Ms M Nicol-Wilson v South London and Maudsley NHS Foundation Trust: 2304141/2017

EMPLOYMENT TRIBUNALS

Case No 2304141/2017

Between

Ms M Nicol-WilsonClaimant

South London and Maudsley NHS Foundation TrustRespondent

Before

Employment Judge Martin

Ms Shona Newmark - Solicitor for claimant

Mr A Ross - Counsel for respondent

Date 17 June 2019

JUDGMENT

Respondent’s application for strike out or deposit order

[1]The Claimant’s claims of harassment on the grounds of race are out of time and it is not just and equitable to extend time. The Respondent’s application that the Claimant’s claims of racial harassment are struck out is successful.

REASONS

[1]The basis of the application by the Respondent was that the Claimant’s claims of racial harassment were made out of time and alternatively that these aspects of her claims have no reasonable prospect of success and should be struck out or alternatively little reasonable prospect of success and that a deposit order should be made as a pre-condition of continuing with these parts of her claim. The protected characteristic is race. The Claimant describes herself as Black African.

[2]The applicable time limit is in s123(1)(a) Equality Act 2010 namely complaints of unlawful discrimination must be presented to an Employment Tribunal before the end of the period of three months beginning with the date of the act complained of (as modified to take account of early ACAS conciliation). The Respondent’s application is that the harassment claims are out of time and there is no reasonable prospect of time being extended or that the claims would be made out on their merits.

[3]The relevant chronology is set out below: 2 November 2017 ACAS notification (day A) 21 November 2017 Early Conciliation Certificate issued 27 December 2017 ET1 presented (The Respondent submits that taking early conciliation into account, this means the Claimant can only complain of acts that occurred on or after 9 September 2017). Three incidents of racial harassment are particularised in the ET1 dated 2 February 2017, 25 July 2017 and 4 September 2017. The Respondent presents its ET3 which amongst other things says the Claimant’s claims of racial harassment are out of time. 5 April 2018 Preliminary hearing (case management) where the Claimant is ordered to disclose to the Respondent her covert recording of the meeting held on 4 September 2017. 5 July 2018 The Claimant provides additional information referring to four further incidents of alleged racial harassment occurring between 5 January 2017 and 25 July 2017.

[4]The harassment claims as set out in the ET1 relate to allegations that the Respondent mimicked the Claimant’s accent on 2 February 2017 and on 25 July 2017, and said she was “wailing in a manner similar to Caribbean or even Greek funeral” on 4 September 2017.

[5]The allegations added in the additional information were not part of the order made by the Tribunal which had asked only that the Claimant state when she says her accent was mimicked.

[6]Unusually for this type of application I have the benefit of the Claimant’s signed witness statement prepared for the full merits hearing which should have commenced on 3 October 2017. Although the Claimant said at the abortive hearing on 3 October 2018 that she had not read it when she signed it, I have found in my judgment on costs, that the Claimant gave her solicitors full instructions to prepare her statement which was then prepared on the basis of those instructions and she had the opportunity to read her statement before she signed it. At that time, I ordered that no witness statements (from either the Claimant or the Respondent) could be amended for the adjourned hearing. I therefore have the benefit of knowing exactly what evidence the Claimant will be adducing at the hearing.

[7]I have read the Claimant’s witness statement and agree with the Respondent’s submission that the Claimant does not deal at all with the alleged incidents of 2 February 2017 or 25 July 2017. I also can see that there are no details given of the alleged mimicry, only a bald assertion.

[8]The Claimant covertly recorded the conversation that she alleges is racial harassment on 4 September 2017. I have read the transcript which put the comment into context. I have set out the transcript below: (MNW is the Claimant) MNW I was just physically and emotionally drained now from the email from Sally, that’s why I couldn’t help myself, I just burst in to tears and I’m sorry MO But you didn’t just burst into tears did you? MNW Yeah I burst into tears MO It wasn’t just bursting into tears, I was told by a number of staff that you were wailing in a manner similar to Caribbean or even Greek funeral, I’m trying to describe the manner in which you were wailing. MNW Like a funeral? MO Yes. And that the whole team ended up getting involved, those that were there.

