Ms J. BosticClaimant(1) Mitie Ltd (2) Mr G. Molloy (3) Mr M. Chestney London Central Employment Judge Goodman 3 March 2023 RULE 13- RECONSIDERATION OF REJECTION Having reconsidered the rejection of claim, the claim presented against Mitie Ltd is accepted as presented on 20 February 2023.Respondent
Before
Employment Judge GoodmanDate 27 October 2023
REASONS
[1]The claimant is a store detective at B&Q in Leyton. She presented a claim of disability discrimination to the tribunal on 15th December 2022, naming four respondents. The first was her employer, Mite Limited. The other three are individual co-workers.[2]Her claims against the second and third respondents, Molloy and Chestney were accepted. Her claim against Mitie and another co-worker, Moheed Hussein, were rejected because there was no relevant early conciliation certificate number. The ET1 form shows claimant had inserted an Early Conciliation certificate number against Mitie limited, but it was a duplicate of the certificate number of one of the other respondents, certificate number R257906/22/47.[3]Rule 12 of the Employment Tribunal Rules of Procedure 2013, as amended, requires a claim that lacks an early conciliation certificate number for any respondent to be rejected. It looked as if there was no certificate for the respondent Mitie. Accordingly, the claimant was informed on the 25th January 2023 that her claims against respondents Molloy and Chestney were accepted, and her claim against Mitie Limited and Hussein were rejected. She was told to get an early conciliation certificate and re-present her claim The letter contained a link to details of how to apply for reconsideration or re-present a claim. 10.1 Judgment – no hearing - rule 60 February 2018[4]The claimant wrote to the tribunal on 20th February 2023 saying: Please accept my apologies in respect of this matter as I only became aware that I had sent the wrong conciliation certificate in respect of the third respondent. Please find the correct certificate attached in this email. She attached a copy of an early conciliation certificate naming Mitie Limited, dated 16th of November 2022, number R238938/22/39.[5]Rule 13 of the Employment Tribunal Rules of Procedure provides:(1) A claimant whose claim has been rejected (in whole or in part) under rule 10 or 12 may apply for a reconsideration on the basis that either— (a) the decision to reject was wrong; or (b) the notified defect can be rectified.(2) The application shall be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. It shall explain why the decision is said to have been wrong or rectify the defect and if the claimant wishes to request a hearing this shall be requested in the application.(3) If the claimant does not request a hearing, or an Employment Judge decides, on considering the application, that the claim shall be accepted in full, the Judge shall determine the application without a hearing. Otherwise the application shall be considered at a hearing attended only by the claimant.(4) If the Judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified.[6]Rule 12 (2ZA) provides: The claim shall be rejected if the Judge considers that the claim is of a kind described in sub-paragraph (da) of paragraph (1) unless the Judge considers that the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim.[7]The defect in 12(1 (da) is where: ..the early conciliation number on the claim form is not the same as the early conciliation number on the early conciliation certificate.[8]Now that the claimant has sent in her certificate naming Mitie, it is clear that she had complied with the early conciliation provisions at the time of presenting the claim in respect of Mitie, but the number she inserted on the claim form was not the same as the number on the certificate, that is, a defect under 12(1)(da). This means I have discretion under rule 12 (2ZA) not to reject the claim if the claimant made an error in respect to the number, and it would not be in the interests of justice to reject it. 9.Plainly the claimant did make an error. She had three certificates and wrote in the numbers of only two of them. 10.Is it in the interests of justice not to reject the claim? Firstly, the claimant had complied with the early conciliation provisions, her only fault is a clerical error. Secondly, there is an ongoing claim against her two colleagues, and it will be in the interest of justice as against them for the employer to be a respondent to this claim, as was always intended. It will ensure that if they are found at fault and 10.1 Judgment – no hearing - rule 60 February 2018 acted in the course of employment the employer is liable as principal. This is also in the interests of the claimant, as if she obtains judgement for any substantial sum she is more likely to be paid by the first respondent than by co-workers who may lack the ability to pay.[11]I bear in mind that the additional delay in notifying the claim to Mitie means that they may have difficulty investigating, but I also take into account that the individual respondents will probably have consulted their employer about this claim in any event, as the response that has been entered has been filed by employment law specialist solicitors, suggesting that Mitie are aware of the claim. 12.I also take into account whether involving Mitie at this stage, when one of the individual respondents has responded, and the other has not, because he had left the business and his home address has only recently come to the tribunal's attention, will hold up progress in bringing the claim for final hearing. The first case management hearing is already listed for 18th of May 2023. There is therefore time for Mitie and the individual respondent to file responses in time for a case management hearing. The claimant herself has also just been asked by the tribunal to supply further information to clarify her claim. Involving Mitie as respondent at this stage will not import delay or extra expense. 