S Kejriwal v OANDA Europe Ltd and others: 2217523/2023
EMPLOYMENT TRIBUNALS
Case No 2217523/2023
Between
Saurabh KejriwalClaimantOANDA Europe Ltd and othersRespondent
Before
Employment Judge BuntingIn person for claimantMr S Way (instructed by counsel) for respondentDate 20 August 2024
JUDGMENT
[1]The Claimant’s complaints against the second, third, fourth and fifth respondent are dismissed as being out of time (s123 Equality Act 2010).[2]At the relevant times the Claimant was a disabled person as defined by section 6 Equality Act 2010.
REASONS
[1]This case was listed for a preliminary hearing on 20 August 2024 to determine a number of issues as follows: 1.1.1. Whether the claims against the second to fifth respondent were out of time. 1.1.2. Whether the claimant is disabled within the meaning of the Equality Act 2010. PHCM Order (NEW August 2020) 1 of 13 August 2020 1.1.3. Whether the victimisation claim should by struck out as there is no reasonable prospect of success (on the basis that the two protected acts were not qualifying disclosures. 1.1.4. Whether, if the victimisation claims should not be struck out, a deposit order should be made.[2]In the event, there was not sufficient time to resolve 1.1.3 or 1.1.4, and those issues have been adjourned (along with other case management directions) until a further case management hearing on 07 November 2024.[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under rule 46. The parties agreed to the hearing being conducted in this way. There were no issues relating to connectivity during the hearing.[4]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net.[5]There was an agreed hearing bundle of documents of 201 pages of PDF, and bundle of authorities of 129 pages as well as a three page letter of support for the claimant from the Centre for ADHD & Autism Support.[6]In addition, there were 14 pages of written submissions from Mr Way.[7]The claimant had previously requested adaptations: My mind only works in lay language. As soon as I put it into legal language like acts and detriments and consequences, I lose all focus and it becomes foreign to me, and I even have trouble explaining what transpired. Same goes for the Tribunal's and my solicitor's instructions - I do have trouble understanding what they mean since these formats are not accessible for me, but I'm still trying my best. PHCM Order (NEW August 2020) 2 of 13 August 2020 This is normal for ADHD people. Unfortunately the neurotypical world is often not cognizant of the challenges we have, and see our presence as a giant inconvenience, which in many ways is also what this case is about. My ADHD coach has assured me that asking to break down complex legal language into accessible language is a reasonable adjustment I can ask for. I respectfully request the Tribunal’s patience and understanding should I get any legal terminology confused or wrong. I bore these in mind during the hearing.[9]I read the bundle, and heard evidence from the claimant on his own behalf in relation to the question of time limits. Following that, I heard submissions from the claimant and from Mr Way.[10]I then gave an oral judgment in which I found that, in relation to the second to fifth respondents, the claims were out of time and that time should not be extended. For that reason, the claims were dismissed.[11]Subsequently, the claimant has requested written reasons for the decision, which I set out below.[12]Following that, I heard evidence from the claimant, and submissions from him and Mr Way, on the question of whether the claimant had a disability for the purpose of s6 Equality Act 2020.[13]I then gave an oral judgment in which I found in favour of the claimant on this issue.[14]There has not been any request for written reasons in relation to that decision (or part of the decision). PHCM Order (NEW August 2020) 3 of 13 August 2020[15]The terms of r62 Employment Tribunal Rules of Procedure 2013 are unclear as to whether the request for reasons by the claimant should be taken as a request for both decisions that were heard on the day[16]The relevant part of the rule reads : 62.—(1) The Tribunal shall give reasons for its decision on any disputed issue, whether substantive or procedural (including any decision on an application for reconsideration or for orders for costs, preparation time or wasted costs). (2) In the case of a decision given in writing the reasons shall also be given in writing. In the case of a decision announced at a hearing the reasons may be given orally at the hearing or reserved to be given in writing later (which may, but need not, be as part of the written record of the decision). Written reasons shall be signed by the Employment Judge. (3) Where reasons have been given orally, the Employment Judge shall announce that written reasons will not be provided unless they are asked for by any party at the hearing itself or by a written request presented by any party within 14 days of the sending of the written record of the decision. The written record of the decision shall repeat that information. If no such request is received, the Tribunal shall provide written reasons only if requested to do so by the Employment Appeal Tribunal or a court.[17]It seems to me that on the 20 August 2024 there were two disputed issues that were decided (the time limits and the question of disability). Whilst they were heard on the same day, they were heard sequentially.