Ms A B Chitty v First MTR South Western Trains Ltd: 2301596/2018

EMPLOYMENT TRIBUNALS

Case No 2301596/2018

Between

Ms A B ChittyClaimant

First MTR South Western Trains LtdRespondent

Before

Employment Judge Sage

In person for claimant

Mr Cook (instructed by Counsel) for respondent

Date 5 December 2019

JUDGMENT

[1]The claimant’s application to amend her claim form to add claims of sex discrimination, unauthorised deduction from wages and holiday pay are refused.

[2]The Tribunal has made orders to list the unfair dismissal claim for a hearing at paragraphs 40-42.

REASONS

[1]This hearing was listed as a result of the Respondent’s application to consider whether the Claimant’s response to further particulars amounted to an application to amend. The Respondent stated that the facts referred to in this document are entirely new factual allegations that have not previously been referred to in the claim form (which contained no factual allegations at all but simply referred to pursuing a claim for sex discrimination). The Respondent stated that the substantial amendments changed the basis of the claim and all claims for discrimination are significantly out of time. The Respondent’s position was that it would be disproportionate and not in the interests of justice for the Claimant to be allowed to amend to pursue these claims.

[2]It was not disputed that the Claimant’s claim for unfair dismissal is in time and will proceed to a hearing. 1 ph outcome re case management 2013 rules, Jan 2014

[3]The issue for this Tribunal is whether the Claimant is able to pursue her claims for sex discrimination and unauthorized deduction from wages taking into account that the factual scenario setting out the details of these claims were only provided in the further particulars provided by the Claimant to the Tribunal on the 25 November 2018. The Claimant presented her ET1 on the 2 May 2018. The Facts of the Case.

[4]At the start of the hearing, considerable time was spent in carefully scrutinizing the Claimant’s 8-page document in an attempt to establish a chronology of incidents relied on in pursuit of her claim for sex discrimination. She confirmed that she was claiming sexual harassment as Mr Bumstead subjected her to humiliating or offensive treatment because she had refused his advances. This happened when she worked at the Wimbledon Depot. She stated that she relied upon conduct from the 20 February 2014 to the end of December 2015. It was noted that the Claimant confirmed in Tribunal that she moved from the Wimbledon Depot to the Woking Depot on the 15 May 2016. Moving Depots took Mr Bumsted out of the picture and there was no evidence to suggest that any alleged acts of sexual harassment occurred after this date.

[5]The Claimant indicated that a number of people were not helpful to her and referred to a number of employees in different departments. All allegations after the move to Woking related to the unfair dismissal, wages and annual leave owing claims, there was no evidence to suggest that the Claimant relied upon continuing acts of sexual harassment after May 2016.

[6]The Claimant referred to Mr Vickers and suggested that he harboured a grudge because she had broken off a relationship with him. There was no evidence to suggest that he subjected her to less favourable treatment because she was a woman or to subject her to sexual harassment. Mr Vickers involvement in the case appeared to be limited to conducting an assessment on the 24-25 April 2017. After discussing this incident with the Claimant, this appeared to relate to her unfair dismissal claim and there was no indication that this was a claim of direct sex discrimination or harassment .

[7]The Claimant also referred to a claim for outstanding leave of 20 days which was identified in the summer of 2016 (page 5 of the Claimant’s document). This was not identified as a claim for discrimination and the basis of the claim was that she was not allowed to carry over unused leave.

[8]The Claimant also referred to being informed about an overpayment of wages on the 20 January 2017. This appeared to be an administrative error by HR which resulted in the Claimant continuing to receive London Weighting long after she had transferred to Woking. There was a meeting held by Mr Norris to discuss this and it was agreed that the Claimant would be given time to pay this money back. The Claimant described this meeting as fretful and vexing but there was no reference to him acting less favourably because of the Claimant’s sex or that he subjected her to sexual harassment in the meeting. 2 ph outcome re case management 2013 rules, Jan 2014

[9]The Claimant was then signed off sick from June 2017 and did not return to work.

[10]The Claimant was dismissed on the 21 December 2017 on the grounds of capability, she did not attend the hearing called by Mr Norris and a decision was made in her absence. She was dismissed with notice. The Claimant appealed and this was heard after the ET1 was presented and a stay was in place for this to be completed. The Respondent’s submissions.

[11]The Respondent took the Tribunal to the Claimant’s ET1 at pages 2-13 of the bundle. They stated that box 8 of the form which is supposed to contain the essential facts of the case is blank. The Claimant sets out the remedy she is looking for but that does not assist in determining the details of the claims. On page 13 of the bundle in box 15 of the claim form, all we have is that the Claimant states that she is claiming unfair dismissal and sex discrimination. The respondent stated that the only justiciable complaint is that of unfair dismissal. No facts are pleaded to support any other claims, let alone anything like the litany of claims that have now been put in out of time.

