Ms C Barry v Epsom and St Helier University Hospital NHS Trust: 2300846/2018

EMPLOYMENT TRIBUNALS

Case No 2300846/2018

Venue London South

Hearing 31 July 2018

Between

Ms C BarryClaimant

Epsom and St Helier University Hospital NHS TrustRespondent

Before

Employment Judge Nash

Ms R Hodgkin (instructed by Counsel) for claimant

Ms D Nathan (instructed by Solicitor) for respondent

Ms Hodgkin (instructed by counsel) for claimant

Ms Nathan (instructed by solicitor) for respondent

Date 26 August 2018

JUDGMENT

[1]The claim of unfair dismissal is dismissed upon withdrawal.

[2]The claim of wrongful dismissal was not presented within the statutory time limit when it was reasonably practicable to do so.

[3]The claim of disability discrimination was not presented within the statutory time limit and it is not just and equitable to extend time.

REASONS

Summary

[1]Following an ACAS Conciliation process lasting 18 days, from 29 January 2018 to 9 February 2018, the Claimant presented her claim for unfair dismissal, wrongful dismissal and for disability discrimination on 9 March 2018. The ET3 inter alia, raised jurisdiction issues. The act complained of for all claims was a withdrawal of a job offer / dismissal on 27 July 2018. The Respondent contended that the Tribunal did not have jurisdiction to consider the unfair dismissal complaint because the Claimant had less than 2 years employment and, further, that all the complaints were brought out of time. The Tribunal listed this preliminary hearing to determine these jurisdiction issues. Case Number: 2300846/2018 2

[2]Before the Tribunal the Claimant gave evidence on oath. There were no other witnesses. There was a Bundle that caused some delay because large amounts of the Bundle were missing and other pages, which on the Claimant’s case were relevant, were nearly illegible.

The Claims

[3]The Claimant’s complaint of unfair dismissal was dismissed upon withdrawal leaving the complaints of wrongful dismissal and for disability discrimination.

The Issues

[4]For wrongful dismissal the issues were:a. was the complaint brought within time; and

b. if not, was it reasonably practicable for the complaint to have been brought within time and, if so, was it brought within such further time as was reasonable.

[5]For the claim of disability discrimination, the issues were:a. was the complaint brought within time; and

b. if not, was it just and equitable to extend the time limit to give the Tribunal jurisdiction to consider it.

[6]The relevant facts are briefly stated. The Claimant had several years previously been employed by the Respondent. In January 2017 she applied for a job with the Respondent as a Staff Nurse in Endoscopy. The Respondent made her a conditional offer of employment in March 2017. After discussions and the taking up of references and the like, on or around 13 July 2017 the Respondent requested her to provide a start date.

[7]However, the Respondent telephoned the Claimant on 27 July to withdraw the offer of employment. Neither party made a record of this 27 July conversation. The Claimant’s unchallenged evidence was that in this call the Respondent alleged that she had lied about her previous employment history with the Respondent.

[8]The Claimant emailed the Respondent the next day, 28 July (at page 93), stating that she had been told that her application had been refused because she had lied on her application. The email continued, “It may also be the case that other factors are motivating this attempt to discontinue the offer of employment”. The Claimant confirmed in oral evidence that this sentence referred to her belief or suspicion that her previous history of depression and ill health absence from the Respondent’s employment had played a part in the Respondent’s change or heart. Case Number: 2300846/2018 3

[9]After 27 July, there was some further discussion between the parties. The Respondent invited the Claimant a meeting, but the Claimant declined the offer.

[10]The first time that the Respondent set out its position in writing was by way of a letter to the Claimant from Ms Winter of HR on 2 August 2018. The letter stated that the job offer was withdrawn for the following reasons: - 1. The Claimant had not included her employment with the Trust which terminated by way of dismissal on 11 March 2017. 2. The Claimant had failed to provide a reference from the Trust as a previous employer. 3. The Claimant had made a false declaration that she had left her previous Staff Nurse post with the Respondent due to family ill health.

[11]The Claimant received this letter within a few days of 2 August. She did not accept that the Respondent’s statements in the letter were true. She did not accept that she had provided inaccurate information as to her work history, in fact she had stated in her application that she had left the Respondent’s employment due to her grandfather’s ill health and that she believed that this was true. (This extract from the Claimant’s job application was the only part of the application before the Tribunal.)

[12]The Claimant’s father then wrote, somewhat intemperately, to the Respondent on 14 September 2017. This letter was written with the Claimant’s consent and knowledge. He stated - incorrectly - that the Claimant had made a Data Protection Act request to the Respondent. Essentially the letter made a reference to the Tribunal’s decision being based on malice and spite. At this stage the Claimant had not taken legal advice.

[13]The Trust replied to the Claimant’s father’s letter by way of a letter from Mr Croft, Director of Transformation on 12 October 2017 (page 59). Mr Croft stated that he agreed with Ms Winter’s 2 August letter; that discrepancies on the Claimant’s application had come to light and this was the reason that the job offer was withdrawn. Further, the Claimant would not be provided with any work - temporary or permanent - with the Respondent in future.

