Mr D Dolan v Governing Body of Our Lady of Victories Catholic Primary School: 2215257/2023
EMPLOYMENT TRIBUNALS
Case No 2215257/2023
Between
Mr D DolanClaimantGoverning Body of Our Lady of Victories Catholic Primary SchoolRespondent
Before
Employment Judge A M SnelsonDate 16 August 2024
JUDGMENT
On hearing the Claimant in person (assisted by Mr R Bidla, friend) and Mr M Bignell, counsel, on behalf of the Respondent, the Tribunal determines that:(1) The Claimant’s complaints under the Employment Rights Act 1996 were presented out of time and the Tribunal has no jurisdiction to consider them.(2) The Claimant’s complaints under the Equality Act 2010 were presented out of time and the Tribunal has no jurisdiction to consider them.(3) Accordingly, the proceedings as a whole are dismissed.
REASONS
FOR THE JUDGMENT GIVEN ORALLY ON 16 AUGUST 2024
Introduction
[1]The Claimant, Mr Derek Dolan, who is gay, was continuously employed by the Respondent from 5 January 2011 to 31 August 2021 at Our Lady of Victories Catholic Primary School, Kensington (‘the school’), in the capacity of Site Manager. The employment ended with his resignation. By a claim form presented on 4 October 2023, he brought complaints against the Respondent of unfair dismissal, discrimination because of, and harassment related to, sexual orientation, and unauthorised deductions from wages. All claims were resisted on their merits and on the jurisdictional ground that they had been presented out of time.[2]The matter came before me in the form of a preliminary hearing held in public by CVP to determine(a) any application that might be made for amendment of the claim form and(b) whether any claim had been brought out of time. The Claimant attended in person, with a friend in support. The Respondent was represented by Mr Matthew Bignell, counsel.[3]The Claimant made no application for amendment of the claim form.[4]I heard evidence from the Claimant, who produced a witness statement (although the document was a mixture of factual evidence and argument and nearly all of both was devoted to the substantive merits of his claims rather than the delay in bringing them). He was cross-examined by Mr Bignell.[5]A bundle of 86 pages was produced.[6]Having heard evidence and argument from both sides, I gave a reasoned oral judgment dismissing all claims on the grounds that they had been brought out of time and so were outside the Tribunal’s jurisdiction.[7]By an email dated 20 August 2024 the Claimant asked the Tribunal whether he could appeal against my judgment. He was notified that I would treat his message as a request for written reasons, which would follow in due course.[8]I regret that there has been some delay in producing these reasons. This is attributable to the extreme pressure of work within the Employment Tribunal system and the need to prioritise the preparation of judgments and reasons in cases in which the parties are awaiting outcomes.
The applicable law
[9]By the Employment Rights Act 1996, s111(2) a complaint of unfair dismissal must be brought ‘before the end of the period of three months ending with the effective date of termination, or 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.’ The same test applies to claims for unauthorised deductions from wages (s23(2)).[10]The case-law demonstrates that the ‘not reasonably practicable’ test sets a high standard. It has been characterised as a test of reasonable feasibility (see Palmer v Southend-on-Sea BC [1984] EWCA Civ JO119-3).[11]The discrimination and harassment claims are brought under the Equality Act 2010. By s123(1) such claims ‘may not be brought after the end of … the period of three months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable’.[12]Here, the Tribunal is invested with a broad discretion to admit claims brought outside the primary three-month period. That said, the period is jurisdictional and it is for a claimant to justify any ‘just and equitable’ extension. The exercise of the power to substitute a longer period than the ‘default’ three months should be seen as the exception, not the rule (Robertson v Bexhill Community Centre [2003] EWCA Civ 576). The facts - a simple narrative[13]The Claimant gave notice of resignation on 21 July 2021, expiring on 31 August 2021.[14]At an exit interview with Fr James Curry on 7 September 2021 the Claimant raised concerns about the treatment which he had received during his time at the school. These were later set out in a written grievance which contained serious allegations of unfair, oppressive and discriminatory behaviour directed against him over an extended period.[15]The Respondent commissioned Mr Reg Davies, formerly Head of Employee Relations at a London local authority, to carry out an investigation into the Claimant’s complaints. He carried out what appears to have been a detailed investigation (involving interviews with 15 individuals), following which he issued a report, upholding some allegations and rejecting others.