Litigant in personClaimantCentrica Storage LtdRespondent
Before
Employment Judge T R SmithIn person for claimantMs Harman (instructed by Solicitor) for respondentDate 10 November 2020
JUDGMENT
[1]It was not reasonably practicable for the Claimant to present his complaint of unfair dismissal within the time set out in section 111 of the Employment Rights Act 1996(“ERA96”) and he presented it within such further time as was reasonable.[2]The complaint of disability discrimination was not presented within the time set out in section 123 of the Equality Act 2010 (“ERA96”) and it is just and equitable to extend time.
REASONS
Issues.
[1]The issues were set out in a notice of the hearing from Regional Employment Judge Robertson in the following terms namely:-[2]Was the Claimant’s claim form out of time and if so whether the Tribunal had jurisdiction to consider it. Evidence.[3]The Claimant gave oral evidence and was cross examined.[4]The Respondent produced an agreed bundle of documents totalling 78 pages[5]No evidence was called on behalf of the Respondent.[6]At the start of the hearing I specifically drew to the parties three decisions that were potentially relevant namely, Software Box Ltd v Gannon 2016 ICR 148, EAT , Adams -v- British Telecommunications Plc [2017] ICR 382 , and Lawrence v Yesmar Restaurants t/a McDonalds ET Case No.1302367/2015
Findings of fact
[7]The agreed effective date of termination of the Claimant’s employment with the Respondent was on 03 December 2018.[8]Whilst on notice the Claimant appealed against the decision to dismiss him and that appeal was rejected, prior to the effective date of termination.[9]The Claimant also raised grievances whilst under notice and was notified of the outcome of those grievances, just after the effective date of termination on 04 December 2018.[10]The Claimant believed, at the latest, on 03 December 2018 that he been treated badly.[11]He contacted ACAS on 03 December 2018 and provided the prescribed early conciliation information on 03 December 2018.[12]The Claimant knew that in order to present an Employment Tribunal claim he had to undertake the prescribed early conciliation procedure with ACAS.[13]An ACAS early conciliation certificate was issued on 17 January 2019.[14]The Claimant knew, from that date, he could present an Employment Tribunal claim.[15]There is no dispute, that having regard to the provisions relating to the extension of time for both unfair dismissal and discrimination claims, that the last date for the Claimant presenting a claim was 16 April 2019.[16]The Claimant had experienced ill-health prior to his dismissal. In January 2018 he was advised by his employers to speak to his GP as regards his high blood pressure.[17]The Claimant was absent from work from, possibly 04 April to the middle of May 2018 and thereafter for 23 June 2018 until his dismissal.[18]In 2019 the Claimant contends he was suffering from anxiety.[19]Whilst the Claimant did refer to partial non-compliance, in his judgement, of a subject access request I am satisfied that prior to the expiration of the time limit the Claimant had sufficient information to draft a claim form to the employment Tribunal.[20]He started to complete an Employment Tribunal claim form in early 2019.[21]However, he concluded that, about the start of April 2019, that it would be to his benefit to take professional advice. His aim was that his claim was put into a format easily understandable by an Employment Tribunal and it was to be correctly lodged on his behalf.[22]It was therefore at about the start of April 2019 that the Claimant approached Wilkin Chapman, solicitors. He selected them because they were the biggest firm in his area.[23]All contact was either by telephone or email.[24]Wilkin Chapman were not to go on the record for him, but merely to act as his agent in this task.[25]The Claimant was aware of the time limit for presentation and emphasised this to Wilkin Chapman.[26]On 12 April 2019 Wilkin Chapman sent an email to the Employment Tribunal enclosing the Claimant’s claim form ( “the first claim”) and indicating they were simply presenting the claim form on behalf of the Claimant and were not on record.[27]Wilkin Chapman received a standard pro forma e-mail auto reply thanking them for their email.[28]On the same day Wilkins Chapman wrote to the Claimant by email.[29]That email said that the firm had submitted the Claimant’s claim to the Employment Tribunal that morning and that the Tribunal would make contact with the Claimant “in the coming weeks”. It also advised that the claim form would be sent to the Respondent who would be required to submit a response and the Claimant would be notified of the next steps required in progressing his claim, and the hearing date. Attached to that email was the email sent by Wilkin Chapman, earlier that day, to the Tribunal with a copy of the claim form.[30]There are only three prescribed methods of presenting an Employment Tribunal claim form. Firstly online, secondly by post to Employment Tribunal central office in Leicester or thirdly by hand delivery to named designated employment Tribunal offices.[31]The Leeds Employment Tribunal is a designated office.[32]There is no provision for presentation by email to one of those named designated Employment Tribunal offices. It follows the first claim form was not presented in any of the prescribed manners. A firm of solicitors would know, and the Claimant was entitled to expect to assume, that they would ensure his claim form was presented within the time limit and correctly.[33]If the claim form had been presented in the prescribed manner there will be no issue as to time.[34]The standard claim form contains the following wording :-”if your claim has been submitted online or posted you should receive confirmation of receipt from the office dealing with your claim within five working days. If you have not heard from them within five days, please contact that office directly. If the deadline for submitting the claim is closer than five days you should check that it has been received before the time it expires”[35]The Claimant was not concerned as to the above wording of the first claim given he knew that an email acknowledgement been received by Wilkin Chapman on 12 April 2019.[36]In about August or September the Claimant became concerned about the fact he had not heard from the Tribunal. He did not speak directly to the Tribunal but undertook some googling and articles ,similar to those he viewed, were in the bundle. Those articles talked of delays at the Employment Tribunal due to the increase of work following the abolition of fees and a shortage of both judicial and administrative resources. They also talked about delays on the telephone of up to 2 hours.[37]He thought that he could expect a hearing in about eight months from the commencement of proceedings having read the articles. He was not aware, and I accept his evidence on this point as he is not a lawyer, that there would be any form of detailed case management prior to a hearing.