Ms L Diomidous v William Hill Organisation Ltd: 2201769/2020
JUDGMENT
[1]The complaint of failure to make reasonable adjustments was presented out of time and it would not be just and equitable for it top be heard. This complaint is therefore struck out.[2]The complaint of unfair constructive dismissal is struck out on the grounds that it has no reasonable prospect of success.REASONS
[1]By her claim to the Tribunal the Claimant, Ms Diomidous, makes complaints of failure to make reasonable adjustments and unfair constructive dismissal. The Respondent, William Hill Organisation Limited, resists both of those complaints.[2]The hearing was conducted via video (CVP) without objection from the parties. I gave the judgment and reasons orally at the conclusion of the hearing.[3]The issues in the complaints were summarised by me in the notes of a Preliminary Hearing which took place on 2 September 2020. Before turning to those issues, I will give a brief chronology of the events with which the claim is concerned.[4]Ms Diomidous’ employment with the Respondent lasted from 16 July 1997 to 17 December 2019. She spent the latter part of that period absent sick. She became sick, suffering from stress and depression on 2 November 2018 and did not return to work after that date.[5]On 27 September 2019 Ms Diomidous raised a grievance (and I will say more about the exchanges about the grievance in due course). The outcome of that was given on 24 October 2019. Ms Diomidous appealed against that outcome and received the outcome of the appeal on 14 November, and she resigned, giving notice, on 19 November 2019. Her 4 weeks’ notice expired in December 2019. Ms Diomidous contacted ACAS in connection with her claim on 2 February 2020 and presented her claim form on 27 March 2020.[6]I have already referred to the Preliminary Hearing. At that hearing 4 elements were identified as being relevant to the complaint of unfair constructive dismissal, 2 of which were also relevant to the complaint of failure to make reasonable adjustments. These were as follows:6.1 In September or October 2018 Ms Diomidous was placed on the rota for days that she could not work. She was also placed on the rota only a week in advance, when this should have been 3-4 weeks. Her case is that her managers were aware of her condition of depression at this time.6.2 On about 20 October 2018 Ms Diomidous was required to work at the Bush Hill Park shop, having refused to work at the Edmonton shop. Her case is that the context of this is that she had been placed at the Winchmore Hill shop to help her with her stress, this being about 5 minutes’ walk from her home, such that she could arrange a handover of childcare to her partner when he got home from work.6.3 The Respondent made irregular contact with Ms Diomidous during her period of sickness absence, which began in early November 2018 and which continued until her employment came to an end in December 2019. Initially there was no contact for 5 months, and then there was a gap of 4.5 months.6.4 During the period of sickness absence, Ms Diomidous was not informed about a restructure which the Respondent was undergoing. To the extent that she was not affected by this restructure, her case is that she was not told this, but was left to read or hear about it from sources other than the Respondent itself.[7]The first two of these form the complaints of failure to make reasonable adjustments, and Ms Diomidous relies on all four as amounting to a breach or breaches of contract entitling her to resign and claim constructive dismissal.[8]I have mentioned the grievance process, and I will refer to some of the documents that are relevant to that. The grievance itself, dated 27 September 2019, is at page 102 of the bundle of documents. There was a grievance meeting on 18 October 2019, and there are notes of that at page 117. In the notes Ms Diomidous is recorded as saying this: “I do not feel valued as an employee, and I want to draw a line under this experience and move on with my life without William Hill in it”. She then went on to say that her wish was to be made redundant. The question of redundancy is relevant to the point about the restructure. There were shop closures and redundancies happening at the time, although the Respondent’s position is that the shop to which Ms Diomidous was allocated at Winchmore Hill was not affected by this and that, therefore, redundancy was not a possibility in her case.[9]The grievance outcome of 24 October 2019 is at page 120. It includes an observation that on Ms Diomidous’ hoped-for return to work, her rota would be managed properly, although there was no finding in her favour about her complaints concerning the rota in the period September / October 2018. The letter also contained this: “I have found that your sickness absence was not managed effectively, and that more could have been done to keep in regular contact with you. For these reasons, I uphold this element of your grievance.”[10]The letter continued that arrangements would be made so that Ms Diomidous would be contacted every fortnight while she remained absent sick, and more frequently if she wanted that to be the case.