[18]In those circumstances, I have produced written reasons below relating to the question of time limits, as being the decision that the claimant does not agree with. If requested (by the claimant and/or the respondent) then written reasons for the disability claim can be produced. PHCM Order (NEW August 2020) 4 of 13 August 2020 FACTUAL BACKGROUND AND SUMMARY OF EVIDENCE[19]The claimant was employed by the first respondent as a Senior Copywriter from 01 March 2023 to 31 August 2023. The respondent is an online currency trading company.[20]The second to fifth respondents are all employees of the first respondent. There was an initial six month probationary period, during which time he was managed by the third respondent. The second, fourth and fifth respondents were all working for the first respondent in one capacity or another.[21]The claimant seeks to bring a number of claims relating to his claimed treatment by the respondent. This includes a claim for discrimination on the grounds of disability.[22]The claimant says that he has the following disabilities: ADHD (Attention Deficit Hyperactivity Disorder), anxiety and depression. In addition, he states that he now diagnosed with ASD (Autism Spectrum Disorder), although he was not aware of that at the time, and does not seek to rely on it for this claim.[23]He states that these disabilities impact on him in a number of ways which he set out in a Disability Impact Statement, and elaborated on at the hearing. Timings[24]The relevant time periods for the five respondents are as follows (the first date being the date of the receipt by ACAS of notification of the claim, and the second date being the date of issuing of the certificate):• First Respondent: OANDA Europe Limited – 04 October – 15 November• Second Respondent: Catherine Collingwood• Third Respondent: Peter Ashton – 02 December-04 December 2023• Fourth Respondent: Bhumii Shah– 02 December-04 December 2023• Fifth Respondent: Agata Puchalska – 02 December-04 December 2023 PHCM Order (NEW August 2020) 5 of 13 August 2020[25]The claim form was issued on 14 December 2023.[26]The claimant was dismissed on 23 August 2023. Three months from that date is 22 November 2023. The Law Time limits
The Law
[27]The normal time limit for presenting all the claims that the claimant seeks to bring is as set out in section 123 of the Equality Act 2010.[28]Section 123(1)(a) provides that a tribunal shall not consider a claim unless it is presented before the end of the period of three months beginning with the date of the matter complained of.[29]Section 123(1)(b) provides an exception in that the tribunal can consider a case where the claim was made within such a further period that the tribunal thinks is ‘just and equitable’.[30]The normal time limit is extended by section 140B of the Equality Act 2010 to take account of the obligation to enter into early conciliation facilitated by ACAS.[31]In order to determine how the normal time limit will be extended by early conciliation, it is first necessary to identify Day A and Day B and then apply the extensions in section 140B(3) and 140B(4) accordingly. They are defined in section 140B(2). Day A is the day on which the prospective claimant initiates the early conciliation process and Day B is the date of the EC certificate issued when the process is concluded.[32]The extension under section 207B(3) applies in every case. It operates to "stop the clock" during the period in which the parties participate in Early Conciliation as it provides that in working out when a time limit expires, the period beginning with the day after Day A and ending with Day B is not to be counted. PHCM Order (NEW August 2020) 6 of 13 August 2020[33]It is for the claimant to show that it is just and equitable to extend time (Robertson v Bexley Community Centre, t/a Leisure Link, 2003 IRLR 434, CA).[34]In assessing this, there are no specific factors to consider set out in the legislation. I have regard to the factors in s33 Limitation Act 1980, but am not to treat this as a checklist to be followed in employment cases (Southwark LBC v Afolabi, 2003 ICR 800, CA and Abertawe Bro Morgannwg University Local Health Board v Morgan, 2018 ICR 1194, CA).[35]I shall set out s33(3) Limitation Act 1980: In acting under this section the court shall have regard to all the circumstances of the case and in particular to—(a) the length of, and the reasons for, the delay on the part of the plaintiff;(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A, by section 11B or (as the case may be) by section 12;(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which PHCM Order (NEW August 2020) 7 of 13 August 2020 the injury was attributable, might be capable at that time of giving rise to an action for damages;(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.[36]There is no requirement to show exceptional circumstances (Pathan v South London Islamic Centre, EAT 0312/13). Analysis and Conclusion Time Limits[37]It was agreed that the claimant was dismissed on 23 August 2023, which would be the last date of any act complained of in relation to the first Respondent.[38]As Mr Way pointed out, there are different time limits for different respondents as they were all alleged to have taken different actions at different times. It may be, therefore, that there could be a different conclusion in relation to each of them.