Mr S Bates v Computershare Services Ltd: 1807421/2020

EMPLOYMENT TRIBUNALS

Case No 1807421/2020

Between

Mr S BatesClaimant

Computershare Services LtdRespondent

Before

Employment Judge Brain

In person for claimant

Miss L Usher (instructed by Solicitor) for respondent

Date 21 January 2022

JUDGMENT

[1]The claimant’s complaint that the respondent was in breach of the duty to make reasonable adjustments was presented outside the limitation period in section 123 of the Equality Act 2010.

[2]It is not just and equitable to extend time to vest the Tribunal with jurisdiction to consider the claimant’s claim. JUDGMENT having been sent to the parties on 21 January 2022 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 supplied at the request of the claimant.

[2]At a case management preliminary hearing held on 27 August 2021 Employment Judge Jones directed there to be an open preliminary hearing in order to determine:(1) Whether the claimant was, at the material time, a disabled person for the purposes of section 6 of the Equality Act 2010; and

(2) Whether it is just and equitable for the Tribunal to extend time in order to vest the Tribunal with jurisdiction to hear the claimant’s complaints, the claimant’s complaint having been submitted outside the limitation period for complaints to the Tribunal of workplace discrimination pursuant to section 123 of the 2010 Act.

[3]The respondent concedes that the claimant was, at the material time, a disabled person for the purposes of section 6 of the 2010 Act. Accordingly, the focus of today’s hearing was upon the jurisdictional issue which arises by operation of section 123.

[4]Employment Tribunal proceedings must be started within time limits set out within the relevant statute. In this case, the claimant’s complaint is of disability discrimination, in particular that the respondent failed to comply with the duty to make reasonable adjustments. This is made unlawful in the workplace pursuant to section 39(5) of the 2010 Act.

[5]By section 123 of the 2010 Act proceedings upon such a complaint may not be brought after the end of the period of three months starting with the date of the acts to which the complaint relates or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period. Failure to do something is to be treated as occurring when the person in question decided upon it. A person is taken to decide something when they do an act inconsistent with the duty or, where they do no inconsistent act, on the expiry of the period in which they might reasonably have been expected to comply with the duty to make reasonable adjustments.

[6]There is no dispute in this case that the claimant’s complaint was presented outside of the primary three month limitation period provided for by section 123. His claim form was presented to the Tribunal on 21 December 2020. In his grounds of complaint, he opens by saying “I’m politely requesting the Tribunal to consider extending the three month limitation period in order to submit a claim for disability discrimination leading to summary dismissal from my employment.”

[7]The claimant’s claim form was rejected on 30 December 2020. This was because the claimant failed to give an early conciliation number and that the explanation given by him in the claim form for failing so to do was incorrect.

[8]The claimant re-presented his complaint. He did so on 27 May 2021. The claim form was rejected a second time. On 9 June 2021, the Tribunal wrote to the claimant to say that the claim form was rejected because the name of the prospective respondent in the ACAS early conciliation certificate (dated 6 May 2021 at page 17 of the bundle) differed from the names given by the claimant upon the claim form.

[9]The claimant re-presented the claim form again on 17 June 2021. On 25 June 2021 the Tribunal notified the claimant that the claim form was now accepted. It was treated as having been received on 17 June 2021.

[10]The claimant was employed by the respondent as a recovery forensic consultant. It is agreed that he was employed between 17 December 2018 and 14 May 2020. The respondent took the decision to dismiss the claimant upon the grounds that he was not capable of performing his role.

[11]The claimant appealed against the respondent’s decision to dismiss him. There was an appeal hearing on 10 July 2020. The claimant was notified of the outcome of the appeal on 29 October 2020.

[12]Upon a fair reading of his grounds of claim, the claimant complains both of the decision to dismiss him and the decision to dismiss his appeal. On his case, the decision to dismiss him and to dismiss his appeal constitute failures upon the part of the respondent to comply with the duty to make reasonable adjustments. They are both, on the claimant’s case, acts inconsistent with the duty to make reasonable adjustments and therefore they are to be taken as decisions not to comply with the duty. There was a failure to make reasonable adjustments up to the point at which the respondent dismissed the claimant’s appeal. In the circumstances therefore in my judgment time started to run from the date upon which the claimant was notified that his appeal was unsuccessful. This was 29 October 2020. The claimant therefore needed to bring proceedings no later than 28 January 2021.

