Ms L Muhumza v Royal Hospital Chelsea: 2206056/2022 and 2206572/2022
EMPLOYMENT TRIBUNALS
Case No 2206056/2022, 2206572/2022
Between
Ms L MuhumzaClaimantRoyal Hospital ChelseaRespondent
Before
Employment Judge JoffeMr M Curtis (instructed by counsel) for respondentDate 5 May 2023
JUDGMENT
[1]The respondent withdrew the job offer it had previously made to the claimant on 1 February 2022.[2]The claimant’s claims were presented outside the time limit in section 123 Equality Act 2010.[3]It would not be just and equitable to extend time for the claims to be heard.[4]The claimant’s claims under these case numbers are dismissed.
REASONS
Issues
[5]This was an open preliminary hearing to determine two issues identified by Employment Judge N Walker at a case management preliminary hearing on 17 February 2023:a. What was the date on which the respondent committed the alleged act of discrimination – was it 1 February 2022 as alleged by the respondent or 16 May 2022 as argued by the claimant?b. If it was 1 February 2022, so that the claimant’s claims are out of time, would it be just and equitable to extend time so that the claim is in time?[6]The single act of alleged discrimination identified by Employment Judge Walker was the withdrawal of a job offer made by the respondent to the claimant.
The hearing
[7]Employment Judge Walker had given directions for a bundle and witness statements to be prepared for this hearing. The date for the bundle to be provided to the claimant by the respondent had been varied to 11 April 2023. I saw documentary evidence that a bundle had been emailed to the claimant and Mr Akinsanmi on that date although Mr Akinsanmi had told me that the bundle was only provided about a week before this hearing.[8]Prior to the hearing, the claimant had applied for a postponement on the basis that a hard copy of the bundle had not been provided. Mr Akinsanmi is blind and it was said that this was why he required a hard copy bundle. There was no provision in Employment Judge Walker’s orders that the bundle be provided in a particular format.
Law
[9]I discussed the matter with Mr Akinsanmi at the outset of the hearing. He was not applying for a postponement as such, but he was applying for specific disclosure of some documents, which order might then have necessitated a postponement. Employment Judge Walker’s orders provided for general disclosure to take place in the claims after the date of this open preliminary hearing. No disclosure was ordered to take place before that date.[10]The documents Mr Akinsanmi was seeking were:a. Advice the respondent had received from the Home Office about the claimant;b. Correspondence about the claimant’s DBS check;c. Measurements taken by the respondent to obtain a uniform for the claimant.[11]Mr Akinsanmi told me that at the case management preliminary hearing, Mr Curtis had undertaken on behalf of the respondent to disclose these documents.[12]Mr Curtis consulted his notes of that hearing and said that his recollection was that Mr Akinsanmi had been keen to get hold of the DBS correspondence and that Mr Curtis had said those documents could be provided but the assumption was that that would be as part of disclosure for the main hearing. He had no recollection or note of the other documents being requested.[13]It seemed to me that if there had been a discussion about documents being voluntarily disclosed for the purposes of the open preliminary hearing, the likelihood is that this would have been recorded in the case management summary and it was not.[14]More importantly, nothing Mr Akinsanmi said persuaded me that the documents would cast any light on the question of when the job offer had been withdrawn and whether it would be just and equitable to extend time. He said that these documents would show how the respondent had misled the claimant into believing she had the job. All of that alleged misleading related to the period before the job offer was withdrawn and did not cast light on when the withdrawal took place. He said that he could have developed his arguments better with the whole correspondence and chronology but he did not explain to me how these documents would have any bearing on the two issues I had to decide. I accordingly did not make an order for specific disclosure and decided that the open preliminary hearing should proceed.[15]The claimant had not produced a witness statement and, when I asked Mr Akinsanmi, he said that she was not proposing to give any evidence.[16]The materials I had therefore were a hearing bundle of 94 pages, largely comprising pleadings and orders but also including a small amount of correspondence between the parties and skeleton arguments from Mr Curtis and Mr Akinsanmi, which they supplemented with oral submissions.
Findings
[17]My findings are based on documentary evidence and uncontroversial facts.[18]The claimant was offered a job as a care assistant by the respondent on 22 November 2021, subject, amongst other things, to references, a DBS check and proof of right to work in the UK.