[14]Following advice from a family friend, the Claimant made a Subject Access Request to the Respondent under data protection law on 25 November 2017. The Respondent replied on 19 December 2017 providing about 100 documents.

[15]The Claimant, when contending that time should be extended, relied on the following three documents that were disclosed:a. An internal Respondent email of 1 August 2016 stating that the Claimant had been dismissed from her previous employment due to her not renewing her Nursing and Midwifery Council Professional Case Number: 2300846/2018 4 Registration, but that was no reason to refuse her work as a Health Care Assistant.

b. At page 205, the Respondent’s internal recruitment online system recorded that, as of 13 July 2017, the Claimant was to be given an unconditional offer, although it stated that one out of four references were unsuitable.

c. At page 118, an email (probably from 12 June 2017, although the date was unclear) which referred to another email - which was not provided. This email referred to an investigation of the Claimant and her having been sick from December 2012 to June 2013, resulting in the professional body requiring her to undergo further training in order to, in effect, be re-registered.

[16]The Claimant then approached ACAS as set out above, and following the ACAS Early Conciliation procedure, presented her claim to the Tribunal.

The Law

[17]The applicable law in respect of wrongful dismissal is found at regulation 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994: Time within which proceedings may be brought 7. An [industrial] tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented— (a)within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or (b)where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (c)where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

[18]The applicable law in respect of disability discrimination is found at s123 of the Equality Act 2010: 123Time limits (1) Subject to …proceedings on a complaint within section 120 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. … (3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. Case Number: 2300846/2018 5 (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Applying the Law to the Facts Wrongful Dismissal

[19]There was no real challenge to the Respondent’s contention that the wrongful dismissal complaint was brought out of time. On the Claimant’s case, dismissal occurred on 27 July 2017 and therefore the first step in the application to the Tribunal (being the start of the ACAS early conciliation procedure) should have been taken no later than 26 October 2017. The Claimant did not start the ACAS Early Conciliation procedure until 29 January 2018 when she was well over two months out of time.

[20]A Tribunal may only extend time if it was not reasonably practicable to present the claim within the statutory time limit. The reasonable practicability test is the subject of extensive case law. As the test is common to a number of Employment Tribunal jurisdictions, the case law is common to these; in practice most case law relates to unfair dismissal.

[21]Whether it is reasonably practicable to bring a claim within the statutory time limit is a question of fact for the Employment Tribunal. The burden of proving that presentation in time was not reasonably practicable, rests on the Claimant.

[22]According to the Court of Appeal in Palmer and anor v Southend-on-Sea Borough Council

1984 ICR 372

, CA ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. The EAT stated in Asda Stores Ltd v Kauser EAT 0165/07 that, ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.

[23]It is trite law that ignorance of rights is not enough to render it not reasonably practicable to present a claim in time. The question is whether the Claimant ought to have known of her rights.

[24]In this case, the Claimant argued that, in effect, she was ignorant of facts which she only discovered following the data protection request and thus it was not reasonably practicable to bring the claim within the statutory time limit.

[25]The cause of action, on the Claimant’s case, was dismissal and this happened on 27 July 2017 when she was informed that she was not to be employed. The Claimant knew of this on 27 July. On her case, the Respondent falsely accused her of lying during a telephone call that day. The Respondent provided further Case Number: 2300846/2018 6 details of its allegations on or shortly after 3 August – that she had not provided information in respect of her previous employment with the Respondent and had given a false account of her earlier termination.

[26]Accordingly, all knowledge that the Claimant needed to bring a claim for breach of contract was within her own knowledge on or shortly after 3 August 2017 at the latest. She learnt in December 2017, following the Data Protection disclosure, that the Respondent had recorded her as having an unconditional offer on 13 July. However, this does not affect the fact that she was aware that, if there was a dismissal, it occurred on 27 July and further information was provided on or shortly after 3 August.

[27]The Claimant was accordingly not ignorant of any material, let alone fundamental, fact by the time of the expiry of the statutory time limit. On her own case, she had not misled the respondent in her application form and she knew at the time that the respondent’s allegations in its letter of 3 August were false. It was reasonably practicable therefore to bring the claim within time. Disability Discrimination

[28]Again, there was no real challenge to the Respondent’s contention that the claim for unlawful discriminatory termination because of disability was out of time. The act complained of, either the dismissal or the failure to recruit, occurred no later than 27 July 2017. As set out above, the Claimant did not start the ACAS early conciliation procedure until late January 2018 and accordingly the claim was out of time.

[29]The question for the Tribunal in respect of an out of time discrimination complaint is whether it is just and equitable to extend time to consider the claim. Although it has sometimes been stated that the test in a discrimination complaint is less burdensome than that in a unfair or wrongful dismissal complaint, the EAT pointed out in Robertson v Bexley Heath

2003 IRLR 434

, CA that, “there is no presumption that a Tribunal should extend time unless they can justify failure to exercise the discretion, quite the reverse, a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.”

