Ms D Mahmoud v St George’s University Hospitals NHS Trust: 2302231/2018
JUDGMENT
The unanimous Judgment of the Tribunal is that:(i) The Tribunal has no jurisdiction to consider the Claimant’s claims of disability discrimination which were presented out of time. The claims are dismissed.(ii) The Respondent’s application for all or part of their costs to be paid by the Claimant is refused.REASONS
These written reasons are given at the request of the Claimant made on 1st April 2019.[1]By a claim form presented on 15th June 2018, the Claimant bought complaints of unfair dismissal and disability discrimination, (though the unfair dismissal complaint was subsequently withdrawn as the Claimant did not have the necessary qualifying service.). The issues (including issues of time) were identified and set out in a case management order following a Preliminary Hearing on 14 September 2018 and set down for a full hearing beginning today.[2]The Claimant was employed by the Respondent via its staff bank as a locum team administrator for some 4 months. She was dismissed on 19th January 2018 with notice and her employment ended on 26 January 2018.[3]The Claimant contacted ACAS on 26th April 2018. This meant that her complaint was out of time at the date that she commenced early conciliation. There was no question of the claim being part of a continuing course of conduct that concluded within the time limit. ACAS Conciliation was closed on 9 June 2018 and the claim was submitted on 15th June 2018.[4]Given this the Tribunal determined to deal with the issue of jurisdiction as a preliminary point. The legal framework[5]Section 123 of the Equality Act 2010 provides that: “(1) Subject to sections 140A and 140B, proceedings on a complaint [of discrimination] may not be brought after the end of:(a) the period of 3 months, starting with the date of the act which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable.”[6]Section 140B provides an extension of the time limit to facilitate ACAS conciliation. It effectively operates to suspend the running of time during a period of ACAS conciliation. However if, by the time that the Claimant contacts ACAS, the time limit in section 123(1)(a) has already expired, the Claimant will not get the benefit of that extension.[7]In this case, the time limit set out in section 123 (1) (a) expired on 25 April 2018. Consequently, when the Claimant contacted ACAS one day later, she did not get the benefit of the extension of time provided by section 140B so that by the time she submitted her claim in June it was some 7 weeks and 2 days out of time. Nonetheless it is also the case that had the Claimant contacted ACAS one day earlier, a claim submitted on 15th June would have been in time, as the Claimant would have benefited from the provisions in section 140 B.[8]Section 123(1)(b) confers a broad discretion on the Tribunal to extend the time limit where the Tribunal is of the view that it would be just and equitable to do so. In considering this issue, all the circumstances are relevant including the extent of and reasons for the delay, any prejudice to the respondent if the application is allowed to proceed, the likely injustice to the claimant if the complaint is not heard, whether the Claimant was in receipt of advice or any other steps which she might have taken to obtain professional advice, and when she knew of the possibility of taking appropriate action.[9]In Robertson v Bexley Community Centre 2003, the Court of Appeal noted that the Tribunal has a wide discretion. On the other hand, time limits are jurisdictional and it is for the Claimant to persuade the tribunal to accept a late claim. Facts relevant to the time issue[10]The Tribunal heard evidence from the Claimant under oath.[11]The Claimant initially explained to the Tribunal, that she had understood the time limit of three months to contact ACAS to refer to calendar months so that time would expire on 26th April. She referred us to the tribunal website which refers to having to make a claim “within 3 months of the employment ending or the problem happening”. She did not take that to be 3 months less a day. She had thought her claim was in time. After that she had had problems with her laptop which meant she could not submit her claim on line. He laptop was not fixed until 14th June and her claim was submitted on 15th June.[12]However, in answer to questions in cross examination the Claimant then accepted that she had consulted other websites and that at least one of those websites had referred to the need to make a claim or to contact ACAS within 3 months less a day. In her written witness statement at paragraph 6, the Claimant refers to the time limit being three months minus one day.[13]She then provided a different explanation which was that she had calculated 3 months less a day in such a way that the time period did not expire until 27th April. This is also what she states in her witness statement. It was her case therefore that on her calculation the claim was in time. Once she received the ACAS certificate, she had problems with her laptop and could not submit her form until 15 June.[14]In an effort to explain how she had done her calculation the Claimant said that she had worked on the basis of a Friday to Friday calculation and that she had calculated the 3 months as follows: 26th January to 23 February (being 4 Fridays), then 23 February to 23 March, again 4 Fridays and then from 23 March to 27 April, so that the time limit ran until 27th April. (This is 5 Fridays). Her reasons for calculating the time period in this way were confused and inconsistent.[15]At times she said she worked from Friday to Friday and at other times she said she was working in chunks of a calendar month, but thought she had to use Fridays. In response to a question from Ms Dengate as to why, if she was using Fridays as a calculation she did not use 30 March in her calculation of the March dates, she said that was using months and that three calendar months less a day meant that the last day for submission was 27th March. It was an explanation which we did not understand.[16]In short, the Tribunal did not accept the Claimant’s explanation that she genuinely thought that the period of 3 months less a day did not expire until 27 April. It is also apparent from the Claimant’s claim form that she herself, at the time that she lodged her claim, thought it would be out of time as it was accompanied by an explanation for the delay which related to technical problems with the Claimant’s laptop.[17]In answers to question in cross examination the Claimant also explained that she did not submit her claim as soon as she got the ACAS certificate because she had problems with her laptop. She said that the claim was submitted only 4 days (rather than 6) after she received the ACAS certificate. The certificate was received on a Saturday and so the delay should be counted from Monday. She had presented her claim on the Friday.