Mrs Boakye Amankwah v Royal Mail Group Ltd: 2301673/2018

EMPLOYMENT TRIBUNALS

Case No 2301673/2018

Venue London South

Hearing 4 September 2019

Between

Mrs Boakye AmankwahClaimant

Royal Mail Group LtdRespondent

Before

Employment Judge Phillips

Date 24 February 2020

JUDGMENT

The Respondent’s application to strike out the Claimant’s claim is dismissed.

REASONS

[1]The Claimant started work with the Respondent on 3rd March 2008. She remains employed by the Respondent as a postal worker based at the Barnes and Mortlake Delivery Office. The Claimant, by her form ET1, presented on 08 May 2018, brings claims of racial harassment and direct race discrimination, arising out a single incident of verbal harassment experienced by the Claimant from a public customer on 23 December 2017, when the Claimant was working in the Barnes and Mortlake Delivery Office. While attempting to resolve the customer’s complaint that post had not been delivered, the Claimant reported to her manager having heard the customer remark as they were leaving the office, “you have come here from a third world country, coming to work here”.

[2]The Claimant asserts(1) that the Respondent is liable for the incident of harassment; and

(2) has directly discriminated against her on the grounds of colour by treating her report of the incident differently and less favourably when compared to a white colleague. The Claimant says that a white colleague who made a similar complaint was treated differently and more favourably. The Respondent says that with regard to the second matter, the comparator relied upon by the Claimant is not a true comparator because there was a material difference in circumstances between her case and that of the Claimant, in that (1) the abuse received was more serious and involved being shouted at; and (2) occurred at the Customer’s premises and not at the delivery office. The Respondent denies in any event that any differences in treatment were due to the Claimant’s race. As far as the first matter is concerned, the Respondent says that s 40 of the Equality Act 2010 was repealed in 2013 and as such the Tribunal does not have jurisdiction to hear this ground of complaint. Brief procedural history

[3]There was a Case Management Hearing on 14 August 2019 before EJ Nash. At the hearing EJ Nash considered that the Claimant’s allegations or arguments that the Respondent subjected her to direct discrimination on the ground of her race or was responsible for the third party harassment had little reasonable prospect of success and the Claimant was ordered (by Order dated 30 August) to pay a deposit of £300 by 4 September 2018 in order to be able to continue to bring both her claims of(1) third party harassment and

(2) alleged unfavourable treatment by the Respondent in the way in which it handled her report.

[4]The Claimant has paid that deposit. The Claimant was also ordered at the CMH on 14 August, on or before 25 September to provide further details of her complaint as to how and why she says that the Respondent’s treatment of her complaint was because of or on the grounds of her race.

[5]The Respondent was given permission at the 14 August CMH to serve an amended ET3, if advised, not later than 16 October. An Amended ET3 was duly filed on 16 October. The Tribunal indicated that depending on the outcome of the deposit order, it might then be necessary to apply for a further CMH if the case was to proceed. On 25 September the Claimant requested an extension of time as she was “exploring attempting to resolve the claim”.

[6]The Respondent by email on 1 October 2018 made a number of further applications and asked for a further preliminary hearing to be listed. The email raised a number of matters, namely(1) the alleged failure of the Claimant to provide the further particulars ordered by 25 September;

(2) that the Claimant’s extension of time request was rejected;

(3) suggested that the second ground of claim identified above [para 8 of the deposit order] was a new unpleaded claim and was out of time;

(4) suggested that there was a material difference between the Claimant’s comparator and her own case. In the light of these matters, they made a number of applications, that:

a. the Claimant’s claim for race discrimination should be struck out because the Tribunal does not have jurisdiction to hear it;

b. the Claimant’s claim for race discrimination should be struck out on the ground it has no reasonable prospect of success;

c. the Claimant should be ordered to pay a deposit order of up to £1,000 in order to continue with the proceedings, under Rule 39 Employment Tribunal Rules.

[7]On 4 October, the Claimant sent in an email to the Tribunal and the Respondent’s solicitors, setting out the detailed factual background to her complaint and making clear that she wanted a letter sent to the customer who had abused her. On 9 October 2018, the Claimant sent to the Respondent a copy of a letter sent by the Barnes and Mortlake Delivery Office to a member of the public on 7 July 2017 which admonished the owner of the address for subjecting a postal worker in Barnes “to unacceptable abusive behaviour whilst delivering a packet” to the address. The letter reminded the owner that they were required to respect staff and stated that if such behavior continued consideration would have to be given to suspending their mail deliveries.

