Mr D Jones V British Telecommunications plc: 2201139/2019

EMPLOYMENT TRIBUNALS

Case No 2201139/2019

Between

Mr D JonesClaimant

British Telecommunications plcRespondent

Before

Employment Judge Mason

In person for claimant

Date 26 July 2019

JUDGMENT

[1]The claim is valid, the requirement that the name of the prospective respondent on the EC certificate is the same on the claim form having been waived.

[2]Mr. Nigel Cheek is dismissed as Respondent from these proceedings and British Telecommunciations Plc is substituted as the sole Respondent (Rule 34 ETs (Constitution & Rules of Procedure) Regs 2013).

[3]The Claimant’s claim of disability discrimination may proceed; it will be for the Tribunal at the full hearing to determine whether it was in time depending on whether or not the grievance appeal process was part of a course of conduct.

[4]The Tribunal does not have jurisdiction to consider the complaint of unfair dismissal as it was not presented in time; it was practicable to do so and therefore time is not extended.

REASONS

[1]The Claimant was employed from 1 September 2015. The Claimant says in his claim form that he was employed by Openreach Ltd; the Respondent says he was employed by British Telecommunications Plc (“BT”).

[2]The Claimant says his role was Senior Strategy Manager; the Respondent says he was Finance Manager.

[3]The Claimant resigned. There is a dispute as to when the Claimant’s employment ended. The Claimant says (ET1 box 5) that his employment ended on 13 September 2018. The Respondent says (ET3 box 4.1) his employment ended on 4 September 2018. The Claimant told me he accepts the termination date was in fact 4 September 2018.

[4]On 12 February 2019, the Claimant first contacted ACAS and on 25 February 2019, ACAS issued an Early Conciliation Certificate by email. The Prospective Respondent was identified as “Openreach”.

[5]The Claimant presented this Tribunal claim on 27 March 2019 and named in his application (ET1 box 2.1) Mr. Nigel Cheek as the Respondent. Mr. Cheek is BT Chief Legal Counsel.

[6]The Claimant brings claims of unfair dismissal, disability discrimination and “other payments”. At the PH before me, the Claimant said he is not in fact claiming for “other payments”, this was an error.

[7]The Claimant says he is disabled having suffered from depression since 2017. He says that in October and November 2017, he told his Line Manager (Mr. Jeremy Ledger) that he was struggling and on 1 February 2018, he was diagnosed with stress, anxiety and depression and immediately told Mr. Ledger

[8]The Claimant says in his claim form (ET1 box 8.2) that his condition was a “significant factor” in the way he was treated by his employer during the period 2017-2018 (ET1) in particular:8.1 His diagnosis (on 1 February 2018) was a motivating factor in the decision to give him a “work to do rating” on 15 May 2018 and this led to his “eventual exit”.

8.2 On 21 May 2018, he appealed the rating but was told at an appeal meeting on 21 August 2018 that if he was in work then he was deemed fit to work; he recorded this conversation and provided the recording to HR.

8.3 Performance measures were only discussed after he raised depression with his Line Manager.

8.4 HR policy was repeatedly violated (as set out in ET1) and ACAS guidance was not followed.

8.5 There was a lack of support despite his requests to his Line Manager and HR.

[9]The Respondent has lodged a response (ET3) denying the claims:9.1 The claims should be dismissed because:

(i) Openreach is named as the Prospective Respondent on the EC Certificate whereas Mr Cheek is named as the Respondent in the ET1;

(ii) the Tribunal has no jurisdiction to hear a complaint of unfair dismissal against an individual;

(iii) the disability discrimination claim has no prospects of success as there are no allegations against Mr. Cheek in the ET1 and he had no dealings with the Claimant;

(iv) the claims are out of time and the Claimant has not provided an explanation.

9.2 The Claimant resigned in order to pursue a master in business at London Business School.

9.3 The Claimant raised a formal grievance in August 2018; a Grievance Hearing was held on 12 October 2018; the outcome was provided on 26 November 2018. On 4 December 2018, the Claimant appealed; an Appeal Hearing was held on 8 January 2019 and the Claimant was informed of the outcome by letter dated 11 February 2019. Issues considered

[10]This case was listed for a closed Preliminary Hearing to take place today (24 July 2019) but at the Tribunal’s instigation this was vacated on 10 July 2019 and relisted as an Open Preliminary Hearing to determine the following preliminary issues:10.1 Who is the correct Respondent?

