Ms C Labongo Alum v Thames Reach Charity: 2303646/2019
EMPLOYMENT TRIBUNALS
Case No 2303646/2019
Between
Ms C Labongo AlumClaimantThames Reach CharityRespondent
Before
Employment Judge Truscott QCMr T Akinsanmi friend for claimantMr T Sheppard (instructed by Counsel) for respondentDate 22 November 2022
REASONS
[1]This preliminary hearing was fixed in order to determine whether the claimant’s claims of unfair dismissal; disability, sex, race and age discrimination, and monetary claims which were all contained in the same claim form should be struck out as being out of time.[2]The claimant gave evidence on her own behalf. She provided a statement in advance of the hearing [92]. There was a bundle of documents to which reference will be made where necessary. Findings 1. The claimant commenced employment with the respondent on 22 November 2002. She worked as a Kitchen Assistant/Relief Cook. Her employment terminated on 6 March 2019 by reason of redundancy. She started writing down a history of her employment after her dismissal which was to become a lengthy attachment to her ET1. 2. The claimant commenced ACAS early conciliation on 26 March 2019 and the Early Conciliation Certificate was issued on 11 April 2019 [4].
Findings
[3]The claimant was due to return from Africa on 3 June 2019, but missed her flight due to unforeseen circumstances and was therefore unable to return to the UK until 7 June 2019 [92]. The claimant originally submitted her claim by email to londoncentralet@Justice.gov.on 5 June 2019 from an agent in Uganda using the email address agietapatcy2@gmail.com [85].[4]The Tribunal emailed the claimant on 10 June 2019 to say that the claim had been rejected because the claim could not be validly presented by email [86 - 87]. The Tribunal used the email address of the agent in Uganda who forwarded it to the claimant on 11 June 2019.[5]On 11 June 2019, the claimant submitted a claim form without the Early Conciliation number which was returned by the tribunal on 13 June 2019 as the claim was invalid [88].[6]The claimant added the Early Conciliation number to the claim form and lodged it with the Tribunal which was accepted by the Tribunal on 24 June 2019 [5]. Submissions[7]The Tribunal received written submissions from Counsel for the respondent and heard oral submissions from both parties.
Law
[8]Section 18A of the Employment Tribunals Act 1996 provides that claims before the Employment Tribunal are all subject to the early conciliation provisions. Time limits and extension Case No. 2303646/2019/V 3 Not reasonably practicable to present claim in time[9]Section 111(2)(b) of the Employment Rights Act 1996 provides that the three-month time limit can be extended: (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. [(2A) … [and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).][10]There are two limbs to this formula. First, the employee must show that it was not reasonably practicable to present his claim in time. The burden of proving this rests firmly on the claimant (Porter v. Bandridge Ltd [1978] ICR 943 CA). Second, if he succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. The leading authority on the subject is the decision of the Court of Appeal in Palmer and Saunders v. Southend-on-Sea Borough Council [1984] ICR 372 CA.[11]When considering whether to extend time under S.111(2)(b), Employment Tribunals should always bear in mind the general principle that litigation should be progressed efficiently and without delay; Nolan v. Balfour Beatty Engineering Services EAT 0109/11. Just and equitable extension[12]Section 123(1)(b) permits the Tribunal to grant an extension of time for such other period as the employment tribunal thinks just and equitable. Section 140B of the Equality Act 2010 serves to extend the time limit under Section 123 to facilitate conciliation before institution of proceedings.[13]The Tribunal has reminded itself of the developed case-law in relation to what is now Section 123 of the Equality Act 2010. That has included a group of well-known judgments setting out the underlying principles to be applied in this area, together with recent occasions on which those principles have been applied and approved by later courts and tribunals. Particular attention has been paid to the historical line of cases emerging in the wake of the case of Hutchinson v. Westwood Television [1977] ICR 279, the approach adopted by Smith J. in British Coal Corporation v. Keeble [1997] IRLR 336, the comments in Robinson v. The Post Office [2000] IRLR 804, the detailed consideration of the Employment Appeal Tribunal in Virdi v. Commissioner of Police of the Metropolis et al [2007] IRLR 24, and, in particular, the observations of Elias J. in that case, as well as the decision of the same body in Chikwe v. Mouchel Group plc [2012] All ER (D) 1.[14]The Tribunal also notes in passing the guidance offered by the Court of Appeal in the cases of Apelogun-Gabriels v. London Borough of Lambeth & another (2002) IRLR 116 and observations made by Mummery LJ in the case of Ma v. Merck Sharp and Dohme [2008] All ER (D) 158.[15]The Tribunal noted in particular that it has been held that ‘the time limits are exercised strictly in employment cases’, and that there is no presumption that a Case No. 2303646/2019/V 4 tribunal should exercise its discretion to extend time on the ‘just and equitable’ ground unless it can justify failure to exercise the discretion; as the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time, ‘the exercise of discretion is the exception rather than the rule’ (Robertson v. Bexley Community Centre [2003] IRLR 434, at para 25, per Auld LJ); Department of Constitutional Affairs v. Jones [2008] IRLR 128, at paras 14–15, per Pill LJ) but see LJ Sedley in Chief Constable of Lincolnshire Police v. Caston where he said in relation to what LJ Auld said “there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised.”