MR M Castell v Societ of Motor Manufacturers And Traders Ltd: 2200133/2019

EMPLOYMENT TRIBUNALS

Case No 2200133/2019

Between

MR M CastellClaimant

Societ of Motor Manufacturers And Traders LtdRespondent

Before

Employment Judge F Spencer

Ms C Coyne (instructed by counsel) for claimant

Ms K Apps (instructed by counsel) for respondent

Date 13 June 2019

REASONS

[1]This was an Open Preliminary Hearing to consider whether, in the light of the applicable time limits, the Tribunal has jurisdiction to consider the Claimant’s claims.

[2]By a Claim presented on 14 January 2019, the Claimant claimed disability discrimination and sexual harassment. In respect of the disability discrimination complaint, he relies on a physical impairment (cerasic muscle problem) and a mental health problem (polymorphic psychotic disorder).

[3]The Claimant was employed by the Respondent as a database analyst from 8 August 2016 until his dismissal on 12 February 2018. He did not appeal the decision to dismiss him.

[4]The Claimant contacted ACAS for early conciliation on 10 December 2018. The early conciliation certificate was issued on 11 December 2018 and the Claim was presented on 14 January 2019. The primary time limit expired on 11 May 2018. It was not in dispute that the claim was therefore some 8 months outside the primary time limit. The issue for the tribunal was whether it would be just and equitable to allow the claim to proceed notwithstanding the delay in presentation.

Relevant law

[5]Section 123 of the Equality Act 2010 provides that complaints of discrimination should be presented within three months of the act complained of. The time limits are extended to allow for early conciliation but, if ACAS does not receive the early conciliation request within the relevant three-month period, the Claimant does not get the benefit of any extension of time.

[6]Section 123(1)(b) provides that where a discrimination claim is prima facie out of time it may still be brought “within such other period as the Tribunal thinks is just and equitable”. This provides a broader discretion than the reasonably practicable test for unfair dismissal claims.

[7]In considering whether it would be “just and equitable” to extend the relevant time limits, all the circumstances are relevant including the extent and reasons for the delay; any prejudice to the Respondent if the application is allowed to proceed; the likely injustice to the Claimant if the complaint is not heard including whether any other redress is available, whether the Claimant was in receipt of advice; and the conduct of the parties after the complaint was received and up to the date of the application. However, this list of factors is a guide not a legal requirement. In Aberttawe Bro Morganannwg University Local Health Board v Morgan

2018 ICR 1194

the Court of Appeal noted that the tribunal has a wide discretion and the Tribunal was not restricted to a specified list of factors. In Robertson v Bexley Community Centre

2003 IRLR 434

the Court of Appeal reviewed the law and principles which should guide Tribunals in deciding whether to exercise their discretion to extend time. The Tribunal has a wide discretion. On the other hand, time limits are jurisdictional, and it is for a Claimant to persuade a Tribunal to accept a late Claim. Evidence relevant to the time points.

[8]I heard evidence from the Claimant on oath.

[9]The Claimant gave evidence that by the time of his dismissal in February 2018 he was experiencing poor mental health and that he perceived that he was being followed in his day-to-day life, which caused him significant distress and he believed that he was being stalked. He said that he was experiencing the effects of what was later diagnosed as polymorphic psychotic disorder. In his witness statement he said that this affected his ability to sleep, hold conversations with others in a normal way, leave his house or take part in social activities. Further, from October 2017 onwards the Claimant had been experiencing a muscle problem in his testicles, which was diagnosed as cerasic muscle problem in March 2018.

[10]After his dismissal the Claimant says that he was at home writing a children’s book. He obtained new employment on 5th November 2018, and is currently working full time. He lives at home with his parents.

[11]There was no medical evidence about the Claimant’s mental health in the three month period of the primary time limit or before 30 August 2018. The Claimant’s medical notes from January 2016 disclosed that during 2018 the Claimant had consulted his GP about testicular pain (and at the end of March he was referred to a urologist who diagnosed cerasic muscle problem), but that he had not consulted the surgery about any mental health issues. In their ET3 the Respondent states that they were not aware that the Claimant had any mental impairment during his employment, and that during his employment the Claimant did not have any time off sick, was never late and was good at his job.

[12]The Claimant began to make enquiries with solicitors about the possibility of bringing a claim at the end of April 2018. Between then and August 2018 the Claimant contacted in excess of 15 firms of solicitors. The Claimant says that all of them informed him that they were unable to take on the case, mainly due to not having capacity. The Claimant also says that the time limit was first brought to his attention by Rock solicitors in their letter dated 6th July 2019 and then again by Ashton’s Legal in their letter dated 28th August 2019. He says he was already past the deadline when he learned of its existence.

[13]The Claimant says that Rock solicitors refused to take his case, but included in the bundle is a (partially redacted) letter from Rock solicitors dated 6th July confirming the basis on which they would be pleased to act and setting out their charges, asking him to return their standard terms of business. The Claimant said that after he received this letter he had gone on holiday and that, when he returned, they told him on the telephone that they had no capacity.

[14]Correspondence in the bundle (68) indicates that the Claimant had discussions in June 2018 with Ashton’s Legal who advised that the allegations may be too old for him to bring in the employment tribunal. The Claimant then did not follow this up with Ashtons until late August when he asked to meet with them for an hour to advise on the merits.