[9]The Respondent submitted that this was a descriptive comment and not a negative comment and pointed out that the Claimant is not Caribbean or Greek so the hurdle of seriousness is even higher than the ordinary high hurdle. The Respondent also submitted that there is no indication in the Claimant’s witness statement of the effect the comment had on her, or that she felt her dignity had been violated and that she did not raise this in her grievance in September a copy of which was passed to me in the hearing.

[10]The Claimant produced this recording as a result of an order of the Tribunal and the Respondent transcribed it. The Claimant accepts the transcript as being correct. As always, a transcript only tells half the story, what it cannot convey is the tone of the conversation which can have a strong bearing on the context in which things are said. I listened to the recording of this part of the conversation and observed that MO was very calm and measured. From this recording I can hear that the remark was made in a descriptive way to try to convey to the Clamant what her behavior was and the effect it had on others.

[11]The Respondent submitted that the Claimant did not perceive herself to have been racially harassed as if she had, it would have been included in the grievance and that even if there was a perception it was not reasonable to hold such a view.

[12]The Respondent accepts that Tribunal’s should be slow to strike out discrimination claims at a preliminary hearing but submits that this is an unusual situation as there is a surreptitious recording produced by the Claimant and witness statements have been finalised. It argued that it is therefore permissible to strike out the Claimant’s claims or in the alternative to make a deposit order.

[13]The Claimant submitted that the last event took place on 4 September 2017 and the Claimant commenced the early conciliation process on 2 November 2017 which was within two months of the event taking place. The ACAS early conciliation certificate was issued on 21 September 2017 which the Claimant submitted brought the claim in time as she presented her claim on 27 December 2017.

[14]The Claimant submitted that the acts were continuing acts done by the same individual on 2 February 2017 and 25 July 2017.

[15]In the alternative it was submitted that if the 4 September 2017 incident is out of time, then it is just and equitable to allow the claim to be brought as the Claimant tried to bring her claim within what she thought was the correct time frame. She was being moved by the Respondent so she would not come into contact with Ms Oakman to remedy the situation and possibly hoped the matter would be resolved internally.

[16]It was submitted that although we have the witness statements and the extract from the recording all of this is subject to cross examination and the full bundle which comprises about 400 pages. It was submitted that there is a lot more evidence for the Tribunal to hear. It was submitted that the test for harassment is high but that the test to strike out a claim is higher and that the test to strike out has not been made out.

[17]Finally, the Claimant submitted that although the Tribunal has heard about the what, when and who, regarding the September comment the pertinent fact is why it was said. It was submitted that the Claimant’s dignity was violated by the comments in this meeting and the context and how she reacted is relevant. The Claimant’s case should not be struck out and should be heard on the basis that the claim is in time, and if it is not then.it is just and equitable to hear it out of time and the context of the cross examination and documents not examined by this tribunal could be considered to determine success or otherwise.

[18]In reply, the Respondent submitted the claim was out of time. It submitted that but for the ACAS early conciliation process the claim should have been brought by 3 December 2017. The parties agree that the effect of the ACAS early conciliation process was to give 19 days extra time. This give until 22 December for the claim to have been presented. It was presented on 27 December 2017 and is therefore five days out of time.

[19]The Respondent refuted the suggestion that further exploration of the bundle and in cross examination about the context of the statements and the effect it had on the Claimant was necessary. The submission was that the Claimant has had her opportunity to explain the effect of the words. She wrote her statement with the aid of solicitors and signed her witness statement. The Claimant will not now be able to add what effect these matters had on her as it will not come up in cross examination as she does not say anything about it in her witness statement or put it in her September 2017 grievance. It was submitted that the reason the bundle is long is because there are many transcripts of surreptitious recordings made by the Claimant most of which were not relevant. My conclusions: Were the Claimant’s claims brought in time?