[16]Fr Curry wrote to the Claimant on 28 January 2022 advising him of Mr Davies’s findings and of the fact that the Respondent intended to implement certain recommendations which he had made. He also offered the Claimant the right to appeal.[17]The Claimant did not appeal against the grievance outcome. But he did write to Fr Curry on 28 February 2022 expressing concerns about aspects of the investigation report and asking for financial compensation.[18]In light of the Claimant’s representations, and in particular his concerns about treatment based on his sexual orientation, the Respondent commissioned Mr Matthew Sellwood, a barrister specialising in employment law, to conduct a further investigation focussing particularly on that aspect of his complaints.[19]Mr Sellwood interviewed 10 individuals and produced a detailed report on 21 July 2022. He did not uphold the Claimant’s allegations but did make a number of recommendations intended to improve systems and practices at the school.[20]On 12 August 2022 Fr Curry wrote to the Claimant confirming the outcome of the Sellwood investigation. The Claimant did not respond.[21]On 14 April 2023 a trade union representative, Mr Tom Swanbury, wrote to Fr Curry on the Claimant’s behalf to inquire about steps taken to address the issues which had been raised in the grievance. Fr Curry responded on 9 May 2023.[22]Mr Swanbury wrote again to Fr Curry on 2 June 2023 raising the subject of some alleged underpayments in respect of overtime worked by the Claimant. Fr Curry responded on 22 June 2023, setting out the Respondent’s position in relation to the complaint of underpayment.[23]As already mentioned, the claim form was presented on 4 October 2023. Further facts and findings[24]The Claimant had the support of his trade union throughout the period from 2019 until 27 September 2023, when he received a final message saying that the union could not support a legal claim.[25]In particular, the trade union supported the Claimant before and through the exit interview, the two investigations and the subsequent correspondence to which I have already referred.[26]At the time of his resignation, the Claimant had no experience of Employment Tribunal litigation and did not know about applicable time limits. He told me that he did not ask the trade union to advise him on time limits but expected it to volunteer appropriate advice.[27]Asked if he had carried out any research of his own concerning Employment Tribunal procedure, time limits and the like, he told me that he had to an extent. But not to the extent of acquiring an understanding of the rules and how they worked. Here the Claimant’s evidence was so vague and uncertain as to be largely worthless. Apart from anything else, he was unable to say when he thought that he had made these inquiries. I find that if, as he alleges, he did attempt some research on his own, it is not credible that he did not chance upon the basic information that the standard time limit for bringing Employment Tribunal claims is three months from the date of the relevant act or omission.[28]I was unable to place any confidence in the Claimant’s evidence concerning his knowledge about time limits generally. He could not tell me when, or how, he had become aware of the three-month rule. He stated that at some point he had understood that he had six years in which to bring a claim. He seemed to say that that information had come from ACAS. He did not say when. I am not able to accept that he was advised by ACAS that he had six years to bring an Employment Tribunal claim. He also mentioned that he was dyslexic and sometimes ‘takes things the wrong way’, but did not make any coherent suggestion about how he might have misunderstood any information given to him about time limits for Employment Tribunal claims. (There is some evidence in the bundle suggesting that the Claimant had at some point considered a personal injury claim but the trade union had not been willing to lend support to it. I do not discount the possibility of the Claimant being advised about a six-year time limit for a personal injury action. But that cannot help him here.)[29]When shown correspondence between him and the school in September 2022, in which he had threatened legal proceedings and been told that no payment would be forthcoming, the Claimant accepted that the obvious next step would have been to press ahead with legal action. He said that he had contacted the trade union with that in mind but that nothing had been done. He said that the union would take ‘months’ to get back to him. He was not able to produce any documentary evidence of any communication between him and the union between September 2022 and September 2023. I am not persuaded that the Claimant made any effort to institute legal proceedings during that 12 month period or to press the trade union to do so on his behalf.[30]The Claimant also told me that he had approached ‘various organisations’ for advice and that they had promised to get back to him but never done so. Again, this evidence was so vague and imprecise that I was unable to place any reliance upon it.