Conclusions
[19]Various things took place after that date preparatory to the claimant starting work and in furtherance of those conditions to her employment being met.[20]On 1 February 2022, Ms Sweetland. HR advisor for the respondent, wrote to the claimant: I am sorry I have not been available to answer your calls. As your Indefinite Leave to Remain visa is in an expired passport I had to seek further advice. The Government website (Transfer your visa from your passport - GOV. UK(www.qov.uk)) states that unfortunately I cannot accept a valid visa in an expired passport as proof of your right to work in the UK. Should you wish to change jobs you must replace your visa with a biometric residence permit and details on how to do this can be found at this link [link provided] Unfortunately as I am unable to prove your right to work in the UK I must withdraw the offer of employment made to you. However, please do get in contact once you have received your Biometrics Residence Permit.[21]The claimant replied: Dear Emma thank you please I can bring new passport tomorrow please[22]Ms Sweetland then sent the following email: I have a copy of your new passport. The problem is your visa is in an expired passport and cannot be accepted as proof of your right to work in the UK. Once you have a Biometric Residence Permit please let me know.[23]Nothing further happened on either party’s account until May 2022.[24]On 16 May 2022, the claimant emailed Ms Sweetland: I hope you are doing well This is information from home office[25]She attached an email telling her that she could re-take her ‘Life in the UK’ test (part of her application for citizenship) which went on to say: if, as discussed in our recent telephone conversation, you need to prove your current immigration status to a potential employer, you can find details on how to apply for No Time Limit on our website.[26]Ms Sweetland replied to that email to say that it was lovely to hear from the claimant and that, once her citizenship was approved, she should contact Ms Sweetland, who would let her know if there were any vacancies.[27]On 12 August 2022, the claimant contacted Acas to start Early Conciliation. On 15 August 2022, Early Conciliation ended. 28. 17 August 2022 is the date of presentations of the claimant’s first claim form. Her further claim form raising the same complaint but with an attachment setting out the chronology of events was presented on 22 August 2022.[29]In that document the claimant described the 16 May 2022 communication as ‘further communication stating that the job offer has been withdrawn’. However in the timeline attached, she said this about the 1 February 2022 email from Ms Sweetland: ‘The final paragraph states that the offer of employment has been withdrawn but I can get in contact once I have received a biometric residence permit.’
Law
[30]The starting point is section 123 Equality Act 2010 which provides that there is a three month time limit for applications to the Tribunal (subject to an extension by the Early Conciliation period, period as appropriate). Time can be for an otherwise out of time complaint extended if it is just and equitable to do so.[31]The discretion to extend time is a wide one. In British Coal Corporation v Keeble and ors 1997 IRLR 336, the EAT confirmed that it is relevant to look at factors in section 33 of the Limitation Act 1980, which requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. In Southwark London Borough Council v Afolabi 2003 ICR 800, the Court of Appeal confirmed that, while the checklist in section 33 provides a useful guide for tribunals, it need not be adhered to slavishly.[32]It is for the claimant to persuade the Tribunal that the discretion should be exercised in her favour: Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327.[33]The merits of the claim may be a relevant factor when deciding whether to extend time: Lupetti v Wrens Old House Ltd [1984 ICR] 348, EAT.[34]Lack of a good reason or any reason for the delay does not mean that the discretion will inevitably be exercised against the claimant: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, CA. Conclusions First issue: when was the job offer withdrawn?[35]Although Mr Akinsanmi argued that there was ambiguity in the email of 1 February 2022 – in that Ms Sweetland said she must withdraw the offer but not that she was withdrawing it, I did not conclude that that was a reasonable interpretation of the emails. I accepted that the effect of the emails was to withdraw the offer and that was consistent with the respondent not attempting to contact the claimant thereafter.[36]However I go on consider in due course, as part of the discretion to extend time, whether the claimant might have misunderstood when the offer was withdrawn and that could have been the reason for the delay in presenting the claim.[37]Once a conclusion is reached that 1 February 2022 was the date of the only alleged act of discrimination, the claim form was clearly out of time. Early Conciliation was not started until after the expiry of the primary limitation period and so there is no extension of that period. The claim form should have been submitted by 30 April 2022 and was instead submitted over three months later. Second issue: Is it just and equitable to extend time?