10.2 Are the claims within time bearing in mind the statutory time limits?

[11]In addition, I considered the Respondent’s application that the claim should be dismissed because Openreach is named as the Prospective Respondent on the EC Certificate whereas Mr. Cheek is named as the Respondent in the ET and in fact neither Openreach nor Mr. Cheek were the Claimant’s employer. Evidence and procedure at the Hearing

[12]Neither side provided any witness statements. I was provided with a bundle of documents by the Claimant and the Respondent provide copies of the following cases:(i) Jeyasundra v London Sovereign Limited, Watford ET 26 June 2018 (unreported)

(ii) Giny v SNA Transport Ltd

UKEAT/0317/16/RN

(iii) Chard v Trowbridge Office Cleaning Services Ltd

UKEAT/0254/16

July 2017.

(iv) EON Control Solutions Ltd v Caspall [2019]

UKEAT/0003/19

/1907

(v) Mist v Derby Community Health Services NHS Trust [2016]

UKEAT/170/15

[13]We discussed the issues and both Ms. Bond and the Claimant made verbal submissions. At the conclusion of the Hearing, I reserved judgment which I now give with reasons. I also agreed Case Management Orders for the full merits hearing provisional on the Claimant’s case not being dismissed.

Relevant law

[14]Instituting a valid claim in the Employment Tribunal14.1 Acas Early Conciliation

(i) A claimant will not usually be allowed to bring an Employment Tribunal claim unless he or she has informed Acas of the complaint and given Acas the opportunity to resolve the case by early conciliation (“EC”).

(ii) The early conciliation (EC) scheme is set out in ss 18A and 18B of the Employment Tribunals Act 1996 (ETA) and in the Early Conciliation Rules of Procedure (“the EC Rules”) contained in the Schedule to the Employment Tribunals (Early Conciliation: exemption and Rules of Procedure) Regulations 2014 SI 2014/254 (“the EC Regulations”).

(iii) The claimant must send “prescribed information” to Acas including the name of the prospective respondent.

(iv) If conciliation is not reached, Acas will issue an EC certificate

14.2 A claimant institutes proceedings by presenting a completed claim form on a prescribed form (ET1) (Rule 8(1) Tribunal Rules): (i) The claim form must provide certain prescribed information including the name and address of each person against whom the claim is made (the respondent) (Rule 10(b)(iii)). (ii) The claimant must also provide the EC number on the EC certificate (Rule 10(c)) to show that he or she has contacted Acas. (iii) On receipt, the Tribunal will decide whether to accept or reject the claim. Once accepted, it will be sent to the respondent. It may be rejected for a number of reasons including:

a. the form does not contain the requisite information (Rule 10);

b. the name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC certificate - unless the judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim. (iv) A claim will also be rejected if it contains “substantive defects” (Rule 12); this includes where the name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC certificate (Rule 12(1)(e) and (f)). In such circumstances, Rule 12(1) provides that tribunal office staff must refer a claim to an employment judge who must reject it “unless the Claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim” (Rule 12(2A).

[15]Time limits15.1 Discrimination:

(i) Complaints of unlawful discrimination must be presented to an Employment Tribunal before the end of the three months beginning with the date of the act complained of (s123(1)(a) Equality Act 2010).

(ii) Conduct extending over a period is to be treated as done at the end of the period (s123(3)(a) EqA).

(iii) The Tribunal has discretion to extend time if it is just and equitable to do so (s123(1)(b) EqA 2010).

15.2 Unfair dismissal Complaints of unfair dismissal must be presented to an Employment Tribunal before the end of the period of three months beginning with the effective date of termination of employment, or 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 (s111 ERA 1996). Findings of Fact and

Conclusions

[16]Having considered the pleadings and the (limited) evidence before me and reminded myself that the standard of proof is the balance of probabilities, I make the following findings of fact and conclusions relevant to each of the issues before me.

