Mr J Fidalgo v London United Busways Ltd: 2300063/2020
EMPLOYMENT TRIBUNALS
Case No 2300063/2020
Between
Mr J FidalgoClaimantLondon United Busways LtdRespondentDate 12 November 2020
JUDGMENT
ON RECONSIDERATION The judgment dated 20 May 2020 is revoked JUDICIAL MEDIATION EXPLANATORY NOTE TO THE PARTIES[1]Alternative Dispute Resolution is a priority for the Government. Judicial mediation is seen as one of the possible ways to achieve this. The Employment Tribunals operate a scheme in all regions in England and Wales.[2]Judicial mediation involves bringing the parties in a case together for a mediation preliminary hearing. The judicial mediation is conducted by a trained Employment Judge, who remains neutral and tries to assist the parties to resolve their dispute. The Employment Judge will help to identify issues in dispute, but will not make a decision about the case, nor give an opinion on the merits of the case. The role of the Employment Judge as mediator is to help the parties find ways to resolve their dispute by mutual agreement. Resolution is not limited to the remedies available at a hearing.[3]Whilst judicial mediation is part of the process of resolving employment disputes, it is an alternative to a tribunal hearing, but not an alternative to ACAS conciliation. ACAS and the judiciary of the Employment Tribunals work collaboratively in relation to judicial mediation. The statutory duty placed on ACAS is not compromised by the process, and ACAS and the judiciary remain independent of each other at all times.[4]There are no restrictions on the jurisdictions that will be considered for judicial mediation, although it is unlikely that equal pay claims will normally be suitable for this process.[5]An important factor in assessing suitability is whether there is an ongoing employment relationship.[6]Whilst cases suitable for judicial mediation are identified in a number of different ways, identification is usually by an Employment Judge at a preliminary hearing for case management purposes. At that preliminary hearing, suitability for judicial mediation is considered, the parties advised of the possibility of an offer of judicial mediation, their interest (or otherwise) noted, and normal case management orders and directions made.[7]If the parties agree to consider an offer of judicial mediation, the file will be passed to the Regional Employment Judge, who will apply agreed criteria and determine whether the case qualifies for an offer of judicial mediation. An offer of judicial mediation is normally made at a telephone preliminary hearing with the parties when timetables for the mediation will be set, a stay or variation of the existing case management orders made if necessary, and the dates for the judicial mediation agreed. Agreement will also be reached on the issues for the judicial mediation (which may be wider than those determinable by a tribunal at a hearing), who will attend the mediation (which must include people empowered to make decisions), and any requirements of the parties for the conduct of the mediation.[8]It is not possible to offer judicial mediation in all cases because of resource constraints and suitability of the issues to mediation. Parties are notified if an offer cannot be made.[9]Provided that the offer of judicial mediation is accepted by all parties, the matter proceeds to a one or two-day mediation.[10]The judicial mediation will be carried out by an experienced Employment Judge trained in mediation. A facilitative mediation technique is adopted and applied.[11]The judicial mediation is held in private and in circumstances which are entirely confidential with appropriate facilities made available. The contents or the events at a judicial mediation may not be referred to at any subsequent hearing. The Employment Judge mediating will play no further role in the case should it proceed to a hearing.[12]The judiciary of the Employment Tribunals may, on occasions, and with the prior consent of the parties, contact ACAS to reactivate conciliation, either during, or at the end, of the judicial mediation. This contact is usually by telephone conference call with the parties and an appropriate ACAS officer.[13]If there are any matters of concern or any explanation required, then please write to the Regional Employment Judge for clarification. ………………………………………………
REASONS
