Mr L Simeone v First Great Western Ltd: 2200909/2017

EMPLOYMENT TRIBUNALS

Case No 2200909/2017

Between

Mr L SimeoneClaimant

First Great Western LtdRespondent

Before

Employment Judge Grewal

Date 14 November 2017

JUDGMENT

[1]The Claimant’s application dated 17 October 2017 for reconsideration of the judgment sent to the parties on 12 October 2017 dismissing the claim is refused.

[2]The Claimant’s application for reconsideration of the judgment that he is to pay the Respondent’s costs of £2,500 will be reconsidered on paper. The Claimant is to provide to the Respondent and the Tribunal by 28 November 2017 detailed evidence of his means. This should set out all his assets, income and outgoings and be supported by documentary evidence.

[3]The application to vary the order to refuse his application to amend is refused.

REASONS

[1]There is no reasonable prospect of the decision dismissing the claim being varied or revoked. The claim was struck out because the complaints had not been presented in time and the Judge did not consider that it would be just and equitable to consider them nonetheless. The Claimant could have attended and put forward any arguments that he wanted to oppose the claims being dismissed. The reason that he gave for his non-attendance at the time (in a telephone call and email that he sent to the Tribunal on 12 October 2017) was that he was not aware of the hearing. The Employment Judge did not accept that explanation. The Claimant had been present at the preliminary hearing on 11 September when the preliminary hearing on 12 October had been fixed, he was sent a note of that hearing which set out the date of the preliminary hearing and he had submitted a skeleton argument on 5 October 2017.

[2]In his application for reconsideration the Claimant gives a different reason for his non-attendance, namely the confusion and exhaustion arising from his illness. There is no medical evidence to support that assertion. The only medical evidence that the Claimant has produced is a medical certificate that he was unfit to work at the time of the hearing because of “work related stress and anxiety”. That has been the position for some time but the Claimant has attended hearings and participated in the process and has never said that he was unable to do so because of ill-health.

[3]Even though the Claimant did not attend the hearing careful consideration was given to the application to dismiss the claim and to his application to amend. I took into account his skeleton argument and the arguments put forward by the Respondent.

[4]Having taken into account all the above matters, I do not consider that it is in the interests of justice to reconsider that decision.

[5]The Claimant has said in his application that the costs order will lead to him losing his home and becoming homeless. I am prepared to reconsider that decision on paper if the Claimant provides more detailed evidence of his means. The Respondent will have an opportunity to comment on that on paper. I consider that it would be in the interests of justice to reconsider that matter.

[6]The Tribunal does not have power to reconsider case management orders. I have treated the Claimant’s application in respect of that as an application to vary the order that I made refusing him leave to amend. There is nothing that the Claimant has put forward in his application that leads me to vary my original decision. Employment Judge Grewal on 14 November 2017 EMPLOYMENT TRIBUNALS Claimant: Mr L Simeone Respondent: First Great Western Railway Heard at: London Central On: 12 October 2017 Before: Employment Judge H Grewal Representation Claimant: No appearance Respondent: Mr N Roberts, Counsel JUDGMENT having been sent to the parties on 12 October 2017 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:

[1]The claim form, accompanied by a number of documents, was presented on 3 May 2017. Early Conciliation had commenced on 6 April 2017 and the certificate had been issued on 21 April 2017. It was impossible to ascertain from the claim form and the accompanying documents whether the Claimant was making any complaints which the Tribunal had jurisdiction to consider and, if so, what the complaints were.

[2]After two preliminary hearings (on 5 July 2017 and 11 September 2017) it was clarified that the Claimant wished to make the following complaints:(i) The Claimant was disabled by reason of back problems in 2015 (after sustaining an injury at work in February 2015) and the Respondent failed to make reasonable adjustments in respect of his attendance at an Occupational Health assessment in April 2015 and by requiring him to move large objects at Acton on 23 June 2015.

(ii) Between August and September 2015 the Respondent failed to make reasonable adjustments by providing him with lighter duties and support. In addition, there was a failure to make reasonable adjustments in respect of the Claimant’s disability as a result of suffering from Irritable Bowel Syndrome, in that, his access to toilet facilities was taken away.

