Ms Y Wu v Bank of Taiwan, London Branch: 2214037/2023

EMPLOYMENT TRIBUNALS

Case No 2214037/2023

Between

Ms Y WuClaimant

Bank of Taiwan, London BranchRespondent

Before

Employment Judge Anthony

In person for claimant

Ms H Curtain (instructed by Counsel) for respondent

Date 22 October 2024

REASONS

[1]The claimant commenced employment with the Respondent on 26 April 2011 as an Assistant Banking Officer. The claimant then advanced to the position of Deputy Manager, effective from 1 August 2018. The claimant’s effective date of termination was 9 March 2023. The claimant notified ACAS of her prospective claim on 23 June 2023. The Early Conciliation Certificate was issued on 1 August 2023. The claimant’s ET1 claim form was presented on 23 August 2023.

Background

[2]On 22 August 2024, Employment Judge E Burns ordered that the full hearing due to commence on 22 October 2024 be vacated. Instead, Employment Judge E Burns ordered there be a one-day preliminary hearing to consider if the claimant's claims have been brought in time.

[3]In addition, Employment Judge E Burns indicated that if the claim survives, it is likely to be helpful to discuss the basis on which the claimant is seeking to bring her claims of associative disability discrimination under section 15 and section 19 of the Equality Act 2010 and whether any adjustments need to be made to the list of issues to reflect the recent EAT decision in the case of British Airways plc v Rollett and ors (Minister for Women and Equalities intervening)

[2024] EAT 131

The Hearing

[4]The claimant gave evidence on her own behalf. The respondent relied on the evidence of two witnesses, Ms Nickie Lu and Mr Peter Roughneen.

[5]The Tribunal was provided with: a) Preliminary Hearing bundle – 276 pages; b) Witness statement bundle – 22 pages.

The Issues

[6]The issues before the Tribunal are as follows: Time limits 1. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2 If not, was there conduct extending over a period?

1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.4.1 Why were the complaints not made to the Tribunal in time?

1.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Were the unfair dismissal and breach of contract claims made within the time limits in the Employment Rights Act 1996 and the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994? The Tribunal will decide:

2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination/ act complained of?

2.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

2.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? Relevant Law Unfair Dismissal

Relevant Law

[7]A claim of unfair dismissal under section 111(2) of the Employment Rights Act 1996 must be brought before the end of the period of three months beginning with the ‘effective date of termination’, subject to the possibility of an extension if it is ‘not reasonably practicable’ for the claimant to meet this deadline. Breach of Contract

[8]The provisions in relation to time limits for bringing a breach of contract claim are contained within Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The normal time limit is within 3 months beginning with the ‘effective date of termination’. The same test of ‘reasonably practicable’ applies. ‘Not reasonably Practicable’ Extension

[9]An extension of time may be granted by the Tribunal to validate a late complaint if the Tribunal is satisfied that it was “not reasonably practicable for the complaint to be presented before the end” of the three-month period. The complaint must nevertheless have been presented “within such further period as the Tribunal considers reasonable” in order for an extension to be granted.

[10]If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will not have been reasonably practicable for them to bring the claim in time (see Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

at paragraph 12, per Underhill LJ). However, in assessing whether the ignorance or mistake is reasonable, it is necessary to take into account any enquiries which the claimant or their adviser should have made. The test of reasonable practicability is one of fact.

[11]The onus of proving that presentation in time was not reasonably practicable rests on the claimant. That onus imposes a duty upon the claimant to show precisely why it was that they did not present the complaint (Porter v Bandridge Ltd

1978 ICR 943

, CA). Accordingly, if the claimant fails to argue that it was not reasonably practicable to present the claim in time, the Tribunal will find that it was reasonably practicable (Sterling v United Learning Trust EAT 0439/14).

[12]If it is not reasonably practicable to present a claim in time, the Tribunal may allow an extension of time of such further period as it considers reasonable. There is no fixed limit, and each case must be considered on its facts in the light of the employee's explanation for the delay (Marley (UK) Ltd v Anderson

[1996] IRLR 163

, CA and Howlett Marine Services Ltd v Bowlam

[2001] IRLR 201

). Discrimination Complaints

[13]The law in respect of time limits for discrimination complaints is set out in section 123(1)(a) of the Equality Act 2010. A discrimination complaint must be brought before the end of the period of three months beginning with the date of the act to which the complaint relates. Alternatively, it should be brought within such other period as the Tribunal thinks ‘just and equitable’ (section 123(1)(b) of the Equality Act 2010).