[1]This was an Open Preliminary Hearing to determine the Tribunal’s jurisdiction in relation to the unfair dismissal claim and the race discrimination complaint. The claim form was presented on 4 December 2019 (and again on 20 December 2019). Early conciliation commenced on 30 September 2019 and concluded on 13 November 2019. 1 of 6[2]The claimant was represented by Mr Curtin legal consultant (retired solicitor) and the respondent was represented by Mr Craven a solicitor at Ward Hadaway.[3]The Tribunal had received an agreed electronic bundle, submissions from both parties, and an authorities bundle from the respondent’s solicitor. The bundle contained witness statements of the claimant.[4]Mr Curtin stated that the claimant did not wish to provide oral testimony, thus the Tribunal was being asked to determine the issues based on submissions alone.[5]It was confirmed on behalf of the claimant that the key reason for the delay in commencing early conciliation was because the claimant was awaiting on the outcome of his appeal against dismissal.[6]Mr Curtin also confirmed to the Tribunal that the reference to disability discrimination in the claim form was an error. There was no disability discrimination complaint being pursued.[7]The Tribunal also sought clarification about whether there was complaint about the right to be accompanied on 11 March 2019. It was confirmed that there was not but there was a complaint about the right to be accompanied at the factfinding meeting on 10 December 2018. Relevant findings of fact[8]The following findings of fact were reached by the Tribunal, on a balance of probabilities, having considered all of the evidence, documentation and submissions provided during the hearing.[9]Only relevant findings of fact relevant to the preliminary issue (s) only, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in a statement or in submissions and considered relevant.[10]The Tribunal first considered the effective date of termination. The Tribunal found this to be 11 March 2019 which was the date upon which the claimant was summarily dismissed. This was acknowledged in paragraph 3 of the grounds of complaint (page 20 of the bundle).[11]The Tribunal also had regard to the disciplinary procedure and in particular the statement that a decision to dismiss would be effective immediately and any appeal against it would be regarded as a request for reinstatement (if successful) (page 80 of the bundle). 2 of 6[12]The claimant appealed against his dismissal on 24th of May and an outcome was provided on 29th of June 2019. The claimant confirmed that that was the date on which he received the appeal outcome.[13]Mr Curtin on behalf of the claimant confirmed that the claimant had started to consult him about the matter from early May 2019.[14]The claimant also confirmed that he was a member of the union at the time who had also accompanied him to his disciplinary meeting on 11 March 2019 when he was dismissed.[15]The claimant posted a letter to ACAS on 25th of September 2019. This was not an early conciliation form and the letter at page 1 of the bundle did not contain the respondent’s address.[16]The ACAS early conciliation certificate at page 5 of the bundle stated that early conciliation had been initiated on 30 September 2019 and concluded on 13 November 2019.[17]The claimant subsequently presented the claim form on 6 December 2019. A further claim form was presented on 20th of December 2019.[18]The last act of discrimination relied upon is 11 March 2019 (the decision to dismiss). The claimant says that there were other (unparticularised) acts of discrimination which predated 11th of March 2019. This finding does not determine that there was a continuing course of conduct extending over time ending on 11 March 2019.
Applicable Law
[19]A Tribunal cannot consider a complaint unless it has been presented within three meet three months of the effective date of termination pursuant to S.111 Employment Rights Act 1996 (‘ERA’) 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 have been presented before the end of the period of three months.[20]Section 207B ERA provides extension of time provisions where ACAS early conciliation has been initiated within the primary limitation period.[21]In Palmer and Saunders v Southend-on-Sea Borough Council 1984 1 ALL ER 945, the Court of Appeal confirmed that awaiting on the outcome of an internal appeal would not of itself make it not reasonably practicable to bring a claim within the time limit.[22]In Walls Meat Company V Khan 1978 IRLR 499, Court of Appeal stated that ignorance of rights or ignorance of the time limit is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them. 3 of 6[23]By section 123 of the Equality Act 2010 (‘EqA’), a complaint of discrimination may not be brought after the end of the period of three months starting with the date of the alleged act of discrimination or within such other period as a Tribunal considers just and equitable. Section 140B of the EqA provides similar extension of time provisions where ACAS early conciliation has been initiated within the primary limitation period.[24]Pursuant to British Coal Corporation V Keeble 1997 IRLR 336, a Tribunal can take into account the length and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the parties sued had cooperated with any requests for information, the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain professional advice once he knew of the possibility of taking action. These factors mirror what is set out in section 33 of the Limitation act 1980, referred to by the EAT in Keeble. Conclusions and analysis[25]Dealing first with the unfair dismissal complaint, the Tribunal finds that it was reasonably practicable for the claimant to have initiated early conciliation within the primary limitation period.