[13]It was therefore incumbent upon the claimant to commence mandatory early conciliation as required by the Employment Tribunals Act 1996 no later than 28 January 2021. It was then for him to present the complaint to the Employment Tribunal within three months of 29 October 2020 plus the period spent in early conciliation.

[14]The claimant did not commence mandatory early conciliation on or before 28 January 2021. He did not contact ACAS until 2 May 2021 and even then, the certificate was defective as it named an incorrect prospective respondent.

[15]As the claimant himself acknowledged when presenting the claim form, it is plain that on any view his claim has been presented outside the relevant limitation period in section 123 of the 2010 Act. Therefore, it is for the claimant to convince the Tribunal that time should be extended upon just and equitable grounds in order to vest the Tribunal with jurisdiction to consider his claim.

[16]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, Leggatt L J said (in paragraph 19) that, “the factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(1) The length of, and reasons for the delay; and

(2) Whether the delay has prejudiced the respondent (for example by preventing or inhibiting it from investigating the claim while matters were fresh).”

[17]As was established in the case of Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

, CA, the onus is upon the claimant to convince the Employment Tribunal that it is just and equitable to extend the time limit. Robertson establishes that the exercise of the discretion is not a foregone conclusion. Indeed, to the contrary, there is no presumption that the Employment Tribunal should exercise discretion in the claimant’s favour unless he can justify a failure to present the complaint in time. 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.

[18]In Abertawe, the Court of Appeal rejected the proposition that in the absence of an explanation from the claimant as to why he did not bring the claim in time and an evidential basis for that explanation, the Tribunal could not properly conclude that it was just and equitable to extend time. The Court of Appeal held that the discretion under section 123 of the 2010 Act for a Tribunal to decide what it thinks to be just and equitable is clearly intended to be broad and unfettered. There is no 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 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 can conclude that it is just and equitable to extend time. However, as Robertson establishes, there needs to be something to convince the Tribunal that it is just and equitable to extend time.

[19]The strength of the claim may be a relevant factor when deciding whether to extend time. Tribunals may, if they think it necessary, consider the merits of the claim.

[20]It is necessary for the Tribunal to weigh the balance of prejudice between the parties. A refusal to extend time will inevitably prejudice the claimant. However, the claimant needs to show more than the loss of the claim through the application of the relevant limitation period will prejudice him. If that were sufficient, it would emasculate the limitation period. Plainly, Parliament has legislated for relatively short limitation periods in employment cases. The limitation period must be applied unless the claimant can convince the Tribunal that time ought to be extended.

[21]Some prejudice will of course be caused to the respondent if an extension of time is granted given that the case would otherwise be dismissed. However, the prejudice caused needs to amount to more than simply that. Otherwise such would emasculate the discretion vested in Tribunals by Parliament to consider a just and equitable extension of time.

[22]In disability discrimination cases, there is an additional factor which is to be taken into account. That is the disability itself. Tribunals may recognise that disabled claimants may find it difficult to comply with the three months’ time limit.

[23]With these factors in mind, I turn to the facts of the case. The claimant was signed off sick on 6 August 2019. The respondent operates an attendance at work policy. Pursuant to that policy, welfare meetings were held on 11 September 2019, 11 October 2019 and 28 November 2019.

[24]The claimant was referred for occupational health advice in December 2019. The report dated 3 January 2020 noted that the claimant had been diagnosed with depression, anxiety and post-traumatic stress disorder. The report said that the claimant was unfit for work and unlikely to be fit for work in the next weeks due to his symptoms. There were no adjustments that the respondent could put in place in order to facilitate a return to work.

[25]A first capability meeting was held on 23 January 2020. The claimant said there was no change to his condition and he was awaiting counselling sessions which were to be put in place by his GP. The claimant agreed there were no adjustments that the respondent could make to facilitate a return to work at that stage.

[26]A second capability meeting was held on 2 March 2020. The claimant said he had not yet attended any counselling sessions. There was no indication of when the sessions would take place.