[8]On 08 May 2019, the case was listed for a Closed Preliminary Hearing of I hour on 4 September 2019 to deal with the three outstanding applications raised by the Respondent on 1 October 2018. Jurisdiction / time limits points

[9]The first of the Respondent’s outstanding applications from 1 October 2018, was that the Tribunal had no jurisdiction to hear the Claimant’s race discrimination claim, which as I understood it, was put on the basis that it related to the second element of the Claimant’s claim, which had not been raised before and so was out of time. I also raised the question of the time limits points raised by the Respondent in the Amended ET3 at paragraphs 22 to 34. The Claimant said these had been dealt with at the CMC hearing on 14 August but there was no record of this on the file or in the CMS Summary; Ms Anamau had not herself been present at that hearing, so was not in a position to confirm this. In the light of this, as these time issue points also appeared to be outstanding, there did not seem to be any point in hearing the detail of the Respondent’s submission on the “new” claim being out of time, in the absence of clarity on these other matters. I therefore made an Order that on or before 20 September 2019, the Respondent confirm in writing to the Tribunal and the Claimant, whether they wished to pursue all or any time limit points and if they did, that these be put in writing on or before that date. I ordered that the Claimant respond to this, if appropriate, on or before 11 October, whereupon I indicated I would make a determination of this jurisdictional point on the papers. Strike out and deposit order applications

[10]These two applications related to whether the Claimant’s claim for race discrimination should be struck out on the ground it has no reasonable prospect of success and / or whether the Claimant should be ordered to pay a deposit order of up to £1,000 in order to continue with the proceedings, under Rule 39 Employment Tribunal Rules. As far as the alleged responsibility for the third party harassment claim was concerned, Ms Anamau submitted that this had no prospect or no reasonable prospect of success because it was clearly outside the Respondent’s control and had not been repeated conduct. There was no legal liability for this. Further, a number of recommendations had been made after the incident was raised by the Claimant, which had been complied with. As far as the second element of the complaint was concerned, namely that the Claimant had been treated differently and less favourably than a white colleague in similar circumstances, Ms Anamau said that the Claimant was relying on the wrong comparator as the circumstances of the white colleague who had been harassed were materially different: the abuse was worse and the incident happened on the customer’s premises. Therefore she said there was no evidence that the Claimant was treated differently and that if she was, that it was on the grounds of her race.

[11]The Claimant responded that the comparator’s circumstances were not materially different and there was different treatment; in the incident involving her white colleague a letter was sent by Royal Mail to the alleged harasser warning them about their conduct but this had not happened in her case. She said even if a dog is loose or a hedge is overgrown, Royal Mail will write a letter but they didn't do so in her case. She suggested that if such a letter had been sent, she would have felt much more supported and valued and would most likely not have brought this complaint. In the circumstances she believed the reason for this difference was that she was black, although she also suggested it might be have been because the alleged harasser on her case was elderly, famous and white. Conclusion on the Strike out and deposit order case

[12]It seemed to me that, as presented to me, these applications amounted to the Respondent trying to have a second bite of the cherry, as both these arguments appeared to have already had been advanced in respect of both elements of the claim at the August 2018 CMH before EJ Nash. That appears from her reasons in the Deposit Order, where she refers to both elements. Although a deposit order is not a judgment and so cannot be reconsidered under Rule 70, such orders can be varied, suspended or set aside under Rule 29, if it is in the interest of justice to do so. Other than the information about the comparator that had been submitted, there did not appear to be any material differences or change of circumstances since the August 2018 decision by EJ Nash. I saw no reason to vary EJ Nash’s original assessment of the circumstances or her Order. Further, as far as the challenge to the comparator’s circumstances being material difference was concerned, in my judgment, this was matter of fact that could only be assessed after hearing evidence and could not be dealt with simply as matter of submissions. On that basis, these applications do not succeed. The late service of the Further and Better Particulars

[13]This was also raised by Ms Anamau. These were due by 28 September but had been served effectively piecemeal via two emails in early October. Accepting that the Claimant was late in serving these, I noted this was in the context of her having asked for an extension of time to try and resolve matters. I was satisfied that the two emails of 4 and 9 October amounted to compliance with the Order for Further and Better Particulars.