[20]I accept the submissions made by the Respondent which are set out above. The Claimant’s claim is 5 days out of time. I have discretion to extend time where it is just and equitable to do so. However, this is still the exception to the rule and the Claimant must give reasons to persuade me that it is just and equitable to extend time. I referred myself to the cases of Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

which held that factors such as the length of and reasons for the delay, in addition to the prejudice caused to the respondent, would be relevant.

[21]In considering this, I have read the Claimant’s witness statement and her claim to the Tribunal to see what she says about why she did not bring her claim in time. The explanation that I can see is from the submissions given on her behalf by her representative which are set out above. Even these are equivocal. The Claimant’s representative said that the Claimant was being moved by the Respondent so she would not come into contact with Ms Oakman to remedy the situation and “possibly” hoped the matter would be resolved internally. The word “possibly” does not tell me this is what the Claimant thought, this is just conjecture. There is nothing in the Claimant’s witness statement to tell me that she hoped things would be resolved to support the submission made. There is no explanation as to why the Claimant felt she wanted to wait to seek resolution on the 22 December 2017 (the last day for presentation within the primary time limit), but why by 27 December 2017 she felt resolution was not possible so presented her claim. This is especially so as the Christmas period covered this period and it is unlikely much would happen in those five days. This makes this suggestion by the Claimant’s representative implausible.

[22]I reminded myself of the relevant law:a. Section 123 Equality Act 2010 provides for a 3-month limitation period from the date that the act complained of was done. This can be extended if there are just and equitable grounds to do so.

b. In Robertson v Bexley Community Centre t/a Leisure Link 2003 [IRLR] 434 CA, it was noted that, while Tribunals have a wide discretion to extend time in discrimination cases, it should only be exercised in exceptional circumstances. ‘time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion.’

c. In O’Brien v Department for Constitutional Affairs

[2009] IRLR 294

, the Court of Appeal held that the burden of proof is on the Claimant to convince the Tribunal that it is just and equitable to extend time. In most cases there are strong reasons for a strict approach to time limits.

[23]The Claimant’s claim is clearly out of time and the Claimant has not put forward any sustainable or credible reason why I should exercise my discretion to extend time on the basis that it is just and equitable to do so. I therefore find that the Claimant’s claims are out of time and the Tribunal does not have jurisdiction to hear them.

[24]Even if I had extended time for the Claimant to present her claim, I would still have struck the Claimant’s claim out on the basis it had no reasonable prospect of success.

[25]I am mindful that a tribunal should be slow to strike claims out at a preliminary stage. However, this is one of the exceptional cases where this is justified. Unusually, I have the witness statements from all parties which have been exchanged and cannot now be changed. I also have heard the recording of the conversation of September 2017 and read the transcript. I have read the pleadings and the Claimant’s grievance made after the conversation in September and which does not reference this conversation at all. For the Claimant’s claim to succeed this conversation must be found to be racially discriminatory to bring the other allegations in time.

[26]Based on the Claimant’s evidence I can see no reasonable prospect of the Claimant’s claims succeeding and had time been extended I would have dismissed her claims of race discrimination on the basis that they have no reasonable prospect of success.

[1]The Respondent’s application for costs is successful.

[2]The Claimant shall pay to the Respondent £250 contribution towards its costs RESERVED REASONS

[1]This hearing was listed to consider the Respondent’s application for costs and other matters which are set out in a separate document. The application was made for £8,409 costs of the adjourned final hearing on 3 October 2018, the preliminary hearing of 5 October and this hearing.

[2]The background leading to the adjournment of that hearing was that the Claimant presented a claim on 27 December 2017 complaining of discrimination on the protected characteristic of race, unpaid holiday and unauthorised deductions from wages. There was a preliminary hearing on 5 April 2018 at which the final hearing was listed for three days commencing 3 October 2018 with the usual type of case management orders being made.

[3]On 13 September 2018 the Claimant was dismissed with payment in lieu of notice being made. The Claimant instructed solicitors to represent her and they sent a notice of acting to the Tribunal on 28 September 2018. On 1 October 2019 (two days before the hearing) she applied to add unfair dismissal to her claim and for the hearing to be postponed. Both the application to amend and the application for a postponement was refused by the Regional Employment Judge on 2 October 2018 and notified to the parties by email the same day.

