Mr R Wilson v National Union of Maritime and Transport Workers (RMT) and Ms S Jensen: 2214605/2023
EMPLOYMENT TRIBUNALS
Case No 2214605/2023
Between
Mr R WilsonClaimantNational Union of Maritime and Transport Workers (RMT) and Ms S JensenRespondent
Before
Employment Judge Norris, sitting with MembersMr S Brittenden (instructed by Counsel) for respondentDate 8 October 2024
JUDGMENT
[1]The Claimant’s claim is dismissed on withdrawal against both Respondents named above.[2]The Claimant is ordered to pay the sum of £10 towards the Respondents’ costs.[1]The claim was withdrawn against both Respondents in “Claim B” (the Second and Tenth Respondents in the claim overall) straight after lunch on day two of the Hearing. The Respondents immediately made a joint application for the costs of Counsel’s attendance at the Hearing in the sum of £4,000 (brief fee plus one refresher).[2]The application was made orally under Rule 76(1)(a) and/or (b) of the Rules (Schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) on the basis that the proceedings had been conducted unreasonably and that the claims stood no reasonable prospect of success. Those assertions had been made from the outset (including in the ET3) and had been repeated at intervals including, we understood, in a recent costs warning letter.[3]Following a short break, the Claimant’s response to the application through his representative Mr Fray was that evidence emerged in cross examination which demonstrated the claims were unlikely to succeed and they were promptly withdrawn. It was his case that he was not and could not reasonably have been aware of the lack of prospects until cross examination of the Respondent’s witnesses for the following reasons: a) In relation to Ms Jensen, until Mr Fray saw the email of appeal that Ms Jensen had drafted for the Claimant and emailed to him and Mr Porter on 8 February 2023, he had not appreciated that the Claimant had changed the basis of the strategy formulated by Ms Jensen to progress his appeal against dismissal. That email had not been included by either side in the bundle and was produced by the Respondent as an additional item on the morning of day one of the Hearing; b) In relation to the RMT’s refusal to give legal assistance, until it was appreciated that the Tribunal would not be considering evidence relating to the period after 14.52 on 28 February 2023, the Claimant did not know that his claim against the Union was bound to fail.[4]In relation to the first point:4.1 We observed at the beginning of the Hearing that it was apparent from the witness statements there was a single author of all three statements that had been exchanged on behalf of the Claimant. That is not to say that statements cannot be drafted by a representative or that there cannot be similarities between the evidence that different witnesses for a single party will have to give. The Tribunal is indeed very familiar with the concept and considered that it is entirely normal for a represented party to have assistance in drafting, to a greater or lesser degree.4.2 Specifically however in relation to this application, we noted at paragraph 12 of the Claimant’s witness statement, the following: “My appeal letter should be the one I have drafted and I have seen no letter drafted on my behalf by Sanna Jensen”. This was clearly incorrect insofar as the Claimant was concerned. He was the recipient of an email in which Ms Jensen forwarded appeal wording for him to send Network Rail management on a holding basis while she was on annual leave.4.3 Therefore it was clear that Mr Fray had drafted the witness statement from his own perspective and that if the Claimant read it at all before exchange, he did not do so thoroughly enough. Not only had the Claimant himself (and his witness Mr Porter) seen the draft he had been sent by Ms Jensen, he had used it, with alterations and sent it on to Network Rail. Those alterations were what had led to Ms Jensen responding that it was she and not Mr Porter who was running strategy, if she was to continue to represent the Claimant.[5]So far as the second point was concerned, on the morning of day one, the Tribunal had been at pains to understand the scope of the allegation against the RMT, and specifically the cut-off point at which the evidence should be considered. Notwithstanding that, we had invited Mr Fray to make an application on day two to amend the list of issues to incorporate the subsequent review but he had declined (on instruction from his client).