[38]He therefore did nothing until Christmas was approaching when he became worried. He considered by now he should have received a hearing date given what he had read. He decided to contact the Tribunal directly by email.[39]The Tribunal received an email from the Claimant on 21 December 2019 stating “I have not yet received any correspondence regarding my ET claim which was submitted on April 12, 2019 (as below). Please can you confirm when I am likely to hear anything” The “as below” was the email from Wilkin Chapman to the Claimant dated 12 April 2019 along with the copy e-mail to the Tribunal .[40]The Claimant was advised by the Employment Tribunal, on or about 24 December 2019, that given service of the first claim form was by direct email it would have been rejected and returned.[41]The Claimant promptly submitted an identical claim form (“the second claim”) that same day.[42]The Tribunal operates a system where documentation in respect of returned claims is destroyed within six months. Thus, it was not possible to demonstrate that a rejection form had been generated by the Tribunal. I accept entirely the Claimant’s evidence that he did not receive a rejection form. I found him to be a credible witness who gave his evidence in a very straightforward manner. I am satisfied that if a rejection form had been sent to him he would have immediately spoken to Wilkin Chapman. Indeed, the fact that he became concerned about delay is a further factor that points in his favour. He had nothing to gain by delaying matters, or by not acting on a rejection form.[43]A letter from the Tribunal dated 14 January 2020 acknowledge receipt of the second claim.[44]On 11 February 2020 the Respondent submitted a response. Not unnaturally they raised the issue of jurisdiction as regards whether the second claim was presented within time.[45]The dismissing and appeal officer of the Respondent remain employed by the Respondent.[46]The Respondent has retained documentation in relation to the Claimant’s dismissal, albeit the notes of various meetings were not verbatim but do summarise, in the Respondents view, the relevant issues discussed.[47]It is also appropriate to briefly summarise the complaints the Claimant has made to the Tribunal.[48]The first is one of unfair dismissal with, as I already mentioned the effective date of termination of 03 December 2018.[49]Further the Claimant contends he has the protected characteristic of disability.[50]He brings forward claims of direct discrimination, discrimination arising from disability and victimisation. They are poorly particularised, which is surprising given that they were professionally drafted.[51]The Claimant made it clear in his evidence that the discrimination arises from the redundancy process which started on 19 June 2018 and led to his dismissal. In essence he believes that he was selected for redundancy and thus dismissed because he was a disabled person or because of his sickness, the result of his disability, he was treated unfavourably by means of being dismissed. The victimisation claim is more difficult to understand. The protected act apparently was an informal grievance with the alleged detriment being dismissal.[52]The Claimant has yet to take any action against Wilkin Chapman, preferring to deal with this issue first. Submissions Claimant[53]The Claimant stressed that he trusted his solicitors and assumed the first claim was properly presented.[54]If he knew there’d been an error he would have reacted earlier; when he did find out from the Tribunal of the difficulty he faced he immediately lodged the second claim.[55]Although he was concerned as to delay with the first claim, he thought that was due to overwork in the Tribunal system.[56]Part of the reason for the delay was the Tribunal did not reject his claim as it should have done. Had they done so he would have reacted more promptly.[57]Whilst he did not chase the Tribunal until December, he was generally anxious and somewhat depressed. Respondent[58]Ms Harman produced a written skeleton argument (for which I am grateful) which she expanded upon in oral submissions.[59]I mean no disrespect to her by not repeating those submissions in any detail but had full regard to them.[60]In essence she stated in respect of the unfair dismissal the fault lay with the Claimant’s then solicitors and his remedy was to sue those solicitors. They could be reasonably expected to ensure that the first claim was presented in accordance with the prescribed methods.[61]She said it was clear that in respect of the unfair dismissal it was reasonably practicable to present a claim because that was what had happened. It followed the second limb of section 111(2) ERA96 was not engaged.[62]If she was wrong on that point, while she did not criticise any delay between the Claimant discovering from the Tribunal the position as regards the first claim and then addressing that issue, she did criticise the delay between the first claim been sent to the Employment Tribunal and the Claimant not contacting the Employment Tribunal until December.[63]Turning to the discrimination claims she said that the factors set out in section 33 of the Limitation Act 1980 were matters that I can give proper consideration too and took me to British Coal -v- Keeble [1997] IRLR 336.[64]She emphasised to me the decision in Robertson-v-Bexley Community Centre 2003 IRLR 434 CA stressing the exercise of the discretion under section 123 EQA10 was the exception rather than the rule. Discussion and conclusions.[65]I should begin by stating that I have not found this an easy judgement as I can see force in Ms Harman’s submission as to why should the Respondent now face a claim, where delay is principally the fault of the Claimant’s solicitors to file the first claim in accordance with the required procedure, and thereafter delay has been caused by the Tribunal in not issuing a rejection notice.[66]The test I must apply in respect of the unfair dismissal complaint is set out in section 111 (2) ERA 96 and reads as follows: – “… 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”[67]The burden of proof is upon the Claimant and the standard of proof is the balance of probabilities.[68]It should be noted that the Tribunal can only consider an extension of time if it is satisfied that it was not reasonable practicable for the complaint to be presented within the primary time-limit.[69]The extensive authorities stress that that the exercise the Tribunal must undertake is fact specific.[70]I find that all that is required for a claim form to be “presented” is that it arrives at the Tribunal office, see Sealy-v- Consignia Plc [2002] EWCA Civ 878.