[14]In the circumstances, I directed that, subject to my determination on the time limits / jurisdictional point, it was appropriate to now put in place a timetable to ensure the fair and efficient hearing of this claim, as per the separate CMH Orders and Directions. ............................................................ Case Number: 2301673/2018 THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE C HYDE (sitting alone) BETWEEN: Claimant MISS E BOAKYE AMANKWAH AND Respondent ROYAL MAIL GROUP LIMITED ON: 3 February 2020 APPEARANCES: For the Claimant: In Person For the Respondent: Ms J Linford, Solicitor OPEN PRELIMINARY HEARING JUDGMENT The Judgment of the Employment Tribunal is that: - The Claimant’s allegations of race discrimination under the Equality Act 2010 were struck out.

Background

[15]The date for this hearing was fixed at a preliminary hearing in front of Employment Judge Phillips on 4 September 2019 (Judgment and Reasons pp39 – 43; and Case Management Directions pp44 – 49).

[16]Prior to that, a closed preliminary hearing had taken place before Employment Judge Nash on 14 August 2018. A written record of the Orders made by her and a summary of the discussion was sent to the parties on 30 August 2018 (pp27 – 29). At the hearing on 14 August 2018, EJ Nash also made orders for the payment of deposits by the Claimant as a condition of being allowed to continue to pursue her complaints in Issues 1 and 2 above of third-party race harassment and of direct race discrimination (pp30 – 33). In the event, the Claimant paid the deposits.

[17]The factual background and relevant Issues were recorded in paragraph 1 of the First Schedule to EJ Phillips’ September 2019 Order as follows: “FIRST SCHEDULE (The Issues) 1. The Claimant started work with the Respondent on 3rd March 2008. She remains employed by the Respondent as a postal worker based at the Barnes and Mortlake Delivery Office. The Claimant, by her form ET1, presented on 08 May 2018, brings claims of racial harassment and direct race discrimination, arising out a single incident of verbal harassment experienced by the Claimant from a public customer on 23 December 2017, when the Claimant was working in the Barnes and Mortlake Delivery Office. While attempting to resolve the customer’s complaint that post had not been delivered, the Claimant reported to her manager having heard the customer remark as they were leaving the office, “you have come here from a third world country, coming to work here”. 2. The Claimant asserts(1) that the Respondent is liable for the incident of harassment; and

a. is the Respondent legally liable for the incident of harassment that occurred on 23 December; the Respondent says that s 40 of the Equality Act 2010 was repealed in 2013 and as such the Tribunal does not have jurisdiction to hear this ground of complaint;

b. did the Respondent directly discriminate against the Claimant on the grounds of colour by treating her report of the incident differently and less favourably when compared to a white colleague; and in particular i. is the comparator relied upon by the Claimant a true comparator or is there a material difference in circumstances between their cases: the Respondent says there is, in that (1) the abuse received by the comparator was more serious and involved being shouted at; and (2) occurred at the Customer’s premises and not at the delivery office; ii. The Respondent denies in any event that any differences in treatment were due to the Claimant’s race. 4. At the hearing, the Respondent’s applications to strike out the two elements of the Claimant’s claim, and / or for a deposit order were unsuccessful. (The reasons are the subject of a separate Judgment). In the circumstances, I directed that, (subject to an outstanding determination on time limits / jurisdiction, in regard to which Directions are given below)), it was appropriate to now put in place a timetable to ensure the fair and efficient hearing of this claim, as per the Orders and Directions in the Second Schedule. If the Respondent succeeds on all or any aspects of the time limits / jurisdiction application, this may impact on whether the Claim continues.”

[18]The Claimant made a complaint to the Respondent about the incident immediately and part of her follow-up to this was that in January 2018, she reported the matter to the police. I was shown internal emails of the Respondent dated 3 and 27 January 2018, in which the Respondent sought advice from what appeared to be a public relations point of view in relation to what to do in terms of any letter to the member of the public.