[27]The respondent decided to refer the claimant to occupational health again. The second occupational health report is dated 6 April 2020. It is at pages 59 to 62 of the hearing bundle.

[28]The report was authored by Ailsa Taylor, occupational health advisor. She opined that the claimant, “is temporarily unfit for work and is likely to remain unfit to return to work for the next three months if not longer. This is due to the enduring nature of his symptoms substantially impacting on his ability to carry out his everyday activities. I am unable to predict when he will be fit to return to his full hours and duties at this time, this is dependent on his symptoms improving with further treatment and it is unlikely this will commence until at least July 2020. In my opinion, he is fit to participate in a conduct or disciplinary process.”

[29]Ailsa Taylor then made several recommendations for adjustments which the respondent may make to assist with any “conduct or disciplinary process”. However, she was unable to suggest a rehabilitation plan as a return to work date had not yet been identified.

[30]The claimant was invited to a further formal capability meeting. This was held on 14 May 2020. It was chaired by Marc Dawson (SDR manager) with a note taker in attendance.

[31]No notes of that hearing were produced for the benefit of the Tribunal. However, Mr Dawson sent a letter to the claimant on 22 May 2020. The letter is at pages 63 and 64 of the bundle. It summarises the meeting.

[32]It is unfortunate that Mr Dawson spoke in terms of a “disciplinary meeting.” This is inapt. The claimant had done nothing wrong. The meeting held on 14 May 2020 was a capability meeting at which to discuss the claimant’s fitness for work. It is most unfortunate that the respondent appears to have conflated disciplinary and capability issues.

[33]Mr Dawson noted that the claimant was signed off as unfit for work until 13 June 2020. He confirmed that he was still feeling the same “with your severe anxiety and depression, PTSD, and are still awaiting counselling.”

[34]In evidence given before the Tribunal, the claimant fairly accepted that in May 2020 he was unfit to carry out his substantive role. Indeed, he said that that was the position when he lodged his appeal on 17 June 2020, when the appeal was considered on 10 July 2020 and it remained the position when the appeal was determined on 28 October 2020. The claimant added that he remains unfit to carry out his substantive role even today.

[35]That being the case, the matter essentially revolves around the ability of the parties to identify any suitable alternative employment. Mr Dawson said in his letter of 22 May 2020 that no suitable alternative roles were available.

[36]The issue of alternative work was also considered at the appeal meeting. The appeal meeting notes are at pages 70 to 74 of the bundle. The claimant told the Appeals Officer, Gillian Brown, that he would not be able to work in his substantive role. The claimant suggested that, as a reasonable adjustment, the respondent may find him an alternative role. However, he said that such, “would be very difficult … it would have to be very admin based.” The claimant said that he would need to work from home. Of course, at this stage, many of the respondent’s employees (and indeed the labour force in general) were working from home due to the impact of the pandemic.

[37]On 28 October 2020 Mrs Brown wrote to the claimant with her decision upon his appeal. Her letter is at pages 96 to 101.

[38]During the course of the appeal hearing, the claimant mentioned that he had seen a role in Crossflatts checking mortgage applications. The claimant said that this was a suitable alternative vacancy giving his experience of working within the mortgage industry.

[39]Mrs Brown checked the position and determined that there was no such role available in May 2020. She concluded that no suitable alternative role was available.

[40]During the course of the hearing, the Tribunal explored with the claimant his ability to do any work during the course of 2020. The claimant said that happily he is now a lot better than he was at that time. He was asked whether he was saying that between May and October 2020 he was unable to work in any capacity. He replied that he, “had voices in my head to consider self-harm. If they’d offered me an administrative job without the need for phone work I could have done that, I could now. I couldn’t work in the office but I could work from home.”

[41]The claimant also accepted that the Crossflatts job to which he referred during the course of the appeal hearing was through an agency. It was not a role advertised by the respondent nor was it a vacancy within the respondent’s organisation.

