Mr R Murray v London General Transport Services Ltd (T/a Go Ahead London): 2303121/2022

EMPLOYMENT TRIBUNALS

Case No 2303121/2022

Between

Mr R MurrayClaimant

London General Transport Services Ltd (T/a Go Ahead London)Respondent

Before

Employment Judge Abbott

Mr Daniel Ibekwe (instructed by Brighton & Hove Race Project) for claimant

Date 22 March 2023

JUDGMENT

[1]The claim is dismissed in its entirety, as the Tribunal does not have jurisdiction to hear any of the complaints brought by the Claimant.

[2]The hearings listed for 14 August 2023 and 19-22 March 2024 shall be vacated. JUDGMENT having been sent to the parties on 31 March 2023 (reasons having been delivered orally on 22 March 2023) and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The Claimant, Mr Murray, brought the following complaints against his former employer, London General Transport Services Ltd (t/a Go Ahead London), hereafter referred to as the Respondent:a. ordinary unfair dismissal (s.94(1) Employment Rights Act 1996 (‘ERA 1996’));

b. automatic unfair dismissal (s.103A ERA 1996);

c. protected disclosure detriment (s.47B ERA 1996);

d. discrimination arising from disability (s.15 Equality Act 2010 (‘EqA 2010’));

e. victimisation (s.27 EqA 2010);

f. failure to make reasonable adjustments (s.26 EqA 2010);

g. wrongful dismissal; and

h. unpaid holiday pay.

[2]The claim came before the Tribunal on 22 March 2023 for an open preliminary hearing to consider whether the complaints were made out of time. This was further to a request made by the Respondent’s solicitors by a letter dated 4 October 2022. The Notice of Hearing was issued on 19 December 2022.

[3]The Claimant did not appear himself at the hearing, and did not provide any written or oral evidence. He was represented at the hearing by Mr Ibekwe. The Respondent was represented at the hearing by Ms Smeaton. I heard submissions from both representatives before making my decision. Factual background

[4]The Claimant was initially employed by the Respondent from 4 September 2017 until 7 December 2021. The Respondent says he was dismissed on 7 December 2021 by reason of ill-health capability but that, in accordance with the Respondent’s usual practice, the Claimant was invited to apply for reemployment on the same grade if he became fit enough to work during the six-month period following his dismissal (i.e. up to and including 6 June 2022). The Claimant says that, on a proper view, the dismissal was suspended for a 6-month period pending alleged progress of recovery by the Claimant, following which a re-engagement order became available or a valid option.

[5]With the exception of the ‘dismissal’, which I shall come back to, it was common ground that none of the acts and detriments relied upon by the Claimant occurred after the end of December 2021.

[6]The Claimant returned to work for the Respondent between 6 June 2022 and 1 August 2022, when he was dismissed. The Respondent says this was a new period of employment. The Claimant described this in his ET1 as a reengagement, though Mr Ibekwe in his oral submissions characterised it as a reinstatement.

[7]The Claimant commenced ACAS Early Conciliation on 3 August 2022. An ACAS Early Conciliation certificate was issued on 31 August 2022. The Clamant commenced a further period of ACAS Early Conciliation on 2 September 2022. A second ACAS Early Conciliation certificate was issued on 5 September 2022. On 5 September 2022, the Claimant presented his claim to the Tribunal.

Relevant law

[8]The primary time limits applicable to the various complaints that form part of this claim are as follows:a. for complaints of unfair dismissal and wrongful dismissal - three months from the effective date of termination (s.111(2)(a) ERA 1996; article 3, Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994; s.97 ERA 1996);

b. for a complaint of protected disclosure detriment - three months from the date of the alleged act or failure to act to which the complaint relates or, where the act or failure to act is part of a series of similar acts, the last such act or failure to act (s.48(3)(a) ERA 1996);

c. for a complaint of unlawful deductions of wages - three months from the date of payment of the wages from which the deduction was made or, if a series of deductions, from the date of the last deduction in the series (s.23 ERA 1996); and

d. for complaints of discrimination arising from disability, victimisation and failure to make reasonable adjustments – three months from the date on which the act of discrimination complained of took place (s.123(1)(a) EqA 2010).