[19]After a fact-finding meeting on 3 January 2018, the Claimant’s report was treated by the respondent as a grievance. This was investigated and the Respondent’s case was that the Claimant was informed of the outcome by letter sent to her on 30 April 2018 by AW, Independent Casework Manager who had been allocated to investigate this case (Amended Grounds of resistance paras 13 & 21). It contained recommendations in terms of the handling of a similar case in the future.

[20]The Respondent maintained that the Claimant received that letter on 2 May 2018 (para 21 Re-Amended Grounds of Resistance). However as set out below, in her email to the Tribunal of 11 June 2018, the Claimant asserted that she had received no notification of the outcome. This discrepancy was not the subject of questioning at the hearing, and the Tribunal proceeded on the basis of the Respondent’s case throughout that the Claimant had signed for the letter on 2 May 2018.

[21]In the meantime, on 9 March 2018 the Claimant had contacted ACAS and instituted the early conciliation process. This came to an end on 9 April 2018. This meant that in relation to a time limit which had expired during the early conciliation period, the Claimant had until a month after the receipt of the EC certificate to validly present her claim, i.e. by 8 May 2018. This was only relevant in relation to Issue 1, the third-party harassment complaint.

[22]The Claimant then sent a claim form to the Tribunal on 8 May 2018 which coincided with the date on which the limitation period expired in relation to the incident on 23 December 2017 (Issue 1, the third-party harassment complaint), taking into account the early conciliation dates. The processing of that claim form had not been completed by the Tribunal prior to the Claimant calling the Tribunal on 11 June 2018 to chase progress. The Tribunal’s records indicate that she was informed that the matter had been referred to an Employment Judge because of a concern that there were insufficient details about the claim and that an Employment Judge (Baron) had rejected the claim because it was in a form which could not sensibly be responded to as no specific details had been given of the discrimination claim. In accordance with that Judge’s direction, the Claimant was subsequently notified of this by letter dated 12 June 2018 sent by email at 15:41. This information and chronology was shared with the parties during the hearing on 3 February 2020.

[23]Following the telephone conversation, but before the Tribunal’s email was sent to her, the Claimant sent an email to the Tribunal dated 11 June 2018 at 14:55, giving more details under section 8.2 of the form, and she asked for it to be an amendment of her claim. This was then referred to Employment Judge Baron who reconsidered the rejection in the light of the further information and decided to accept the claim. Importantly however, the Judge indicated that the claim would be accepted as of 11 June 2018. This decision was subsequently notified to the Claimant and the Respondent in correspondence dated 21 June 2018 giving notice of the claim to the Respondent.

[24]As Ms Linford noted in her recent written representations at para 21, there no Order was made amending the claim as requested by the Claimant on 11 June 2018. It was unclear whether the effect of such an amendment would have been to add or to substitute the contents of the 11 June email for the sparse detail in the original claim form at section 8.2. lt appeared to me, consistent with the duty to do justice in the case, that a fair reading of the situation was that the Claimant wished to add the details set out in her 11 June 2018 email, to the information already set out in her claim form. To construe it otherwise would lead to an unduly harsh outcome, and would clearly be contrary to the Claimant’s interests. I took into account that in the round, her case had been consistent in complaining both about the third-party harassment and about the Respondent’s reaction.

[25]The Respondent entered a response with grounds of resistance on 19 July 2018 and they raised the issue of the Claimant’s claim being out of time (pp 23-26). They addressed only Issue 1.

[26]In Judge Nash’s August 2018 Order, she also directed that the Claimant should provide clarification of her claim by 25 August 2018 in relation to the allegation that the Respondent’s treatment of her complaint was “because of or on grounds of her race” – a direct race discrimination complaint. On 25 August 2018 at just before 6.00pm the Claimant sent an email to the Tribunal requesting an extension of time. That was not dealt with by the Tribunal before the Claimant then sent in the further information about this allegation on 4 October 2018 in an email with attachments.

[27]Regrettably, it was only after the hearing on 3 February 2020, as the Tribunal was reviewing the file in the context of the reconsideration, that it became clear that the two documents produced by the Claimant at the hearing on 3 February 2020 and marked [C1], were actually two attachments to the email providing further information about the claim and sent to the Tribunal with a copy to the Respondent on 4 October 2018 at 16:26. The email was not in the bundle, although a copy was in the Tribunal file. The decision was therefore made on 3 February 2020 without the Tribunal having considered the email giving further details of the claim. The Tribunal did not however consider this to be a material defect because those particulars were provided after the expiry of the Issue 2 time limit, as the Tribunal has determined.