13.On whether reconsideration should be on the basis that the original decision was wrong, or on the basis that the defect can be rectified, I bear in mind the words of the Employment Appeal Tribunal in Clark and others v Sainsbury's Supermarkets Limited 2002 IRLR 996: Nonetheless, if unambiguous mandatory provisions of the procedural scheme require rejection of the claim that outcome cannot be avoided, even if the application of the provisions may bring to an end a claim brought by a person who has complied with the substantive requirements of EC. However, in other cases, where the wording of the provisions permit, the courts will seek an interpretation that advances the purpose of the substantive EC scheme and does not place unnecessary obstacles in the way of prospective claimants obtaining access to justice. and ..it is significant that these are gatekeeping provisions. The fundamental purpose of the underlying scheme is to ensure that those who are required to do so comply with EC. 14.The effective difference in which basis I choose is in the limitation period. If the decision not to accept was wrong, the claim against Mitie is treated as having been presented on 15th December 2022 and is in time. If it was right, but the defect has been rectified, it is to be treated as presented on 20th February 2023, which may mean that the claim is out of time, although it is clear that the narrative on the claim form is incomplete and the whole story may or may not indicate a continuing course of conduct. 15.While bearing in mind that the purpose of the scheme is to get claimants to approach ACAS for early conciliation before presenting claims to an employment tribunal, and that the claimant had approached ACAS for early conciliation with regard to Mitie and had a valid certificate when she presented the claim, the purpose of the tightly defined rules is to ensure that the employment tribunal has a way to cheque that there has been compliance with the early conciliation requirement, as discussed in the Clark judgment, and it cannot do that if there is 10.1 Judgment – no hearing - rule 60 February 2018 no certificate number, or the wrong certificate number. I consider that the decision was right (she had not given a valid certificate number), but that this is a defect that has been rectified by the claimant’s supply, on 20 February 2023, of the missing certificate. That means the claim is accepted as presented on that date. 16.If that means that the claim is out of time, the employment tribunal that decides the claim at a hearing where the respondent is represented can consider whether it is just and equitable to extend time given the balance of prejudice between the parties. 17.Finally, an application for reconsideration must be filed within 14 days. It took the claimant 31 days to reply, so her application was out of time. She does not explain the delay. I have a power under rule 5 to extend time for most purposes under these rules, including rules 12 and 13. I consider it to be in furtherance of the overriding objective to deal with cases justly and fairly to extend time for the claimants application to reconsider the rejection decision. This is because she presented the claim in time, she already had an early conciliation certificate at that time, it is in the interests of justice that the intended respondent come out the employer, is included, and it was done before the responses were filed, and the delay will not put back the case management hearing or impede preparation. Despite the delay, there is time to get the claim properly afoot by the time of the case management hearing.[1]This is the judgment following a preliminary hearing to determine whether the claimant was a disabled person at the material times.[2]This has been a remote hearing using CVP. The claimant experienced connectivity issues. She participated by being connected to her representative through his mobile, with the phone being on speaker so that all other participants could hear her.[3]The documents that I was referred to are in a bundle of 111 pages, the contents of which I have recorded. The claimant’s representative alleged that the respondent had removed medical records from the bundle, the respondent’s representative stating that any documents removed were not relevant. Having reviewed the bundle, I considered that there was sufficient information provided for the hearing to proceed. The order made is described at the end of these reasons.[4]I have heard from the claimant, and from Mr Downie on her behalf. For the respondent I have heard from Mr Akram.
Facts
[5]There was a degree of conflict on the evidence. I have heard the claimant give her evidence. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[6]The claimant contends that she has two disabilities, both stemming from being hit on 19 April 2021 by a getaway car whilst working as a security guard at a branch of B&Q. The impact was to her right knee. She alleges that she suffered discrimination from the respondent from 20 April 2022.[7]As a result of the accident, she suffered mobility issues to her lower back and right knee. The Tribunal was satisfied based on the medical evidence provided and the claimant’s evidence that these issues stemmed from the accident. It is also satisfied that the issues were continuing in 2023 and so had lasted over 12 months.[8]Prior to the accident the claimant enjoyed physical exercise, going running and decathlons. She has stopped doing this since the accident. The pain also affects her sleep, she says that she only sleeps 3 to 4 hours a night now, compared to 7 to 8 hours a night before the accident. Before the accident she enjoyed socialising but has stopped this as she becomes too fatigued. She also enjoyed cooking but the pain of lifting heavy pans means that has ceased. She was prescribed naproxen to manage the pain.[9]The claimant claims that she also suffered Post Traumatic Stress Disorder (PTSD) as a result of the accident. The medical records show this was first diagnosed on 16 August 2022, following a referral on 21 July 2022. There is evidence of anxiety before that; a medical record from 25 August 2021 refers to emotional upset and a depressed mood. The Tribunal finds, on balance, that this was the beginning of her PTSD. The medical records show that she still had PTSD on 4 April 2023, which is over 12 months later.[10]The PTSD has caused her depression and prevented her from socialising as it causes her panic attacks. She has not been out socialising for two years.[11]There was a suggestion by the claimant’s representative she was also suffering PTSD from having been on the last train through Kings Cross before the fire there. No evidence has been provided to support this suggestion. As a result, the Tribunal makes no findings of fact in relation to this.