[9]Periods spent in ACAS Early Conciliation may act so as to extend those periods, so long as Early Conciliation is commenced during the primary time limit.

[10]In respect of the non-EqA 2010 complaints, the burden of proving that it was not reasonably practicable to present a claim in time is on the Claimant. The Tribunal has a discretion to extend time where it was not reasonably practicable for the Claimant to bring the claims in time and they were brought within a reasonable period of time thereafter.

[11]In respect of the EqA 2010 complaints, the Tribunal has discretion to extend time where it is just and equitable to do so (s.123(1)(b) EqA 2010). A useful guide is to consider the factors listed in s.33(3) of the Limitation Act 1980 (see Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5, CA). That section deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Submissions

[12]The Respondent’s submissions can be summarised as follows:a. It is clear from the ET1 that the Claimant’s claims are all based on acts said to have occurred in relation to the first period of employment, which ended on 7 December 2021 (with his final payment being made on 31 December 2021).

b. The Claimant did not commence ACAS Early Conciliation until 3 August 2022. His claim form was lodged on 5 September 2022. Accordingly, any complaint about something that happened before 4 May 2022 is prima facie out of time.

c. As a matter of law, it is wrong for the Claimant to characterise the dismissal as a continuing act lasting from 7 December 2021 to 6 June 2022. The effective date of dismissal was 7 December 2021, it was not suspended, and there was no contract between the Claimant and the Respondent governing the period between 7 December 2021 and 6 June 2022. That was made clear to the Claimant in his dismissal letter which, in relevant part, read: “I said I would welcome an application from you to return as a Bus Driver with Go-Ahead, and confirmed if you were able to return within 6 months, by 7th June 2022, you could return on your current pay grade but without the terms and conditions that are service related. So keep your grade but everything else reverts to new entrant conditions.”

d. There is nothing in the ET1, nor in any evidence, to support a conclusion it was not reasonably practicable for the Claimant to bring the non-EqA 2010 claims in time, or within a reasonable period thereafter. The Claimant must have been aware of all of these claims by the end of December 2021. Moreover, he was well enough to return to work in early June 2022 yet didn’t start Early Conciliation until August 2022.

e. As regard the EqA 2010 claims, there is nothing in the ET1, nor in any evidence, to indicate why it would be appropriate to extend time. The Respondent would be significantly prejudiced if time were to be extended. It would be required to defend a claim in respect of allegations that are now approximately 15 months old. The passage of time inevitably affects memories and the cogency of the evidence which can be given. It places the Respondent at a significant disadvantage in defending its actions. That is particularly so here where the Claimant did not raise the points he now pursues as part of the internal dismissal process.

f. The Claimant has been represented since at least the bringing of the proceedings, which suggests that he had the opportunity to access legal advice earlier. He was also represented by his union during the second dismissal process, which again suggests that he had the opportunity to access advice and support earlier.

[13]Mr Ibekwe for the Claimant responded, in summary, as follows:a. This is a case full of conflicts of evidence and therefore it is not suitable to be struck out. Disclosure should be given first. To determine this application now is premature and a 1 day preliminary hearing should instead be listed, after disclosure.

b. The Claimant has always made clear in the proceedings that he never received the dismissal letter quoted from above.

c. The process of dismissal continued beyond 7 December 2021, so the whole period up to 6 June 2022 should be considered to be relevant. For the EqA 2010 claims, time should run from that later date because it is only then that the detriments can be measured.

d. The Respondent is seeking to evade liability by its arrangement of allowing employees to ‘reapply’ for their old job within 6 months after being ‘dismissed’ on sickness grounds, and is essentially seeking to circumvent the contracting out provisions in s.144 EqA 2010. It is only at the point of reinstatement / re-employment that the full extent of damage caused by discrimination becomes clear.