(iii) When the Claimant returned to work in January 2017 at Paddington (having been absent sick since September 2015) the Respondent failed to make reasonable adjustments in relation to his disabilities of depression/anxiety and IBS by not giving him a phased return to work and by putting him on front line duties on the concourse without support. This was sorted out in March 2017.

[3]The Respondent conceded that the Claimant was disabled by reason of depression/anxiety between January and March 2017 but disputed disability because of back pain and/or IBS. At the preliminary hearing on 11 September 2017 the Claimant accepted that the complaint at paragraph 2(iii) (above) did not appear in his claim form and the accompanying documents and he applied for leave to amend his claim to add that complaint.

[4]The preliminary hearing today was listed to determine:(a) The Claimant’s application to amend to add the complaint at paragraph 2 (iii) (above);

(b) Whether it was just and equitable to consider the complaint at paragraph 2 (i) and (ii) (above); and

[5]The Claimant did not attend the preliminary hearing today. The clerk telephoned him to seek an explanation for his non-attendance. He said that he did not know that there was a preliminary hearing listed for today. I did not accept that application. The Claimant had been present at the hearing on 11 September 2017 when this preliminary hearing had been fixed and the note of that hearing, which had been sent to both parties, had stated in the first paragraph that the preliminary hearing would take place on 12 October 2017. In compliance with the orders made at that hearing, the Claimant had submitted his skeleton argument for today’s hearing on 5 October 2017. In those circumstances, I considered that it was appropriate to proceed with the matter in the Claimant’s absence. I took into account the skeleton argument that he had submitted. Having considered that, the Respondent’s submissions and all the documents I reached the following conclusions. Application to amend

[6]I considered firstly the nature of the amendment. The Claimant is not seeking to clarify his existing claim or to attach a different label to facts already pleaded. He is seeking to introduce a new cause of action which is unrelated to the existing claims and will require the pleading of additional facts to support it. It relates to a different disability from that which is relied upon in respect of his existing claims.

[7]I then considered whether the claim was in time when the application to amend was made. That involved determining when the application to amend was made when the act of discrimination occurred. Although the Claimant referred to this in the first preliminary hearing on 5 July 2017, the application to amend was not made until the preliminary hearing on 11 September 2017 when the Claimant accepted that he had not complained of this in the original claim form and accompanying documentation and needed leave to amend to include it.

[8]Section 123(1) of the Equality Act 2010 provides that a complaint of disability discrimination may not be brought after the end of three months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal considers just and equitable. Conduct extending over a period is to be treated as done at the end of the period (section 123(3)(a)) and failure to do something is to be treated as occurring when the person in question decided on it (section 123(3)(b)). In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something when P does an act inconsistent with it or, if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[9]The relevant provision in the Disability Discrimination Act 1995 referred to “an act extending over a period” and to “a deliberate omission” to do something. It contained a provision identical to section 123(4) of the Equality Act 2010 as to when a person was deemed to have decided upon an omission. In Kingston upon Hill City Council v Mastuszowicz

[2009] ICR 1170

the Court of Appeal held that a failure to make reasonable adjustment was an omission and not an act. Therefore, the time for presenting the complaint ran from when the person decided upon the omission. There is no concept of a continuing omission.

[10]Section 140B of the Equality Act 2010 provides for extension of time limits to facilitate early conciliation. In that section “Day A” is the date on which Early Conciliation notification is given and “Day B” is the date on which the Early Conciliation certificate is issued. The section provides, “(3) In working out when the time limit set by section 123(1)(a) … expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by section 123(1)(a) … would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.”

[11]At both the preliminary hearings and in the agenda submitted for the second one the Claimant claimed that he returned to work in January 2017. In his skeleton argument he said that he returned to work on 7 February 2017. In either case he claimed that there was an Occupational Health report from August 2016 which had advised that he should have a phased return to work and that he should not work alone. His complaints of failure to make reasonable adjustments are about the Respondent’s failure to have a phased return to work for him and the fat that he was required to work alone on numerous occasions. In his agenda he said that that had continued until late March/early April 2017, at the preliminary hearing he said that it had been sorted out in March 2017, in his skeleton argument he said that it had continued until 7 April 2017.