Conclusions
[31]In my judgment this is a very clear case. I start by reminding myself of the purpose of the Employment Tribunal jurisdiction. It is to deliver swift, practical, economical justice in employment disputes. The system of narrow, jurisdictional time limits is a crucial feature of the architecture designed to serve that end. The ‘not reasonably practicable’ test under the 1996 Act sets a particularly stern standard. In the case of claims under the 2010 Act, the Tribunal is invested with a wider discussion but again, the time limit is jurisdictional and guidance at Court of Appeal level is consistent. The exercise of the discretion should be the exception, not the rule. Moreover, the discretion if exercised leads to a fresh discretionary judgment: any ‘other period’ must itself be reasonable. In the present context, the Claimant asks for an extension out of all proportion to the primary three-month period.[32]As to the claims under the 1996 Act, I am satisfied that the Claimant was on enquiry as to his legal rights in August 2021. He had trade union support and thereby access to advice on workplace rights that might be applicable to him. If he was ignorant of his rights in the primary period, that ignorance was not, in the circumstances, reasonable. But even if I had found that it was not reasonably practicable to present the unfair dismissal and unauthorised deductions claims within the primary three-month period, the Claimant would inevitably have failed on the second part of the test. It is plain and obvious that, in the context of the primary three-month period, the further period for which the Claimant contends would be anything but reasonable. The fact that internal processes were ongoing is not in itself any good reason to hold that it was not reasonably practicable to present the claim within the primary period. And that fact self-evidently cannot justify a ‘further period’ of approximately seven times the primary period. Moreover, even if one were to excuse the delay prior to September 2022, an extension of a further year could only be seen as manifestly unreasonable. By September 2022 it was clear that the internal processes were over and that there was no prospect of a negotiated settlement with the school. The Claimant has provided simply no evidence-based excuse for the delay over the last year up to issue of proceedings.[33]Turning to the claims under the 2010 Act, I am, again, not persuaded that any extension of the primary period is justified. The Claimant had the support of his trade union. His position was clear that he had been deprived of pay, had been unfairly dismissed and had been subjected to unlawful, discriminatory treatment in his employment. I see no reason to exercise a discretion to extend time beyond the primary three-month period. If he did not know his rights, he was put on enquiry as to his rights. In any event, the ‘other period’ for which the Claimant (necessarily) contends is entirely unreasonable. The reasons given above in relation to the 1996 Act claims apply with equal force in the context of the 2010 Act claims. In exercising my discretion, I have had careful regard to all relevant considerations. The first of these is the period of delay. In my judgment, in the context of a primary statutory limitation period of three months, the delay here is enormous. Second, the reason for delay. I find that the Claimant entirely fails to demonstrate on evidence any good reason why legal action was not brought within the primary period. And even if that is too harsh view, there is, in my judgment, nothing whatever to excuse the delay between September 2022 and September 2023. Third, there is the question of prejudice. I accept that the Claimant will suffer prejudice by being excluded on a technical ground from pursuing claims which I unhesitatingly treat as sincere and meritorious. But that is the nature of any statutory, procedural bar. I agree with Mr Bignall that, were I to exercise my discretion in the Claimant’s favour, the Respondent would face forensic prejudice. The allegations against Mrs Hodnett in particular are some four years old. This is not a case in which contemporary documentary evidence would assist the Tribunal to do justice to stale claims. The case would turn on things said and done a long time ago and on the impression which the Tribunal would form of the workplace environment. Permitting the matter to proceed so long after the key events would entail a real risk of unfairness to Mrs Hodnett. I must have regard to the need to act justly by her no less than the Claimant.[34]For all these reasons, the preliminary issues must be determined in favour of the Respondent. Accordingly, all claims are dismissed.[35]I should add two final comments. First, there was a question whether the hearing before me should be adjourned to enable the Claimant to obtain fresh evidence. I was satisfied that it would not be proportional at all in keeping with the overriding objective to grant that application. This was the second interim hearing in these very old proceedings. The directions given by Employment Judge Smith on 24 May had been very clear. In any event, the points to which any further evidence would have gone, namely whether the Claimant received advice concerning the three-month rule shortly before 12 September 2023 or at some earlier point was not critical (I make no explicit finding on it although I found the Claimant’s evidence on this aspect satisfactory).[36]Second, I stress that my decision should not be taken as implying any view about the merits of the Claimant’s claims. I sincerely hope that the Respondent has learned valuable lessons in light of the investigations to which I have referred and the recommendations received from impartial third parties.