[28]Subsequently, the Respondent duly presented amended grounds of resistance dated 16 October 2018 (pp34 – 38).

[29]The next hearing took place on 4 September 2019 before Employment Judge Phillips. She refused a renewed application to strike out by the Respondent but acknowledged that there were issues in relation to time points and directed that these should be dealt with at the full hearing which she fixed for 3 February 2020. She gave directions for the preparation for that hearing, including the provision of written submissions in advance by the Respondent on the time points, and submissions in reply by the Claimant.

[30]In the event, although the hearing was listed for a one-day full hearing commencing on 3 February 2020, by letter dated 9 January 2020, and Freer had directed that the hearing on 3 February had been converted to a preliminary hearing at which a tribunal would consider the time points and the Claimant’s application to amend her claim.

[31]The Respondent included a summary of the law in relation to the extension of time in discrimination claims, in the written submissions dated 20 September 2019 which Employment Judge Phillips had directed should be prepared and which I marked [R2] (also at pp51 – 56). The statement of the law was not challenged by the Claimant, and it appeared to me to fairly reflect the applicable law. It is not proportionate therefore to repeat that statement of the law in these reasons.

[32]The two-page undated document (pp 57 – 58) entitled “Claimant’s Submissions as to Time-Limit and Application to Amend” was attached to an email sent by the Claimant to the Tribunal on 15 November 2019 with a copy to the Respondent at 08:49, in compliance with EJ Phillips’ Order that she should file her submissions in reply to the time points.

[33]At the hearing in February 2020, the Claimant gave evidence to the Tribunal. She also produced two additional documents which I marked [C1] and which related to comparator evidence of how the Respondent had dealt with a similar incident in July 2017. In addition, the Tribunal considered what it believed was the agenda which the Claimant sent to the Tribunal in August 2018 prior to the hearing in front of Employment Judge Nash. This was in the Tribunal file, not in the hearing bundle. Here also, on further consideration of the file, it may be that, in error, the document referred to by the Tribunal during the hearing was the agenda sent before the hearing on 4 September 2019 before EJ Phillips. The August 2018 agenda had been sent by email at 10:38 on 13 August 2018, but had not been copied to the Respondent by the Claimant, and the Tribunal could see no evidence that it had been copied to the Respondent by the Tribunal either. The relevant text from both agendas is set out in context below.

[34]The Respondent had prepared a bundle numbering approximately 60 pages which contained the majority of the relevant documents and which I marked [R1]. At the end of the February 2020 hearing, I erroneously stated that the Claimant’s submissions in answer to the Respondent’s on the time points at pages 57-58 were submitted in mid-October 2019. As stated above, and in the index to the bundle [R1], they were submitted on 15 November 2019.

Deliberations

[35]Both of the complaints made by the Claimant had been the subject of deposit orders and as is recorded in the Respondent’s submission, the Tribunal is entitled to have regard to the merits of the case when considering whether it is just and equitable to extend time in relation to a discrimination case which has been presented out of time.

[36]The first complaint, referred to in these reasons in short-hand as thirdparty racial harassment, and which was Issue 1 in [R2], was a complaint about the alleged racial abuse by the Royal Mail customer on 23 December 2017. I agreed with the Respondent’s contention that in relation to a complaint about this issue, time would have expired, without early conciliation, on 22 March 2018, but with early conciliation, it expired one month after 9 April which extended the date to 8 May 2018. Ms Linford corrected the reference to the limitation period expiring on 9 May 2018 at para 21 of [R2] at the hearing on 3 February 2020. However, as set out above, the claim form was not validly presented until 11 June 2018. The Claimant in effect asked for an extension of time in relation to this matter on the basis that it was just and equitable to do so.

[37]As Employment Judge Nash commented in paragraphs 5 and 6 of her reasons, there were, in any event, issues about whether the Tribunal has power to deal with third-party harassment under the current law. That issue was not one I had to determine directly, but given that I could take into account the merits of the case in deciding whether to extend time, it seemed to me that this weighed very heavily against the exercise of the discretion in the Claimant’s favour, for the reasons referred to by EJ Nash. In paragraph 5 on page 31 of [R1] she says in respect of the allegation of third party harassment, that the Court of Appeal, (citing the two cases of Unite the Union v Nailard

[2018] EWCA Civ 1203

and Conteh v Parking Partners Ltd

[2011] ICR 341

) confirmed that an employer is not liable for failing to protect employees from third-party harassment unless the prescribed characteristic forms part of the motivation for the employer’s inaction. In short, a complaint could be validly brought about inaction by the employer related to a protected characteristic, but not about the actions of the third party.