[12]The respondent referred to the case of Chandhok v Tirkey [2015] ICR at pages 531-2 where it was stated at paragraphs 16-18 that the ET1 is not merely something that sets the ball rolling and a Claimant should not be free to augment what is in the ET1 on their say so. The ET1 is expected to set out the essential case being pursued. The Respondent also referred to the case of Selkent Bus Co Limited v Moore

(1996) ICR 836

which advised the tribunal to look at the nature of the amendment and what is set out in the ET1. If it is a substantial amendment, as it is in this case, (as the amendments add new facts not referred to on the form), the Tribunal will have to consider time limits. The new allegations span the period from mid 2013 to late 2017.

[13]The respondent will state that all the new claims are considerably out of time. This application was first made by the Claimant in September 2018. The case of Galillee v Commisioner of the Police of the Metropolis

[2018] ICR 634

EAT stated that time limits did not need to be definitively determined at the time the application was pursued. The granting of an application does not automatically deprive the respondent of any limitation arguments that may be open to them. Given that all the claims are out of time the Claimant must show that there is a prima facie reason for granting an extension.

[14]The case of Abertawe Bro Morgannwg University Health Board v Ferguson

[2013] ICR 1108

the EAT stated that in suitable cases applications for strike out may save time and expense and the Tribunal has a broad discretion to do what is just and equitable from the perspective of both parties. The Respondent also referred to the case of Robertson v Bexley Community Centre

[2003] IRLR 434

where is stated that it was the exception rather than the rule to extend time. The Claimant has given no evidence to suggest that it was not possible to pursue her claims in time. The Claimant ought to have pursued her claims in 2018 when she originally presented them. The evidence in relation to the 3 ph outcome re case management 2013 rules, Jan 2014 grievance should have been litigated at the time and there was no reason given as to why this was not on the claim form.

[15]This is not a continuing act as it is possible to segment claims over different time periods as we have done today. When the Claimant moved to the Woking Depot she pursued her grievance and there was no linkage between what happened at Wimbledon and what happened after she moved.

[16]The respondent will say that the Claimant was not a competent driver and she was given a 12 month extension to improve. If there were further allegations about Woking, they are unrelated to the Wimbledon allegations.

[17]The issues in relation to the dismissal process have no link with what happened at Wimbledon, there was no evidence of a continuing act because the people involved were different.

[18]The respondent further submitted that the claim was out of time and it is not just and equitable to extend time. The proposed particulars posted in September 2018 all relate to historical facts, there is no discernible reason why they were not on the claim form. The Respondent also noted that the Claimant did not attend the first case management hearing where she had an opportunity to clarify her claims. She could have attended but did not do so. This was surprising as she had the support of her union. The Claimant is now throwing the kitchen sink at the claim.

[19]The respondent then went on to address the issue of the balance of hardship. They stated that the Tribunal had weeded out a lot of claims that are not discrimination (and giving an example referred to allegations made about the conduct of Mr Stephenson and Mr Sneddon, which the Claimant found disgusting but not for a reason related to the protected characteristic of sex). Similarly, the allegation of not receiving documents in relation to issues referred to on the 14 September, 28 September and the 12 October 2015 are not related to a protected characteristic. The respondent also referred to page 155 of the bundle where he stated it showed that it was nonsense that the Claimant was ‘not allowed’ copies of documents.

[20]The allegation about holiday pay on page 40, the Respondent says the Claimant was paid her annual leave. In respect of the 2016 holiday entitlement, the test is one of reasonable practicability. If the Claimant followed union advice and decided not to pursue the claim, then that was her decision. This claim is out of time.

[21]The Respondent took the Tribunal to page 41 of the bundle where reference was made to errors in the assessment, they state that this relates to the claim for unfair dismissal. They then referred to page 249 of the bundle, which is a complaint about a standard HR invitation to a meeting, there is nothing discriminatory here. This is a generic letter of invitation.

[22]In relation to the issue about the cogency of evidence, we say that the bulk of the allegations relate to the period from 2013 to 2015, if they go to trial it is likely to be in 2021. The Respondent will need to call oral evidence and the 4 ph outcome re case management 2013 rules, Jan 2014 recollection of those witnesses will be seriously impaired by the delay in pursuing this matter. Most witnesses will have little recollection of the events.