[71]I also note that under Rule 90(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 that there is a presumption that documents sent by means of electronic communication are delivered, unless the contrary is proved, on the day of transmission. Here an acknowledgement was received on the day of transmission from the Tribunal to the Claimant’s then solicitors.[72]Under Rule 8 a claim may only be started by presenting a completed claim form using a prescribed form and in accordance with any practice direction made under Rule 11.[73]I have already referred to the practice direction issued as regards the correct method of presentation of a claim form made pursuant to Rule 11.[74]Absent any authority I would have concluded that it was reasonably practicable for the first claim to be presented within time because the Claimant had all the information he required and indeed Wilkin Chapman were able to draft a claim form on the basis of his instructions. But for their error the first claim could have been presented in time in one of the three prescribed manners . On this basis, the Claimant could not then take the benefit of the discretion allowed under section 111(2).[75]However, the position is not without authority.[76]The first relevant case in time is that of Software Box Ltd v Gannon 2016 ICR 148, EAT.[77]Whilst this was a decision of the then President of the EAT it should be noted that only one party was represented and therefore all points may not have been argued as fully as in other hearings.[78]The case turned on unusual facts. The Claimant submitted a claim form for unfair dismissal, within time, but due to a series of administrative delays at the Tribunal’s Unit (which at the time dealt with the issue of fees and fee remission) the Claimant did not become aware that a claim had been rejected until after the expiration of the primary time limit whereupon she then submitted a further identical claim. The decision therefore has to be looked at through the lens of a claimant who was wholly innocent yet faced the prospect of not being able to pursue her claim.[79]The EAT held that if a claimant in the Employment Tribunal reasonably considered that there was no need to make a claim, and had innocently failed to realise that the time limit applied to the claim, because the claimant had already made a claim that remained effective, it was open to the Tribunal to consider a second claim made once the claimant realised that his or her view was mistaken. Accordingly, the Tribunal could decide to permit the claim to continue if it was satisfied that it had not been reasonably practicable to bring the second claim earlier.[80]The President emphasised that there was nothing prevented another claim been presented on identical grounds.[81]The next relevant decision in time is that of the EAT in Adams -v- British Telecommunications Plc [2017] ICR 382 . The facts in Adams were the Claimant submitted her first claim but did not correctly record the early conciliation number on the claim form and this is a mandatory requirement under rule 10. She became aware that this error two days after the expiration limitation and promptly remedied the same.[82]The EAT stressed that where an otherwise valid claim had been rejected because of minor error on the claim form, and a new corrected claim for been presented out of time the focus should be on the second claim when a Tribunal was considering its discretion to extend time. The EAT held that the fact there was a first defective claim did not automatically render it reasonably practicable to presented in time. I observe in this case there was no rejection by the Tribunal.[83]The third case is a first instance decision. It follows that I am not bound to follow any legal principles set out therein, unlike with a decision or decisions of the EAT. In addition, I have not been able to obtain a full transcript of the judgement and had to rely upon what I found in IDS. In Lawrence v Yesmar Restaurants t/a McDonalds ET Case No.1302367/2015 an Employment Tribunal rejected a Claimant’s submission that her second claim should be accepted where a mistake had led to her first claim being rejected. The claimant attempted to submit her claim by post to the Birmingham Employment Tribunal but it was rejected as it did not comply with the prescribed methods for submitting a claim She presented it again, late. The Tribunal considered the EAT’s observation in SoftwareBox Ltd v Gannon that if a claimant reasonably considers that there is no need to make a claim, not therefore understanding (for very good reasons) that the time limits apply to a claim as they do, because she had already made a claim which remains effective it would be open to a Tribunal to consider the second claim made by the Claimant once the belief was realised. However, the Tribunal found that L, acting through her professional adviser, had made mistakes that were not reasonable and had a belief that was not reasonable, and her understanding was not based on very good reasons. She had no just excuse for not presenting her claim in time.[84]Pulling the authorities together I conclude that I am required to focus on the second claim and what was the impediment to the timely presentation of that claim. I must have regard to the reason why the Claimant did not present a valid claim in time, see the well-known dicta of Brandon L.J. in Walls Meat Co. Ltd -v- Khan 1979 ICR 52 at 60F.[85]It appears to me that the Claimant reasonably believed the first claim had been correctly lodged. He had an e-mail acknowledgement. He used reputable solicitors. The Tribunal had not alerted him to any error. It was for that reason he did not lodge the second complaint.[86]In the intervening period he had no reason to believe that his claim was not valid until he spoke to the Tribunal on 21 December 2019 and thereafter acted properly. Up until that point he was labouring under the misapprehension that he had a valid claim. Whilst I have noted the submission of Ms Hardman, skilfully constructed that it is, that the time between April and December that should be concentrated upon I am not persuaded that the Claimant can be fairly criticised. Whilst it is true he was told by his solicitors he would properly hear from the Tribunal in a matter of “weeks” the Claimant did start to research the matter and came to the conclusion on the evidence he found on the Internet that there were extensive delays in the Employment Tribunal system. He was not a lawyer and would not know, as observed, about case management. Many litigants may have enquired with the Tribunal earlier stage but I cannot say that leaving matters until December 2019 was unreasonable from what the Claimant knew at the time. He started to enquire after 8 months , the time it was suggested in the articles he googled that that was the time when a hearing could be expected.[87]I have concluded that I have to find that the first claim was not presented within time and then move on to the issue of reasonable practicability.