[17]Instigation of these proceedings17.1 As rehearsed above there are discrepancies between the EC certificate and the ET1. The EC certificate shows “Openreach” as the named Respondent and Mr. Nigel Cheek is shown as the Respondent in the ET1. Furthermore, neither Openreach nor Mr. Cheek were the Claimant’s employer and it is now agreed that in fact the employer was BT (see para. 18 below).

17.2 However, I have concluded that the Tribunal has jurisdiction for the following reasons:

(i) I accept that if the claim had been rejected under Rule 12A, I would have been compelled to follow Giny. However, the circumstances in this case can be distinguished from Giny as in this case, the claim was not rejected, it was accepted by the Tribunal on 29 April 2019 (despite the inconsistency between the Acas EC certificate and the ET1). Ms. Bond has helpfully provided me with a copy of Employment Judge Palmer’s decision in the Watford Tribunal (a decision at first instance which is not binding on me); with respect I disagree with EJ Palmer that Rule 34 confers on Employment Tribunal judges the power to reject a claim under Rule 12A once it it has been accepted. Whilst EJ Palmer relies on Rule 34 she says [para. 27] that it is only “arguable” that, if a discrepancy is overlooked at the initial vetting stage, Rule 34 comes into play. Rule 34 deals with addition, substitution and removal of parties and I do not read into Rule 34 anything which gives the power to reject a claim once it has been accepted. However Rule 6 “Irregularites and non-compliance” provides that a failure to comply with the Rules does not of itself render the proceedings void and states that the “Tribunal may take such action as it considers just, which may include (a) waiving or varying the requirement”.

(ii) I have concluded that in this case it is just to waive or vary the requirement that the name of the prospective respondent on the EC certificate is the same as the name on the claim form for the following reasons:

a. The difference between the name on the Acas EC certificate (Openreach) and the ET1 (Nigel Cheek) was in reality a minor error given that the Claimant put “Openreach” in the first line of the address on the ET1 and there is no suggestion in his grounds that he was making a claim against Mr. Cheek. It was made clear in Giny (para 38) that it was not accepted that the difference between the names of a natural person (such as Mr. Cheek) and a legal person (Openreach/BT) could never [my emphasis] as a matter of law be a minor error and each case “involves a judgment on its own facts”. On the particular facts of this case, it is my judgment that the error was minor.

b. The Claimant’s understanding that his employer was Openreach is reasonable. Whilst Openreach at the material time operated as a trading division of BT, I accept the Claimant’s evidence that: it was a substantial organisation; his payslips showed “Openreach”; he perceived that Mr. Ledger, his Line Manager, was an Openreach manager; and he worked at Openreach branded offices. His assumption that it was a stand-alone legal entity was reasonable and indeed shortly after he left, on 1 October 2018, Ms. Bond says Openreach split from BT and became Openreach Ltd.

c. Ms. Bond has not sought to argue that BT is in any way prejudiced and I cannot identify any prejudice. The EC certificate shows that Acas conciliated from 12 February 2019 to 12 February 2019. Ms. Bond was unable to assist me as to who Acas spoke to during this period but given the length of time, it is reasonable to assume that there were some discussions during this period with someone at BT and therefore BT participated –or at least were given the opportunity to participate - in the EC process.

[18]Correct Respondent18.1 The Claimant readily conceded that he has never been employed by Mr. Nigel Cheek, Legal Counsel. I accept his explanation that he put Mr. Cheek’s name down on the ET1 because he was advised by his former employer to direct all communications to Mr. Cheek. The Claimant accepts this was an error.

18.2 The Claimant believed his employer was Openreach. However, he accepted Ms. Bond’s explanation that at the date of termination of his employment, Openreach was a trading division of BT.

18.3 I am therefore satisfied that the Claimant’s employer was BT. Mr. Cheek is dismissed from these proceedings and BT added as the sole Respondent.

[19]Disability Discrimination claim: time issue19.1 After some discussion, the parties agreed that the termination date of the Claimant’s employment was 4 September 2018.