[42]The claimant voiced scepticism as to the reason why it took Mrs Brown a period of in excess of three months to deal with the claimant’s appeal. The Tribunal did not have the benefit of hearing any evidence from her. There was no explanation from the respondent (let alone a satisfactory explanation) for the reason why the appeal took so long. The claimant therefore may be forgiven for having some scepticism that the respondent acted in bad faith with one eye upon the limitation period. In the final analysis however such avails the claimant little because I have determined that the limitation period commenced only on 29 October 2020 when claimant was notified of the appeal outcome in any case.

[43]The claimant has been supported throughout the internal process and in the Tribunal proceedings by Michael Swan who is a close friend of the claimant. I was told that Mr Swan has a “legal background” but is not a qualified solicitor or barrister.

[44]The claimant also informed the Tribunal that he had the assistance of the trade union Aegis. He said that he approached them in March 2020 for assistance with the case. The claimant’s account was that Aegis contacted ACAS. The respondent showed no interest in conciliation. The claimant then obtained the certificate dated 6 May 2021 that we see at page 17 of the bundle. The claimant was unable to account for the delay between March and May 2021.

[45]Towards the end of the bundle, there is a copy of correspondence passing between Mr Swan and the claimant on the one hand and a solicitor on the other. It appears that the solicitor was approached for legal advice after the appeal outcome had been delivered.

[46]On 11 November 2020, Mr Swan wrote to the solicitor to say, “it is clear to me that his employers should have determined his appeal/grievance within the time limit prescribed by their own policies and procedures. From what I recollect this should have been four weeks. In the event, it took them so long that the three month limitation to appeal to a Tribunal has expired. This appears to be incredibly unfair.” Mr Swan then goes on to ask the solicitor whether he considers there to be grounds for extending the limitation period. The solicitor replied on 12 November 2020 (page 102). He advised that for the disability discrimination claim, “the limit will be extended if Simon could show it was “just and equitable.” Again illness may assist as a ground here but it is unlikely that the internal appeals procedure will add much weight.” He goes on to advise that, “now that Simon knows of his rights, speed is of the essence … further delay in applying will severely prejudice the chances. “

[47]The fact that a complainant has awaited the outcome of an internal procedure before making a complaint is just one matter to be taken into account by a Tribunal considering the late presentation of a discrimination claim. There is no general principle that it will be just and equitable to extend the time limit where the claimant was seeking redress through the employer’s grievance procedure before embarking on legal proceedings. The general principle is that a delay caused by a claimant awaiting completion of an internal procedure may justify the extension of the time limit but it is only one factor to be considered in any particular case.

[48]Given my finding that the continuing course of conduct complained of ended only when the claimant was notified of the internal appeal outcome anyway, this is not a factor which needs to be taken into account. On my finding, time did not start to run until 29 October 2020 in any case.

[49]In a separate email dated 11 November 2020, the claimant’s solicitor told the claimant that, “there is a strict three month time limit in applications for compensation for unfair dismissal and disability discrimination.” We are not of course concerned here with an unfair dismissal complaint. However, this was sound and accurate advice upon the complaint of disability discrimination brought by the claimant.

[50]The claimant appeared to have acted reasonably quickly by submitting the claim form on 21 December 2020. The difficulty for him is that no action was taken between the date of rejection of that claim form on 30 December 2020 and 27 May 2021 when he re-presented the claim form. He was aware, having been advised by his solicitor to this effect, that time was of the essence but inexplicably delayed taking remedial action for five months.

[51]The claimant said that at the material time his mental health was very poor. I accept this to be the case. However, he had the support of Mr Swan and was a member of a trade union (albeit that he did not avail himself of their support until March 2021). Were the claimant to have had no help available, then I would have been satisfied that his mental health issues presented a real obstacle to him taking the necessary steps. However, given the support available to the claimant I am not satisfied that there is a good explanation for the delay.

[52]That said, per Abertawe, there is no requirement for me to be satisfied that there was a good reason for the delay before I can conclude that it is just and equitable to extend time. I do however weigh in the balance that the claimant appears to have not paid sufficient heed to sound legal advice. I now turn to several other factors.

[53]Miss Usher informed me that Mr Dawson no longer works for the respondent. It is unfortunate that she was unable to say whether the respondent is still in touch with Mr Dawson. That said, there is plainly forensic prejudice to the respondent. Had the claimant brought his claim in time, then steps could have been taken by the respondent to obtain a statement from Mr Dawson and to ensure his co-operation in giving evidence in any subsequent Tribunal proceedings. The forensic prejudice to the respondent here goes beyond what may be considered to be the usual plea of fading memory. There is here real forensic prejudice as a key witness no longer works for them.