[15]It is beyond doubt that by the end of August, the Claimant was experiencing severe mental health problems because on 30 August his GPs practice received a call from a friend advising that he was experiencing mental health problems. On 6th September 2018 the Claimant was admitted to hospital because of the deterioration in his mental health and he was sectioned on 13th September 2018. He was then diagnosed with polymorphic psychotic disorder. The ICD – 10 definition or this disorder notes that “These disorders often have an abrupt onset, developing rapidly within a few days, and they frequently show a rapid resolution of symptoms with no recurrence.”

[16]The Claimant was discharged from hospital on 9th October 2018. He contacted 2 further firms of solicitors before contacting Birketts LLP on 8th November 2018. The Claimant formally instructed Birketts on 26 November 2018. They said that he should move quickly. Birketts note that they had had difficulty getting instructions and had prepared 7 drafts of the particulars of claim before issuing it on 14th January 2019. In his witness statement the Claimant says that his mental health issues prevented him from giving quick instructions, although in cross examination he said that he was working full time and had to look at the paperwork in his lunch hour etc.

[17]In his witness statement the Claimant stated that the cerasic muscle problem affected his ability to leave the house. However, in cross examination he accepted that this was not quite right. He said “I did things, went out jogging and stuff, went to local recruitment agencies. I could leave the house, but it slowed me down. There were days when I choose not to, but it was not every day”. Submissions

[18]For the Respondent, Ms Apps submitted that:a. There was a significant delay in presenting the claim. The Claimant was dismissed on 12 February and the claim was presented on 14th January 2019, 11 months later. Some of the allegations were even older.

b. The Claimant did not suggest he was physically or mentally incapable of presenting a claim. He had not visited the GP about his mental health problems and his diagnosis was only made after he was sectioned.

c. He was aware of the time limit from July.

d. Even after he had instructed Birketts, there was a significant period of delay until the claim was presented.

e. As to the balance of prejudice between the parties, the allegations against the Respondent went back a long time (some as far back as April 2106), and one of the potential witnesses, Ms Isaacson had left the Respondent. Many of the allegations were not mentioned in his grievance. General recollection fades over time.

[19]For the Claimant Ms Coyne noted that the Tribunal had a wide discretion to consider what was just and equitable in all the circumstances. The Respondent had not called evidence to show that it was not possible to have a fair trial, notwithstanding the delay. In considering whether it was just and equitable to extend time, the issue was not just about whether it was practicable for the Claimant to have presented his claim in time. The focus should rather be on why that was not done. In this case the Claimant was in poor physical and mental health. He believed that people were following him and did not wish to disclose his health issues to his GP. It was not unreasonable to want to take legal advice about pursuing his claim.

Conclusions

[20]In the context of a primary time limit of three months, the delay was very significant. The explanation for the delay is that at the time of his dismissal the Claimant was experiencing poor mental health which deteriorated after his dismissal and which was exacerbated by poor physical health.

[21]There is no medical evidence that immediately following his dismissal the Claimant was suffering from “the effects of what was later diagnosed as polymorphic psychotic disorder”. While I accept that those with mental health issues often do not want to admit, even to themselves, that they have a problem, I would have expected some independent evidence of the Claimant’s mental health in early 2018. This might have been, for example, in the form of a letter from the doctor that treated him when he was admitted to hospital explaining the disorder and when symptoms might have begun and how they affected him. His oral evidence as to the effect of his mental health on his capabilities after his dismissal was in contradiction to the evidence in his witness statement. The Claimant told us that he was writing children’s book, going out to speak to recruitment agencies and going jogging. His own evidence was that he had begun to consult solicitors in late April. He had been attending work every day until his dismissal. He was employed full time from November.

[22]I have no doubt that for some of the period (and at least from August to October) the Claimant was unable to progress matters but by November he was working again. However, the ICD 10 definition suggests that polymorphic psychotic disorder often has an abrupt onset and the Claimant’s oral evidence suggested that he was capable of taking instructions and lodging a claim in the three months to 11th May.

[23]He contacted Birketts on 8th November, but his claim was not submitted until 14th of January some 2 months later. In the context of a 3-month time limit this is a significant further delay. The Claimant said that he was working full-time in that period.

[24]In considering whether be just and equitable to allow the claim to proceed out of time it is not necessary for the Claimant to establish that it was impossible or impracticable to present the complaint in time. The test is much looser than that, and I should look at why the Claimant was not brought in time.

[25]From the evidence as a whole a picture emerges of an individual who immediately after his dismissal was not sure whether he wished to take matters forward or not. The Claimant said in evidence that his parents were not happy about him suing the Respondent. “They said I should get on with my life. This would make my life more difficult.” There was a delay before he consulted any solicitors and then he consulted 15 or more. It is unlikely, and I do not accept, that they all refused to take his case. The Claimant’s cerasic muscle problem was no bar to him pursuing his claim. He was not unable to leave the house as first suggested, but I accept tht it “slowed him down”. Despite the very serious episode that the Claimant experienced in August the medical evidence, and some of the Claimant’s own evidence, does not support his assertion that the Claimant’s mental health from February to 11th May prevented him pursuing his complaint.

[26]In considering the balance of prejudice and hardship, it is the case that the Claimant will lose his right to bring a claim. However, there is no part of his complaint that is in time, and some of the allegations in the claim go back to the start of his employment in August 2016. The loss of his right to claim is a consequence of the time limit provisions, which are unusually short. The fact that the Claimant was unaware of the time limit does not usually provide a reason for extending time, save in particular circumstances. It is for the Claimant to persuade the Tribunal that it would be just and equitable to extend time and, in the absence of medical evidence to support the Claimant’s assertion as to his mental health in the period immediately after his dismissal, he has not done so.