[4]At the start of the hearing on 3 October 2018, a further application for a postponement was made counsel for the Claimant. This application was made on the same basis as the application which had previously been refused and was refused again. The Tribunal was then informed that neither the Claimant or her counsel had the Respondent’s witness statements. The Respondent told the Tribunal that it had exchanged statements on 25 September 2018 and had written confirmation of this.

[5]The Claimant also said that although she had signed a witness statement, she had not been given the opportunity to read it by her solicitor who told her simply to sign it. It was not possible to establish precisely what had happened and therefore a decision was made by the Tribunal to adjourn the hearing and that the Tribunal and parties would reconvene on Friday, 5 October 2018 to consider the Respondent’s application for its wasted costs and any further case management required. In the meantime, the Tribunal directed that the Claimant’s solicitors should write to the Tribunal with an explanation as to what had occurred and ordered that the witness statements exchanged would stand as the witness statements in any future hearing and could not be amended.

[6]On 4 October 2018 the Claimant sent an email to the Tribunal saying: “Following yesterday’s proceedings in court in which my barrister was not given the witness statements he has decided not to represent me any more. In light of this unfortunate situation I would be grateful if I’m given more time to find a representative for myself”

[7]The Tribunal regarded this as an application to postpone the hearing on 5 October 2018 and despite the Respondent’s objections considered it was in the interests of justice that the hearing be postponed. It was relisted to this hearing.

[8]On 4 October 2018 the Claimant’s former solicitors gave a written explanation as requested by the Tribunal. The letter reveals the following chronology: 20 September Claimant instructs Julia and Rana solicitors 21 September Telephone call with the Claimant regarding her instructions for 2018 her written statement 22 September The Claimant sends her solicitor written instructions and the 2018 Claimant’s witness statement is prepared on that basis. 24 September The Claimant calls her solicitors several times that day 2018 instructing them to send her statement to the Respondent urgently. 25 September The Claimant attends her solicitors’ offices and signs her witness 2018 statement. 25 September The Claimant solicitors receive the Respondent’s statements by 2018 at 13:01 email and send the Respondent the Claimant’s witness statement. The Claimant was copied into the emails. 26 September The Claimant meet with her solicitors and has a discussion about 2018 the witness statements received on behalf the Respondent. The Claimant said she was having financial difficulties and Mr Mian agreed to meet with the Claimant and read the documents on a pro bono basis. 28 September Mr Mian attends the solicitor’s office for a pre-scheduled 2018 conference with the Claimant at 2 pm. Mr Mian waited until 2:45 pm and then left. The Claimant arrived at 3:30 pm. There was a discussion about Mr Mian’s fees which he had discounted, and the Claimant requested her solicitors to apply for an adjournment of the hearing on 3 October 2018 which they did after advising her of the advisability of making such an application. 1 October 2018 Mr Main collected the files first thing in the morning from the Solicitor’s offices even though he was told that he has yet to be formally instructed. He collected two files from the office and the office did not realise that there was a third file which was the file which contained the Respondent’s witness statements. 2 October 2018 At approximately midday the Claimant arranged for payment to be made to Mr Mian. She was told to attend the tribunal by 8 am to meet him in order to discuss matters prior to the hearing starting. 3 October 2018 The Claimant arrived at tribunal at 8:46 instructing Mr Mian to renew the application for an adjournment and telling him she did not know about the witness statements from the Respondent. The solicitors confirmed that the Claimant’s witness statement was prepared on her instructions and that the Claimant did have the Respondent’s witness statements and had commented on them in a meeting. Attendance notes were not provided by Julia and Rana solicitors as they were privileged and the Claimant had not waived privilege.

[9]This letter is in direct contradiction to what the Claimant told the Tribunal on 3 October 2018. The Tribunal finds on the balance of probabilities that the Claimant did receive the Respondent’s witness statements and gave her solicitor her comments on them. The Tribunal also finds that the Claimant’s witness statement was prepared on her written and oral instructions and that she had the opportunity to read it before signing it at her solicitor’s office.

