Ms B Tucker v Rail Safety and Standards Board Ltd: 2201080/2021

EMPLOYMENT TRIBUNALS

Case No 2201080/2021

Between

Ms B TuckerClaimant

Rail Safety and Standards Board LtdRespondent

Before

Employment Judge Davidson

Mr E Kemp (instructed by Counsel) for claimant

Ms C McCann (instructed by Counsel) for respondent

Date 20 January 2022

JUDGMENT

The tribunal finds that it was reasonably practicable for the claimant’s unfair dismissal and money claims to be presented within the statutory time limit. In the alternative the tribunal finds that the claimant’s complaints were not presented within such further period as the tribunal considers reasonable. The tribunal further finds that it would not be just and equitable to extend the time limit in respect of the discrimination claim. It is therefore the judgment of the tribunal that the tribunal does not have jurisdiction to hear the claims brought by the claimant in these proceedings.

REASONS

Issues

[1]The issue for the preliminary hearing was whether the claimant’s claim should be accepted out of time. Her claims are for unfair dismissal, money and for pregnancy discrimination.

[2]In relation to the unfair dismissal and money claims the test is whether the claimant can show that it was not reasonably practicable to present her ET1 on or before 16 October 2019 and, if was not reasonably practicable, did she subsequently present it within such further period as the tribunal considers reasonable?

[3]In relation to the pregnancy discrimination claim, having failed to present her ET1 within time, has the claimant persuaded the tribunal that she presented her claim within such other period as the tribunal thinks ‘just and equitable’? Facts

[4]The claimant was employed by the respondent as a Senior Project Manager from 1 October 2007 until the termination of her employment by reason of redundancy on 17 July 2018. She contacted ACAS for early conciliation on 18 April 2019 and the ACAS EC certificate was issued on 18 May 2019. She submitted her claim on 8 March 2021.

[5]In 2018, the claimant returned from her first maternity leave. She requested flexible working, which was refused. She was represented by her union during the flexible working request process.

[6]In February 2019, the respondent started a redundancy process. The proposal was to reduce the number of Senior Project Managers from ten to six. Jane Dobson, Dean Parry and Kate Stonebridge (Department Heads) carried out an assessment of all ten individuals on 18-20 February 2019. The claimant scored 8th out of 10.

[7]On 4 March 2019, the claimant informed Arvind Khoda in HR that she was pregnant and asked him to keep the information confidential. He did not inform the Department Heads who were carrying out the redundancy assessments.

[8]The claimant was notified of her redundancy on 18 March 2019 and was given four months’ notice. On 20 March 2019, the claimant went on sick leave for ‘stress’ and did not return to work before the expiry of her notice period.

[9]On 25 March she appealed against her dismissal, challenging the assessments of her performance. She did not allege pregnancy discrimination. The appeal was considered by the Director of Projects. The appeal manager accepted that one element of the scoring matrix was assessed incorrectly and the claimant’s score was revised but this made no difference to the outcome. Her appeal was therefore rejected.

[10]On 18 April 2019, she started early conciliation, claiming that she was dismissed due to her pregnancy. Her last day of work was 17 July 2019. She received a termination payment of approximately £35,000, equivalent to nearly a year’s net pay.

[11]The claimant relies on a number of medical issues which arose during her pregnancy as an explanation for her not being able to submit her application on time. The claimant has supplied her medical notes from the period of her pregnancy. In a number of instances, these notes do not support the claimant’s description of her pregnancy complications and nothing in the medical notes explains why the claimant would not be able to fill out an online form during this period.

[12]Examples of conditions exaggerated by the claimant in her witness statement are: 12.1. Having a low lying placenta – the medical notes show that this was investigated when suspected, and the investigation result was that the placenta was ‘high, anterior’; 12.2. There is nothing in the notes to suggested headaches, extreme tiredness and a racing heart. On the contrary, the claimant reports feeling well in the notes. 12.3. The claimant states that she was admitted to hospital on numerous occasions in addition to her routine appointments. The notes show that she was admitted overnight on two occasions.

[13]The claimant gave birth to her son on 16 October 2019 which was the day the primary limitation period expired.

[14]She alleges that she was unable to lodge her claim for the following 17 months due to sleep deprivation, lack of time and financial worries. She describes having no support in looking after her two children but confirmed that she lives with her partner, the father of her children who worked from home during lockdown. She also accepted that she had received a sum roughly equivalent to a year’s net pay on termination.

[15]She has not supplied any medical evidence to show that she complained to her GP of the chronic lack of sleep and tiredness she describes although she confirmed she was making regular visits to her GP relating to her blood pressure.