[39]I indicated that I would take 23 August 2023 as a starting point for each of them and, if I considered that on that basis I would extend time, I would then go back and consider each individual respondent’s case on its own merits.[40]The effect of the time limit means that any claim must have been brought by 22 November 2023. Here, ACAS were not approached until 2 December 2023. Even then, the claim form was not lodged until 14 December 2023.[41]It must be noted that the claim against the first respondent was contemplated as early as 04 October 2023, as that was when the ACAS process was initiated.[42]The test for an extension gives a wide discretion. However, it is not open-ended, and I remind myself that it is for the claimant to show that it is just and equitable to extend time. PHCM Order (NEW August 2020) 8 of 13 August 2020[43]In deciding this, I take all the factors that the claimant has raised into account. I consider that the s33 factors are a useful starting point, although they are not a formula to be applied, nor is it a ‘checklist’.[44]I also remind myself of that fact that I am not looking at whether the case is an exceptional one, I am applying the test as set out in the statute.[45]Here, the length of the delay is a relatively short one; approximately two weeks at the most.[46]Against that, the claimant was aware of the cause of action against the individual respondents before then as can be seen by the fact that he contacted ACAS by 4 October 2023 about his case.[47]The question of prejudice is an important one. In one sense it could be said that in relation to any particular individual respondent there is very little prejudice as the extra delay of a couple of weeks would not make any difference to their recollection, or to the documents that are available to them.[48]In addition, the Tribunal hearing the case against the first respondent will inevitably look at the points that are raised against those individual respondents.[49]Against that is the fact that, as Mr Way said, the claim will carry on anyway. All the issues that the claimant wishes to raise against the second to fifth respondents will be litigated, and conclusions made on the allegations. If any or all of those individual respondents have behaved wrongly, then this will be ventilated and findings made.[50]It could be said, and I do not underestimate the importance of this, that the lack of individual liability in the Tribunal may mean a lack of accountability. I do take that into account, and therefore do not accept Mr Way’s argument that there is no difference, but the fact remains that the claimant will (if his case is correct) get some satisfaction. PHCM Order (NEW August 2020) 9 of 13 August 2020[51]Considering the other potentially relevant factors, it was not suggested that the respondent had contributed to any delay on the claimant’s part. Nor was it suggested that any of the respondents had misled the claimant in any way to suggest that he could only start proceedings against a corporate respondent.[52]The claimant relies on his medical condition as part of his explanation for the delay. There is some medical evidence, and it is accepted that the claimant has ADHD (and is now diagnosed with ASD, although that diagnosis was not available at the time).[53]However, in relation to his mental state at the time, the claimant was taken to a medical report from 03 December 2023 (Dr Sreedan, page 77 bundle), which was contemporaneous with the events in question. In this, the claimant stated that he had no feeling of self-harm or suicidal ideation, as opposed to his evidence at the hearing.[54]The claimant’s evidence was that he would generally say this to a doctor at the beginning of any interview. I do not accept that the claimant would generally lie to a medical professional in such a way. That medical evidence is the best evidence of his state of mind at the time.[55]In any event, the claimant’s evidence was that his mental state would fluctuate during the course of the day, and certainly over the course of a week. There would be good points and bad points and, whilst there may have been times when he would have been unable (or at least found it difficult) to sit down and organise his thoughts to take the case forward, there would have been a number of occasions when he could have done so.[56]In those circumstances, I do not consider that the medical evidence provides a proper explanation for the delay.[57]In early October 2023, the claimant was able to contact ACAS with a view to bringing a claim against the first respondent. At that point (or shortly afterwards) PHCM Order (NEW August 2020) 10 of 13 August 2020 he was aware of the time limits applicable in his case, and the need to act quickly. This can be seen by the timetable in relation to the first respondent.[58]The claimant states that he was not aware until late in the process (and close to the deadline) that he could bring a claim against an individual. I do not consider that is has been satisfactorily explained why this was the case.[59]If anything, it would appear to be more natural to a potential claimant that the individual who had wronged him, rather than the company, who would be at fault, and that the claim would more naturally be brought against an individual who was actually at direct fault for any particular wrong.