[23]The Claimant is pursuing claims against a large number of individuals, many of whom are likely to have left. We do not know how many people will have to be called. These are life changing allegations. If these claims are let in it is estimated that there are in the region of 75 new allegations of detriment and is likely to take 2-3 weeks to hear. This will massively extend disclosure and it we have to go back to 2013 it will increase the costs. If the Claimant fails, we will not get our costs back. We are ready for the trial of the claim for unfair dismissal and disclosure for that claim has already taken place.

[24]In relation to the balance of hardship and injustice, the balance is in favour of this amendment being refused. The Claimant’s claim for unfair dismissal and post termination losses will be before the Tribunal. If the claims for sex discrimination and harassment were important to her she would have pursued a claim in 2015. She has no excuse for not including the facts she now seeks to rely on in this claim. The Claimant’s submissions

[25]The claimant stated that she had no legal representative and the tribunal has seen lots of evidence. The Claimant stated that she had a good case but did not know any legal jargon. The Claimant asked the Tribunal to take into account all the grief she suffered and how she was affected for years and years. Although it has been said that she should have put in her claim earlier, she didn’t know she had to. The claimant accepted that it was her mistake not to refer to all the details in her claim form, but she didn’t know how things work. The Claimant also told the Tribunal that she did not attend the previous case management hearing because she did not know she had to. The Claimant also said that she received no indication that the hearing was going ahead, however it was clarified that the Claimant received the notice of the hearing and the Respondent’s representative contacted her the day before. The Claimant then confirmed that she knew there was a preliminary hearing due to take place on the 30 July 2018.

[26]The Respondent referred to the issue in relation to annual leave, but the Claimant stated that she was following the procedure. The Claimant stated that she had been on anti-depressants and she has delayed getting married and this has done her out of a career. She stated that people like Sneddon were friends of Mr Bumstead. She accepted looking at page 155 that she could look at her records, but her complaint was that Mr Bumstead would never give her the time to do this and by the time she got to Woking the records had been lost.

[27]At page 249 (dated the 23 October 2017) the Claimant referred to a letter to confirm that she was not fit to attend meetings, but HR kept harassing her. 5 ph outcome re case management 2013 rules, Jan 2014

[28]The Claimant referred to the financial hardship that she had suffered and stated that she had been on universal credit and was trying to get a job. She is a mother with a 10-year-old daughter. The Claimant stated that she pursued a grievance complaining of sex discrimination. It is not historical. The Claimant stated that she had to put up with this over many years and had to live with this every day. This is part of her life.

[29]The Tribunal noted that in the written particulars, the Claimant stated that the acts of sex discrimination were continuing acts or in the alternative that it is just and equitable to extend time. The Law relating to time limits. Section 23 Employment Rights Act 1996 Complaints to employment tribunals (2) Subject to subsection (4), an [employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (4) Where the [employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. [(4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. (4B) Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j).] Section 123 Equality Act 2010 Time limits (1) [Subject to [sections 140A and 140B],] Proceedings on a complaint within section 120 may not be brought after the end of— 6 ph outcome re case management 2013 rules, Jan 2014 (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. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, 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. (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.

[30]The first consideration is what sort of amendment is being asked for in this hearing; on all the evidence this is an amendment to add new factual details. The extent of the amendment will fundamentally change the nature of the claim. Although the Claimant used the words ‘sex discrimination’ in the claim form, there were no details provided. As this must be taken to be an application to add a new cause of action and a substantial amendment, it is necessary to consider time limits as at the date of the application.

[31]The Claimant states that her claim for sex discrimination is a continuing act and extended up to the date of termination, she contends therefore that it is in time. This did not appear to be correct from the discussions that took place in the hearing and referred to above. The Claimant confirmed that the employee who was alleged to have subjected her to harassment was Mr Bumstead (and his ‘friends’) and she ceased working with him after she moved to the Woking Depot on the 15 May 2016. There was no evidence to suggest that the Claimant was subjected to sexual harassment by him or his ‘friends’ after that date. On the face of it therefore the claim of sexual harassment is out of time.

[32]Looking at the Claimant’s further particulars, the nature of the complaints after May 2016 relate to largely procedural issues in relation to disclosure of documents and to the conduct of HR; there was no evidence to suggest that the sexual harassment was ongoing after 2016. If the last act of discrimination was said to have taken place earlier in May 2016, the application to amend is out of time. Even though the Tribunal file shows that the further particulars were provided in November, the Respondent referred to them being provided at the earlier date in September 2018. If we took the date in September, the claim is 7 ph outcome re case management 2013 rules, Jan 2014 out of time by over two years and by the time it gets to a hearing it is likely to be considering facts that date back to 2014, so some acts relied upon may be up to six years old by the time the Tribunal hears the evidence. The claims of sexual harassment are therefore out of time.