[6]We made the following observations:6.1 Witness statements should contain all the evidence relevant to the issues in the case that a party can give. They should not contain speculation, hypothesis, opinion, directions to the Tribunal, details of legal advice given by the party’s representative, submissions or facts that are irrelevant to the case before the Tribunal. Background evidence is of course relevant to a point, to establish context. The contents of these witness statements however went well beyond relevance, and because they were drafted by Mr Fray and imperfectly proof-read by their supposed makers, even in the relevant evidence that they did contain, there were errors.6.2 The parties were equally to blame for not putting Ms Jensen’s original email in the bundle or indeed in the supplementary bundle (for which there should have been no need). However, the fault for Mr Fray never having seen that email lay fairly with the Claimant or indeed with Mr Fray himself for never having procured a copy. It was clear from what Ms Jensen said in the follow-up email (and in her witness statement) that her original draft did not contain references to CCTV and/or discrimination and they did not form part of her proposed strategy; and this was what had provoked her response regarding the Claimant’s ongoing representation.6.3 Mr Fray now says that that original email from Ms Jensen was the factor that led him to conclude the claim against her stood no reasonable prospect of success. Since he was on notice from the outset that that email existed, this supported the Respondent’s case that the claim against Ms Jensen was always bound to fail.6.4 As for the claim against the RMT, it appears the question on day one (about the point at which the Tribunal would assess whether there had been discriminatory conduct by the Union) had been misunderstood by Mr Fray. On day two, he was under the impression that it was the entire process that fell for consideration. However, the Tribunal had specifically confirmed before starting to hear the evidence that it was only the initial decision of 28 February 2023 that was said to have been tainted by race discrimination; that is what is clear from the list of issues, it is what is clear from the ET1 and it was clarified with Mr Fray himself as well as the Respondent’s representative. Mr Fray had also declined the invitation to make an application to extend the period under consideration even though we had given him time to formulate his arguments in that regard.6.5 By the point the initial advice was sent to the Claimant on 28 February 2023, the comparator he relied on internally, a white colleague who was not only not dismissed but was only given a written warning for what is said to be similar or the same conduct, had not had her disciplinary hearing and therefore could not have been taken into account as a proper comparator by Ms Henderson in her analysis of the Claimant’s prospects of success. To the extent that the same comparator could be taken into account, Ms Henderson had set out in her advice letter the possible permutations, which depended on outcome. There was, on the basis before us, no evidence to suggest that the reason for the RMT’s original refusal of legal assistance was race.[7]Therefore we accepted that the claims against both Respondents had no reasonable prospect of success and, further, that the manner in which the proceedings had been conducted was unreasonable. However the Tribunal cannot make a wasted costs award against a representative who is not acting for profit, as was the case here (Rule 80(2)).[8]We had considerable sympathy with the Claimant so far as his obvious dismay was concerned, that having paid his union dues and refused to cross picket lines during his long career with Network Rail, at the point when he, as he put it, put out his hand for assistance, he was rejected by his Union. He made, we accepted, a claim in good faith. 8. Nonetheless, as the Claimant should have been advised, dismay does not amount to a valid basis for a race discrimination claim. Nor does what he described as a “feeling” of race discrimination. The authorities are clear that there must be more than a difference in treatment and a difference in status. There must be an evidential basis for a claim, before the burden of proof will shift.[9]In the circumstances, we concluded that while there had been unreasonable conduct and no reasonable prospect of success in Claim B, the fault did not lie with the Claimant but with his representative. We were also mindful that costs in the Tribunal are exceptional rather than the rule and we took into account the Claimant’s limited means. We therefore ordered that he pay a contribution to the Respondent’s costs in the nominal sum of £10.[10]For the avoidance of doubt, nothing in this decision or reasons impacts directly on “Claim A”, which has already been listed against the remaining Respondents (and case management directions made) for a Hearing in September 2024.[1]The complaint of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of unfair dismissal is therefore dismissed.[2]The complaints of age and race discrimination were not presented within the applicable time limit, but it is just and equitable to extend the time limit. The complaints of age and race discrimination will therefore proceed.