[60]As stated, I consider the s33 factors in the Limitation Act 1980:(a) the length of the delay is approximately two weeks, which is significant, but not particularly long. However, for the reasons above, I do not consider that the delay has been adequately explained.(b) I do not consider that the delay would have caused any evidential difficulties to the respondent.(c) There is nothing in the conduct of any of the respondents after the cause of action arose that is of relevance.(d) As set out above, whilst the claimant had ADHD, and would have been affected by ASD, I do not consider that this provides an explanation for the delay. Nor does it suggest that it is more likely than not that he would not have been able to proceed against the individual respondents.(e) This is related to the above, but the claimant was aware throughout, or could have found out had he made enquiries, that there was (on his account) a cause of action against all the respondents. PHCM Order (NEW August 2020) 11 of 13 August 2020(f) We have limited medical evidence, as noted. Whilst the claimant did not get legal advice, he did do an amount of research into his case and how to bring a claim. He was able to put together a claim against the first respondent and set out why liability attached to it. In addition, the claimant was able to ‘get his head around’ what are fairly complicated questions of law in relation to the Equality Act, and comply with the time limits against the first respondent. In those circumstances, whilst he may not have had legal advice, he had certainly undertaken sufficient research to have realised that he could have brought claims against the individual respondents.[61]Drawing the above together, the most significant points in the claimant’s favour is that there is a relatively short period of delay and a lack of evidential prejudice to the respondents.[62]Against that, the claimant either was, or should, have been aware of the fact that he could bring claims against the individual respondents. Further, if he is not permitted to bring those claims, then there is very little prejudice to him given that the claim will proceed against the first respondent. Whereas there is a real difference for the second to fifth respondents between them being a witness versus being a named respondent.[63]On balance I do not consider that the claimant has shown that it would be just and equitable to extend time.[64]To the extent that there is an application to amend the claim to add the second to fifth respondent, that is refused. It was not made in writing and raised at the hearing for the first time.[65]More significantly, it is effectively raises the same issue and I do not consider that I could properly conclude that the claim be amended at this stage in light of my conclusions on the respondent’s application. PHCM Order (NEW August 2020) 12 of 13 August 2020
Conclusion
[66]My decision is therefore that the claims against the second, third, fourth and fifth respondent were not brought in time, and it is not just and reasonable to extend time.
Introduction
[1]At a preliminary hearing on 20 August 2024 the claimant’s claim against the second to fifth defendants were dismissed as being out of time in an oral judgment given on the day.[2]The claimant subsequently requested written reasons and, following receipt of those, applied for reconsideration for reasons set out in an email dated 16 September 2024. However, this email was not received by me until 02 October 2024. PHCM Order (NEW August 2020) 1 of 5 August 2020[3]In addition, the claimant has applied in the same document (under r34) to amend the claim by adding the second to fifth respondents as parties. This claim was made orally at the hearing, but I refused the application to amend. Reconsideration Principles of Reconsideration[4]With an application for reconsideration, as at any stage in the proceedings, the tribunal must give effect to the overriding objective found at Rule 2 Employment Tribunals Rules of Procedure 2013. This says: “2 - The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[5]Rule 70 provides a power to confirm, vary or revoke a judgment. This provides that a judgment can be reconsidered “if it is in the interests of justice to do so”. Rule 71 of the Rules requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. This application for reconsideration is made in time.[6]Rule 72 (1) of the Rules provides: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”[7]There is no requirement for an oral hearing. The interest of justice in this case reflects the interests of both parties. The applicant and the respondent to a reconsideration application both have interests which much be regarded against the interests of justice (Outasight VB Limited v Brown [2014] UKEAT/0253/14). In Brown, Her Honour Judge Eady QC said that the general public also have an interest in such cases because there should be an expectation of the finality of litigation. PHCM Order (NEW August 2020) 2 of 5 August 2020[8]This was an expectation outlined by Mr Justice Phillips in Flint v Eastern Electricity Board [1975] ICR936, who said “it is very much in the interests of the general public that proceedings of this kind should be as final as possible”. He also said it was unjust to give the loser in litigation a “second bite of the cherry” where, having lost and learnt of the reasons for losing, a litigant seeks to re-argue points and bring additional evidence or information which would overcome the reasons given for the loss.