Discussion

[14]I indicated during Mr Ibekwe’s submissions that I would not accede to his request not to determine the time point at this hearing. I considered the correspondence that he had sent regarding documentary requests of the Respondent, which was in the hearing bundle, but consider, in my judgement, that these requests related to the underlying merits of the complaints, and not to time limits. In circumstances where the Claimant was on sufficient notice that this hearing was going to determine the time point, I considered it fair and in the interests of justice to proceed.

[15]The parties prepared a Working List of Issues which, whilst not fully agreed, was helpful in understanding the allegations being made. As already mentioned, it is common ground that, subject to one point around the dismissal itself, none of the acts and detriments relied upon occurred after the end of December 2021. As ACAS Early Conciliation was not commenced until August 2022, all of those acts and detriments are, on their face, outside the primary time limit.

[16]As regards the dismissal, it is the Claimant’s case that this was a continuing act which lasted from on or around 7 December 2021 when the Claimant was purportedly dismissed through to his re-engagement / reinstatement on 6 June 2022. The Respondent says this is flawed as a matter of law – a dismissal has to have an effective date, that date was 7 December 2021. What happened after that is irrelevant to the dismissal.

[17]I carefully considered the way the case is pleaded in the ET1 and kept in mind the Claimant’s submission that the “dismissal letter” of 7 December 2021 was never in fact received by the Claimant. The fundamental problem with the Claimant’s submissions is that, in the ET1, it is expressly relied upon that the Claimant’s contract of employment was terminated on 7 December 2021 (see point 4.4 in the Particulars of Claim) and that he was re-engaged on a new contract without continuity of employment, as opposed to reinstated, on around 6 June 2022 (see point 1.1 in the Particulars of Claim). I accept the Respondent’s submission that there cannot in law be a ‘continuing dismissal’, but in any event the facts as pleaded are against the Claimant’s case. Whether or not the “dismissal letter” was received is not relevant to this determination, since it must have been clear (not least from the fact that the Claimant was not being paid anything after end of December 2021) that the Claimant had been dismissed on or around 7 December 2021, and this understanding is made clear in the ET1 in any event.

[18]Accordingly, all acts and detriments, including the dismissal, are outside of the primary time limit.

[19]As I have already said, in respect of the non-EqA 2010 complaints, the burden of proving that it was not reasonably practicable to present a claim in time is on the Claimant. The Claimant provided no explanation in the ET1 for why the complaints were brought out of time, and no evidence has been offered, either in writing or orally (as the Claimant did not attend the hearing). In those circumstances, the Claimant has not discharged the burden of proving that it was not reasonably practicable to present a claim in time. Moreover, even if the Claimant was impaired by ill health from bringing his claim earlier, he was well enough to return to work by early June 2022 but did not commence Early Conciliation for a further two months after that and, accordingly, I find (again in the absence of any justification from the Claimant) that the claim was not brought within a reasonable period of time after the primary time limit.

[20]In respect of the EqA 2010 complaints, I have already mentioned the potentially relevant factors when determining whether to exercise the ‘just and equitable’ discretion to extend time. The length of the delay here is significant – several months – and no reasons have been offered in the ET1 or in evidence. The Respondent has explained why having to deal with these late claims will cause prejudice to it. I accept those submissions, and I also bear in mind that a final hearing will not happen until March 2024, another year on from this hearing. I do not accept the Claimant acted promptly – even on his case that he could not have known of the full facts giving rise to a cause of action until his re-engagement in early June 2022, he did not commence ACAS conciliation until late August 2022. Taking the Claimant’s case at its highest, I understand from Mr Ibekwe’s submissions that there was correspondence around the alleged non-provision of the “dismissal letter” after December 2021, but I have not been shown that correspondence, nor can I see why it would necessarily prevent a claim being brought earlier. Balancing all of the factors, I do not consider it is just and equitable to extend time.

[21]The result, then, is that all complaints are out of time. My judgment therefore was that the claim be dismissed on the basis that the Tribunal does not have jurisdiction to hear any of the complaints brought by the Claimant. I also ordered that the hearings scheduled for August 2023 (a case management preliminary hearing) and March 2024 (the final hearing) be vacated.