[38]I considered carefully what material there was on the basis of which I could exercise my discretion to extend time.[39]Although he suggested that there were delays in the world in general because of the pandemic and that the Tribunal system was itself experiencing a backlog, Mr Akinsanmi did not identify any connection between Tribunal delays and the claimant’s delay in submitting her claim. This was not therefore a relevant factor. He also referred to some uncertainty as to whether the claim form should be presented at London South or London Central, but any such uncertainty did not explain the delay in commencing Early Conciliation.[40]Ultimately it appeared that the reason put forward for the delay was that the claimant understood that the job offer had been withdrawn in May 2022 rather than by the earlier date.[41]In the absence of oral evidence given by the claimant to that effect, I am unable to reach a conclusion as to whether the claimant was genuinely mistaken but it seems to me unlikely that I would have been persuaded that was the case, looking at the documentary evidence.[42]It seemed to me that it was just about possible that someone could understand Ms Sweetland’s correspondence of 1 February 2022 as indicating that the role might still be open to the claimant if she received a biometric residence permit. However, it also seemed to me that if the claimant had believed that was the case, there would likely have been further contact with the respondent between February and May 2022 – with the claimant updating the respondent as to how she was getting on and probably checking how long the role might remain open to her as weeks and then months went by.[43]What seems more likely is that she believed what it appears Ms Sweetland intended which is that she could be considered for future vacancies once she had evidence of her right to work. I also bear in mind the wording of her claim form which appears to confirm that she knew that the offer had been withdrawn on 1 February 2022.[44]I did not hear any submissions as to the effect of delay on the cogency of the evidence or any specific prejudice to the respondent.[45]The main factors I can take into account are that there has been a significant delay with no credible explanation and the fact that in respect of the single allegation, EJ Walker made a deposit order, because she found that that claim had little reasonable prospect of success.[46]Looking at the balance of prejudice, I concluded that there is little prejudice to the claimant in being deprived of a claim with little reasonable prospect of success and substantial prejudice to the respondent in having to defend such a claim. Taking that factor together with the lack of explanation for the delay. I concluded that it would not be just and equitable to extend time for the claims.[47]It follows that the Tribunal has no jurisdiction to hear the claimant’s claims and they are dismissed. COSTS JUDGMENT
Conclusions
[1]The claimant must pay the respondent’s costs in the sum of £200.[2]As the claimant has paid a deposit of £20, this will be set off against the costs, leaving her with £180 to pay.
Conclusions
[1]On 17 February 2023, Employment Judge Walker made a deposit order requiring the claimant to pay £20 in order to continue with her single claim of race discrimination. The basis for the deposit order was her conclusion that the claim had little reasonable prospect of success, both because it appeared to have been presented out of time and because of its lack of substantive merits. Employment Judge Walker also directed that there be a hearing to determine whether the Tribunal had jurisdiction to hear the claimant’s claims.[2]At a public preliminary hearing on 4 May 2023, I dismissed the claimant’s claim as I found that it had been presented out of time and it was not just and equitable to extend time.[3]Mr Curtis applied for the respondent’s costs of the three hearings which had been listed. He applied only for counsel’s brief fees, which amounted to £850 per hearing plus VAT.[4]The basis for the application was that the claimant had pursued claims with no reasonable prospect of success after she had been issued with a deposit order. By virtue of rule 39, the claimant’s continued pursuit of the claims after the deposit order was deemed to be unreasonable conduct unless the contrary was shown. The respondent was also seeking some costs prior to the deposit order being made on the basis that it would have been obvious from the outset that the claims were doomed.[5]Because we had reached the end of the hearing day and I wished the claimant to have a proper opportunity to make any representations she wished to make on her own behalf and to provide evidence of her means, I made directions for that to be done in writing.[6]Although I subsequently extended the time period for the representations to be made because I was concerned the claimant and/or her lay representative, Mr Akinsanmi, had not understood the importance of providing evidence as to means, I did not receive any representations or evidence.[7]Mr Akinsanmi wrote to the Tribunal on the claimant’s behalf on 3 August 2023 asserting that I was harassing him on the issue but also making reference to information provided to Employment Judge Walker as to the claimant’s means.