Mr Duffort v The Co-operative Group Ltd: 2303727/2023
EMPLOYMENT TRIBUNALS
Case No 2303727/2023
Between
Mr DuffortClaimantThe Co-operative Group LtdRespondent
Before
Employment Judge RobinsonIn person for claimantMs Senior (instructed by Counsel) for respondentDate 23 July 2024
JUDGMENT
[1]the following claims were not presented within the applicable time limit:a. Discrimination on the grounds of sexual orientationb. Discrimination on the grounds of agec. Harassment[2]It is not just and equitable to extend the time limit.[3]All of the claimant’s claims (with the exception of his unfair dismissal claim) are therefore dismissed.
REASONS
[1]I gave the above judgment at the hearing on 9 April 2024, together with oral reasons. The judgment was sent to the parties on 10 April 2024. The Claimant has requested written reasons under Rule 62 of the Employment Tribunals Rules of Procedure 2013. My reasons were as follows. Case Number: 2303727/2023 2 Introduction and background[2]The Claimant and the representative of the Respondent attended a video Preliminary Hearing of 3 hours.[3]The Claimant, Mr Duffort, was employed by the Respondent, The Cooperative Group Limited, as a Member Pioneer from 15 June 2022 until his resignation on 4 September 2023.[4]ACAS early conciliation started on 30 June 2023 and ended on 3 July 2023. The claim form was presented on 19 July 2023. The response form was received on 25 September 2023.
Claims
[5]The Claimant’s claims were for:a. Discrimination on the grounds of sexual orientationb. Discrimination on the grounds of agec. Harassmentd. Unfair dismissal[6]This judgment relates to (a) - (c) of those claims. The unfair dismissal claim remains live (and may be the subject of a separate application to amend by the Claimant). It therefore does not form part of this judgment.[7]The Respondent contended that the Claimant’s discrimination and harassment claims were out of time because they related to conduct that was more than three months before the claim was submitted (even taking account of the ACAS early conciliation period which ‘stops the clock’).[8]The purpose of this hearing was therefore to hear evidence on whether the Claimant’s claims had been brought within the statutory time limit and, if not, whether they had been brought within some other period which I Case Number: 2303727/2023 3 consider to be just and equitable. Procedure, documents and evidence heard[9]The parties submitted the following documents as evidence:a. A Respondent bundle of documents of 143 pagesb. A Claimant bundle of documents of 320 pages, the first seven pages of which I accepted as the Claimant’s witness statement for the purposes of this hearing. I heard oral evidence from the Claimant.[11]I have carefully considered the documentary evidence that I was referred to during the hearing, together with the Claimant’s oral evidence and the parties’ closing submissions. The Law Extension of time
The Law
[12]Section 123 of the Equality Act 2010 states that an Employment Tribunal can consider a complaint brought within the period of three months starting with the date of the act to which the complaint relates (or some other period as the Employment Tribunal thinks just and equitable.)[13]There is no presumption that an Employment Tribunal should exercise the discretion unless they can justify a failure to do so. In fact, the position (as set out in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA at [25]) is: “Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule”.[14]The Court of Appeal in that case also confirmed that an Employment Tribunal has a wide discretion when considering whether it is just and Case Number: 2303727/2023 4 equitable to extend time.[15]Employment Tribunals may also have regard to the factors in section 33 of the Limitation Act 1980, which include:a. The length of and reasons for the delay;b. The extent to which the cogency of evidence is likely to be affected by the delay;c. The promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action;d. The steps taken by the Claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[16]However, I am mindful that Tribunals should not adhere rigidly to the checklist of potentially relevant factors. The best approach is to assess all the relevant factors in a particular case (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 at [37]). The Facts that the Tribunal found[17]I have made the following findings of fact on the balance of probabilities having heard the evidence and considered the documents. These findings of fact are limited to those that are relevant to the issues listed above, and necessary to explain the decision reached. Chronology[18]I think it is helpful in this case to set out my findings of fact on the chronology of this case. These dates and events were accepted by the parties and confirmed by the Claimant in his oral evidence:a. Claimant commenced employment - 15 June 2022b. Snapchat messages exchanged between Mr Miller (the Claimant’s line manager at the time) and the Claimant - 23 June to 25 July 2022 (“the alleged conduct”).c. Mr Miller is replaced by Luke (surname not provided) as the Claimant’s line manager - 14 November 2022.d. Ms Hands replaces Luke as the Claimant’s line manager – around March/April 2023.e. Claimant first raises the alleged conduct to Ms Hands - 11 April 2023f. Claimant attends an investigatory meeting - 18 April 2023 Case Number: 2303727/2023 5g. Claimant attends an update meeting on grievance at which it is confirmed that Mr Miller has resigned – 20 May 2023.h. Claimant raises grievance against Mr Williams regarding the investigation – 28 June 2023i. ACAS notification - 30 June 2023j. ACAS certificate - 3 July 2023k. Outcome of grievance against Mr Williams – 18 July 2023l. Claim form submitted - 19 July 2023m. Claimant resigns - 4 September 2023n. Response form submitted - 12 September 2023o. Claimant applies to amend his claim to add constructive unfair dismissal and age discrimination - 24 September 2023 (the latter claim relating to the same alleged conduct).[19]The Claimant explained in his oral evidence that he did not raise the alleged conduct with anyone initially because it related to Mr Miller who was his line manager and the Respondent’s policies stated that matters such as this should be reported to an employee’s line manager. I accept and understand the Claimant’s initial reluctance to raise the alleged conduct.[20]The Claimant then gave evidence that on 14 November 2022 he was given a new line manager, Luke, but that the contact he had with him was minimal and so he again did not feel able to raise the alleged conduct. The Claimant did not provide a compelling reason for why he could not have raised this matter with his new line manager.[21]It was only when Ms Hands became the Claimant’s line manager in March/April 2023 that the Claimant felt comfortable to raise the alleged conduct.[22]The Claimant accepted in his evidence that he had been exploring the ACAS website in relation to a potential claim around November 2022.[23]Overall I found the Claimant to be a very bright and able individual, in the way he presented his oral evidence, his compliance with Tribunal Orders, and also the detail with which he prepared a 320 page bundle for this hearing. Case Number: 2303727/2023 6