[33]It was then considered if the out of time claim of sexual harassment should be allowed in on the basis that it is just and equitable to extend. No evidence has been given as to why in this case it is just and equitable to extend. The Claimant says that she did not know that she had to provide details of all her claims on her claim form and did not know that she had to pursue the claims expeditiously. The tribunal noted that the Claimant had the benefit of union assistance and they helped her with her holiday pay claim. The Respondent has also referred to the case of Robertson above which states that it is the exception rather than the rule to extend time. The Claimant has provided no evidence as to why she did not pursue her claims in time or at least directly after the grievance procedure failed to find in her favour. Although the tribunal always retains the discretion to extend it is essential to look at this from the perspective of both parties.

[34]The Respondent states that this amendment should not be allowed as it would admit a claim that deals with historic matters that will add significantly to the length and complexity of the hearing. It is also likely that, due to the passage of time, that they will be difficult to defend. These are compelling points. The claims go back a considerable period, and this will cause problems in seeking to take statements, memories will have faded and many may have left the Respondent’s employment. This is why the time limits for pursuing claims in the Employment tribunal is short, to ensure that claims are pursued quickly while those involved have a clear recollection of the events.

[35]It was also considered that if the amendment was allowed it would result in a further considerable delay to listing this matter for a hearing and it would add to the length of hearing. The delay is likely to cause great hardship to all the witnesses involved in the case and may result in some of the claims being difficult or impossible to investigate or defend.

[36]There had already been a delay in listing this matter for a hearing for a number of reasons (not due to any act or default of the parties) but if the amendment was allowed to proceed out of time, there would have to be an opportunity for the respondent to amend their defence. The matter would then have to be listed for a further preliminary hearing to identify the issues and to make orders for exchange of statements and further disclosure of documents. That delay is likely to be in excess of 12 months. It will also add to the costs incurred by both parties in pursuing and defending the claims. That further delay will adversely impact on the memory of those giving evidence with the result that a fair trial may no longer be possible.

[37]The balance of hardship was considered from the perspective of both parties and it was concluded that the respondent bears the weight of prejudice should the amendment be allowed to proceed out of time. The tribunal balanced this with any possible prejudice that may be caused to the Claimant. The only 8 ph outcome re case management 2013 rules, Jan 2014 prejudice caused to the Claimant is that she will not be able to claim compensation for discrimination by way of a payment for injury to feelings, however that is a small aspect of her claim, the majority of which focusses on the claim for unfair dismissal. The Tribunal also concluded that there was considerable merit in listing this case for a hearing at the earliest opportunity as any further delay is likely to be prejudicial to both parties. As the balance of hardship in this case falls disproportionately on the Respondent, the Claimant’s application to amend to add the new facts out of time in relation to sex discrimination is refused.

[38]For completeness the tribunal also wished to deal with the other claims referred to in the particulars, the facts of which were not referred to in the claim form. The first of those claims was the issue in relation to holiday entitlement that was said to have been raised in 2016. This was dealt with at the time by the Claimant’s union and she took their advice on this issue. This claim is out of time. The Claimant’s application to amend was September (or November 2018) making the claim over 2 and a half years out of time. The Claimant has failed to show why it was not reasonably practicable to present her claim within 3 months of the act complained of. It is concluded that this is out of time.

[39]In relation to the issue of an overpayment of wages which the Claimant became aware of in January 2017, again this was not a claim that was included in the claim form and the first details of this claim was in the further particulars, this was again substantially out of time. The Claimant cannot show that it was not reasonably practicable to present her claim within 3 months of the act complained of. The Tribunal therefore conclude that this claim is out of time. Tribunal Orders.

[40]As the Tribunal has found that the claims for sex discrimination, unauthorised deduction from wages and holiday pay are out of time; the only claim that is left that is in time is the claim for unfair dismissal. It was noted that the Respondent indicated that disclosure had already taken place and the parties were ready for the case to be listed for a hearing. It is noted that this is a reasonably document heavy case and it is estimated that the matter should be listed for 3 days to deal with liability and remedy, if appropriate.

[41]In order to get this claim ready for trial, with a view to avoiding a further hearing, the parties are ordered to write to the Tribunal within 14 days of the date that this decision was sent out, giving their dates to avoid for a 3-day hearing from July 2020 until December 2020. It will then be listed for a hearing before a Judge sitting without members.

[42]For the avoidance of doubt, the Tribunal ordered the parties to exchange witness statements in preparation for the full hearing 4 weeks before the hearing date. It would also assist if the parties could bring with them an agreed brief chronology of the facts. 9 ph outcome re case management 2013 rules, Jan 2014