[38]I adopted the propositions in the authorities referred to in paragraphs 31- 35 of the Respondent’s written submission. It appeared to me that on any view the Claimant did not send her claim form to the Tribunal until the very last day of the extended time limit.

[39]It was not in dispute that she had trade union support throughout this time, that she had been in contact with ACAS from early March 2018, that she had been in contact with a law centre and she accepted that she had access to the internet. It did not appear to me that there were any circumstances which rendered this case any different from any other in terms of the Claimant’s position up to 8 May 2018. There were in short no exceptional circumstances.

[40]She asked for the extension of time because she did not realise that her ET1 had been rejected or was likely to be rejected until she called the Tribunal on 11 June 2018 and was told that the file had been referred to a Judge who had rejected the claim due to lack of detail, and that she had then promptly sent in the further details later on 11 June and which were then accepted as of that date.

[41]I took into account that this period largely consisted of a delay on the part of the Tribunal Service in dealing with her claim form. However, even the normal administrative delay of a few days would have meant that the Claimant had not presented a valid claim in time i.e., by 8 May 2018. She had no basis for any expectation that a claim submitted on the last day of an extended deadline would be processed on that day, and that she would be notified also on that day whether her claim had been validly presented, giving her the opportunity to resubmit the claim in time, on the same day.

[42]On balance taking into account all the circumstances, including the fact that this complaint had been made the subject of a deposit order and the reasons for that Order, I decided that it was not just and equitable to extend time. I therefore struck out the complaint in Issue 1.

[43]Issue 2 was a complaint about the Respondent’s response to the 23 December 2017 incident, which culminated in a written notification to the Claimant on 2 May 2018.

[44]The Respondent submitted that although the Claimant had not identified a specific date on which this failure was supposed to have occurred, this can have been no later than 2 May 2018, the date on which the Claimant was made aware of the outcome of her complaint. I accepted this submission, having regard to the terms of section 123(4) of the Equality Act 2010.

[45]In those circumstances, it appeared to me that time ran in relation to the direct race discrimination complaint about the Respondent’s failure to act from 2 May 2018 to 1 August 2018 under the Equality Act 2010. Early Conciliation had taken place between 9 March and 9 April 2018, before the end of the omission complained of. Although this issue was not specifically argued, it appeared to the Tribunal that there was no scope in law for an extension of time by reason of early conciliation in relation to Issue 2. Indeed, the date of expiry of the limitation period on 1 August 2018 was agreed.

[46]The Respondent argued that this allegation was not specifically identified by the Claimant until the email sent on 4 October 2018 with the particulars directed by EJ Nash in August 2018.

[47]The Tribunal noted however that in the original particulars of claim (p70 submitted on 8 May 2018, but not accepted until the further detail was provided on 11 June 2018, the Claimant had stated: “Employer did not deal me with me fairly because I have been treated less favourably than others. And also I haven’t been treated with dignity and respect. I informed the manager, had fact finding which I never received any communication about. Also went through Royal Mail Group Limited procedure and policies and yet nothing has been done.”

[48]It appeared to the Tribunal that the first two sentences complained respectively about the Respondent’s response, or lack of it, to the Claimant’s complaint, and about the third-party harassment. The basis for this understanding was the use of the expressions “treated less favourably than others” and “haven’t been treated with dignity and respect”; and the fact that the Claimant had specified race discrimination at box 8.1. Further, in the second paragraph, she complained about the outcome of the internal process following her complaint. It was not in dispute that a fact-finding meeting had taken place on 3 January 2018 as an initial response to her complaint (p35, para 8).