[88]If it is not “reasonably practicable” to present in time, as I conclude I must find, I then have to consider whether to allow an extension and if so it must be the such further extension as is reasonable. There is no definition of what is reasonable and it will depend upon the facts and the explanation put before me:- Marley (UK) Ltd -v- Anderson [1996] 163 CA. That said it is expected that the Claimant will act expeditiously:- Theobald -v- Royal Bank of Scotland PLC EAT/0444/06.[89]It was only reasonable practicable for the Claimant to submit the second claim when he knew of the difficulties with the first claim. He knew of the difficulties on 21 December and very promptly acted by submitting the second claim on 24 December 2019.[90]A factor I must consider is prejudice. Whilst in both Gannon and Adams the prejudice was all one way, the Claimant losing the right to bring a claim such that if a claim was valid they would be left remedy less, here I have to factor in that the Claimant would potentially have a claim in negligence against his solicitors, at the very least in connection with the unfair dismissal claim.[91]I also must take into account the fact that the Respondent will now face legal proceedings and even if they were to succeed, it is unlikely they will recover their legal costs.[92]However, given, as will be seen I would have extended time in any event for the discrimination claims, which includes the dismissal and will almost inevitably cover the same or very similar grounds to that of the unfair dismissal I have concluded that the greater prejudice is to be Claimant.[93]It is appropriate that I briefly deal with my reasoning why I would have extended time, in any event, for the discrimination claims[94]The relevant provisions are found in section 123 EQA10.[95]Section 123 of the EQA 10 states: – “…Proceedings on a complaint … may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable…. (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it (4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something- (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[96]An Employment Tribunal has a wide discretion in determining whether or not it is just and equitable to extend time. That said the power of the Tribunal is a discretion and the burden is on the Claimant to convince the Tribunal that it is just and equitable to extend time. The discretion is the exception rather than the rule, Robertson-v-Bexley Community Centre 2003 IRLR 434 CA.[97]If there are circumstances which would otherwise render it just and equitable to extend time, the length of extension required is not of itself, a limiting factor unless the delay would prejudice the possibility of a fair trial see Afolabi -v- Southwark LBC 2003 EWCA Civ 15.[98]Whilst the Tribunal in exercising its discretion is not required to adopt the checklist set out in section 33 of the Limitation Act 1980 it can be a useful tool for the Tribunal to consider.[99]Factors set out in section 33 include: – 1. The length and reason for the delay. 2. The extent the cogency of the evidence may be affected 3. The extent, if at all of the failure of the employer to cooperate 4. What action the Claimant took when the Claimant became aware of a potential claim and in particular how promptly they acted 5. Action taken by the Claimant to obtain professional advice when aware of the claim.[104]The above is not a comprehensive checklist and other relevant matters that may be considered including the length of the extension sought. A likely highly significant factor is whether the delay would affect the conduct of a fair trial:- DPP -V- Marshall 1998 ICR 518.[105]I start from the position that on the basis of how the Claimant puts his claim I am satisfied the allegations of discrimination are a continuing act which cumulate with the Claimant’s dismissal. They relate to the same process and subject matter. Indeed, it was not argued that there were a series of unconnected acts prior to dismissal by Ms Harmon. It follows that time would therefore run from the effective date of termination.[106]The length of delay is approximately eight months. That is a factor that weighs in favour of the Respondent. It is not the case of where it is only a few days. That said as I have explained in my judgement why the Claimant labouring under the misapprehension that he had a valid claim that was being processed by the Tribunal.[107]I am not satisfied that the cogency of the evidence will be significantly affected. Whilst I take Ms Harman’s point that any delay must inevitably have some effect on a witnesses recollection, given the redundancy process was documented and key decision-makers are still available to the Respondent I do not regard this as a factor weighing heavily against the Claimant. The Respondent will not be significantly prejudiced simply by the delay.[108]There is no suggestion Respondent has been uncooperative. In fact, the Respondent is a victim of circumstances of errors made by the Claimant solicitors and the Tribunal.[109]The Claimant acted promptly when he was informed of 21 December 2018 of the difficulty and remedied the same by 24 December 2018, a matter of just three days.[110]The Claimant had taken professional advice and in my judgement honestly believed the first claim was valid and was proceeding.[111]When I stand back and where all these factors, whilst I have some sympathy for the Respondent, the overriding matter is whether there could be a fair trial and in this case there can be a fair trial and thus it will be just and equitable to exercise my discretion.[112]I therefore concluded that time should be extended both in respect of unfair dismissal and the discrimination complaints and I have issued consequential directions.[113]This hearing would not have been required had the first claim been presented in time. It is open to the Respondent to make a cost application and it may be prudent for the Claimant to speak to Wilkin Chapman in that regard as to their position
The Law