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

2018 ICR 1194

, CA the Court of Appeal recently provided further guidance as to how a tribunal should exercise its discretion as follows. An Employment Tribunal has the widest possible discretion, and, unlike other limitation provisions, the legislation does not set out any list of factors to which a tribunal should have regard. Although it has been suggested it may be useful for a Tribunal to consider the list of factors specified in Section 33 Limitation Act, a Tribunal is not required to go through that list, it simply should not leave out a significant factor. According to the Court of Appeal, there are two factors that are almost always relevant when considering the discretion as to whether to extend time. Firstly, the length of and reasons for the delay and secondly, whether the delay has prejudiced the Respondent. Case Number: 2300846/2018 7

[31]The Tribunal therefore considered the question of prejudice. The Tribunal found that the balance of prejudice was in the Claimant’s favour. If the claim was not permitted to proceed the Claimant would lose her right to bring her claim. There was some prejudice to the Respondent by reason of the delay. Assuming an ACAS Conciliation period of 11 days, the claim should have started sometime probably between mid-November and mid-December 2017, rather than early March 2018, resulting in a delay of several months. There is some merit in the Respondent’s submission that delay, all things being equal, causes greater prejudice in a recruitment case as opposed to other employment discrimination complaints. Nevertheless, a well-resourced and sizeable Respondent should not be materially prejudiced unless its record-keeping leaves a good deal to be desired. Further, this was not a recruitment case where one of a number of unsuccessful candidates sought to bring an out of time complaint. In this case, the Claimant and Respondent had spent several months discussing the job offer.

[32]The Tribunal then turned to the length of and the reasons for the delay. The Tribunal viewed this as the crux of the case. The length of the delay was reasonably substantial compared to the three-month time limit; the length of the delay was nearly as long as the time limit itself.

[33]The Claimant’s case during the hearing centred on her contention that she had good reason for delay. The reason on which she relied was that her state of knowledge had changed materially following receipt of the data protection legislation documents in December 2017.

[34]On her case, the Claimant suspected from at least 28 July 2017 that her history of depression and sick leave had at least some impact on the Respondent’s volte face. This, according to her evidence, was in her mind when she wrote her email to the Respondent on 28 July.

[35]The Claimant’s case was that it was the manifest weakness of the Respondent’s reasons for its change of heart which led her to conclude that the reason could not be anything but discrimination. This weakness became clear upon receipt of the data protection legislation documents.

[36]The difficulty for the Claimant was that, on her case, she knew of any such weakness shortly after 2 August when she was told, in terms and in writing, that she had misled the Respondent in this way. The December documents did not materially change the position.

[37]That the Respondent’s documents show that it viewed the claimant as having an unconditional offer on 13 July may have made its change of heart perhaps more striking, but it did not change the essential position.

[38]The respondent had stated in the past that the claimant’s lack of a Nursing and Midwifery Council Registration number, was no reason to refuse her work as a Healthcare Assistant. However, the claimant was now applying for a position as a Staff Nurse where, it was not disputed, a PIN was required. This had little if Case Number: 2300846/2018 8 any relevance to the Respondent’s decision not to recruit the Claimant as a Staff Nurse.

[39]The final element from the December disclosure was the June 2017 email references to the Claimant’s previous sickness and sickness absence. However, the Respondent asked the Claimant for her start date in July 2017. This indicated that the respondent still intended to employ the Claimant after the June 2017 email, and this does not indicate that the June 2017 email was material.

[40]Further, the context of the June 2017 email was very unclear. It was not clear who the participants were or what conclusions could be drawn from it. The email did appear that to show that the Respondent in June 2017 was aware that the Claimant had a sickness record during her previous period of employment. However, it was far from clear why the Respondent would not have been aware of this previously or, as indicated above, what difference this made.

[41]Accordingly, the Tribunal found that the December documents on which the Claimant effectively relied as the reason for her delay, added very little to her material knowledge. These documents were very far from being what might be called “a smoking gun” as to the Respondent’s withdrawal of its offer. The Tribunal was bolstered in this finding by the Claimant’s having stated, albeit not in terms, in her email of 28 July that the Respondent was not being truthful about its stated reasons for its change of heart.

[42]In addition, the claimant suggested to some extent that another reason for her delay was that she had a very great deal to deal with after the withdrawal of the job offer. However, the Claimant was able to write a cogent email to the Respondent on 27 July. Further, her father’s lengthy and detailed letter of 14 September 2017 can only have been written with some if not considerable input from the Claimant herself. The Claimant did not suggest that she was unaware that she could contact ACAS who could have provided free and impartial advice.

[43]Accordingly, taking all the circumstances into account, the Tribunal did not find that the Claimant had discharged the burden upon her of showing that it would be just and equitable to extend time to consider the disability discrimination complaint.