Mr P Wilson v Commissioners for HM Revenue and Customs: 2206945/2021
EMPLOYMENT TRIBUNALS
Case No 2206945/2021
Between
Mr P WilsonClaimantCommissioners for HM Revenue and CustomsRespondent
Before
Employment Judge DavidsonIn person for claimantMr A Line (instructed by Counsel) for respondentDate 21 July 2022
JUDGMENT
The claimant’s claims were submitted out of time and the tribunal does not have jurisdiction to hear them. They are therefore dismissed.
REASONS
Issues The issues for the hearing were as follows: Time points
Issues
[1]Are the claims out of time? If so, 1.1. in relation to the claim for arrears of wages, was it reasonably practicable for the claimant to have presented his claim in time? If not, was it was presented within a reasonable period thereafter? 1.2. In relation to the claims of direct age and disability discrimination, victimisation and failure to make reasonable adjustments, is it just and equitable for the tribunal to extend time? Case No: 2206945/2021 2 Disability[2]Is the claimant disabled due to the impairment of stress? Does this include the impairment of hyperhidrosis? Wages Act claim[3]Is the claim in respect of 2017 being pursued? Strike out/deposit order[4]Should the claims be struck out on the grounds that they have no reasonable prospect of success.[5]Alternatively, should they be subject to a deposit order on the grounds that they have little reasonable prospect of success. Jurisdictional issue Relevant dates 1. The final act of discrimination complained of in the ET1 is the transfer of the claimant to another team on 4 January 2021. The final deduction from wages claim relates to an underpayment in March 2021 of monies due in 2017. The Schedule of Loss also includes sums going back to 2016 and earlier years. 2. Early conciliation started on 14 September 2021. The EC certificate was issued on 29 September 2021 and the ET1 was filed on 26 October 2021. Deduction from wages claim 3. As regards the deductions from wages act claim, the claimant confirmed that the respondent had paid the amounts claimed in the Schedule of Loss for 2017. He had expressed confusion about the calculation but accepted that the amount paid matched the amount he was claiming in his Schedule of Loss. 4. He said he wished to pursue the claims relating to the earlier years. The respondent referred to the Case Management Order of EJ Isaacson dated 8 February 2022 and submitted that, as EJ Isaacson had pointed out, the tribunal does not have jurisdiction to hear the claims for the earlier years due to section 23(4A) of ERA which provides that the tribunal cannot consider claims where the deduction was made more than 2 years before the claim was submitted. 5. I find that the deduction from wages claim cannot proceed. The element which is potentially able to be considered by the tribunal has been paid and is not outstanding. In any event, that claim was late and there is no evidence that it was not reasonably practicable to submit it within time. Case No: 2206945/2021 3[6]As regards the claims for the earlier years, these are outside the jurisdiction of the tribunal as the claims were not brought within time and the alleged deductions took place more than two years before the claim was lodged. Discrimination claims[7]In relation to the discrimination claims, it is not in dispute that they are out of time. The claimant asks for time to be extended on the grounds that it would be just and equitable to do so.[8]The claimant’s explanation for the delay is that he was exhausting the respondent’s internal procedures (by way of the grievance procedure) before bringing a claim to an external body. He relies on an email from HR dated 30 May 2022 confirming that the ‘expectation is that job holders will exhaust the respondent’s internal procedures before contacting ACAS’. The claimant confirmed that this could not have been in his mind when he delayed brining his tribunal claim. However, he relied on it because it nevertheless reflects the respondent’s understanding.[9]The grievance was first dealt with in January and February 2021 and the claimant then appealed the outcome. The appeal hearing was in April 2021 and the appeal decision was given on 10 May 2021. The claimant was told that this was the ‘final look at your concern by HMRC’. He had, at that point, exhausted the respondent’s internal procedures.[10]The appeal outcome document notes that the claimant had consulted with the trade union, albeit that the trade union representative was unable to attend the meeting.[11]The claimant told the tribunal that he became aware of the option of contacting ACAS on 6 July 2021 following a conversation with a senior civil servant. He sought advice from the trade union who referred him to lawyers. He made contact with ACAS on 14 September 2021 and finally lodged his claim on 26 October 2021.[12]I must consider whether I should exercise my discretion to allow the age and disability discrimination claims to proceed given that they were lodged out of time. It is for the claimant to persuade me that it would be just and equitable in the circumstances to extend time. There is no presumption in favour of extending time and the discretion to extend time should be the exception not the rule (Robertson v Bexley Community Centre [2003] IRLR 434).[13]There are a number of factors which I can take into account, although it is not a ‘tick box’ exercise and each case must be looked at on its own merits.[14]An important factor is the length and reasons for the delay. The delay in this case is significant. Any claim should have been raised with ACAS in Case No: 2206945/2021 4 early April 2021. It was not raised until September 2021. The claimant was aware of the role of ACAS from 6 July 2021 (at the latest) but did not make contact until over two months later. Even after contacting ACAS, he delayed in submitting the claim until 26 October 2021.[15]It is apparent from the grievance documents that the claimant had been in touch with his trade union representative during the grievance process (January to April 2021). If the claimant was considering making a tribunal claim, the union should have told him about the time limits. Once he received advice in July/August 2021, following which he went to ACAS, that advice should have included advice about time limits. It is noteworthy that he then delayed bringing the claim until 26 October 2021. The claimant does not rely on any specific incorrect advice, only that he was seeking legal advice, which took time. He has not told the tribunal that he was misled about time limits from his advisers and does not put this forward as an explanation for the late presentation of his claim.[16]The fact that a grievance has been raised is not automatically, by itself, enough to justify an extension of time although in some cases it might be decisive. (Wells Cathedral School Ltd v Souter EA 2020). Looking at the situation in this case, I do not accept the claimant’s argument that the fact he followed the respondent’s internal procedures explains the delay. These procedures had been concluded by 10 May 2021. The claim would be out of time even if that date was taken to be the date from which time runs (although nobody has suggested that it is). The appeal process might have explained a short delay but not the length of the delay in this case.[17]The claimant complains that he did not receive training from the respondent in how to bring tribunal claims against it. This is not a matter on which an employer is obliged to provide training. It is, however, a matter on which a union would be well positioned to provide advice on and the evidence is that the claimant was taking advice from his union.[18]The claimant also says he became aware of the reason he was moved was because he was ‘challenging and disruptive’, which had not been told to him at the time of the transfer. It is not clear whether he relies on this as an explanation for the late presentation of his claim. If he is, I do not accept that it is a valid reason. He became aware of this by 29 April 2021 at the latest and it is therefore not an explanation for the delay in bringing these proceedings.[19]I accept that the delay in bringing these claims is unlikely to cause any evidential prejudice to the respondent as matters are recent enough to be in the mind of any witnesses. I note that the factual background of the claims brought by the claimant and the subject matter of the grievance are similar, however the grievance did not include the specific allegations of discrimination which are before the tribunal. Case No: 2206945/2021 5[20]I also take into account the promptness with which the claimant acted after becoming aware of the steps needed to take legal action. I find that the claimant compounded the delay by not taking steps earlier to lodge his claim once he was aware of the situation.[21]In conclusion, I find that the claims were submitted outside the statutory time limit. The claimant has failed to convince me that it would be just and equitable to extend time.
Conclusion
[22]Given my ruling on the time point, I do not need to consider the other applications.[23]The claims are therefore dismissed as the tribunal has no jurisdiction to hear them. The hearing listed in November 2022 is vacated.