[26]It appears that the claimant was operating on the basis that he would consider his options after the appeal outcome had been made known but there was nothing preventing the claimant from initiating early conciliation which in fact could have been done simply by a phone call.[27]In accordance with, Palmer and Saunders it is not sufficient excuse for the claimant to delay taking protective action pending the outcome of an internal appeal.[28]The claimant had consulted with Mr Curtin who the Tribunal concluded would amount to a skilled adviser, from early May 2019, well within the primary limitation period. The claimant was also a member of Unite and was represented by his union representative at his meeting on 11th of March 2019 which led to his dismissal.[29]The Tribunal thus concludes that the claimant had access to advice to submit his claim sooner than he did. To the extent that the erroneous belief or cause of delay was attributable to Mr Curtin, which was how it appeared to be put in submissions, the claimant would be fixed with that.[30]The Tribunal also had regard to the claimant’s statement in paragraph 6 of his third with the statement where he referred to early conciliation and Tribunal time limits as being well known (page 69 of the bundle). 4 of 6[31]Even if the Tribunal was wrong in the conclusion above, if the effective date of termination was 29th of June 2019 the claimant initiation of early conciliation was still out of time. The claimant’s initiation of early conciliation by a letter posted on 25 September 2019 was not on an early conciliation form and neither did it have the respondent’s address under the early conciliation rules of procedure section 2(1) (b) and 2(2) (b) (even if the Tribunal had accepted that ACAS would have received the letter on or before 28th of September 2019).[32]For the same reasons the S.10 Employment Relations Act 1999 complaint is also out of time (S.11 (2)), even more so as this relates to a meeting in December 2018.[33]In relation to the discrimination complaint, the Tribunal considered the Keeble factors which are essentially guidelines to determine the key question of the balance of prejudice if the discretion to extend time was to be exercised or, alternatively, declined.[34]The Tribunal considered that the length of delay to be quite significant. The claim form was ultimately presented on 6 December 2019 some four months after it ought to have been presented had for example, the claimant initiated early conciliation by 10th of June 2019.[35]Having regard to the above findings and conclusions regarding reasonable practicability, the reasons for the delay were not that convincing either.[36]However, the fault appeared to lie with Mr Curtin in whose hands the claimant had entrusted safe initiation of early conciliation.[37]Within the just and equitable extension territory this of itself is not necessarily fatal as it can be under the reasonable practicability test. This has been made clear in various EAT authorities for example Chohan v Derby Law Centre 2004 IRLR 685 and Anderson v George S Hall Ltd EAT 0631/05.[38]The Court of Appeal confirmed in Apelogun-Gabriels v Lambeth London Borough Council & another 2002 ICR 713 CA (paragraph 16) that resolution through an internal procedure may justify an extension of time. It is a factor, albeit not a general principle it will happen.[39]The Tribunal had regard to the respondent’s submissions that Ms Leane Hansen the dismissing officer was no longer employed. She left in March 2019. Also, Mr Kelsall, in relation to whom various discrimination allegations were made had also left in June 2019. There will be some prejudice to the respondent in not being able to seek input from these witnesses sooner whilst they were still employed but at least since 30 September 2019 or shortly thereafter, or alternatively 6 December 2019, or shortly thereafter, the respondent has been on notice of this claim with jurisdiction undetermined and the Tribunal concludes that with reasonable effort individuals could (still) be contacted. 5 of 6[40]The Tribunal does not consider the cogency of evidence to be affected by the delay to such a degree that this factor would count against the claimant and balanced against the respondent’s comparative prejudice.[41]The other Keeble factors had lesser significance as this was not a case focusing on efforts ‘from awareness’. Neither was there anything either way in the cooperation factor.[42]The respondent also relied on Robertson v Bexley Community Centre 2003 IRLR 434- that the just and equitable discretion to extend time is the exception rather than the rule. That case however does not establish any new factor to be weighed into the assessment of the balance of prejudice. The Tribunal interprets that statement as meaning that cases should be presented within the primary limitation period unless a claimant can convince the Tribunal it is just and equitable to extend time – in accordance with the EAT guidance in Keeble.[43]The Tribunal thus concludes that it is just and equitable to permit the race discrimination complaint to proceed.