[114]We should also note that the small pool approach to the financial analyst posts was on the basis that it would have been disruptive, where it would take several months to learn a different role, to undertake a skills based redundancy exercise amongst wider pools. This too was a universal approach. It may be one that poses greater challenges for those with disability than without, for the simple reason that they are at greater disadvantage in the jobs market if redundant through a small pool exercise, but the fact that the respondent adopted this approach is not sufficient to sustain a finding that Mr Nolan or Ms Thomsen or Mr Colley, were motivated consciously or subconsciously by the claimant’s illness, disability or absences. The question for us was not whether the redundancy process was outside the band of reasonable redundancy processes, it was whether any founded criticisms of that process could sustain a finding of discriminatory motive. In these circumstances they could not.[115]Another matter which the claimant believed demonstrated potential discriminatory motive was the failure to disclose organisational charts or preparatory work related to the whole finance team, before his initial meeting with Mr Colley on 19 June and subsequently.[116]The C team charts were provided to him by Mr Nolan during the process of consultation. Taking into account the team by team approach, it was apparent from the contemporaneous emails that other redundancies were not ready to be progressed by the other managers, when Mr Colley embarked on his discussions on 19 June. The Tribunal cannot then find that the lack of a May or June finance organisation chart, evidence of discriminatory motive by Mr Colley, Mr Nolan or Ms Thomsen: the explanation was that the May/June 2018 versions were not kept and there was no disagreement that a December 2018 version (which was before the Tribunal), was concealing anything. The claimant agreed that if we added the extra post lost in his team, and took away the interns, it was accurate as at June 2018.[117]A further matter which troubled the Tribunal was the failure in Mr Colley’s witness statement to identify the timing of Ms Thomsen’s request for cost cutting proposals; in an internal investigation she had said things started in March 2018, whereas he identified in oral evidence that the meeting at which proposals were invited, was May. The apparent conflict was resolved by the disclosure documents which were entirely consistent with Mr Colley’s evidence on this point, and indeed the claimant’s observations of Mr Colley during May and June.[118]That Ms Thomsen remembered things commencing in March may indicate her recollection of the procurement/supply chain team restructuring which had commenced earlier than May, and indeed there were several departures from “Group” in the Spring. Whatever the reason for this answer in an internal investigation, this difference between her and Mr Colley cannot sustain the claimant’s case that she was a discriminating co-conspirator or Iago.[119]Ms Thomsen’s wish for the proposals to be announced in her team in June, and not to slip, similarly not give rise to any suggestion of discriminatory Iago style behaviour, when the business had planned anyway to make the majority of headcount reductions in June and July (revealed by 511/1036). A wish from her that things did not slip was consistent with both the plan and her role as finance director.[120]As a matter of fact the claimant has not established that the total headcount remained the same, or more than that indicated in the forecasts. The reverse was true: the respondent cut more staff than its plan required, even with the two undergraduate interns. Given the numbers involved, although it is possible that Ms Thomsen took the opportunity to “hide” a discriminatory dismissal of the claimant in a much bigger cost cutting exercise, this is unlikely from her methodology. She did not identify the positions to go herself, she asked for proposals from Mr Colley and others. It is possible to manipulate in this way, believing and hoping that Mr Colley would put forward the proposal he did, but again, it is unlikely.[121]Finally, there is Ms Thomsen’s (and Mr Colley’s) holding of a position that the claimant’s illness was not caused by workload, after the claimant’s blood pressure was dangerously high in early April. Holding a lay view about the cause of the claimant’s illness, (however unwise given it is a complex medical question) could, we accept, indicate an antipathy or intolerance to the claimant or his illness (from both Ms Thomsen and Mr Colley).[122]To summarise, in support of a case of discriminatory thinking by Ms Thomsen, we have the failure to say “good morning” in May, the view held about the cause of illness, and the possibility of Iago style manipulation of Mr Colley. Against those factors, we weigh the very compelling contextual evidence from Mr Colley about his thinking at the time, which we accepted. That included a feeling of conscience about needing to cut cost, if a job could be done by one person rather than two. Given his own long working hours it is also inherently unlikely that he would artificially shrink his team to please Ms Thomsen, if that would only stand to worsen his own position and workload.[123]Taking all these matters into account we cannot find on this evidence that Ms Thomsen instructed Mr Colley to design cost saving proposals to dismiss the claimant, because of, or influenced by, his illness or his absence. For the same reasons the evidence is wholly insufficient to sustain a finding of Iago style conduct by Ms Thomsen, in asking for cost cutting proposals in order to be rid of the claimant because of his absence and/or disability, achieving that through a dismissal by Mr Colley without himself having any discriminatory thoughts. It is also relevant to this conclusion that there is no evidence of Ms Thomsen perceiving disability, and the claimant’s absence had only been five or so weeks at the time of her request. Mr Colley[124]Mr Colley came to his understanding that he could operate with one finance analyst rather than two because of the need for the claimant’s risk assessment, understanding then the time various tasks took, and because the claimant’s tasks were able to be absorbed by his colleague X while he was absent.[125]Mr Boyd submitted that this was the context for the reason for the redundancy proposal, it was not the reason for it: the reason for it was Mr Colley’s judgment that the work could be done by one person rather than two.[126]Sadly perhaps, it is a frequent occurrence that whenever staff are absent, whether through illness or maternity leave or for other reasons, similar understandings are reached by their employers. It is an utterly human reaction to respond with, “if I had not been absent I would not have been made redundant”. However, that does not mean that the reason for a redundancy proposal is absence. To illustrate the point, if, while absent, a manager discovers an employee has taken part in misconduct, which would not have been discovered without the absence, and then dismisses for it, the reason for the dismissal is the misconduct, not the absence.[127]We accepted Mr Colley’s evidence and judgment that the work could be done by one person rather than two, and that he needed, in the context of a need to cut headcount, to propose that solution, if he could see it and work with it. We repeat our comments above about the unlikeliness of him proposing something which would worsen his own position unless he held that view in good faith. We find there was no conscious thought of the claimant’s illness or absence from Mr Colley when he decided the work could be done by one rather than two.