Employment Judge FergusonMr J Platts-Mills (instructed by counsel) for respondentDate 26 June 2019
JUDGMENT
It is the judgment of the Tribunal that: The Claimant’s complaints of unfair dismissal, race discrimination, disability discrimination, sex discrimination and for unpaid wages and annual leave are dismissed because the Tribunal has no jurisdiction to hear them.
REASONS
[1]By a claim form presented on 15 July 2018 the Claimant brought complaints of race, sex and disability discrimination, unfair dismissal, and for unpaid wages and annual leave. This preliminary hearing was listed to determine whether the Tribunal has jurisdiction to hear the Claimant’s claim in view of the applicable time limits.[2]I heard evidence from the Claimant.[3]The Claimant was represented by his sister. They informed the Tribunal at the outset that both of them are dyslexic and therefore may need more time to read documents etc. I ensured that they had any additional time that was required. The hearing, which had been listed for three hours, started at 11.40am and did not conclude until well after 5pm. The Claimant had not prepared a witness statement and there was no bundle for the hearing, in respect of which I make no particular criticism of the Claimant because there were no directions and he is not legally represented, but it meant that various documents were produced during the Claimant’s evidence and had to be copied by the Tribunal office. It is not ideal for a hearing to proceed in this way, but I am satisfied that both parties had every opportunity to present their cases fairly.
THE FACTS
[4]The Claimant was employed by the Respondent as a Prisoner Custody Officer from 13 June 2005 until his summary dismissal on 9 or 10 January 2018. The dismissal was for gross misconduct, namely threatening and unprofessional conduct towards a manager. It related to an incident on 5 May 2017 when the Claimant was alleged to have shouted at an operations manager, Ms McKenzie, and acted in a threatening way towards her. The Claimant was suspended and the Respondent conducted an investigation. On 27 November the Claimant was invited to a disciplinary hearing on 6 December. On the day of the hearing or shortly before, the Claimant said he was unable to attend because he needed to travel to Nigeria because his mother was due to have an operation. The hearing was postponed twice, first to 21 December and then to 9 January 2018. The Claimant says there was a dispute about whether he was entitled to take holiday or unpaid leave for the period that he intended be in Nigeria. The letter inviting the Claimant to the hearing on 9 January states that the Claimant was required to attend the rescheduled disciplinary hearing and that if the allegations were substantiated, a potential outcome was dismissal without notice. It also said that if the Claimant failed to attend without good reason the hearing would proceed in his absence. He was also given the option of making written submissions, attending by conference call or skype, or sending a proxy. The Claimant did not attend or send written submissions or a proxy and the hearing went ahead. The Claimant was dismissed. A letter dated 9 January 2018 confirmed the dismissal. The Claimant says he received this by email on 10 January 2018. The letter said that any appeal should be sent by 17 January.[5]The Claimant returned to the UK towards the end of January 2018. He notified ACAS of his dismissal on 9 February 2018, thereby commencing the early conciliation process, but he said in his evidence he had been in contact with ACAS on and off since 2015. He lodged an appeal against his dismissal on 16 February, but it was not considered because it was out of time. The ACAS certificate was issued on 7 March 2018.[6]It is not in dispute that, as regards any complaint about Claimant’s dismissal, the ordinary time limit expired on 9 April 2018. The time limit was extended by 26 days as a result of early conciliation, so the extended time limit expired on 5 May 2018. The Claimant submitted his claim form on 15 July 2018.[7]The details of claim submitted with the claim form consists of a long narrative of events going back to 2015/2016 when the Claimant was suspended for a lengthy period (for an unrelated matter). Apart from unfair dismissal, it is not clear from the details of claim what legal complaints the Claimant seeks to bring. I sought to clarify the claim with the Claimant during his evidence and I have considered the jurisdiction issue on the basis of the following broad complaints: 7.1. Various instances of direct sex, race and possibility disability discrimination or harassment based on comments made by different colleagues between February 2017 and April 2017. 7.2. Complaints about the grievance process after the Claimant lodged grievances about the above incidents later in 2017. It is not clear whether the alleged flaws in the grievance process are said to constitute race or sex discrimination in themselves, but the complaints include the fact that the investigation panel was all female and was not racially balanced. The Claimant accepted in his evidence that he received the outcome and final investigation report into his grievance in 2017. 7.3. As to the Claimant’s dismissal, he confirmed today that his main complaint is that the allegation against him, by Ms McKenzie and two others, was motivated by race and sex. He believes that the dismissing officer, Mr Hardwick, may also have been motivated by race and sex, and possibility disability. The Claimant alleged he was disabled because of dyslexia, and that the Respondent was aware of this, but dyslexia is not mentioned in the details of claim.[8]At the end of the Claimant’s details of claim he said he had not heard anything from the Respondent about his appeal. He said “I have been very sick, my 3 years old daughter diagnosed with autism, my brother wife died, and my partner had a baby within a space of 2 months. I am apologising wholeheartedly for the lateness of this claim which is down to the numerous issues in my life and family.”[9]The Claimant’s evidence to the Tribunal was that when he received the ACAS certificate he knew he could put in a claim and that there was a time limit. ACAS had told him that the Respondent was not responding. In the week or two after receiving the ACAS certificate he looked up some things online and discovered the deadline was somewhere between one month and three months from the date of the certificate. He therefore believed that at the latest it was 7 June 2018.[10]He said there were a number of matters that prevented him from presenting his claim in time. First, there was his mother’s ill-health. The operation took place on 9 December 2017 in Nigeria, but he said there were complications afterwards. He returned to the UK in late January 2018. His daughter was diagnosed with autism spectrum disorder on 1 February 2018. He said this resulted in him having to attend lots of appointments for her and it was a very difficult time. Then his sister-in-law, who lived in Nigeria, died in mid-February 2018. He said his brother is not around so he is responsible for the family. Their 13-yr-old daughter has lived with the Claimant in the UK since she was 9 or 10. Their three other children live in Nigeria. The Claimant said he had to speak to the elders and make all arrangements for the burial, as well as making sure the children were okay. The burial was in late March 2018. The Claimant and his partner had a baby on 30 March 2018. The Claimant said very shortly after this he was unwell and had to attend A&E on 4 April. He said he was in extreme pain and unable to stand or walk for 3-4 weeks. The only documentary evidence produced was a letter from the hospital stating that the Claimant attended with “low back pain 5 days”. The diagnosis was muscle injury. He was discharged and no follow-up was considered necessary. The Claimant said he attended a few days later for an MRI scan, which did not identify anything. The Claimant also relied on the fact that he was the victim of a robbery; his phone was stolen while he was on a bus. His evidence about the timing of this was not clear, but initially he said it happened in February or March 2018. He produced a letter dated 19 March 2018, which contained a notice to attend Inner London Crown Court as a witness in the period 30 July to 10 August 2018.[11]The Claimant said he has been trying to find a job since his dismissal. He attended the job centre in February 2018.
