional work is one to be assessed by the court upon a quantum meruit. It is therefore not an amount capable of quantification. As it falls outside the scope of Part II of the 1996 Act, the application to amend the complaint to include it must be refused.[101]There is, in any case, a further difficulty for the claimant. She has not demonstrated a prima facie case that the primary time limit (of three months from August 2020) ought to be extended upon the basis that it was not reasonably practicable for her to present the unauthorised deduction from 10.5 Reserved judgment with reasons – rule 61 19 March 2017 wages complaint in time. By way of reminder, because the doctrine of relation back does not apply in Employment Tribunal proceedings this aspect of the claim is treated as if it had been presented by the claimant on 26 March 2021. On any view, that is a period which is more than three months from the end of August 2020. The complaint is therefore significantly out of time. Even though the claimant initiated mandatory early conciliation on 11 September 2020, the claim is out of time. Working on the assumption that time started to run against her on 1 September 2020, the claim needed to be presented to the Employment Tribunal by 30 November 2020 (given that early conciliation began and ended on the same day).[102]I take into account that the claimant’s period of ill health commenced in September 2020 and effectively lasted for the duration of the primary limitation period. However, there is much in Miss Brown’s point that the claimant was nonetheless able to prepare a well-drafted formal grievance such as we see at pages 33 to 35 of the claimant’s bundle and attend a grievance hearing. Therefore, in my judgment, not only would it have been possible for the claimant to have presented her claim in time it would also have been reasonable for her so to do.[103]In any case, even if I am wrong upon the issue of time limits upon the claim for the additional 511 hours of time worked, the claimant faces the insurmountable difficulty that that claim is simply one to which Part II of the 1996 Act is not amenable and which the Tribunal would not have had jurisdiction to consider even had the claim had been brought in time. The application to amend to include that claim must therefore be refused.[104]The claimant seeks to argue that the allegations in paragraphs 21(c) to (q) inclusive amount to harassment as well as direct discrimination. In paragraph 79 of her written submissions, Miss Brown fairly concedes that if, contrary to the respondent’s primary case, the Tribunal decides that the claimant’s claim in relation to the extant allegations of direct discrimination was brought in time (or time is extended) the respondent accepts that an amendment of the claim to treat the allegations as harassment as well as direct discrimination would amount to a re-labelling. Those six matters shall therefore proceed as complaints of harassment as well as direct discrimination.[105]The respondent, pursuant to paragraph 80 of Miss Brown’s submission, made no like concession in relation to the matters at paragraphs 21(e), (h), (i), (j), (k), (l), (n), (p) and (q).[106]The latter three may be discounted as I have not granted permission for the claimant to amend her claim to include them in any case. I therefore turn to the other paragraphs.[107]As a matter of logic, the matters at paragraph 21(i), (j), (k) and (l) ought to be allowed to be pursued as complaints of harassment as well as direct discrimination. As I have said already, these are very much of the same flavour of adverse comments and remarks made allegedly by Claire Heke directed at the claimant.[108]The same logic also applies to the wholly new allegations at paragraphs 21(e) and (h). Accordingly, those two may be permitted to 10.5 Reserved judgment with reasons – rule 61 20 March 2017 proceed as complaints of harassment as well as direct discrimination upon the grounds of race.[109]It follows therefore that the Tribunal shall consider this case upon the following basis: 109.1. The claimant has permission to amend her claim in accordance with the proposed amended statement of case. 109.2. The scope of permitted amendment is that the matters in paragraphs 21(1)(a) to (m) and (o) shall proceed as complaints of direct discrimination under sections 13 and 39 of the 2010 Act. 109.3. The allegations in paragraphs 21(c) to (m) and (o) shall also proceed as complaints of harassment related to race pursuant to sections 26 and 40 of the 2010 Act.[110]The matter shall now be re-listed for a further case management hearing which shall be considered the issues referred to in paragraphs 4.3 and 4.4 of Employment Judge Cox’s Order dated 19 February 2021. I shall list the matter to be heard by any Employment Judge with a time estimate of 90 minutes.