[128]As to his selection of the claimant, given our findings and conclusions above, we have to consider whether Mr Colley was subconsciously scoring the claimant unfavourably or wrongly, and selecting him for redundancy, subconsciously influenced by his illness or absences.[129]This is entirely possible on the facts of this case, particularly given the claimant’s unhappiness about the effect of long hours and stress on his condition. Is it more likely than not? We consider that the whole tenor of Mr Colley’s evidence is that he did not think deeply about these matters – he called it as he saw it – and he scored the claimant based on his genuine assessment of his skills and attributes. He saw him as a “grown man”, not a person impaired with disability.[130]Mr Colley’s scoring of the claimant was based on his performance and observations of him whilst working from home in January and February and then back at work in March 2018, and May and June; his comments were not so unfair as to suggest that he held subconscious bias towards illness or absence, and the claimant did not suggest that to him in any of his questions. In fact the claimant did not ask any questions of any of the witnesses about his scores during the selection process.[131]His questions were very much focussed on establishing he had been very poorly treated, that there was no reduction in headcount, and that the exercise had been a sham to punish him as a person who had indicated unhappiness with his hours. The difficulty with the latter proposition was that Mr Colley was also a person who had expressed unhappiness with his hours, and there were others, and their posts were not proposed to be redundant. Either way, treatment because of raising issues about hours in the department, does not equate to treatment influenced by illness, disability or absence. Again, it may be that a long hours requirement is something which could have given rise to claims of indirect discrimination, or failures to make reasonable adjustments, but those are not the claims before us.[132]We recognise it is difficult for a litigant in person, presenting different claims about the same issue, to argue or ask all the questions that are relevant to the different legal issues. That is particularly the case where the claimant’s unfair dismissal argued: the redundancy was a sham driven by the claimant’s complaint about Ms Thomsen and his health issues; the pool did not include all relevant analysts; warning of redundancy was not carried out as soon as possible; scoring comments were inconsistent and contradicted 2017 review; he was put under strain by a continuing process despite there being a “duty of care” investigation; and the final consultation meeting was not postponed.[133]In this case, the claimant had prepared an excellent witness statement detailing every document and point he wished to make in support of the points above, and had prepared his questions very thoughtfully and in a very targeted way by reference to the documents. We therefore consider that in not challenging Mr Colley’s scoring, whether as discriminatory or simply unfair, he had ultimately accepted that if there were to be a selection exercise between him and X, he would come out objectively with a lower score.[134]By closing arguments the claimant was clear that his focus was on his illness or disability as the reason for dismissal. In the round the Tribunal has concluded on the balance of probabilities that Mr Colley’s selection of the claimant, rather than X, for redundancy was free from thoughts, conscious or unconscious of the claimant’s illness or his absence. Mr Nolan and Mr McKenna[135]Mr Nolan’s conducting of the final meeting in the claimant’s absence, and giving notice of termination, despite the claimant wishing to postpone the final meeting, is a matter about which complaint is made. We ask whether it can give rise to any finding that Mr Colley, or Ms Thomsen acting as Iago, had thoughts of the claimant’s illness or absence in selecting him for redundancy.[136]Mr Nolan’s action was consistent with the direction from Mr McKenna “if he is fit to attend, let’s get him in and get this sorted”. He was faced with the claimant wanting more time to digest the occupational report having been on holiday, and seeking a postponement of seven days on the day of the meeting, instead of attending. When asked about that, the gist of Mr Nolan’s evidence (and to a lesser extent that of Mr Scargill) was that as well as a duty of care to reduce the claimant’s stress by bringing things to a conclusion, he also had a duty of care to others who had been taking the strain to resolve complaints, grievances, investigations and appeals, and a department that needed clarity. He referred to the fact that the claimant had enjoyed a holiday and then asked to postpone on the day, whereas he had not (had a holiday). We accept this evidence because it had the ring of truth about it, unsympathetic as it was. In short, he and others were weary.[137]We also asked whether the alternative way of removing the claimant’s stress, namely by removing the redundancy proposal had been considered. It had not. There may have been many reasons why that was not considered but by this stage the year end was approaching and the plan involved achieving headcount reductions by the year end. Occupational health had finally advised the claimant was a disabled person and Mr Nolan and Mr McKenna knew that (or in the latter’s case, ought to have known as he was sent the report). They had an opportunity to reverse the redundancy, as the claimant believed Mr McKenna would, but they did not.[138]Our findings about the reasons for the selection of the claimant for redundancy are that they were free from discriminatory thinking. By the time he came to be dismissed for that selection, the respondent knew he was a disabled person. That may have caused some employers to pause for thought, bearing in mind the other provisions of the Equality Act that we have mentioned above. Certainly, in a context where the respondent’s mission includes having an environment free from discrimination one might have hoped so. The respondent appears to have carried through reductions in staff when those in finance were working long hours, with a decision taken not to keep a record of those hours. That, too, is a decision or strategy which applies to everyone, but may have a worse impact on those with disability. The fact that Group was short of staff against its forecast by the year end may indicate the strategy was not popular.[139]No doubt oral evidence could have explored these matters had the claimant brought complaints of indirect discrimination or failures to make reasonable adjustments. The respondent would then have come prepared to address them. As it was, it did not, and the Tribunal cannot determine complaints which have not been brought.[140]In all these circumstances the Tribunal’s unanimous conclusion is that the Equality Act complaints brought by the claimant must be dismissed.