Discussion

[1]On 22 March 2023 the claim came before the Tribunal to determine, as a preliminary issue, whether the complaints were brought out of time. By its Judgment sent to the parties on 31 March 2023 (reasons having been delivered orally on 22 March 2023) the Tribunal found in favour of the Respondent and dismissed the claim in its entirety on the basis that the Tribunal does not have jurisdiction to hear any of the complaints brought by the Claimant, which were all brought out of time. The Claimant’s representative, Mr Daniel Ibekwe, requested written reasons, which were sent to the parties on 10 May 2023.

[2]By a letter dated 3 April 2023, the Respondent applied for a costs order against the Claimant. It contended that it should be awarded its costs on the basis that the Claimant’s claims at no stage had reasonable prospects of success (Rule 76(1)(b)). The application enclosed a statement of costs indicating total costs claimed of £4,254.50 plus VAT up to and including the hearing on 22 March 2023. It also attached a costs warning letter that had been sent to Mr Ibekwe on 4 October 2022 (the same date on which the ET3 response was presented). The Respondent requested that the application be determined on paper.

[3]The Respondent’s costs application was copied, by email, to Mr Ibekwe. On 10 May 2023, on my instructions, the Tribunal wrote to Mr Ibekwe, copying the Respondent’s solicitors, with the following request: As regards the Respondent’s application for a costs order, the Claimant should within 21 days of today provide written representations in response, to address: 1. whether rule 76(1) is engaged; 2. if so, whether I should exercise my discretion to make a costs order – which should include any submissions and evidence in relation to the Claimant’s ability to pay such an order; and 3. any challenge to the figures claimed by the Respondent. I am presently minded to determine the costs application on paper but will consider any reasoned request for a hearing from the Claimant, if necessary.

[4]On 23 May 2023, the Respondent’s solicitors wrote to the Tribunal informing that they had learned that Mr Ibekwe had sadly passed away since the hearing on 22 March 2023. They copied the Claimant on that email (using the email address for him given on the ET1 claim form). The Respondent’s solicitors subsequently followed up by email on 21 June 2023.

[5]At that stage, it was not clear to me whether the Claimant had received all of the relevant materials, and I therefore directed that a letter be sent to him in the following terms: I have reviewed the correspondence on file regarding the Respondent's costs application. Although it appears that the Respondent's application has been sent directly to the Claimant, it is not clear to me whether the Tribunal's letter of 10 May 2023 has come to his attention. A further copy of this letter is attached. The Claimant must provide a response to that letter within 14 days of today's date. If no response is received, I will determine the application without a hearing based on the materials currently available to me.

[6]Unfortunately, when that letter was sent on 1 August 2023, due to an administrative error it was directed to Mr Ibekwe’s email address and not to the Claimant’s. When the file came back to me, I directed that it be resent to the Claimant (by email and post) to make sure that he had the opportunity to see all of the materials and respond accordingly. This was done on 2 October 2023.

[7]The 14-day period for responding expired on 16 October 2023 and, by the date of this judgment, no response has been received from the Claimant. Having made substantial efforts to bring the application to his attention, I am satisfied that it is in the interests of justice now to determine the application based on the materials I have before me.

The law

[8]Rule 76(1) provides (insofar as relevant): A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that — […] (b) any claim or response had no reasonable prospect of success […].

[9]There is a three-stage process. First, I must ask myself whether rule 76(1) is engaged; if so, it must go on to determine whether it is appropriate to exercise my discretion in favour of awarding costs against the Claimant; and if so, I must quantify the order (Rule 78). Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, I may have regard to ability to pay.

[10]The Employment Appeal Tribunal (HHJ Auerbach) discussed the approach to applications under Rule 76(1)(b) in Radia v Jefferies International Ltd

[2020] IRLR 431

. The EAT explained at [65] that the Tribunal should first, at stage 1, consider whether, objectively, the claim "had no reasonable prospects of success" when it was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation. Discussion Stage 1: Rule 76(1) engaged?