[11]The appeal letter, dated 29 October 2020, at pages 123-4, raised the question of shop closures and redundancy. Ms Diomidous wrote that she asked to be made redundant as a way of compensating her for the treatment she had received and for the Respondent’s failures in their duty towards her.[12]On 8 November 2019 Ms Diomidous sent some further information in the form of text and other messages dating back to the incidents in September and October 2018. At page 161, in her email covering those items, Ms Diomidous said: “I will resign if I am not made redundant”. The appeal outcome on 14 November 2019 upheld the original decision. Failure to make reasonable adjustments: time limits[13]This issue arises in relation to the complaint of failure to make reasonable adjustments. The relevant statutory provisions in section 123(1) of the Equality Act 2010 are as follows: “Proceedings on a complaint within section 120 may not be brought after the end of:(a) The period of three months starting with the date of the act to which the complaint relates, or(b) Such other period as the Employment Tribunal thinks just and equitable.”[14]The position is that the events that Ms Diomidous complains of in relation to the reasonable adjustments complaint occurred in September and October 2018. She contacted ACAS on 15 February 2020 and presented her claim on 27 March. Clearly, the claim was presented outside the primary 3- month period, by something like 14 months. I therefore have to consider whether it is just and equitable to allow the claim to proceed.[15]The explanation that Ms Diomidous has given for the delay in the matter is as follows. In her witness statement, which was prepared primarily with a view to the issue of disability, which is no longer live, Ms Diomidous set out that during the period of her sickness absence, she was suffering from stress and depression from November 2018 onwards and did not return to work thereafter. I accept Ms Diomidous’s evidence that she was significantly unwell during this period. Essentially her main explanation for not presenting the claim earlier than she did, is that she was unwell.[16]Ms Diomidous, however, added two other matters in the course of the hearing. One was that she said that she did not know that her complaint was out of time, at least until some point after she contacted ACAS. She said that when she contacted ACAS, she was not told that she was or might be out of time, and that it was only later that she learned that this might be the case. Ms Diomidous also added in answer to a question about whether, while ill, she had good days when she would be able to tackle matters, that, when she had good days, she put her family first, rather than employment matters. This was the use that she made of the better days that she had. On a human level, one can understand that.[17]There was, however, a point when Ms Diomidous demonstrably was able to address employment matters, namely by the time that she brought the grievance in September 2019. There followed two meetings and correspondence, as well as an appeal. That process ended with the appeal outcome of 14 November 2019. There was then a period of about 3 months until 15 February 2020 when Ms Diomidous approached ACAS. In respect of that period, she said that she to deal with Christmas and her daughter’s birthday on 2 February. She then felt able to take the matter to ACAS.[18]The just and equitable test involves considering all the circumstances of the case. These include, but are not limited to, matters such as the length of, and the reasons for the delay in bringing the claim and the effect on the evidence that any such delay may have had. It also involves weighing in the balance the fairness or unfairness to each party of allowing the claim to continue or deciding not to allow that.[19]Clearly, if I decide that the claim cannot continue, there would be prejudice suffered by Ms Diomidous in the sense that she would not have her complaints heard by the Tribunal. Turning to the other factors, the delay in this case was lengthy: it is not a situation where the primary time limit was exceeded by a few days or a few weeks. It was something like 14 months.[20]To the extent that Ms Diomidous says that she did not know that she was out of time, the relevant information about the possibility of bringing Tribunal claims and the existence of time limits for doing so is readily available, including on the internet. It is generally difficult for anyone to rely on not knowing that there was a time limit, or what it was.[21]Ms Diomidous’ ill health is a factor. This explains a substantial period of time during which she was unwell, and I accept that she was not well enough to address her potential claims. Ms Diomidous was, however, able to address these quite extensively in September to November 2019. Although she was still off work unwell, she was able to put these matters forward in the grievance process.