[54]Further, I consider the claimant’s complaint to have little merit. He is right to say that the respondent applied to him a disadvantaging provision, criterion or practice. The relevant PCP, as identified by Employment Judge Jones, was the requirement for the claimant to discharge his duties in accordance with his contract of employment. I accept that the claimant was unable to comply with that PCP because of his disability. The disability therefore created a substantial disadvantage for him. Accordingly a duty arose to make reasonable adjustments. Likewise, the respondent applied their absence management policy to the claimant. Again, this created a substantial disadvantage because of his disability as he fell foul of the attendance requirements which led to his dismissal.

[55]The question that arises is what steps the respondent could reasonably have taken to avoid the disadvantage caused by the application to the claimant of those two PCPs? Employment Judge Jones identified three possible adjustments. The first of these was allowing the claimant further time to obtain medical treatment to recover. The second was the redeployment of the claimant. The third was allowing the claimant to do administrative duties from home.

[56]There are difficulties for the claimant upon all three proposed adjustments. Allowing the claimant time to recover would not have alleviated the substantial disadvantage caused by the requirement to carry out his substantive role given that even by the time that the appeal was determined he was unfit to undertake it. It is not reasonable for there to be an expectation that the employer shall wait indefinitely for an employee to recover. There was no prospect, upon the medical evidence, of the claimant recovering sufficiently to enable him to carry out any part of his substantive role. Indeed, the claimant accepted that he remains unable to undertake it.

[57]The case therefore really turns upon the question of alternative employment. There is no requirement, in order to fulfil the duty to make reasonable adjustments, for an employer to create a role for a disabled employee. There is simply no evidence that any suitable roles were available for the claimant (whether working from home or otherwise). Regrettably, the claimant appeared somewhat equivocal about his capacity to undertake any work when I asked him about this. Concerningly, he said that at the material time he had “voices in his head to consider self-harm.” In my judgment, there must be real doubt as to whether at any point during 2020 the claimant was fit to work in any capacity. It is in my judgment significant that the claimant did not adduce any medical evidence for the benefit of the respondent that he was fit to undertake a role prior to Mrs Brown’s decision taken at the end of October 2020.

[58]The evidence is that there were no alternative roles which the claimant could undertake and even if there had been he was not fit to undertake them in any case. There were no reasonable adjustments, in my judgment, which the respondent could have undertaken to the substantive role or the attendance management policy which would have the effect of alleviating the substantial disadvantage caused to the claimant by reason of his disability. Regrettably, the claimant was simply unfit to work in any capacity at the material time.

[59]In my judgment, therefore, in summary the following factors tell against it being just and equitable to extend time:(1) The claimant is substantially out of time by around four and a half months. This is significant in the context of the three months’ limitation period.

(2) He disregarded sound legal advice to deal with matters promptly.

(3) There is actual forensic prejudice to the respondent in that a key witness has left their employment.

(4) The claimant is of little if not no merit.

[60]I am unable to weigh in the balance in the claimant’s favour any satisfactory explanation for the delay. No satisfactory explanation has been offered. The claimant was well aware of the time limit issues through the good advice proffered to him by his solicitor.

[61]There is no good explanation to weigh in the balance in the claimant’s favour. Against that, I do not weigh the absence of a good explanation in the balance against him. Abertawe makes it clear that it is not the case that time cannot be extended in the absence of any explanation for the delay.

[62]Here, however, the delay has caused prejudice to the respondent. There will therefore be significant prejudice to the respondent by extending time given the apparent loss of a key witness attributable to the delay. That factor must be weighed against the interests of the claimant. Refusing to extend time is of course prejudicial to him. However, it is significant that the complaint is of little merit in any case.

[63]In this case therefore, the balance of prejudice favours the respondent. It follows therefore that the complaint has been presented out of time in circumstances in which it is not just and equitable to extend time. The Tribunal therefore has no jurisdiction to consider the claimant’s complaint brought under the 2010 Act.