Law
[12]Having established the above facts, I now apply the law.[13]The claimant alleges discrimination because of the claimant's disability under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA.[14]The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months or is likely to last the rest of the life of the person.[15]An impairment is to be treated as having a substantial adverse effect if measures are taken to treat it but if these were not taken, the substantial adverse effect would continue. Put another way, the tribunal needs to disregard treatment to solve an adverse effect and consider the position without that treatment.[16]Guidance has been issued by the Secretary of State on matters to be taken into account in determining questions relating to the definition of disability. That guidance recommends when considering the affect of an impairment that the focus should be on what the claimant cannot do.[17]In Goodwin v Patent Office [1999] ICR 302 Morison J set out for conditions that require consideration when assessing whether as a person is disabled, at page 308B: “The words of the section require a tribunal to look at the evidence by reference to four conditions.(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?(3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial?(4) The long term condition. Is the adverse effect (upon the applicant’s ability) long term? Applying the facts to the law[18]In considering whether the claimant has a disability, the Tribunal applied the conditions set out in Goodwin v Patent Office, by applying the facts referred to above to each of the contended disabilities. I have considered each of these in turn.[19]Beginning with the mobility issues, I found as follows in response to these four conditions:a. The impairment condition. The claimant has an impairment which is physical pain to her lower back and right knee, so satisfies this condition.b. The adverse effect condition. The impairment prevents her from cooking, socialising, sleeping and exercising. These are all normal day-to-day activities and her impairment has an adverse effect on her ability to carry these out. This condition is therefore also satisfied.c. The substantial condition. This adverse effect is more than minor or trivial and so is substantial, so satisfying this condition.d. The long term condition. The adverse effect began at the time of the accident in 2021 and is still continuing. By having lasted for over 12 months, it has satisfied the long term condition.[20]As the claimant has satisfied each of these conditions in relation to her mobility issues, I determined that the claimant was a disabled person as defined by section 6 Equality Act 2010. The disability began in April 2021 and was continuing at the time of the hearing. She is therefore a disabled person at the relevant times for the purposes of her claim.[21]Turning to the PTSD issues, it is agreed between the parties that this is capable of being a disability. I found as follows in response to the four conditions:a. The impairment condition. The claimant has a mental impairment which is PTSD. This condition is therefore satisfied.b. The adverse effect condition. The impairment prevented her from socialising due to panic attacks. The medication she took should be disregarded but in any event the adverse effect has continued, notwithstanding her medication. Socialising is a day-to-day activity which she enjoyed before developing PTSD so not doing that has an adverse affect on her ability to carry out normal day-to-day activities. This condition is therefore also satisfied.?c. The substantial condition. This adverse effect is more than minor or trivial and so is substantial, so satisfying this condition.d. The long term condition. The Tribunal has found that the start date of the PTSD was 25 August 2021. The latest diagnosis is 4 April 2023. By having lasted for over 12 months, it has satisfied the long term condition.[22]As the claimant has satisfied each of these conditions in relation to her PTSD issues, I determined that the claimant was a disabled person as defined by section 6 Equality Act 2010.[23]I have determined that the disability began on 25 August 2021 and was still continuing in April 2023. She is therefore a disabled person at the relevant times for the purposes of her claim.[24]Accordingly the Tribunal determined that at the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of first mobility issues arising from the lower back and right knee and secondly Post Traumatic Stress Disorder. As a result, her complaints of discrimination arising from disability, harassment relating to disability and failure to make reasonable adjustments can therefore proceed[25]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 5 to 11; a concise identification of the relevant law is at paragraphs 12 to 17; how that law has been applied to those findings in order to decide the issues is at paragraphs 18 to 24.