[16]She also relies on the impact of the COVID lockdown due to her fears for her health arising from the virus due to her asthma. She accepts that she was not classified as a vulnerable person at this time but she describes feeling anxious. Determination of the issues Unfair dismissal and money claims – reasonably practicable test

[17]The primary three month period ended on 16 October 2019, the day the claimant gave birth to her son. I accept that it would not have been reasonably practicable for the claimant to present her claim on the last day of the primary limitation period, or even within the last couple of weeks, given the impending birth of her child and the birth itself.

[18]However, it is clear that, with the exception of contacting ACAS in April 2019, the claimant had taken no steps to start a tribunal claim. The reason that she did not submit a claim on 16 October 2019 was not the fact that she was in labour – she had not prepared a claim to submit. Her inability to lodge the claim on 16 October 2019 was not due to an unforeseen event. She had known since 4 March 2019 that she would be having a baby at about that time. Although it is acknowledged in Schultz v Esso Petroleum

[1999] IRLR 488

that litigants tend to focus their minds on lodging a claim in the later stages of the limitation period, this case is different in that the claimant was given notice of termination in March 2019, with her effective date of termination being 17 July 2019. She had contacted ACAS in April 2019 and was in a position at an early stage (effectively six months before the expiry of the limitation period) to decide whether to present a claim. She was also aware all along that end of the limitation period would coincide with her due date.

[19]I note that the claimant had drafted and submitted her grounds of appeal against her redundancy. The appeal document could have formed the basis of her particulars of claim, which would have made the process of submitting a claim less onerous.

[20]I do not accept that the medical issues which arose during the pregnancy were sufficient to prevent any preparatory steps from being taken. I find that the claimant has exaggerated the severity of the issues she relies on and the medical evidence does not always support her account. Even if I accept the claimant’s account at face value, she has not shown why these conditions would prevent her from preparing or filing a claim.

[21]It is fair to say that many claimants suffer from stressful situations and, in my view, it is not sufficient simply to assert this. If the claimant wishes to rely on this, she must show how it affected her ability to comply with time limits. I note the authority of Asda Stores Ltd v Kauser

UKEAT/0165/07

which holds that stress cannot be compared to illness or incapacity and that there would need to be more to establish a mental impediment.

[22]I remind myself that time limits are strict and the reasonably practicable test is a high hurdle. I find that the claimant has failed to show that it would not have been reasonably practicable to file her claim within the three month limitation period.

[23]Unfair dismissal and money claims – further reasonable period test

[24]If I am wrong about that, I go on to consider whether the further period of 17 months is reasonable. The test in respect of the further period is ‘reasonable’ rather than ‘reasonably practicable’. I find that the claimant has failed to show why it was reasonable for her to wait as long as she did. She has not provided any medical evidence to support her reasons.

[25]If the situation of sleep deprivation is as bad as she now claims, it is unlikely that she would be attending regularly for GP visits and not mention it. I conclude from this that she has exaggerated the sleep deprivation, which (as with virtually all parents of a new baby) she no doubt suffered but she has not convinced me that this explains her failure to submit a claim earlier than 17 months after the limitation period expired.

[26]The claimant relies on the lockdown as exacerbating the situation but does not explain why she could not file the claim after the easing of lockdown or in the pre-lockdown period.

[27]She has not provided any evidence, either medical or witness evidence from anyone (for example, her partner) to explain why lockdown affected her ability to deal with her claim or the other matters she relies on.

[28]She eventually sought advice from a legally qualified friend (whom she knew throughout this period) and she has failed to explain adequately why she could not have sought this advice at an earlier stage.

[29]I therefore find that the claimant has not satisfied me that she presented the claim within a further reasonable period. Pregnancy discrimination – just and equitable test

[30]Even though the ‘just and equitable’ test is different, the primary time limit is still to be regarded as a strict starting point.

[31]In considering whether to exercise my discretion to extend time, I have considered the length of and the reasons for the delay. The length of the delay is 17 months (or approximately two years if time runs from the decision to dismiss) which is a significant period, particularly in the context of a primary time limit of three months.

[32]As for the reasons given, I repeat my findings set out above in relation to the further period for the unfair dismissal claim and do not find the reasons compelling.

[33]I must also consider whether the cogency of the evidence will be affected. I find that the cogency of evidence will undoubtedly be affected by the delay, particularly as some of the aspects of the claim date back to 2018 and the remainder of the claim relates to 2019. Any hearing of this case would be in late 2022 or early 2023. Two of the respondent’s witnesses no longer work for the respondent.

