Ms R Khan v Microsoft Ltd: 2203173/2019 and 3326045/2019
EMPLOYMENT TRIBUNALS
Case No 2203173/2019, 3326045/2019
Between
Ms R KhanClaimantMicrosoft LtdRespondent
Before
Employment Judge GoodmanDate 7 February 2020
JUDGMENT
[1]Claim 2203173/2019 is dismissed as a nullity because the claim form did not show the correct early conciliation certificate number.[2]It is just and equitable to extend time to present the claim in claim number 3326045/2019.
REASONS
[1]This case management hearing was converted, with the consent of the parties, to an open hearing in order both to consider a point raised in respondent’s response to the claim that it should have been rejected by the tribunal for an inaccurate early conciliation number, and an application by the claimant to allow it to proceed out of time because the defect had been rectified and represented. Factual Summary[2]The claimant was dismissed by the respondent on 3 June 2019. She had not long been employed, so cannot bring a claim for unfair dismissal, but she has brought a claim of harassment under section 26 of the Equality Act.[3]Shortly after dismissal, the claimant approached ACAS for early conciliation. In due course she was issued with an early conciliation certificate. Day A is 27 June 2019. Day B is 10 August 2019.[4]On 27 August 2019 she presented a claim to the employment tribunal using the online form. On it she stated the early conciliation certificate number was R510810/19/52. This was an error. The number on the certificate was in fact R510810/19/25. She had transposed the last two digits.[5]She gave her employer’s head office address in Reading and the address of her place of work in Paddington. In accordance with the latter, the claim was sent to London Central. The file was given to a judge for vetting. Normally at this stage the clerk has entered the certificate number into the ACAS computer to print off the certificate. With the benefit of hindsight, the certificate could not be viewed because the wrong number had been given, but I add that a certificate can only be accessed on the ACAS computer for 3 months after it is issued, and as in the course of 2019 long backlogs of new claims had built up, the lack of a certificate may not have triggered any suspicion. Noting that the ACAS certificate was not on the file, on 8 October 2019 Employment Judge Wade caused the clerk to write to ask for a copy of it, the file to be referred back when available. The claimant then supplied the certificate, and on 14 October 2019 Employment Judge Brown accepted the claim (this is the word on the pro forma prepared by the Employment Tribunal service, though the rules speak not of accepting but rejecting – strictly speaking the claim was not “accepted”, but “not rejected”).[6]On 19 November 2019 (within the 8 days allowed to respond to a claim) the respondent filed a response. The points made were(1) the ACAS certificate number was wrong(2) the claimant had stated her flat number as 89 on the claim form and 90 on the certificate(3) the substance of the claim was disputed, and an alternative account was set out, denying liability(4) the claimant had ticked a box for discrimination, and she was asked to give further information to show what was alleged as discrimination rather than harassment.[7]Also on 19 November the respondent applied under rules 12(1)(c) and 12(2) of the Employment Tribunal Rules of Procedure for the claim to be rejected as defective because the certificate number was wrong.[8]On 19 November the claimant’s representative came on record, and replied to the respondent’s application that this was not a substantive defect. On 20 November she presented a fresh claim to the tribunal in identical terms, but this time with the correct ACAS number. Unfortunately, acting in haste, the claimant’s representative omitted to state the Paddington address of the place of work in addition to the head office address, which does not invalidate the claim, but in the particular circumstances of this case is an administrative inconvenience, as it had the result that the second claim was sent to Watford, the appropriate office for Reading based respondents, where it still is. I am told that although the claimant wrote on 12 December asking for the second claim to be transferred to London Central, by the date of the hearing no there was no reply. The Watford case number is 336045/2019.[9]On 6 December 2019 the respondent applied to London Central for the second (Watford) claim to be dismissed as out of time, on grounds that the claimant had had legal representation, the claimant had not applied to extend time when resubmitting, and had no reasonable prospect of success in any event.[10]Today, I had the London Central file, but not the Watford file, and I have no other documents, though I am told the respondent has pursuant to order sent a list to the claimant. I heard no evidence. The claimant was not present. After hearing from the parties, I reserved judgement, so that the Watford case could be transferred to London Central. There was also a case management discussion, and orders were made on a contingent basis, so as to avoid delay to the final hearing listed in June 2020 should one or other claim be allowed.