[22]Another factor that I find significant is the likely effect of the passage of time on the cogency of the evidence. Although I have no direct evidence on the point, it seems to me likely that a delay of this length is likely to affect the ability of witnesses to recall events in September and October 2018. There is an additional factor, namely that both of the managers concerned in those events have left the Respondent’s employment, which means in practice that it is likely to be more difficult for the Respondent to encourage co-operate and give evidence in these proceedings.[23]Taking all of those factors into account, I have concluded that it would not be just and equitable to allow these complaints to go forward. The complaints under the Equality Act should, therefore, be struck out for this reason. Unfair constructive dismissal: prospects of success[24]I now turn to the complaint of constructive unfair dismissal. Rule 37 of the Tribunal’s Rules of Procedure provides that a Tribunal may strike out a claim or part of a claim on grounds which include that it has no reasonable prospect of success. It is not automatic that a finding of no reasonable prospect of success leads to a claim being struck out: there is a discretion to be exercised if that threshold is reached.[25]As to what is meant by “no reasonable prospect of success”, this does not mean absolutely no chance of success whatsoever, nor that the claim is merely more likely to fail than to succeed. The Tribunal must ask itself whether there is a real, as opposed to a fanciful, prospect that the claim may succeed.[26]The issues that would arise at a hearing of the complaint of unfair constructive dismissal would, in summary be the following:26.1 Was there a breach or breaches of the implied term of trust and confidence?26.2 Were those breaches an effective cause of the resignation (they need not be the effective cause)?26.3 Did Ms Diomidous affirm the contract by delay or other conduct, such that if there had been breaches, she is not able to rely on them in relation to her resignation.[27]I have already summarised the four matters on which Ms Diomidous relies as amounting to a breach or breaches of the contract. There is, in my judgment, no reasonable prospect of number 4, which is not being informed of the re-structure, being held to be a breach of contract. It is accepted that the re-structure did not in fact affect the shop at which Ms Diomidous worked. That being so, I find that there is no reasonable prospect that a Tribunal would find that it was a breach of contract to fail to inform Ms Diomidous about a re-structure that would not affect her.[28]I assume for the purposes of this hearing that the other three matters could amount to breaches of contract. There remain, however, two difficulties about the complaint of unfair constructive dismissal. One is that I find that there is a clear prospect that a Tribunal hearing the matter would conclude that the reason for the resignation was the Respondent’s refusal to make Ms Diomidous redundant. I have already referred to occasions on which Ms Diomidous made it clear that what she wanted was to be made redundant, and that if that did not happen, she would resign.[29]I realise that it might be said that, behind the expressed wish to be made redundant, lay the matters about which Ms Diomidous complained, and that her stated wish to be made redundant was a way of expressing those complaints. I therefore would not have struck out the constructive unfair dismissal complaint had the question of the reason for the resignation been the only point to be put against it. It remains, however, a factor in my assessment of the prospects of success. Standing alone, it might have justified a deposit order on the grounds of there being little reasonable prospect of success.[30]I have concluded, however, that there is no reasonable prospect of a Tribunal finding otherwise than that Ms Diomidous affirmed the contract, whatever its findings might be on the other issues. The matters relied on as breaches(1) and(2) relate to matters in September and October 2018. There would inevitably be a finding that the contract had been affirmed in relation to these by the sheer passage of time. My observations in relation to these in respect of time limits are also applicable here.[31]In relation to the third alleged breach, I consider that there is no reasonable prospect that a Tribunal would find otherwise than that, by raising the grievance, receiving on that point a favourable outcome, appealing, and then resigning after that, Ms Diomidous had affirmed the contract in relation to that matter.[32]In summary, therefore, I have concluded that:32.1 There is no reasonable prospect of a Tribunal concluding that alleged breach (4) was a breach of contract.32.2 There is no reasonable prospect of a Tribunal failing to find that, if alleged breaches (1) to (3) were breaches, Ms Diomidous affirmed the contract in relation to those.32.3 There is an additional difficulty about Ms Diomidous’ case in relation to the reason why she resigned.32.4 Viewed overall, the complaint of unfair constructive dismissal has no reasonable prospect of success.[33]There is then a discretion as to whether or not to strike out the complaint. I find no reason why the complaint should proceed in the circumstances, and I therefore also strike out the complaint of unfair constructive dismissal. Employment Judge Glennie