[34]The claimant contends that this is a document based case and witness evidence is not central. Although I cannot give a definitive view on the merits on the information available to me, it is apparent from the documents I have seen that the selection of the claimant for redundancy took place before her pregnancy. It was finalised after she notified HR of the pregnancy but the information was not shared with the decision makers. This does not suggest that the merits of the claim are with the claimant.

[35]There is clearly prejudice to both parties if the decision goes against them. The respondent is prejudiced if an out of time claim is accepted. The claimant is prejudiced by not having the chance to have her claim heard. However, it was the claimant who failed to comply with the time limit or to lodge her claim until a significant further period had elapsed.

[36]I have taken these factors into account but my primary reason for not exercising discretion to extend time is that I find that the length of the delay is excessive and the reasons offered do not provide an adequate explanation. COSTS JUDGMENT The claimant is ordered to pay £8,500 contribution to the respondent’s costs pursuant to rule 76(1) (b) of the Employment Tribunal Rules 2013.

[1]The claimant brought claims of unfair dismissal, pregnancy discrimination and pay claims against the respondent. The claim form was submitted 17 months out of time.

[2]At a preliminary hearing on 13 January 2022, the tribunal found that the tribunal did not have jurisdiction to hear the claims as they had been presented out of time. The decision was confirmed by written reasons dated 20 January 2022.

[3]By letter dated 14 February 2022, the respondent’s solicitors made an application for costs under Rule 76 of the Employment Tribunal Rules of Procedure on the grounds that the clams had no reasonable prospect of success and/or by submitting her claims 17 months out of time and the way in which she conducted proceedings, the claimant had acted unreasonably.

[4]The respondent relies on the following matters:a. the claimant had the benefit of trade union support at the outset, from a legal qualified friend prior to issuing proceedings and had professional representation from specialist employment law solicitors from October 2021 and from experienced, specialist counsel at the hearing;

b. she disclosed no documentation whatsoever to explain her failure to file a claim in the 17 months after the termination of her employment;

c. she exaggerated her evidence under oath (as found by the tribunal);

d. she declined to respond substantively to the costs application in correspondence. The respondent claims the sum of £15,000.

[6]The tribunal gave the claimant time to respond to the application, which was copied to the claimant pursuant to Rules 30(2) and 92 of the Tribunal Rules.

[7]On 1 March 2022, in the absence of any representations from the claimant regarding the costs application, the tribunal wrote to the claimant’s representatives, inviting representations regarding the claimant’s ability to pay, to be submitted by 7 March 2022.

[8]On 7 March 2022, the claimant’s representatives wrote to the tribunal explaining the delay, asserting that a costs award should not be made and giving a breakdown of the claimant’s finances.

[9]The respondent’s representative sent a letter in reply dated 8 March 2022 commenting on the claimant’s position.

[10]The Employment Tribunal Rules of Procedure 2013 (as subsequently amended) at rules 74 to 79 set out the principles and process that must be applied in relation to costs orders.

[11]Rule 76 provides that a tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers thata. a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

b. any claim or response had no reasonable prospect of success.

[12]I have taken all relevant information into account, including the following:a. the claimant’s pregnancy discrimination claim was bound to fail as the redundancy selection had taken place before she became pregnant and certainly before she notified the respondent of her pregnancy;

b. her redundancy was part of a widespread redundancy process and she was not singled out;

c. she chose to pursue a claim which was bound to fail;

d. she presented that claim 17 months after the expiry of the limitation period and her application for an extension of time was bound to fail;

e. she had the benefit of trade union advice and legal advice;

f. the claimant received a payment on termination equivalent to about a year’s salary.

[13]I find that the claimant’s claims had no reasonable prospect of success and she has put the respondent to considerable expense in defending the claims.

[14]I award costs in the sum of £8,500. The claimant has not given any details regarding what amount she has left from her termination payment. I have taken into account the authority of Kovacs v Queen Mary and Westfield College and another

[2002] EWCA Civ 352

which allows me to make an award against the claimant notwithstanding her financial position as she has acted in a way which has put the respondent to unnecessary costs, and she should have had regard to that when pursuing her claim. The respondent put her on notice regarding costs in November 2021, subsequent to her instructing solicitors. I accept the respondent’s submission that it would be unfair for the claimant’s solicitors’ costs to be prioritised over their costs when her solicitors were in a position to advise her on the merits of her claim and she chose to carry on with the claim. The respondent’s had no choice about incurring its costs.