REASONS
[3]The claimant has brought claims of unfair dismissal, direct age and race discrimination, and a pay claim. A final hearing of 8 days is listed starting on 14 July 2025.[4]At a preliminary hearing on 1 August 2024, this hearing was listed to consider whether the tribunal has jurisdiction to hear the claimant’s unfair dismissal and discrimination claims. The claimant accepts they were presented out of time.[5]An oral judgment was given at the end of the hearing and written reasons were requested by the claimant. Facts Relevant dates and delay
Facts
[6]The claimant was dismissed on the 6th of February 2023. The deadline for starting early conciliation was therefore 5 May 2023. The claimant undertook 10 days of early conciliation with Acas from the 21st of March to the 31st of March. This means the deadline for presenting his claim to the employment tribunal was 15th of May 2023 (three months less a day from the 6th of February plus the 10 days Acas extension).[7]The claimant presented his claim on 2 June 2023. It was around two and a half weeks (18 days) out of time. The advice the claimant received[8]The claimant received advice from his trade union that he had three months to bring a claim and that he should contact Acas by the 5th of May 2023. He followed the advice to contact Acas and started early conciliation on the 21st of March 2023.[9]The trade union decided not to take on the claimant’s case. He received a letter explaining that on 28th February 2023. The claimant contacted Mr Fray at Northamptonshire Rights and Equality Council (NREC) on 17th of April and met him on the 19th of April 2023. Mr Fray gave the claimant advice that he should conduct Acas again, which he did. He contacted Acas on the 3rd of May 2023. Mr Fray advised the claimant that he had 30 days to bring a claim. It is not entirely clear from the claimant’s evidence whether Mr Fray said he had until 3rd June or until 5th June 2023 to bring his claim, but I accept that he did tell the claimant that he had 30 days to bring a claim, and that the deadline was one of those two dates. That advice was incorrect. The claimant issued the claim on the 2nd of June 2023. Although this was out of time (the relevant date actually being 15th May 2023), it was before the deadline he had been advised.[10]The claimant obtained at least nine early conciliation certificates (EC certificates) at the beginning of this claim, referring to many different individual respondents. Most of the claims against the individual respondents have been withdrawn. He obtained a second EC certificate on 31 May 2023 for the present respondent, although this also contains the name of a non-existent company (Network Rail) and an incorrect address. The claimant was in considerable confusion over which respondent to name on the EC certificate and which address to include. None of the other EC certificates are relevant to my decision on these issues. However, it is relevant that in obtaining all the EC certificates, the claimant was actively pursuing his claim, was following the advice he had been given and was attempting to fulfil what he believed to be the legal requirements. He did this despite suffering significant stress at this time due to losing his job and a family bereavement. Mr Fray[11]Mr Fray is an Equality Officer at NREC. He provides free of charge employment and immigration advice and is the Deputy Chief Executive of NREC. He has worked there for almost twenty years. In the past NREC has had funding from the Equality and Human Rights Commission.[12]Mr Fray explained in cross examination that he had undertaken hundreds of employment tribunal cases. He estimated in response to one of my questions that in the last one to two years he had advised around 20 - 30 people on time limits in employment tribunal claims. He explained that he advises on time limits for every single case, even if NREC does not take the case on. His evidence about the work that he does, and the number of cases he has conducted demonstrated that he holds himself out as someone capable of representing an employee in an employment tribunal case.[13]Mr Fray has a degree in social sciences but no legal training. He recalled having had some training on the Equality Act when NREC had funding from the Equality and Human Rights Commission, but nothing since then. He has had no training on time limits. He said during cross examination that he had done some personal research about the law but commented that the early conciliation time limits were very complicated and lots of people get them wrong including solicitors and judges.
Law
[14]Section 111(1) of the Employment Rights Act 1996 requires that, in cases of unfair dismissal: An employment tribunal shall not consider a complaint unless it is presented to the tribunal:(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[15]Section 123(1) of the Equality Act 2010 states that: a claim: May not be brought after the end of:(a) the period of 3 months starting with the date of the act to which the complaint relates or(b) such other period as the employment tribunal thinks just and equitable.[16]In Dedman v British Building & Engineering Appliances [1974] 1 WLR 171 the Court of Appeal held that where it was a claimant’s skilled adviser’s fault that a claim was not presented in time, a tribunal will usually find it was reasonably practicable for a claim to have been presented in time.[17]In Southwark London Borough Council v Afolabi 2003 ICR 800, the Court of Appeal confirmed that the two most relevant factors to consider when considering whether to allow an extension of time on a just and equitable basis are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).[18]In Chohan v Derby Law Centre [2004] IRLR 685, the EAT referred to Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419, holding that it was just and equitable to allow a discrimination claim to proceed in the context that solicitors had provided incorrect advice.[19]In Miller and ors v Ministry of Justice and ors and another case EAT 0003/15, the EAT held that the exercise of discretion to extend time is the exception rather than the rule.[20]In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA, the Court of Appeal referred to Parliament giving employment tribunals the “widest possible discretion” in relation to extending time limits. Conclusions Unfair dismissal Is Mr Fray a “skilled advisor”?