Conclusions
[24]Whilst I accept that the Claimant may have been reluctant to raise the matter while Mr Miller was his line manager, from November 2022 that ceased to be the case and so that barrier fell away. I don’t find that there was any reason why the Claimant could not have raised the issue with Luke after that point, or with anyone else in the organisation for that matter.[25]Given the Claimant is very bright and well-informed (particularly given how well he has prepared for this Preliminary Hearing), it is therefore relevant that he has provided no compelling reason for not taking action between November 2022 until 4-5 months later when he raised it with Ms Hands in March/April 2023. The Claimant also provided no reason whatsoever for not lodging his claim between March/April and July 2023.[26]I recognise that the Claimant is young and was not, at the time, legally represented. However, the Claimant accepted that he was aware of ACAS from around November 2022. I believe he could have identified the three month time limit for brining claims in the Employment Tribunal at that point as it seemed clear the Claimant was contemplating his rights from November 2022 onwards.[27]I also accept Ms Senior’s submissions on the balance of hardship and the impact on the Respondent in dealing with historic matters. The difficulty in parties dealing with historic matters is one of the reasons why there is a three month time limit for bringing claims to the Employment Tribunals.[28]I reiterate that the discretion to extend time limits is the exception; not the rule. The primary rule is that claims may not be brought after the period of three months starting with the date of the act to which the complaint relates.[29]It is also highly relevant that this claim is not just slightly out of time, it is out of time by several months, which I also factor into my consideration. ACAS was not notified until the last day of June 2023 (and the claim form then lodged on 19 July 2023) in relation to conduct which the Claimant confirmed ended on 25 July 2022. It is therefore almost a year between Case Number: 2303727/2023 7 the alleged conduct ending and the claim form being lodged (albeit with an ACAS early conciliation period of around 3 days which ‘stops the clock’).[30]It is for all of these reasons that, exercising the wide discretion that the Court of Appeal (in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA) has confirmed Employment Tribunals have, I have decided it is not just and equitable to extend the time limits in this case.[31]The following claims of the Claimant are therefore dismissed:a. Discrimination on the grounds of sexual orientationb. Discrimination on the grounds of agec. Harassment _____________________________________ Employment Judge Robinson Date: 17 April 2024 Case Number: 2303727/2023 1 THE EMPLOYMENT TRIBUNALS Claimant: Mr Duffort Respondent: The Co-operative Group Limited
Conclusions
[1]The Claimant, Mr Duffort, was employed by the Respondent, The Cooperative Group Limited, as a Member Pioneer from 15 June 2022 until his resignation on 4 September 2023.[2]ACAS early conciliation started on 30 June 2023 and ended on 3 July 2023. The claim form was presented on 19 July 2023. The response form was received on 25 September 2023.
Claims
[3]The Claimant’s claims were originally for:a. Discrimination on the grounds of sexual orientationb. Discrimination on the grounds of agec. Harassmentd. Unfair dismissal[4]Claims (a) - (c) were dismissed by my judgment which was sent to the parties on 10 April 2024. Written reasons were also subsequently requested and provided on 10 July 2024.[5]The only claim that remained live was the one for unfair dismissal. The Claimant accepted at the 9 April 2024 Preliminary Hearing that he did not have two years’ service in order to bring an ordinary unfair dismissal claim (as required by section 108(1) of the Employment Rights Act 1996 (“ERA”). Case Number: 2303727/2023 2 However, he indicated that he wished to bring an automatic unfair dismissal claim, which does not have a two years’ minimum service requirement.[6]I agreed that the Claimant could make a written application to amend his claim to one of automatic unfair dismissal in which he must explain his grounds for such a claim. He did that by letter to the Tribunal dated 23 April 2024. The Respondent provided the Tribunal with its written response by letter dated 30 May 2024. I have carefully considered both of those written submissions. Amendment application[7]There are various categories set out in legislation that specify automatically unfair reasons for dismissal. However, the Claimant has not provided anything in his application to suggest that any of them apply here.[8]The amendment application largely reiterates the same facts on which I heard evidence at the 9 April 2024 Open Preliminary Hearing at which the Claimant gave evidence under oath.[9]It is clear that the Claimant believes that he has grounds for constructive dismissal. He bases this on alleged conduct by the Respondent that the Claimant says show procedural flaws, a lack of adherence to the ACAS code and an overall breakdown in ‘mutual trust and confidence’. The Claimant’s amendment application refers to a number of employment law cases to support that view. However, these cases do not relate to automatic unfair dismissal; they relate to constructive dismissal and ‘mutual trust and confidence’.[10]The Claimant also alleges that there have been GDPR and other datarelated breaches by the Respondent. However, these are not within the jurisdiction of the Employment Tribunal and add nothing to the amendment application.[11]My conclusion is therefore that the Claimant has failed to establish that his claim for constructive unfair dismissal is one to which the two year qualifying period for ordinary unfair dismissal (in section 108(1) of the ERA), does not apply.[12]His amendment application is refused and, because he does not have two year’s qualifying service, his unfair dismissal claim is dismissed. Case Number: 2303727/2023 3 _____________________________________ Employment Judge Robinson Date__23 July 2024__________