A v Hymans Robertson LLP: 2201075/2021
JUDGMENT
[1]The Claimant’s time for presenting his claims is extended under section 123(1)(b) Equality Act[2]By consent, the Claimant is granted leave to extend the scope of his claimed disability impairment to Aspergers Syndrome and/or Autistic Spectrum Disorder.[3]The Claimant’s informal application for leave to extend the scope of his claimed disability impairment to include depression, is refused. REASONS (for paragraph 2 above)[1]The above judgment followed an OPH to decide whether it would be just and equitable to extend time to allow the claims for disability discrimination (direct and section 15) and victimisation to proceed. I heard evidence from the Claimant and was referred to two bundles of documents, a Claimant’s skeleton argument, and authorities. I also received a statement from Dr Michael Craig dated 3/8/2018 which set out some adjustments recommended for the Claimant at that time.[2]I refused to admit into evidence a statement dated 24/3/22 of Mark Adamson, a friend of the Claimant. At a previous hearing on 31/1/22 the Claimant had been directed by 14/3/22 to serve any witness statement to be relied on at the OPH. The Claimant without apology or explanation was very late in submitting own statement and then without warning served Mr Adamson’s statement on the morning of the OPH, which started at 10am . The Respondent has had no notice that the Claimant was intending to call an additional witness and it is not reasonable to expect the Respondent to be able to respond to material served in this manner.[3]The Claimant claims to be disabled by reason of Asperger’s syndrome/autistic spectrum disorder. He applied for employment with the Respondent and it appeared to him that his application was progressing well. He disclosed the fact that he was engaged in discrimination litigation with a previous employer and that he considered that he was disabled. On 26/11/2020 the Respondent communicated its decision not to employ the Claimant, which decision is the subject of his claims.[4]The Claimant applied to ACAS on 7/3/21 and the same day presented his ET1. He must have been given an ACAS certificate number the same day as this appears on his ET1 (although he mis-typed the last two digits of the number). The ACAS certificate is dated 2201075 2021 8/3/21; (It is agreed that nothing turns on these ACAS certificate anomalies).[5]It is agreed that the three-month period started to run on 26/11/20 and expired on 25/2/21. As he had not applied to ACAS by then time was not extended for purposes of early conciliation. He has therefore brought his claim 10 days late.[6]There is medical evidence suggesting that from 2018 onwards at the latest the Claimant has suffered from Aspergers syndrome/autistic spectrum disorder and in addition recurrent bouts of depression which make it difficult for him to cope with change and to multitask.[7]In the period of three months November 2020 to February 2021 when he should have applied to ACAS or presented this claim, he was not taking any medication and was not consulting with his GP or any other health professional because he had recently finished a course of NHS Counselling and was trying to consolidate the help he had received from that and cope without help. As he was not receiving help of this kind there are no medical records that he could have produced to cover that period.[8]However I accept his oral evidence that he experienced a series of personal life events including(i) losing his previous job on 31/7/20(ii) being turned down for the job with the Respondent in November 2020(iii) moving out of his flat in Westminster which he could no longer afford in the first week in December 2020 - and(iv) moving into a HA flat in South London which he had to share with an incompatible stranger and(v) breaking up with his girlfriend in January 2021. These matters and seasonal affective disorder caused his mental health to deteriorate to the point where he was unable to operate efficiently during the relevant period. He started to feel better in March 2021 to the extent that he was able to apply to ACAS and lodge his claim on 7/3/21.[9]I accept that his poor mental health was the cause of the delay.[10]The delay was very short and I do not accept that the Respondent will suffer any material forensic prejudice as a result of the extension.[11]Hence I exercise my discretion to extend time on the just and equitable basis. REASONS (for paragraph 2 above)[12]The Claimant has not previously claimed depression as a disabling impairment and in his oral evidence today he could not state positively that he had told the Respondent that he suffered from depression before the Respondent turned him down for the job. Hence even if the Claimant suffers from depression as a disabling impairment, it cannot advance his case to rely on it. In any event it is now close to the trial and it is too late to make opposed significant extensions to the possible scope of the final hearing. J S Burns