[11]The case had been listed for a case management hearing in private. With the consent of the parties I converted it to an open hearing and arranged for the public hearing list to be altered to say so. The respondent wanted to apply for the claim to be struck out for having no reasonable prospect of success. I declined to hear that on grounds(1) that the claimant had not had notice, and(2) such an application would benefit from sight of the documents. The claimant asked for an anonymity order under rule 50. I deferred that decision to written application and response, because the respondent had no notice of it, but bearing in mind that such an order may later be made, I have been cautious when saying what the claim is about. Submissions[12]Today the respondent submitted that the claim was not valid as it ought under the rules to have been rejected. The claimant argued that she had resubmitted a claim (the one that went to Watford) and that should be allowed to proceed out of time, as the error was small, and the claimant had acted promptly as soon as it came to her attention. It was just and equitable to do so. The respondent objects to an extension of time, on the basis that the claim is without merit, such that there is little prejudice to the claimant is it is dismissed, when compared with the prejudice to the respondent of having to investigate a case that was not brought to their attention until her appeal against dismissal, and she had not then attended the appeal hearing, and had not responded to the respondent’s offers of adjustments in appeal arrangements. The claimant’s representative replied that although she was too ill to attend the appeal hearing she had replied to questions.[13]Neither side referred me to any case law. I reserved judgment so as to be able to obtain the Watford case file and review the recent case law. Is the First Claim Valid? Relevant Rules and Law[14]In May 2014 new law came into effect so as to require parties to attempt conciliation of their employment disputes with ACAS, and get a certificate to say so, before presenting claims to employment tribunals. By section 18A (8) of the Employment Tribunals Act 1996, “a person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4)”, there is a provision for the Secretary of State by employment tribunal procedure regulations to make such further provisions as appear necessary or expedient with regard to conciliation process, and these regulations may prescribe or prescribe requirements in relation to any form required by the regulations.[15]Under the Employment Tribunal Rules of Procedure 2013, rule 10, which is headed “Rejection: form not used or failure to supply minimum information”, it is provided that an employment tribunal: “shall reject a claim if – (c) it does not contain all the following information – …. (i) an early conciliation number”.[16]Early conciliation certificates are also dealt with in rule 12, headed “Rejection: substantive defect”. This provides that tribunal staff should refer a claim form to an employment judge if they consider that the claim or part of it may be: “(c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies”. It may also be rejected if (e) the name of the claimant on the claim form differs from the name of the early conciliation certificate, or if (f) the name of the respondent on the claim form is not the same as the name on the conciliation certificate.[17]If the defect is one of the kind described in subparagraph(c), “It shall be rejected”. If the defect is one described in subparagraphs (e) or (f), it is to be rejected unless the judge considers that the claimant made a minor error and it would not be in the interests of justice to reject the claim. There is no “minor error” saving however for the certificate number.[18]What happens next as set out in rule 12 (2): “the form shall be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice shall contain information about how to apply for reconsideration of the rejection.”[19]In Sterling v United Learning Trust (2015) UKEAT 0439/14 1802 the EAT held that where a rule requires the early conciliation number to be set out, it is implicit that the number is an accurate number. A wrong number or an incomplete number is as good as no number. That decision is about the wording of rule 10, but the same reasoning must apply to rule 12 (1) (c).[20]In E.On Solutions Ltd v Caspall (2918) UKEAT 0003 19 1907, the EAT held that the prescriptive nature of rules 10 and 12 (1) does not allow the tribunal to use the overriding objective, or rule 6, to do anything other than reject the claim. Further, if the defect has been overlooked, and the claim has not been rejected, the claim is a nullity, because it should have been rejected. There is no claim to be amended. The claimant’s only solution is to resubmit.[21]I add that had the claim been rejected the claimant would have had an opportunity under rule 13 to rectify the defect (i.e. supply the correct number) and ask for the rejection decision to be reconsidered. If reconsidered in the claimant’s favour, it would have been treated as presented on the day the defect was rectified. She did not have that opportunity, because the defect had not been spotted.[22]I have considered whether, in circumstances where the claimant actually provided the certificate with the right number on it before the claim was accepted the rules were breached. Morally, they were not. The tribunal had the right case number in front of it. By the letter of the law and the rules, they were. The right number was not on the prescribed claim form. The rules are prescriptive, and rejection mandatory. In the light of that, the claim accepted by London Central under claim number 2203173/2019 must be treated as rejected.[23]At this point I consider the point made in the response, that the number of the flat in the claimant’s address varies by one digit between certificate and claim form. This is not one of the defects on the certificate listed in rule 12 as mandating rejection. If it was, it could be very unfair, as for all sorts of reasons a claimant may have moved house between approaching ACAS and presenting a claim. Rule 10 requires a claim form to have “each claimant’s address”. If it does not, it must be rejected under rule 10. The respondent does not complain that the postal address on the claim form is wrong. If the claimant did not move house between 3 June and 27 August, it is something they could have checked from their own records. They do not say it is wrong, just that it does not match the ACAS certificate. The tribunal does not know if the postal address is correct at the date of presentation or not. For the claimant (who appears to have completed her own online form) to have mistyped her own address is an unusual mistake to make; if there is a discrepancy it could have arisen from ACAS mistranscription. The claimant does give an email address, which must be valid, as the claimant has used it to correspond about her claim. I am not satisfied either that this is an error, or if there is an error in the postal address that it mandated rejection, when she had supplied an email address as well. Is the Second (Resubmitted) Claim in Time?