[14]To establish whether a complaint of discrimination has been presented in time, it is necessary to determine the date of the act complained of, as this sets the time limit running. The discretion for Tribunals to hear out-of-time claims within whatever period they consider to be ‘just and equitable’ is broader than the discretion to allow late claims to proceed where it was not ‘reasonably practicable’ to present the claim in time and then only if the claim was presented within a reasonable time thereafter.

[15]In Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA, the Court of Appeal noted that, because of the wide breadth of the discretion given to Tribunals to proceed in accordance with what they think is just and equitable, there is very limited scope to challenge the exercise of that discretion on appeal. An appellate court or tribunal should only disturb the Employment Tribunal’s decision if it erred in principle (for example, by failing to have regard to a factor that is plainly relevant and significant or by giving significant weight to a factor that is plainly irrelevant) or if the Tribunal’s conclusion is outside the very wide ambit within which different views may reasonably be taken about what is just and equitable. A Tribunal’s decision to extend or not to extend a time limit can also be challenged where it fails to give adequate reasons (Madhavan v Great Western Hospitals NHS Foundation Trust EAT 0200/16). Findings of Fact ‘Not reasonably Practicable’ Extension Breach of Contract - Failure To Pay Bonus For 2022

Findings of Fact

[16]The relevant date for the alleged breach was 15 June 2023. The respondent concedes that no time limit point arises. I find the time limit is met in respect of the complaint of breach of contract (failure to pay bonus for 2022). The complaint of breach of contract (failure to pay bonus for 2022) can therefore proceed. Unfair Dismissal and Wrongful Dismissal/ Notice Pay

[17]Although the claimant disagrees as to how and why her employment contract was terminated, she accepts in her oral evidence that the respondent did terminated her contract of employment on 9 March 2023.

[18]I find from her oral evidence and her ET1 claim form that she was employed by the respondent from 26 April 2011 until 9 March 2023 when her employment ended. I have also considered the email correspondence between the claimant and the General Manager, Spencer Tsao dated 2 March 2023. I find the claimant resigned on 2 March 2023 and her resignation was accepted by the General Manager the same day (page 269). I find the claimant was asked to confirm her annual leave days on 2 March 2023 and she confirmed the same day that her annual leave “looks fine” (page 272). On 3 March 2023, HR confirmed to the claimant that her salary will be paid until 9 March 2023 and that her employment contract will be terminated at the same time.

[19]I find the claimant did not, at the time, disagree with the termination of her employment. I find there are no further correspondence between the claimant and the respondent in the immediate aftermath of these emails to suggest the claimant voiced any disagreement with, either the termination of her employment contract, or the date of termination. The claimant’s case now is that she was entitled to 3 months’ notice and therefore, her employment should have been terminated on 2 June 2023.

[20]I find the claimant did not say in her resignation email to the respondent that she wished to resign with notice. If this was what she wanted, it is unclear why the claimant did not say so. I have been given no explanation as to why the claimant did not say this in her email on 2 March 2023 when she was asked to confirm her annual leave days. Furthermore, the claimant had a further opportunity to voice any objections and to state she wished to resign with notice when HR emailed her on 3 March 2023 to confirm that her employment contract will be terminated on 9 March 2023. I find that employees are normally required to work their notice period. I find the claimant did not offer to work her notice period and furthermore, she did not ask for notice pay.

[21]I do not accept the material date when the contract of employment was terminated was 2 June 2023. I find from the claimant’s oral evidence and the ET1 claim form that the claimant at the time in question, and at the time of completing the ET1 claim form, was of the belief her employment terminated on 9 March 2023. This is because she was not in a position to return to work as required by the respondent. I find her employment was terminated on 9 March 2023. The 3 month time limit accordingly runs from 9 March 2023 and expired on 8 June 2023.

[22]The time limit to bring a claim in the Employment Tribunal for unfair dismissal is three months from the effective date of termination of the employment. I find the claimant had until 8 June 2023 to bring a claim for unfair dismissal and wrongful dismissal.

[23]The claimant states that she did not realise she could bring a claim until 23 June 2023 after she spoke to ACAS. She states the event which prompted her to seek advice from ACAS was the non-payment of the bonus which she anticipated she would have received on 15 June 2023. I find this event does not explain why it was not reasonably practicable to seek advice or carry out research before 8 June 2023.

[24]I find the claimant did not begin ACAS conciliation proceedings until after the end of the three-month period. Given ACAS conciliation proceedings did not commence until after the expiry of the time limit in which to bring the claim, the ACAS conciliation proceedings do not extend time during the conciliation proceedings. The claimant’s claim was presented to the Tribunal on 23 August 2023. I find the claim is therefore out of time by over two months.