[18]The Claimant lives with her mother and her father both of whom have laptops. She explained that she was unable to use her mother’s laptop because her mother was looking for work herself and needed her laptop and her father had a touchscreen laptop which she found difficult to use. She could not use a library or an Internet cafe as it was a private matter and she did not want to use a friend’s laptop for the same reason.[19]We found that explanation somewhat unlikely. We did not accept that the Claimant could not have used, at least, the laptop belonging to her mother or that her mother would not have been able to spare the Claimant the use of her laptop for a sufficient period for her to have submitted her claim form online.[20]The Claimant also told the Tribunal that she had waited until the last minute to contact ACAS because she was waiting for the Respondent to deal with her grievance. However, documents in the bundle establish that the Claimant dd not raise a grievance until 26th April, the same day she contacted ACAS. This was not a case therefore where the Claimant was waiting for the outcome of a grievance before contacting ACAS.[21]The Claimant has considerable academic achievements. She has an A level in law, and a Masters in European law. She completed the bar professional training course (though she told us that she had not passed it) and has worked as a legal intern for a month. More relevantly she attended a one-day training course in employment law run by the Free Representation Unit, and also attended some short courses run by Law Works (1 - 2 hours) on redundancy, discrimination and an introduction to the employment tribunal. She therefore is more knowledgeable, and better placed to undertake legal research, than the average unrepresented Claimant.Conclusions
[22]The Claimant contacted ACAS on 26th April 2018. This meant that her complaint was out of time at the date that she commenced early conciliation and she did not get the benefit of the s140B extension. ACAS Conciliation was closed on 9 June 2018 and the claim was submitted on 15th June 2018.[23]The Tribunal initially had sympathy with the Claimant. Although the government website refers to “within” 3 months, it is not 100% clear that this should be 3 months less a day. The delay was, in reality only a day, even if technically the claim was some 7 weeks out of time because, if the Claimant had contacted ACAS one day sooner, she would have been in time. There was no prejudice to the Respondent in a delay of a single day and there was no question of any issues with the cogency of the evidence. That was an important factor which might well have led us to conclude that it would be just and equitable to extend time.[24]Unfortunately, the Claimant’s case and credibility unraveled in cross examination. She acknowledged that she had understood that the time limit for contacting ACAS was 3 months less a day. We did not accept her evidence that she had genuinely calculated the time limit in a way that led her to believe that contacting ACAS on 27th June would mean that her claim would be in time. If that was the case, there would have been no need for the explanation about a faulty laptop in the ET1. Her belated explanation that she wanted the Respondent to deal with her grievance first did not stack up, given the chronology.[25]After the 27th June, the Claimant then waited till 15th June to present her claim. We did not accept that she could not have submitted it before because of problems with her laptop, or that she could not persuade her mother of father to allow her to use their laptop.[26]Time limits are exercised strictly in the Employment Tribunal and it is for the Claimant to establish that it would be just and equitable to extend time under section 123. The Tribunal has a wide discretion to extend time, but there is no presumption that we should exercise it in favour of the Claimant.[27]The factors which might have persuaded us were that the delay was in reality a short one and the cogency of the evidence would not be affected by the delay. However, the shortness of the delay alone does not necessarily mean that it must be just and equitable to extend time.[28]There were no factors other than the shortness of the delay, which would persuade us to exercise our discretion to extend the time limit. The reason for the delay is however not clear. The Claimant’s explanations have been inconsistent. She knew about the time limit and knew when submitting her claim that it was out of time. Once she contacted ACAS there was a further delay before the claim was issued, for which we have had no credible explanation. In short, the Claimant has not persuaded us that it would be just and equitable to extend time. Costs[29]At the conclusion of the hearing Ms Ramadan applied for costs on the basis of both Rule 76(1) (a) and (b).[30]She submitted that the Claimant had legal know how and knew that the claim was out of time, but failed to concede the point, even after the case management order recorded that the claim was out of time. She should have known the case had no reasonable prospect of success. She produced some letters to the Claimant which were “without prejudice save as to costs” inviting the Claimant to drop her claims, the last of which was sent the night before the hearing. The Claimant was given a “drop hands” offer on the basis that the Respondent would not seek costs against the Claimant if she withdrew, but the Respondent reserved its right to seek costs if she proceeded. The Respondent advised the Claimant that they believed that her claim was highly unlikely to succeed (referring both to the time point and to the merits) and that in any event it was of a very low value.[31]The Claimant resisted the application, saying that after the case management discussion there were still arguments about whether it would be just and equitable to extend the time. She was not working, studying full time and living with her parents. She had no funds.[32]The power to award costs is contained in Rule 76 of the Employment Tribunal Rules of Procedure 2013 which provides that: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.[33]If the Tribunal considers that the circumstances set out in Rule 76(1) apply it may make a costs order against a party if it considers it appropriate to do so. An award of costs is the exception and not the rule in the employment tribunal.[34]In this case we do not consider that the threshold in section 76 has been met. We have no view as to the overall merits of the case having heard no evidence. We are unable to say therefore that it had no reasonable prospect of success. In relation to the time point, although the Claimant ultimately failed, the just and equitable test confers a broad discretion on the Tribunal, and we do not accept that the time point had no reasonable prospect of success or that it must have been obvious to the Claimant before the case began that her case would fail on that ground. For the same reason we do not consider that the Claimant acted unreasonably in bringing her claim or refusing to accept the Respondent’s drop hands offer.