[8]On enquiry, I ascertained that the information provided to Employment Judge Walker was that: - the claimant had income of £1,500 per month; - she paid monthly rent of £750; - she had three children aged between 19 and 23 who were all students; - she paid £80 per month for gas, £12 for water, and £65 for electricity; - her travel costs were £23 per week; - her monthly food costs were £300; - she paid £100 monthly for council tax. - She owed £3000 in rent arrears. Law[9]The Tribunal Rules enable a represented party in employment tribunal litigation to make an application for a costs order and an unrepresented party to make an application for a preparation time order.[10]The test which the Tribunal must apply is the same in both cases and can be found in Rule 76. The relevant parts of the rule for the purpose of this hearing are 76(1)(a) and (b) which say: A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) 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.(b) any claim or response had no reasonable prospect of success[11]The Tribunal must consider an application in two stages:• it must first decide whether the threshold test is met, ie in this case did the claim have no reasonable prospect of success / was the conduct of the proceedings unreasonable?• if it is satisfied the test has been met, it should then decide if it should exercise its discretion to award costs. Each case depends on the facts and circumstances of the individual case.[12]Although the 'threshold test' is the same whether a litigant is or is not professionally represented, the decision in AQ Ltd v Holden [2012] IRLR 648, EAT requires the Tribunal to take the status of the litigant into account.[13]The value of a costs order is determined by Rule 78(1) which says: “A costs order may—(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles”[14]Awards are intended to be compensatory, not punitive (Lodwick v Southwark London Borough Council [2004] IRLR 554). This means that where costs are claimed because a party has acted unreasonably in conducting a case, the costs awarded should be no more than is proportionate to the loss caused to the receiving party by the unreasonable conduct. In other words, the party is entitled to recover the cost of any extra work that had to be undertaken because of the unreasonable conduct. The causal relationship between the conduct and the costs should not be subject to very minute analysis: Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA.[15]Rule 84 is also relevant. It says: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.’[16]Affordability is not as such the sole criterion for the exercise of the discretion and ‘a nice estimate of what can be afforded is not essential’: Vaughan v London Borough of Lewisham and ors [2013] IRLR 713, EAT. In that case, the claimant was out of work and the questions which were reasonable for the Tribunal to ask were: - was there a reasonable prospect of the claimant being able, in due course, to return to well-paid employment and thus to be in a position to make a payment of costs? - if so, what limit ought nevertheless to be placed on her liability to take account of her means and of proportionality?[17]Where a costs application is based on the merits of the case, the Tribunal should take into account what the party knew or ought to have known about the merits of the case. A factor relevant to the exercise of the discretion may be whether there has been any warning of a risk of costs, but such a warning is not a prerequisite to the making of an order; nor is it a prerequisite that the receiving party must have put the paying party on notice of any application.[18]Rule 39(5) of the Employment Tribunals Rules of Procedure 2013 provides: If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.
Conclusions
[19]The claimant had provided no material on the basis of which I could conclude that she had not acted unreasonably in pursuing her claim after the deposit order was made, so the threshold test was met for the period after the deposit order was made.[20]Taking into account the claimant’s status as a litigant in person and the complexity of the law applying to her claim, although I considered that it had no reasonable prospect, it did not seem to me that the claimant should reasonably have known that prior to the deposit order hearing. I was not persuaded that it would be appropriate to award any costs in respect of the period prior to the issuing of the deposit order.[21]I concluded that some order for costs was appropriate given the claimant continued to pursue the claim after the deposit order but did not address at the public preliminary hearing the issue of why it would be just and equitable to extend time, for example. She gave no evidence on her own behalf on this or any other matter relevant to jurisdiction. It appeared that the claimant and/or Mr Akinsanmi had not engaged with the issues raised by Employment Judge Walker; certainly they did not address them at the hearing in front of me. Instead I considered that Mr Akinsanmi tried to obscure the real issues in the case by making an unmeritorious application for specific disclosure.[22]I also took into account the claimant’s very limited means and concluded, having regard to all of the factors identified, that an award of costs in the sum of £200 would be proportionate.