[16]The Tribunal’s discretion is as wide as that of the civil courts under section 33 of the Limitation Act 1980; British Coal Corporation v. Keeble [1997] IRLR 336; DPP v. Marshall [1998] IRLR 494. Section 33 of the Limitation Act 1980 requires courts to consider factors relevant to the prejudice that each party would suffer if an extension was refused, including: the length 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 had co-operated with any requests for information; the promptness with which the claimant acted once she knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[17]Although these are relevant factors to be considered, there is no legal obligation on the Tribunal to go through the list, providing that no significant factor is left out; London Borough of Southwark v. Afolabi [2003] IRLR 220.[18]The Tribunal has additionally taken note of the fact that what is now the modern Section 123 provision contains some linguistic differences from its predecessors – which were to be found in various earlier statutes and regulations – concerning the presentation of claims alleging discrimination in the employment field. However, the case law which has developed in relation to what is now described as “the just and equitable power” has been consistent and remains valid. The Tribunal has therefore taken those authorities directly into account in its consideration.[19]It is also a generally received starting proposition that it is for the claimant who has presented his or her claims out of time to establish to the satisfaction of the Tribunal that the “just and equitable” discretion should be exercised in the particular case. That obligation is not just a matter of the burden of proof. It also raises the question of what is the standard of proof to be established in order to persuade the Tribunal that a period other than the normal three months should be applicable. It is therefore a matter which requires evidence – which may be oral and subjected to cross examination or documentary. DISCUSSION and DECISION Case No. 2303646/2019/V 5[20]The deadline for submitting the claim to the Tribunal was 5 June 2019 which was extended by 16 days to 21 June 2019 by the Early Conciliation procedure. The claim was accepted on 24 June 2019, 3 days late.[21]The claimant explained that she was able to submit her ET1 by email on 5 June 2019 from Uganda but was not able to do so via the online form (i.e. via a valid method of presenting her claim). She resubmitted her ET1 by hand on 11 June 2019, it did not contain the ACAS Early Conciliation number, so was returned on 13 June because it was invalid.[22]She has not given an explanation for the delay between 13 June and 24 June 2019. The claimant has said that she was moving home at the time [92] and it is understood that this is time consuming and stressful experience but she does not explain what impact this had on her ability to submit her claim on time as it only needed the addition of the ACAS Early Conciliation number.[23]The monetary claims advanced by the claimant include complaints of unlawful deductions from wages and breach of contract. The reasonable practicability test applies to both types of complaint as well as the claim of unfair dismissal.[24]The Tribunal accepted the claimant’s evidence but it did not establish that it was not reasonably practicable to lodge the claim. The Tribunal considered that it was reasonably practicable for the claimant to add the Early Conciliation number to the claim in time.[25]In relation to the discrimination claims, the claimant had been formulating her claim which was a very extensive one since she was dismissed. She did not explain why she did not do so validly within time. The Tribunal considered that without the explanation the balancing exercise was very difficult. The delay was for a short but crucial period. The cogency of the evidence would be unlikely to be affected by the delay. On the guidance set out earlier, the Tribunal considers that it is not just and equitable to extend the time for lodging the discrimination claims. ____________________ Employment Judge Truscott QC Date 15 October 2020 Case No. 2303646/2019 1 EMPLOYMENT TRIBUNALS Claimant Respondent Ms C Labongo Alum v Thames Reach Charity OPEN PRELIMINARY HEARING Heard at: London South by CVP On: 27 January 2022 Before: Employment Judge Truscott QC Appearances: For the Claimant: In person For the Respondent: Mr T Sheppard of Counsel JUDGMENT on PRELIMINARY HEARING The claimant’s claim of discrimination was not presented within the time limit imposed by section 123 of the Equality Act 2010 and it is just and equitable to extend the time for the presentation of the claim. Accordingly, the Tribunal has jurisdiction to entertain the claim.[26]In the case of Selkent Bus Company Limited v Moore [1996] ICR 836 the Employment Appeal Tribunal said the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The EAT in Selkent also set out a list of factors which Tribunals must also consider:a. The nature of the amendment i.e. whether the amendment sought is one of the minor matters or is a substantive alteration pleading a new cause of action;b. The applicability of time limits. If a new complaint of cause of action is proposed to be added by way of amendment it is essential for the Tribunal to consider whether that complaint is out of time and if so whether the time limit should be extended (although Galilee v Commission of Police of the Metropolis [2018] ICR 634 held it is not always necessary to determine time points as part of an amendment application. A Tribunal can decide to allow an amendment subject to limitation points being determined at a later stage in the proceedings); andc. The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the rules for making amendments, but delay is a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made (for example the discovery of new facts or new information).[27]In the case of Vaughan v Modality Partnership UKEAT/0147/20/BA the EAT reminded parties and Tribunals that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application including the specific practical consequences of allowing or refusing the amendment[28]The assessment of the balance of injustice and hardship may include an examination of the merits of the amendments sought (Gillett v Bridge 86 Limited [2017] 6 WL UK 46). Application of the Law to the claimant’s application to amend[29]The claimant was directed by EJ Burge to clarify her claims. She did this on 21 June after the hearing in May 2022 with the assistance of an advisor at the Waterloo law centre, and the respondents have spent a considerable amount of Case No: 2303646/2019 8 time reviewing the clarification of the claimant’s claim and producing the reply dated 6 July 2022. On 29 August 2022 the claimant produced a further document, “Amended Particulars of Claim” which differed from the claims as set out in the document dated 21 June 2022.