[25]I have considered whether it was reasonably practicable for the complaint to be presented before the end of the three-month period. In her oral and written evidence, the claimant describes her daily routine of being a carer to her mother. The claimant states that at that time, it was extremely challenging for her to focus on how she had been mistreated by the company. The claimant states that being physically located in Taiwan made it practically impossible for her to seek advice or pursue any claim. She also states that her priority was solely on her mother’s care.

[26]There is no dispute the claimant was a carer for her mother and that naturally, her focus would be on her mother’s care. However, I find that even during those periods, there would have been pockets of time when the claimant could have tended to this matter, for example when her mother was asleep. The claimant’s evidence is that she was unaware that she had been dismissed and that is why she did not think about it. I find the issue is not whether the claimant did or did not have time to bring a claim due to her caring responsibilities. The issue is whether the claimant had the requisite knowledge. I find from the claimant’s oral evidence that she took no steps prior to 8 June 2023 because of her own ignorance.

[27]The claimant states that being physically located in Taiwan made it practically impossible for her to seek advice or pursue any claim. I find it was open to the claimant to search for information on the internet. I find her physical location was not an impediment to carry out basic research on the internet. I find it is reasonable to expect the claimant to have undertaken some enquiries between 9 March 2023 and 8 June 2023 to ascertain any time limits in which to bring a claim and to act on those enquiries if she was genuinely aggrieved about the termination of her employment. The fact the claimant chose not to take action, either to ascertain any time limits, or to bring a claim, does not assist her in demonstrating that her ignorance regarding the termination of her employment is reasonable. I find that even during this period when she had caring responsibilities, it would have been reasonably practicable for the claimant to carry out some basic internet research to appraise herself of any time limits if she genuinely felt mistreated.

[28]Having regard to all of the circumstances, I conclude that it was reasonably practicable for the complaint to be presented before the end of the three-month period. I find the claimant has provided no good reason for why it was not reasonably practicable for her to present her claim before the end of the three month period. I therefore refuse to extend time. I find the Tribunal does not have jurisdiction to deal with the unfair dismissal and breach of contract (notice pay) complaint because it is out of time. The complaint of unfair dismissal and breach of contract (notice pay) is therefore dismissed. ‘Just and Equitable’ Extension Discrimination arising from disability (Section 15 of the Equality Act 2010)

[29]The respondent concedes the time limit is met in respect of the complaint of unfavourable treatment because of something arising in consequence of a disability. The complaint of unfavourable treatment because of something arising in consequence of a disability can therefore proceed. Indirect Discrimination (Section 19 of the Equality Act 2010)

[30]The same time limit applies to the claim of indirect discrimination. I find the claimant had until 8 June 2023 to bring the claim of indirect discrimination. I have considered whether it is just and equitable to extend time.

[31]The onus is on the claimant to persuade the Tribunal that this criterion is met. I find the claimant has not explained why it would be just and equitable to do so. I find that ignorance of the ability to bring a claim and the time limits, of its own and without more, is wholly insufficient to meet the just and equitable test.

[32]The claimant states she was mistreated by the respondent. I find it was open to the claimant to carry out a basic search for information on the internet on how to address the perceived mistreatment. The claimant also states that she did not know she was dismissed and therefore did not know she could bring a claim. I find the claimant’s evidence to be inconsistent. Even if the claimant was unaware of her specific rights pertaining to dismissal under the Employment Rights Act, it is her evidence that she felt she had been mistreated by the respondent. I find it is reasonable to expect the claimant to have undertaken some enquiries between 9 March 2023 and 8 June 2023 to ascertain any time limits in which to bring a claim and to act on those enquiries if she was genuinely aggrieved about the way she had been treated by the respondent. The fact the claimant chose not to take action, either to ascertain any time limits, or to bring a claim, does not assist her in demonstrating that it is just and equitable to extend time because of her ignorance.

[33]I have also considered the underlying merits of the indirect discrimination claim which, in order to succeed, essentially requires the Tribunal to find that the respondent was not justified in requiring employees not to remain indefinitely on paid leave. I find that there could not be a basis for such a claim.

[34]On the basis of the facts as presented by the claimant, I find there is no evidential material on which this Tribunal could properly exercise its discretion to extend time. I conclude the claimant has failed to discharge the burden of proof to demonstrate it was just and equitable to extend time. The indirect discrimination claim is therefore dismissed. Statement of Employment Particulars or Statement of Changes

[35]The respondent concedes there are no time limit issues in respect of the complaint of failure to provide a written statement of employment particulars or of a change to those particulars. The complaint can therefore proceed.