19.2 The Respondent submits that the latest act of alleged discrimination relied on is 15 May 2018 when the Claimant received the “work to do” performance rating. However, I do not accept this as the Claimant states in his ET1 that this was a “motivating factor” in his decision to leave on 4 September 2018. Furthermore, the Claimant told me that he believes that the manner and outcome of his grievance regarding the rating were also acts of discrimination (albeit postemployment). The appeal process was therefore arguably part of a continuing course of conduct and it will be a matter for the Tribunal at the full substantive hearing to determine whether the Claimant can show that there has been a series of discriminatory acts over a period of time culminating in the unsuccessful grievance outcome communicated to him on 11 February 2019.

19.3 In any event, even if I had concluded that the Claimant is out of time on the basis the last act of discrimination was 4 September 2018, I would have concluded that it would be just and equitable to extend time having considered the length of and reasons for the delay and any prejudice to BT:

(i) The Claimant’s unhappiness with his performance rating is at the heart of this claim and he has made it clear he believes this rating was given because of his depression and that this was a factor in his decision to resign. In August 2018, he appealed the rating and continued to pursue the appeal notwithstanding termination of his employment on 4 September. The appeal is therefore a significant part of the process and it was reasonable for the Claimant to believe that it was appropriate to wait until the outcome of that appeal before instigating these proceedings. The appeal proceedings were protracted and I accept that the delay was not of the Claimant’s making and that in fact he took steps to hasten the process. Once the outcome of the appeal was communicated to him on 11 February 2019, he notified Acas promptly on 12 February 2019.

(ii) Ms. Bond concedes BT cannot show the delay has prejudiced BT, for example by preventing or inhibiting it from investigating the claim while matters were fresh.

19.4 In conclusion, the Tribunal has jurisdiction to consider the Claimant’s claim of disability discrimination as it is arguable that there was a course of conduct which included the appeal process and this point falls to be determined by the Tribunal at the full merits hearing. In the meantime, the Claimant is given the benefit of the doubt and this claim may continue.

[20]Unfair dismissal claim: time issue20.1 The Claimant having agreed that the termination date of his employment was 4 September 2018, the ordinary time limit for presenting this claim expired on 3 December 2018. The EC process did not serve to extend that time limit as it had already elapsed and the extension does not operate retrospectively. As this claim was not presented until 27 March 2019 it was presented more than 3 months out of time.

20.2 Events after dismissal (specifically the grievance process) cannot of course have informed the Claimant’s decision to resign and so it is not possible for the Claimant to run a “course of conduct” type argument as with the disability discrimination claim.

20.3 I have concluded that it was practicable for the Claimant to present this claim in time:

(i) I accept he was waiting for the outcome of the internal grievance proceedings but this is not analogous to an appeal against dismissal as even if his grievance was upheld on appeal, it would not have resulted in his reinstatement. He accepts this. He says he would then have reapplied with the benefit of an improved performance rating but there is no evidence to support an assumption that such an application would have been successful.

(ii) The Claimant is not legally represented but he is intelligent, articulate and well educated and having left the Respondent, he embarked on a Business MBA. He has access to the internet and it is reasonable to expect a Claimant of his capabilities to make enquiries and research his rights and seek appropriate advice. He has not sought to argue that his health impairment played any part in the delay. 20.5 In conclusion, the Tribunal does not have jurisdiction to consider the Claimant’s claim of unfair dismissal as it was presented out of time and it was reasonably practicable to present it within time. Conclusions

[21]My overall conclusions are as follows:21.1 The proceedings were properly instigated.

21.2 The Claimant’s claim of disability discrimination may proceed; it will be for the Tribunal at the full hearing to determine whether it was in time depending on whether or not the grievance appeal process was part of a course of conduct.

21.3 The Tribunal does not have jurisdiction in respect of the Claimant’s claim of unfair dismissal as it was not presented in time and it was reasonably practicable to present it within time. This claim is dismissed.

21.4 Mr. Nigel Cheek is dismissed as Respondent; British Telecommunication PLC is added as the sole Respondent.

21.5 Case management orders for the full hearing will be sent to the parties separately. .