Conclusions
[21]I have considered this question extremely carefully. Mr Fray has considerable experience in the employment tribunals over 20 years. His experience is not in doubt at all. I have considered if experienced is the same as “skilled”. In looking at this I have taken account of the fact that Mr Fray has no or very little legal training and no legal qualifications. I have balanced this against the fact that he regularly represents claimants in employment tribunal cases and that he regularly provides advice on time limits. He said he has undertaken hundreds of employment tribunal cases. He advises 20 – 30 people every one to two years on employment tribunal time limits. He holds himself out as being capable of representing claimants and advising them about employment tribunal proceedings. I have taken into account Miss Wheeler’s point that case law refers to Citizens Advice advisors and trade union advisers as “skilled advisors”. Those types of advisors are not dissimilar to Mr Fray’s role in this case.[22]I acknowledge what Mr Fray says about Acas early conciliation time limits being complicated. They can be complicated, and it is accurate to say that qualified lawyers, whatever their role, sometimes get them wrong; no one is immune from making a mistake. However, working out time limits is an absolutely crucial element of bringing an employment tribunal claim. It is therefore reasonable to expect an advisor, who holds themselves out as qualified to advise on employment matters, has the knowledge to provide advice on the crucial elements of a claim, and ensures that they are up to date and aware of the relevant legal requirements.[23]With his considerable depth of practical experience over two decades and the fact he holds himself out as capable of providing employment advice, I conclude that Mr Fray is a “skilled advisor”, despite his lack of formal legal qualifications.[24]I have applied the case of Dedman v British Building & Engineering Appliances [1974] 1 WLR 171. As I have concluded that Mr Fray is a “skilled advisor” and that it was his incorrect advice that led to the claimant submitting his claim out of time, I must also conclude that it was reasonably practicable for the claimant to bring his claim in time.[25]No evidence was presented and no arguments were made about the claimant’s potential redress against Mr Fray or NREC. Should the claimant have brought his claim in time in any event?[26]The respondent has argued that even if Mr Fray were not a skilled advisor the claimant should have brought his claim in time in any event because he had been given initial advice from his trade union about the three-month time limit. I have considered this point, but I find that it was reasonable for the claimant to rely on Mr Fray’s advice. The timeline of the claimant's actions demonstrates that he was actively seeking advice and he was following that advice. He took account of the advice from the trade union to contact Acas before the 5th of May 2023. He took account of Mr Fray’s advice to contact Acas again and he took account of that advice to put his claim in by the deadline he believed at the time to be correct. The claimant is not legally qualified. It was not suggested during the hearing that he had any experience in employment tribunal litigation. In the context of his inexperience of employment litigation, it was reasonable for him to rely on the advice of Mr Fray who was providing a service of employment representation from a reputable organisation.[27]To summarise the unfair dismissal time issue. The reason the claim was presented out of time was down to Mr Fray’s mistake. As the mistake was made by a skilled advisor it was reasonably practicable for the claimant to submit his claim in time. Therefore, no extension of time is appropriate for the unfair dismissal case which means the tribunal does not have jurisdiction to hear that claim and it is dismissed. Discrimination claims[28]I have considered Southwark London Borough Council v Afolabi 2003 ICR 800 and taken into account the factors in the Limitation Act 1980, focusing particularly on the delay and the prejudice to the respondent. Reasons for and length of the delay[29]I have set out above the reasons for the delay. The claimant believed he was complying with the time limit because he had been given incorrect advice. The delay was one of 18 days.[30]The claimant had sought advice and believed he was acting promptly and within the time limit (as above). Would there be any prejudice to the respondent in extending time on a just and equitable basis?[31]Given the delay is a matter of around two and a half weeks, there is no particular prejudice in terms of witness’ memories deteriorating, documents being unavailable and so on. The respondent says that it is inherently prejudicial to face a claim which is totally without merit. However, based on the information that I have seen and the evidence I have heard today, it is not possible for me to conclude that the claimant’s discrimination claims are without merit. I have heard no evidence about the claimant’s experiences to which he refers in his discrimination claims. Taking the claimant’s case at its highest I must therefore conclude that it has some prospect of success. Although the fact that the claimant’s claim may have some merit does not mean that time should be extended, it does not count against an extension of time.[32]The same considerations regarding a skilled advisor do not apply to a just and equitable case. When considering such a case, a tribunal should not necessarily attribute the fault of the advisor to the claimant (Chohan v Derby Law Centre [2004] IRLR 685). In this case, given the claimant had no litigation experience and was diligently following the advice of his skilled advisor, it would not be just to penalise him for that advisor’s mistake.[33]Therefore, regarding the just and equitable extension of time: the length of the delay is short, the reasons for the delay are connected to a mistake not of the claimant’s making; the claimant reasonably followed advice he was given to attempt to present his claim on time, despite it being a time of considerable stress for him due to the loss of his job and a bereavement; the prejudice to the respondent is small. It is therefore just and equitable to extend the period for the claimant to present his claim to 2nd of June 2023. The age and race discrimination claims proceed to the final hearing.