[49]In the email giving details of her claim and seeking to amend it, sent on 11 June 2018 (pp14 – 15), the Claimant included the following:a. A more detailed description of the incident on 23 December 2017;

b. An account of her report to a manager on 23 December 2017 and her request that the Respondent take appropriate action;

c. The Respondent’s initial indication to her that there was nothing it could do in relation to the alleged third-party harassment, but that the Respondent accepted that certain action could be taken after the Claimant relayed the advice received from her trade union that there was indeed a course of action open to the Respondent in this situation.

d. A further description of the Claimant’s persistence; the holding of the fact-finding meeting, and the failure to provide a copy of the notes of that meeting which the Claimant had signed at the end of the meeting and which she was promised would be provided to her.

e. A description of the involvement of the Claimant’s trade union with the Respondent, and of the Claimant’s report of the incident to the Police.

f. She further described that the Respondent had not acted on the suggestion of the Police that the customer should be spoken to, leaving it to the Police to do this.

g. Further, she described what the Tribunal understood to be the investigation into her complaint, but stated that as of 11 June 2018, she had not heard from the investigator.

h. She concluded by stating that the Respondent had failed in its duty of care as it had not followed its own procedures.

[50]The time limit in relation to this Issue expired on 1 August 2018. The Tribunal assessed whether the details of complaint provided thus far, in the Original claim form and in the 11 June 2018 set out sufficiently the Issue 2 direct race discrimination complaint.

[51]In her agenda sent on 13 August 2018, the Claimant stated at para 2.1 only that her complaints were “Discrimination on grounds of race (Section 15 less favourable treatment)” (sic). Further, under “Issues” at section 4.1, she stated only: “Did the Respondent treat the Claimant less favourably by reason of her race”?

[52]In EJ Nash’s Case Management Summary she recorded that the claim was “…essentially about a stated incident of customer harassment on 23.12.17 and the respondent’s reactions to this.” (Emphasis added). She confirmed her understanding that the second part of the complaint against the Respondent was an allegation of direct race discrimination in respect of its reaction to the incident/the Claimant’s complaint about it, when she ordered the Claimant at 2.1 of the Order, to “..provide further details of her complaint as to how and why she says that the respondent’s treatment of her complaint was because of or on the grounds of her race” (pp27 and 28).

[53]The next information about her claim provided by the Claimant was as set out in her email dated 4 October 2018 (only considered by the Tribunal after the hearing, but which was in the Tribunal’s file). The attachments in [C1] were clearly put forward to compare the way the Respondent dealt with the incident involving the Claimant as compared with the way they dealt with the incident involving her white comparator Claire, in July 2017. The Claimant’s evidence in relation to [C1] at the hearing in February 2020 was that she had been made aware of this comparable situation by her Trade Union at some point after her incident occurred, but she had been asked to wait for her Union to obtain the consent of the member of staff involved before it could be used by the Claimant. The Claimant referred to 23 May 2018 as the latest date by which she recalled she had been able to share this comparator detail with her managers.

[54]In the 4 October 2018 email, among other things, the Claimant:a. Craved the Tribunal’s indulgence as a litigant in person;

b. Stated unequivocally that her complaint was both about the thirdparty harassment, and about “….the appalling support I was given by Royal Mail…”.

c. Referred again to the comparator evidence, in relation to the second element of her complaint, stating “..I believe it is because of my race that I have been treated less favourably”.

[55]I considered that whilst it was not apparent from the sparse detail in the claim form, what the complaint in Issue 2 was, when read with the additional detail provided on 11 June 2018, and in particular the narration of the alleged failures to act by the Respondent, and the fact that the Claimant had alleged ‘less favourable treatment’ of her by her employer when compared to others, and the fact that the Claimant had expressly ticked the box alleging discrimination on grounds of race there was sufficient factual basis set out by the Claimant for the Tribunal to conclude that this complaint had been made by 11 June 2018. Thus, this complaint (Issue 2) had been brought in time. Application to amend the claim to add race harassment to Issue 2

[56]In her written application to amend sent on 15 November 2019 (p58), the Claimant complained about the Respondent’s decision “..that it did not wish to take steps to investigate [the Claimant’s complaint] or take further action to deal with it”. The Tribunal considers that this was based on the same facts as in the direct race discrimination complaint referred to above as Issue 2.

[57]Having considered the contemporaneous documents, not all of which were seen by the Tribunal in February 2020, it appeared to me to be even clearer than it was at the hearing in February 2020, that the Claimant’s case in relation to the Respondent’s response to the December 2017 incident only alleged direct race discrimination until her application to amend.