The Law
[1]The claimant seeks a reconsideration of the Tribunal’s finding that he was an employee of the respondent for less than two years (which resulted in the dismissal of his unfair dismissal complaint).[2]Over six close typed pages he seeks reconsideration on two grounds: that the Tribunal “made a mistake in the way it reached its decision”. This is developed as: 1) “not enough time was devoted to the issue of continuous employment and I did express my preference on 24 September for a Preliminary Hearing on this matter”.[3]Secondly that, “there is new evidence that was not available at the time of the hearing but has since come to light and potentially has an impact on the judgement”.[4]He further sets out in a document headed “Timeline”, further information which may well have formed his witness evidence had he amassed further documents on the issue before the final hearing; information headed “relevant factors to consider for continuous employment”, and a section headed “Evidence not disclosed by the respondent” which lists nine documents or categories of documents not provided to him. The preference for a preliminary hearing on the point.[5]The Tribunal’s reasons explain that there had already been a number of “bite size chunk” hearings to determine discreet issues in the case, before this four day hearing in October 2020. Those hearings had been consistent with the claimant’s mental health condition and wish to address matters in that way. The final four day hearing was then arranged as part of those case management discussions.[6]A month before the final hearing, when requesting additional disclosure from the respondent, the claimant said, “I would prefer that the final hearing be converted to a preliminary hearing to determine the issue of continuous service and the final hearing rescheduled”. This was refused after the claimant had said, the following day: “I did not intend to make a late application to postpone the full hearing, I was merely expressing a preference should it be enforced. I wish the hearing to go ahead as planned on 26 – 29 October 2020. I have now agreed the bundle with the respondent …My witness statement will be submitted on 5th October as scheduled”. The claimant’s disclosure application was refused.[7]In these circumstances there are no reasonable prospects that the Tribunal would decide that the issue of continuous employment should be re-visited because it could have been addressed as a preliminary issue, but wasn’t. That seeks, in effect, to overturn previous case management decisions. The new evidence point[8]The Tribunal’s note of the claimant’s relevant oral evidence when responding to Mr Boyd’s questions was this: The paras between 5 and 8 – AB – of mr coley – yes – set out a number of facts – appear to be non controversial – relating to your position as a contractor – and what occurred during the course of your time as a contractor Did you look at them and say factually they are wrong Err – I agree I was not a direct employee- of csl – I have not said that I was - I say for my employment rights – I was agency and I moved onto employment without a break – Same working hours – same job after June 12th as I was before it And I was using the company’s facilities – I was told what work I did - So page 191 – okay So if I put to you – you were not an employee of csl – you would accept that – I was a contractor and there was a continuity of work – I believe – that csl paid the agency a finders fee – I did have an issue I had with working for the agency – and Richard knew that But clarify one final point if I may So you were on one month’s notice - in or around that period I was approached by that agency – when working somewhere else – and morgan mckinley – were the recruiter -I accepted the role – I believed I was getting paid - £200 a day through pay as you earn Quickly emerged that wasn’t the case They didn’t have their own payroll system I asked what are you talking about So it is as a contractor – so I had to set up through an umbrella company – And had to set up an umbrella company to get paid - and then You were asked weren’t you to provide disclosure – I have supplied everything I could supply[9]His witness statement had said this: On 31st October 2016 I commenced working at Centrica Storage Limited on a 12 month Fixed Term Contract as Business & Reporting Analyst/Coordinator. I was covering this role for Victoria Smith whilst she herself covered a role in another department (maternity cover). [Page 190 to 198 & 384][10]It is apparent from the above that the claimant had provided some documentation relating to his commencement via an agency and that was before the Tribunal. The new evidence that he says he has been able to provide by a data protection request to Morgan McKinley, the agency, and from his own archived emails, adds more detail but little substance to his oral evidence to the Tribunal and is consistent with it and with the Tribunal’s findings. An example is the use of psychometric testing before the claimant took up his 12 months agency assignment. This is information which if added to the factual matrix adds very little to the picture. It is consistent with the Tribunal’s finding that the respondent also interviewed the claimant before this agency appointment.[11]The question of whether a judgment should be re-considered because new evidence has come to light which was not reasonably available at the hearing is a high bar. There is no reasonable prospect of the Tribunal considering that the Morgan McKinley material and archive material could not reasonably have been sourced for the final hearing, either from the claimant’s email archive or from Morgan McKinley. Furthermore there is no reasonable prospect that the material would result in the Tribunal revisiting its decision because it adds very little to the claimant’s oral evidence, which accurately summarised his position. Too little time spent on the continuous employment issue[12]The extract from the claimant’s oral evidence is accurately reflected in the findings and the way that the claimant addressed his argument as a litigant in person. The fact that he did not set up an umbrella company as the note records, but used an umbrella company service is a distinction without a difference in the context of the conclusions reached by the Tribunal. There is no reasonable prospect of the Tribunal considering