Discussion

[11]In accordance with the guidance in Radia, the first step is to look objectively at the prospects of the individual complaints within the claim when they were begun.

[12]It is evident from the particulars of claim that, aside from the dismissal, every act and detriment relied upon fell well outside the primary time limit for the claims being brought – as is explained in the written reasons for the substantive judgment. The dismissal could only fall within the primary time limit on the basis of it being characterised as a continuing act that lasted from December 2021 to June 2022, but this was an argument objectively flawed in law, again as explained in the substantive written reasons. The dismissal was therefore also outside of the primary time limit.

[13]Accordingly, all of the complaints could only have any prospects of success if an extension of time could be granted. As explained in the substantive written reasons, for all complaints, this placed a burden on the Claimant to justify an extension of time under the relevant provisions. In those circumstances, one would expect to see in the claim some explanation for why time should be extended. No such explanation was provided in the claim (or, indeed, at any point thereafter). That being the case, I am satisfied that, viewed objectively, none of the complaints had reasonable prospects of success from the outset, because there was never a reasonable prospect of the Tribunal extending time. Stage 2: discretion

[14]In deciding whether to exercise my discretion, I acknowledge that the making of costs orders in the Employment Tribunal is an exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor

[2012] ICR 420

, CA). I consider the following factors to be relevant in this case:a. The Claimant was represented throughout the proceedings. Whilst Mr Ibekwe was not legally qualified, he was someone with considerable familiarity with employment law and who, based on my own research, has appeared on numerous occasions in the Employment Tribunal and Employment Appeal Tribunal. In Brooks v Nottingham University Hospitals NHS Trust EAT 0246/18 the EAT noted that positive legal advice will not necessarily insulate an unsuccessful claimant against an award for costs. In the absence of any evidence to the contrary, the tribunal is entitled to assume that a represented party has been properly and appropriately advised as to the merits of his or her case. However, in this case, that assumption must be caveated a little due to Mr Ibekwe’s lack of formal legal qualification.

b. The Claimant’s representative was warned at the very outset of the case by the letter dated 4 October 2022 that the Respondent considered that Rule 76(1) applied and that it would seek to recover costs. The jurisdictional / time points were raised in the ET3. A choice was, it seems, made to proceed with the claim regardless yet, even up to the hearing on 22 March 2023, offer no real explanation for why the Tribunal should extend time.

c. The nature of the evidence required to give the complaints a reasonable prospect of success (at least in respect of getting over the jurisdictional hurdle as regards time limits) was in the hands of the Claimant himself. It was not dependent upon anything from the Respondent.

[15]Despite being invited to do so, the Claimant has provided no information as to his ability to pay any costs order. In the circumstances, this is a factor that I will disregard since I have no reliable information on which to form a view as to the Claimant’s means.

[16]Drawing the points together, I find that the Claimant (with Mr Ibekwe’s assistance) ought to have known from the outset that the time points rendered his complaints without reasonable prospects of success unless the Tribunal could be persuaded to extend time, but no genuine effort was made to so persuade the Tribunal. It is fair to infer that no proper basis to argue for an extension could be made. Taking into account all of the factors set out above, I consider it is right to exercise my discretion to make a costs order against the Claimant in this case. Stage 3: quantification

[17]The costs claimed are under £20,000, so I can make an order myself (Rule 78(1)(a)).

[18]I have considered the Respondent’s Schedule of Costs and note that the Claimant has made no submissions in this respect. It seems to me that the rates of the Respondent’s solicitors and the numbers of hours they have spent on the case are reasonable and proportionate. The same can be said for Counsel’s brief fee for the hearing on 22 March 2023. I see no proper basis to make any deductions from the costs claimed.

[19]I will therefore order that the Claimant pay to the Respondent the sum of £4,254.50, this being the figure claimed (exclusive of VAT, as I understand the Respondent to be VAT-registered and, therefore, able to recover the VAT element of its legal fees from HMRC as input tax).