[24]I turn to consider the application to dismiss the second claim, 336045/2019, because it is out of time. The claim is made under the Equality Act 2010, which provides at section 123 that “proceedings on a complaint may not be brought after the end of the period of 3 months starting with the date of the act which the complaint relates or such other period as the employment tribunal thinks just and equitable”. By subsection (3), conduct extending over a period is to be treated as done at the end of that period.[25]The guidance given to employment tribunals on how to decide what is just and equitable is set out in British Coal Corporation v Keeble (1997) IRLR 336. The tribunal must review the length of any delay, and the reason for it. It must consider whether the respondent was responsible for the delay. It must consider the effect of the delay on the cogency of the evidence, and whether the prejudices are fair trial of the claim. Having regard to these factors, it must then weigh up the balance of prejudice between the claimant and respondent if the claim is dismissed or allowed to proceed. Claimants cannot expect extensions. Deadlines are set by Parliament for a purpose. The tribunal must be persuaded that it is just and equitable to allow a claim to proceed out of time. If I am wrong about that, I would have to consider whether to allow the claim to proceed out of time.[26]First, when does time run from? Her employment began on 1 April 2019. The claim covers three allegations or groups of allegations:(1) incidents involving colleague A on 6, 23 and 24 April 2019(2) comments made by colleagues B and C “throughout employment”, and(3) an incident on 24 April involving colleague D which led to a complaint by A, investigation, discipline and dismissal. In respect of (3) the dates follow so rapidly from incident to dismissal that I judge this to be an act extending over a period. In respect of (1) and (2), it remains to be seen whether, on examination of the facts, including in the case of (1) whether this was connected to A complaining of the incident involving D, so forming part of the course of conduct, and in the case of (2) when the claimant says any remarks were made, and whether they are part of a “discriminatory state of affairs” - that ended on dismissal, or were free standing incidents. The respondent has not stated that time runs from any date before 3 June, but jurisdiction is a matter for the tribunal, not the parties. That aside, at least some of her claim runs from 3 June 2019.[27]The effect of going to ACAS for early conciliation is to stop the clock until the certificate is issued. When the claimant went to ACAS on 27 June, 24 days had elapsed. She had another 2 months 6 days left from her three months starting from the issue of the certificate. The certificate was issued 10 August 2019. That meant her three months for presenting a claim ran out on 16 October 2019.[28]We know that she was asked for and had supplied her certificate to the tribunal on some date between 8 and 14 October, when the file was sent back to a judge, and a decision was made not to reject the claim. That strongly suggests that had the claim been rejected either on 8 October, when asked to supply a certificate, or even on 14 October, had the defect been noted then, she would have equally rapidly responded with a rectified claim form, and been within time to present her claim.[29]However, it was not until 19 November that the respondent’s careful checking brought the problem to her attention. Next day she took prompt action by presenting a claim with the correct certificate number.[30]The fault is a minor one. Where numbers are concerned, transposition errors are common and human. It arises from carelessness, but even with care such an error can be missed. It is a fault on the part of the claimant. The respondent has done nothing wrong.[31]As for the discrepancy of flat number on the address, if the claim form is wrong, there is no prejudice to the respondent, as communication with the claimant has always taken place by email.[32]The delay does not affect the cogency of the evidence, firstly because the respondent had the claim form at a time when they would have received it had the defect not occurred, and were able to prepare a response (which is the same in the second as in the first claim), and secondly because the case, if not struck out, is still on target for the original final hearing in June as if it had been validly presented first time.[33]How to balance the prejudice? The respondent argues the case is without merit because A had complained the claimant had harassed D, not D the claimant, as the claimant then said. They say the claimant never complained of harassment until appealing against dismissal, suggesting it is fabricated. If that is right, they have to incur additional cost in preparing and defending a claim which could be struck out now as out of time, while the claimant loses the chance of a hearing of a claim she would not win. The claimant argues she has been very unfortunate, has acted promptly when made aware of it, and if struck out for a very simple error will lose her chance of obtaining justice for unpleasant harassment. Balancing the two, I conclude it is just and equitable to extend time. The mistake was small and easily made. Had it been noted by the tribunal and the claim rejected, there is good reason to believe it would have been rectified within the primary time limit. She acted promptly when aware of it. The quality of the evidence is unaffected by late presentation, and the claim can still be heard on the date listed if there had been no defect. The claimant’s claim, if she proves it on a hearing of the evidence, is not trivial. .