[30]The claimant is denied the further amendments made on 29 August 2022, save for allowing her to reinstate her complaint about her redundancy payment. The rest of the further amendments are not proportionate and responding to them would result in further costs for the respondent and delay in the proceedings.[31]The claimant was adamant that she has not withdrawn her complaint about her redundancy payment which is at paragraph 4 of her original Particulars of Claim, which is permitted to proceed. This complaint was referred to in relation to financial loss in the pleadings from June 2022 but I accept that it is appropriate to articulate it more fully in the list of issues. Sex and race discrimination[32]The claimant says that she wishes to include discrimination on the protected characteristics of sex and race. The allegations about sex and race were discussed during this hearing and I have read every version of her particulars of claim in detail. There is no suggestion anywhere, and the claimant could not identify any during the hearing, of a link between differences in the claimant’s sex and race (and those of her comparators) and any less favourable treatment. Indeed, the claimant said that she was unsure herself, but that she wondered what the reason for the less favourable treatment may be. This is speculation as opposed to proper pleadings, and claims based on speculation and nothing more cannot be said to have reasonable prospects of success. Indeed, even in the final version of the claims, in August 2022, there is no reference to race discrimination whatsoever. Sex discrimination is briefly mentioned without any further detail. The claimant’s sex discrimination claims are still not, after several attempts, pleaded in any detail, and the claimant was not able to assist the Tribunal in providing any further detail during the hearing. As currently drafted, the sex and race discrimination claims cannot be said to have any reasonable prospects of success. It is not reasonable or proportionate to allow the claimant a fifth attempt to plead these more fully. The application to add sex and race discrimination complaints is refused. Age and disability discrimination[33]As for the remaining claims, which are s15 Equality Act 2010 (discrimination arising from disability), s13 direct discrimination (due to age and disability), s19 indirect discrimination (on the grounds of disability and age) and failures to make reasonable adjustments, those set out in June 2022 and responded to by the respondent in July 2022 may proceed.[34]It is accepted that not all of the allegations made in June were contained in the original claim form in June 2019. However, a number of them (such as references to a failure to provide training) were subsequently brought to the respondent’s attention and indeed are referred to in the amended response in August 2020. As of August 2020 at the latest, the respondent was aware that the claimant sought to plead these issues as part of her claims. Case No: 2303646/2019 9[35]It is not uncommon for a litigant in person to provide further details of allegations referred to in broader terms in an ET1 by way of further particulars, and where further detail is provided on matters already broadly pleaded this, in the Tribunal’s view, does not prejudice the respondent such that the balance of injustice and hardship falls in favour of denying these further pleaded complaints, given that the further particulars fall within the time period first identified in the original ET1 and relate to issues already raised in factual pleadings. It is also not uncommon for a claimant to issue a claim form without any legal advice and subsequently to provide clarified issues and pleadings having received legal advice, as is the case here. I also accept the claimant’s submissions during this hearing that she had not appreciated that she needed to make a formal application to amend her claims.[36]The respondent has, since the outset of the litigation, been on notice of claims of discriminatory selection for redundancy, failure to make adjustments and age discrimination, clarified in the Scott Schedules of 30 July 2020. Although the proceedings have been before the Tribunal for a number of years, the proceedings are still at a relatively early stage, in that disclosure of documents is yet to be completed and witness statements have not yet been drafted and exchanged. In terms of the practical consequences of these amendments, the balance of injustice and prejudice falls in favour of allowing these expanded pleadings for age and disability discrimination as they relate to direct discrimination, and s15 and a failure to make reasonable adjustments.[37]It is accepted that the claims of indirect discrimination were only first referred to by the claimant in the Scott Schedules in 2020, but for the reasons set out in the paragraph above these were made at a relatively early stage in the proceedings, and the lines of factual enquiry do not differ significantly from the areas of enquiry covered by the existing facts pleaded. The balance of hardship and injustice falls in favour of allowing indirect discrimination on the grounds of disability and age to be pleaded.[38]I have not addressed the issue of whether some or all of the claims are out of time. This is already set down to be considered at a further case management hearing on 28 September 2022, and indeed it would be within the scope of the judge’s discretion to postpone a final determination of this issue until the final hearing if he or she considers it appropriate to do so.[39]The final list of issues is set out as an Appendix to this judgment and reasons below. This is adapted from the original list of issues drawn up by the respondent and comments thereon made by the claimant’s advisors, as was contained in the bundle of documents for this hearing, as well as the amended Scott Schedule from June 2022 and the respondent’s table which responded to this in July 2022. Any minor corrections or omissions to this list may be addressed by the parties at the hearing on 28 September 2022.