[58]Further, she gave no specific explanation for the delay in making the application to amend.

[59]In the Claimant’s agenda sent to the Tribunal at 11:21 on 2 September 2019 and copied to the Respondent, in respect of the hearing before EJ Phillips on the same date, she had referred to racial harassment in section 2.1 as being a complaint. This could have been a reference only to Issue 1 (third-party harassment complaint). In section 2.2, she specified that there was an application to amend to allege “ongoing racial discrimination, harassment by Royal Mail”.

[60]In section 4.1 of the agenda which dealt with “The Issues”, the Claimant stated only: “Did the Respondent treat the Claimant less favourably by reason of her race”?

[61]The Tribunal considered, based on the evidence referred to above, that it was clear that it was not until September 2019 that the Claimant attempted to amend her claim to argue that the Respondent’s alleged inaction complained about in Issue 2, amounted in the alternative to race harassment, as opposed to just direct race discrimination.

[62]She then made the full written application to amend in November 2019 after the hearing in front of Employment Judge Phillips, having previously squarely put the Issue 2 complaint only as one of direct race discrimination and that is apparent from her application at pages 57 and 58.

[63]In relation to an application to amend, it was appropriate to consider whether the proposed amendment would have been out of time at the time that it was made (September/November 2019). As set out above, the time limit in respect of an allegation of a failure to act is dealt with under Section 123(4) of the Equality Act 2010.

[64]At the hearing in February 2020, on reflection, in this context I erred in treating the matter that the Claimant was applying to amend too narrowly as if the proposed amendment was limited to a complaint in respect of the failure to write the letter to the customer. As set out above, it actually covered (see p58, paras 8a & c in particular) the same factual issues as in the direct race discrimination allegation: Issue 2. That overly narrow construction led to a finding that time had run out in any event by 8 May 2018 in respect of the proposed amendment. The relevant expiry date was 1 August 2018.

[65]However, it was appropriate to take into account that the earliest date on which the race harassment amendment was proposed was 2 September 2019, just over one year after the date on which the Respondent conceded that the limitation period expired in respect of the direct discrimination complaint - Issue 2.

[66]Further, it was relevant that the Claimant was in possession of all the relevant information on which she relied in seeking to amend to allege harassment by 23 May 2018 at the latest, on her own account.

[67]I accepted the Respondent’s general submission in relation to timeliness, that after the hearing in front of Employment Judge Nash on 14 August 2018 the Claimant would have known at the very least from the grounds of resistance in the response that time issues were pertinent in this case, yet the Claimant failed to comply in a timely manner with the order for further and better particulars which should have been sent in the last week of September but which were not submitted until 4 October 2018 with [C1], the attachments to the 4 October email. The Claimant thus had an extended time frame in which to provide those particulars. They did not include an allegation of race harassment.

[68]I was therefore satisfied that the proposed amendment was made considerably out of time in relation to the Respondent’s lack of action amounting to harassment.

[69]As with consideration of whether it was just and equitable to extend time in respect of Issue 1, I was entitled to have regard to the fact that the Claimant had access to support and advice from various sources at the material times and the fact that she did not send her claim form until the very last minute.

[70]On the other hand, I took into account in the reconsideration, that the proposed amendment was based on the same facts as the direct discrimination complaint. However, a complaint of harassment in relation to different facts had been made at the outset, and albeit an alternative complaint in relation to Issue 2, it nonetheless involved a new cause of action.

[71]If I refused the amendment, the Claimant would be prejudiced by her inability to argue this case. On the other hand, the Respondent would suffer prejudice in having to face a new cause of action such a long time after the claim had been brought, and with no explanation being proffered for the failure to make this allegation earlier. I took into account that the application to amend was not averted to in the first case management hearing, nor in the 12 months which followed it.

[72]I also took into account that it was not in dispute that an internal investigation into the incident had been carried out by the Respondent, albeit that the Claimant was not satisfied with the outcome.

[73]In all the circumstances, there was no adequate basis for extending time therefore.

[74]Against that background, and having regard to the now well-established principles relating to applications to amend (in particular in the case of Selkent Bus Co Ltd v Moore

[1996] ICR 836

, and the Presidential Guidance on Amendments), I refused the application to amend to add race harassment to Issue 2.