Applicable Law
[1]This matter comes before me today after two earlier Preliminary Hearings.[2]On 27 October 2020 Employment Judge Khalil decided that the Tribunal only had jurisdiction to consider the Claimant’s claims of race discrimination. The Claimant’s claims of unfair dismissal and of a denial of the right to be accompanied could not proceed. On 14 June 2021, Employment Judge Wright decided that it was appropriate for the Claimant to pay a deposit as a condition of his claim of discrimination proceeding. She also made further, specific case management directions to ensure that the Claimant’s case could be sufficiently understood at the final hearing; the final hearing having been listed in October 2021.[3]I note the following points from Employment Judge Wright’s Order:3.1 Firstly, at paragraph 9, the Employment Judge states, ‘The claimant is to be given one further and final opportunity to particularise his claims.’ This was because earlier orders had been made in October 2020, which had not produced the appropriate particularisation from the Claimant;3.2 Next, in paragraph 10 of the Order, there is reference to the Claimant providing a document or table setting out the necessary categories of information including the following, ‘Then the claimant must set out what form of unlawful discrimination/prohibited conduct he relies upon…’. At paragraph 12, the Employment Judge refers to the matters that need to be set out by the Claimant for a claim of direct discrimination. This includes whether an actual or hypothetical comparator is referred to;3.3 Finally, in Employment Judge Wright’s Order it says that unless this information is provided ‘within 7 days of the date of this Order’, the claim will stand dismissed without further order.[4]It is clear, and agreed by both representatives today, that the date by which compliance was required was 21 June 2021. Again, it is agreed that there was no compliance by this date.[5]Mr Curtin did not provide further information of the claims until 24 June 2021. This followed Mr Byrne chasing him on 23 June 2021.[6]I note that in his letter dated 5 July 2021, Mr Curtin refers to the further and better information being provided ‘a bit late’ and he then says by 24 hours, although looking at the relevant dates, it seems that it was more than this. Mr Curtin said in oral submissions today that the Unless Order was unnecessary as the final hearing in the case wasn’t imminent at the time it was made. I do not consider that it is for Mr Curtin to say whether the Order was or was not necessary. The Tribunal made the Order, it was a clear and unambiguous order that required strict compliance. The consequences of a failure to comply were made entirely clear and Mr Curtin did not seek to challenge or appeal the Order following the Preliminary Hearing. On the face of it then, the Claimant did not comply with the Unless Order and the consequence of this, again on the face of it, is that the claim stands dismissed without further order.[7]In fully considering this matter however, it is also relevant to take into account what happened shortly after the provision of further information on 24 June 2021. In the event, Mr Curtin provided a further version of the further information on 5 July 2021. He tells me that this should be taken as a wholesale replacement for the document dated 24 June 2021. He identifies that one of the major differences with the new version is that a claim for indirect discrimination is no longer pursued.[8]Having examined the document of 5 July 2021, I conclude that it does not accord with Employment Judge Wright’s Order. For example, the second paragraph on the first page refers to the Claimant being a target for direct discrimination. There are examples given of conduct including putting the Claimant on shift work, moving him from his base location and leaving him without a training bus. In respect of these matters, there are no dates identified, the individual or individuals said to be responsible for each of these acts are not identified, whether there were witnesses to these matters is not clear and no comparators are identified.[9]The problems with this document extend further – whilst difficulties with references being provided to witness statements at this stage was identified by Employment Judge Wright, nearly three pages of the further and better information refer to witness statements rather than making appropriate cross references to the grounds of complaint.[10]Mr Curtin has described these issues as a pleading point, implying that a party should not be shut out from a full hearing of his complaints by reference to a technical matter of how a case is pleaded. However this is not a case where the Tribunal is presented with a technical pleading point. The Tribunal is trying to understand the Claimant’s case – in simple terms, what conduct he complains of, by whom, when, whether it was witnessed by anyone and what legal claim he brings as a result. This last matter requires the component parts of the relevant claim of discrimination being identified. It is only in this way and with the identification of these matters that a final hearing can go ahead because the Tribunal and the Respondent is then able to understand the case being brought; the Respondent can prepare and the Tribunal can turn its mind to the issues that arise.[11]The Claimant has not provided this necessary information even at this very late stage – a month before the final hearing. The Claimant has not only failed to comply with the Unless Order by providing information late but, further, the information provided late does not satisfy what was required and ordered by Employment Judge Wright.[12]It is for these reasons that I accept that the Claimant’s claims are to be dismissed in their entirety because he has failed to comply with the Unless Order. The final hearing dates will be vacated and the deposit of £100 will be paid to the Respondent pursuant to Rule 39(5) of The Employment Tribunals Rules of Procedure, Sch 1 of ETs (Constitution & Rules of Procedure) Regs 2013.