that the decision should be revisited in a hearing because too little time was spent: the time spent was proportionate to the evidence and the arguments. The Tribunal made a mistake in the way it reached its conclusion[13]To the extent that the claimant’s application includes that he considers the Tribunal made an error of law or applied the wrong test in deciding whether he was in reality an employee of the respondent during the period where the documentation was clear (and he was clear) that there was no written or oral contract of employment between them, there is no reasonable prospect of the Tribunal agreeing with him. While its paragraph 97 is a summary, the law it summarises is below. Section 230 of the 1996 Act provides: "230 Employees, workers etc(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act "worker" (except in the phrases "shop worker" and "betting worker") means an individual who has entered into or works under (or, where the employment has ceased, worked under)– (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.(4) In this Act "employer", in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.(5) In this Act "employment"– (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract; and "employed" shall be construed accordingly." Section 83(2) of the Equality Act 2010 relevantly provides: “”Employment” means – (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”. The 1998 Working Time Regulations’ definition of “worker” adopts almost wholesale the definition of worker at subsection (3) of the 1996 Act above. The fundamental ingredients of a contract in law are: there must be an intention to create legal relations; there must be offer and acceptance of terms; and there must be “consideration” passing between the parties, that is, a mutuality of promises between the parties – “in return for this from you, I will do that”. In the judgment of McKenna J in Ready Mixed Concrete (South East Limited) v Minister of Pensions and National Insurance [1968] 1 QB 497 he summarised the essential elements of the contract of employment as follows (p.515): "A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service." In Stephenson v Delphi Diesel Systems [2003] ICR 471 (paras 11-14), this was said: "11. The significance of mutuality is that it determines whether there is a contract in existence at all. The significance of control is that it determines whether, if there is a contract in place, it can properly be classified as a contract of service, rather than some other kind of contract.” In Snook v London & West Riding Investments Ltd [1967] 2 QB 786, CA a commercial case, Diplock LJ defined a 'sham' transaction in terms of a common intention by both parties to misrepresent the true position to the outside world. In Protectacoat Firthglow Ltd v Szilagyi [2009] EWCA Civ 98, [2009] IRLR 365 , an employment case, Smith LJ (giving the leading judgment) held that 'the case of Snook is not of uniform assistance in determining whether an agreement is in fact a ‘sham'. In Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] IRLR 820,[2011] ICR 1157 at paragraphs 34 -35 Lord Clarke said this: ''I respectfully agree with the view, emphasised by both Smith and Sedley LJJ, that the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. I accept that, frequently, organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. In practice, in this area of the law, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so. …''… and … ''So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description”. The Tribunal does not readily accept that adults with capacity to deal with their own affairs do not mean what they say in written terms agreed between them. There must by cogent and compelling evidence to suggest that their true intentions were different to those contained in the written terms; this can be derived from the way in which the parties operated in practice, taking into account the relative bargaining power.[14]The Tribunal’s reasons included this at paragraph 99: “Nor was there anything close to duress in the claimant’s entering into the original arrangement, albeit the claimant said he felt forced to set up the umbrella company by the agency. For reasons which will become apparent the Tribunal considers his feelings and perception have developed with hindsight. The claimant disclosed no documentation indicating his protest or objections at the time. He had an alternative at the time: if he had wanted to wait for a directly employed position he could have rejected the agency offer and continued with his search while remaining in the temporary position he then occupied. The claimant did not document any objections at the time; and he later signed a contract with the respondent acknowledging and agreeing the start of his continuous employment in 2017”.[15]The claimant’s application includes that he has found, from his own archive, emails indicating he was unhappy with the agency about a number of matters (which was in any event apparent from his oral evidence extracted above); those matters do not suggest that he raised protest with the respondent as to his true start date or status at the time, such that the Tribunal could conclude that the true intention of Mr Colley and the claimant was that there be a contract of employment between the respondent and the claimant from 31 October 2016 to 12 June 2017.[16]The claimant has devoted as great deal of time and effort since the Tribunal’s decision, to secure additional evidence in relation to the continuity point. The principle that the parties are entitled to certainty and finality in litigation is rarely more brought into focus than by this application. It would be wholly wrong, when that material only confirms the salient points of his written and oral evidence, for his application to proceed to a further reconsideration hearing, putting himself and the respondent to further strain and uncertainty.[17]In communicating the reasons why this application has no reasonable prospects of success, it is to be hoped that the claimant can accept that there was a proportionate and consdieration of the issue, within the final hearing. The relevant underlying facts and principles of law to be applied would not have changed, nor would a different decision have been made, had the new material been available or lengthier written or oral arguments made. JM Wade 15 February 2021