[12]Applying the law the failure to make reasonable adjustments occurred when the Respondent required the Claimant to return to work without putting in place a phased return to work and when it required him to work alone. The former occurred when he returned to work which, at the latest, was on 7 February 2017. The latter occurred on a number of occasions from 7 February onwards. By the end of February, at the latest, it was clear to the Claimant that the Respondent was failing to make those adjustments. I, therefore, concluded that the acts of discrimination occurred at the end of February 2017.

[13]Taking into account the extension of time limits, the time limit for that claim would have expired at the latest by 15 June 2017. The application to amend was not made until 11 September 2017. The Claimant was seeking to add a claim that was out of time.

[14]There was no explanation of why this matter had not featured in the original claim. All the facts giving rise to it were within the knowledge of the Claimant. I took into account that the Claimant was off sick at the time but that had not prevented him from putting in claims about other matters. At a stage 3 grievance hearing on 3 April 2017 the Claimant said that he had felt much better since being at Paddington, he had felt more welcome there and everyone had been very supportive. His union representative had said that the role was working well but there were currently no vacancies there. All the evidence indicated that the Claimant had not made any complaints about failures to make reasonable adjustments about his time in Paddington between January and April 2017 because he had not had any concerns about it. There was no satisfactory explanation why that claim had not been made in time and no grounds for concluding that it would be just and equitable to allow it to proceed.

[15]Having considered all the above matters I concluded that greater hardship would be caused to the Respondent if I gave the Claimant leave to amend his claim than to the Claimant if I refused his application. Whether it would be just and equitable to consider the complaints of failures to make reasonable adjustments in 2015

[16]These complaints were presented over two years after the time limit for presenting them expired. The delay is considerable. There has been no explanation as to why they were not presented earlier. The Claimant was represented by his trade union in the internal grievances and, therefore, had access to advice from his trade union. He also had a reputable solicitors’ firm, Thompsons, acting for him in his personal injury claims against the Respondent. It is inevitable that the cogency of evidence will be affected by the delay – memories fade with the passage of time and it is more difficult to retrieve the relevant documentary evidence. Having taken into account all the above factors, I concluded that it would not be just and equitable to consider those complaints. Application for costs

[17]The Respondent applied for its costs of £10,286 on the grounds that the claim had had no reasonable prospect of success and that the Claimant had acted unreasonably in bringing it and in the way that he had conducted proceedings.

[18]I accepted that the Claimant had acted unreasonably in bringing his claim and in the way in which he had conducted it. His complaints in respect of matters in 2015 were considerably out of time and he did not put forward any basis on which it would be just and equitable to consider them notwithstanding that. There was also no reasonable prospect of his establishing that he was disabled as a result of his back condition. The preliminary hearing listed for 11 September was converted from a half hour telephone hearing to a hearing in person for two hours because the Claimant did not comply with the Tribunal’s orders of 5 July and failed to provide medical evidence that he had been unable to do so for health reasons. The Claimant did not attend the hearing today and provided no satisfactory explanation for his failure to do so.

[19]I still had a discretion as to whether to order costs or not. The Respondent has incurred considerable costs in defending this claim. I had very limited evidence of the Claimant’s means but that was attributable to the Claimant’s non-attendance today. The Claimant earned £1,733 per month while he was working. I understood that he had recently been dismissed. He also had periods of sickness absence which might have had an impact on his pay. I accepted that it was likely that he had limited means. Having taken into account all the above matters, I decided that an order for the Claimant to pay £2,500 of the Respondent’s costs would be appropriate. Employment Judge Grewal 1 December 2017 EMPLOYMENT TRIBUNALS Claimant: Mr L Simeone Respondent: First Great Western Ltd UPON APPLICATION made by letter dated 17 October 2017 to reconsider the judgment dated 12 October 2017 under rule 71 of the Employment Tribunals Rules of Procedure 2013, and without a hearing,