[9]Consequently, the provision of evidence said to be relevant after the conclusion of the hearing will rarely serve to alter or vary the judgment given unless the party seeking to introduce the evidence can show (Ladd v Marshall [1954] EWCA Civ 1): 9.1. the evidence could not have been obtained with reasonable diligence for use at the trial; 9.2. the evidence would probably have an important influence on the result of the case; and 9.3. the evidence must be apparently credible.[10]I also remind myself that there was no application by the claimant to adjourn the case either before, or at, the hearing, to obtain further evidence, instruct a lawyer, or to better marshal his arguments. Time Limits Grounds and reasons of reconsideration application[11]The application for reconsideration is effectively a re-statement of the claimant’s case as it was it the hearing. The claimant sets out the history of the case and gives reasons why he was not able to submit the claims in time.[12]The claimant also states that at the day of the hearing he his ADHD and ASD ‘didn’t allow for … clear answers since there wasn’t enough time to process the questions for me an answer being fully aware of what was being asked’.[13]To the extent that that the claimant is saying that he did not have a fair hearing, I do not accept that.[14]I set out (para 7) the adaptations requested by the claimant at the hearing, and there was no suggestion from the claimant at any time that he was having difficulty processing questions of give an answer. Further, the hearing lasted all day, with several of the issues that were scheduled to be determined having to be adjourned to a different day as we ran out of time.[15]However, it was made clear to the claimant that he was not being rushed and that the Tribunal would give breaks as and when needed.[16]In addition, the claimant has submitted further evidence in the form of an email from ‘psychiatryUK’. This is dated 09 September 2024, as so is after the hearing. It is a short note that states that the diagnosis of ADHD and ASD ‘does have a substantial effect on his day to life’ and then gives some examples. PHCM Order (NEW August 2020) 3 of 5 August 2020[17]The email is generic in nature, and does not seem to go any further than the evidence that was before the Tribunal at the hearing.[18]The respondent has not submitted any arguments in response. Decision on the reconsideration application – time limits[19]As stated, the claimant’s application is a re-arguing of his case as it was at the hearing. I cannot see any new argument that he has put forward.[20]In relation to the further evidence, it does not take the claimant’s case any further.[21]In any event, it is not the purpose of reconsideration to allow a party to challenge a judgment with evidence which should have been provided prior to the case being determined. In addition, reconsideration is not the opportunity to re-argue the case that was previously unsuccessful. It is a fundamental requirement of litigation that there is certainty and finality.[22]For those reasons set out above, the original judgment stands. Application to amend[23]Given the nature of the application, I can take this relatively shortly.[24]The power for an Employment Tribunal to add a party is set out in Rule 34: Addition, substitution and removal of parties[34]The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included25. The claimant has specifically referred to the case of Selkent Bus Co Ltd v Moore 1996 ICR 836 that sets out the principles in relation to an application to amend.26. I was not referred to any other authorities in the application. Whilst the application would appear to raise issues in relation to res judicata and similar principles, it does not appear to be necessary to consider this.27. The claimant’s grounds are a repetition of the application that he made orally at the hearing, which were dealt with at paras 64-65. They are, in effect, identical to the reasons that he gave for resisting the application to strike out on time grounds.28. In deciding an application, I must have regard to all the circumstances of the case. These include (but are not limited to): 28.1. The nature of the amendment, 28.2. The position in relation to time limits, 28.3. The timing of the application. PHCM Order (NEW August 2020) 4 of 5 August 202029. In this case the nature of the amendment, introducing four new parties, is a substantial one.30. However, the two most significant factors are those set out above at 28.2 and 28.3. I have already set out my conclusions on time limits, which would apply to each of these applications. That strongly points against the application to amend.31. Further, in relation to 28.3, the application was made some 8½ months after the claims against the proposed respondents were made. That is a significant period of time that points further against the application.32. Whilst there is a broad discretion, I do not see anything in the application that the claimant makes that would mean I could conclude that it was in the interests of justice to amend the claim in light of my conclusion on the time limits point (whether considered as an application for reconsideration of the decision on 20 August 2024 or as a freestanding application to amend).33. Again, for those reasons, the original decision to refuse to amend the claim stands.