THE LAW
[12]The relevant time limits for bringing a Tribunal claim are set out in sections 23 and 111 (read with s.207B) of the Employment Rights Act 1996 and s.123 (read with s.140B) of the Equality Act 2010. For all types of complaint brought by the Claimant there is a primary three-month time limit, which may be extended if the claimant contacts ACAS to commence early conciliation within that time limit.[13]The Tribunal only has jurisdiction to consider an unfair dismissal, wages or holiday pay claim presented outside the time limit if the claimant shows that it was not reasonably practicable to present the claim within the time limit and he or she presented the claim within a further reasonable period.[14]As to discrimination complaints, the Tribunal has a broad discretion in deciding whether it is just and equitable to extend time under s.123 (Southwark London Borough v Alfolabi [2003] IRLR 220). Factors that may be considered include the relative prejudice to the parties, the length of the delay, the reasons for the delay and the extent to which professional advice was sought and relied upon. The onus is on the claimant to show that it is just and equitable to extend the time limit.
CONCLUSIONS
[15]There is no dispute that the claim was presented out of time. The latest act complained of is the Claimant’s dismissal, which took effect on 10 January 2018. The extended time limit in respect of any act on that date expired on 5 May 2018. The claim was presented more than 10 weeks later. Insofar as the Claimant seeks to complain about matters that took place in 2017, the claim is still further out of time.[16]I accept that the Claimant had a lot on his mind in February and March 2018. He was out of work, dealing with the issues relating his 3 year-old daughter, had to attend the police station about the theft of his phone and had to make arrangements relating to his sister-in-law’s death. The new baby is also bound to have caused some disruption. I consider, however, that he has overstated his inability to present a claim sooner than 15 July 2018. He was in contact with ACAS in February and March, and he lodged an appeal on 16 February. After receipt of the certificate, he was able to discover some information about time limits online. He was also able to attend the job centre and look for work. In the absence of supporting medical evidence I do not accept that he was unable to walk for most of April. His evidence about the robbery trial was extremely unclear and it is not credible that this caused the Claimant any practical difficulties in the period between attending the police station, which must have been before 19 March, and the trial, which cannot have been until 30 July at the earliest. He was unsure what the Tribunal deadline was, but knew there was a deadline. He made no attempts to seek advice, for example by contacting a Citizen’s Advice Bureau, and I consider that in the circumstances it was unreasonable not to do so.[17]I am therefore not satisfied that it was not reasonably practicable for him to submit his claim by 5 May 2018. Even if it was not reasonably practicable to submit the claim by that date, the Claimant did not submit his claim within a further reasonable period. He has not produced any evidence of particular difficulties in June or July 2018, and even if he reasonably believed the deadline was 7 June he could have submitted the claim by then.[18]I am also not persuaded that it would be just and equitable to extend the time limit for the discrimination complaints. As noted above, in respect of the Claimant’s complaints dating back to 2017 or earlier, these are significantly out of time. As for the complaints about the dismissal, I note that the length of the delay is significant, although not in itself such as to cause the Respondent real prejudice in defending the claim. An extension of the time limit is the exception, however, not the rule. The onus is on the Claimant to satisfy the Tribunal it is just and equitable to extend the time limit and I do not consider he has done so. He has not provided a good explanation for the delay for the whole period when he could have submitted the claim. I also take into account that the discrimination complaints are not clearly articulated and the Claimant’s central complaint appears to be that the allegations against him in May 2017 were motivated by race or sex. He was much less sure about the motivation of the dismissing officer, saying that he believed race, sex or disability may have been a factor. The Tribunal would therefore be primarily concerned with events in May 2017 and the passage of time may well affect the cogency of the evidence. Overall I consider the balance of prejudice falls on the Respondent’s side and I do not consider it appropriate to exercise my discretion to extend the time limit.[19]The claims must therefore be dismissed as the Tribunal has no jurisdiction to hear them.