[10]The Claimant did not provide evidence of her means prior to the hearing as requested by the Tribunal.

[11]Submissions were heard from both parties. The Claimant was represented for this hearing by a new firm of solicitors. A brief summary of the submissions is below.a. Essentially the Respondent’s position is that despite witness statements being exchanged on 25 September 2018 the Claimant left it very late to give full instructions or to provide funds in a timely fashion to pay for representation. The inference taken by the Respondent is that the Claimant did not want to pay for two trials and did not want to go ahead on 3 October 2018 despite the Tribunal refusing her request for a postponement. The reason the Tribunal agreed to postpone the hearing was because Mr Mian was not prepared which was because the Claimant had left everything so late as she did not want to go ahead with the hearing on 3 October.

b. The Claimant’s position in brief, is that the Claimant was dismissed which gave rise to another cause of action. The Claimant’s position is that she did not act vexatiously as she did exchange her witness statement and agreed the bundle but said it was a waste of costs to have a three-day hearing where the dismissal arose out of the same set of facts.

c. In reply the Respondent said that the final written warning that the Claimant relies on as the link between the two cases was not appealed, so the veracity of it was not an issue in the unfair dismissal claim and they could easily be heard separately.

[12]At this point in the proceedings the Tribunal adjourned for the Respondent to consider documents produced in the hearing by the Claimant about her means and for the Claimant’s representative to explain to the Claimant what information the Claimant needed to provide to the Tribunal as evidence of her means.

[13]The Claimant gave evidence of her means and from the documentation provided it appeared that there was another bank account that was not disclosed. However, the Claimant did eventually produce documents that showed that she was in receipt of benefits and therefore despite a suspicion that the Claimant had not fully disclosed her means, the fact of her being on benefits indicates that she had limited disposable income.

[14]The relevant law is found in rule 76(1)(a) of the ET rules 2013 which provides that a tribunal may make a costs order… and shall consider whether to do so, where it considers that “a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) all the way that the proceedings (or part) have been conducted”.

[15]Rule 76(1) of the 2013 rules (as amended) states that a tribunal may also make such an order and shall consider whether to do so when a “hearing has been postponed on the application of a party made less than seven days before the date on which the relevant hearing begins”.

[16]The Respondent submits that the Claimant has acted unreasonably in various respects in particular that she waited until the day before a three-day hearing to instruct counsel; she failed to have a conference with Counsel because she turned up 1.5 hours late on 28 September; she failed to arrive early enough in the morning of the hearing as advised by her solicitors. She went to her solicitors to have a discussion with them a week before the hearing about the respondents witness statements and yet apparently denied knowing anything about them on the morning of the hearing.

[17]The Tribunal has considered the factual basis on which this application has arisen and also the submissions of both parties. The Tribunal’s first finding is that the threshold test has been met and the Tribunal finds that the Claimant has acted unreasonably in the way that she has conducted the proceedings pursuant to rule 76 (1) (a) of the ET rules. Further, her late application for a postponement which was first made one day before a three-day hearing was unreasonable and has put the Respondent to unnecessary expense (rule 76(1) (c) of the 2013 rules. The Tribunal finds that the awarding of a costs award is appropriate.

[18]However, when considering how much that award should be the Tribunal has taken into account the evidence of the Claimants means which shows that she is in receipt of benefits and has limited disposable income. The Tribunal is not satisfied that the Claimant has given full disclosure of her means and finds that the Claimant has not been wholly truthful in what she told the Tribunal at the hearing on 3 October 2018. The Tribunal suspects that the Claimant has more disposable income than she has disclosed and therefore makes an order that she pay £250 as a contribution towards the Respondent’s costs. .”

[1]The grounds of the application are that the Tribunal has made a mistake in the application of the law. The claimant has not identified what aspect of the law has been misapplied and in what respect. In any event, errors of law are matter for appeal to the Employment Appeal Tribunal.

[2]In a follow on email dated 13 April 2021, the claimant contends that there has been a travesty of justice and that the Tribunal failed to consider mitigating circumstances such as work place bullying and harassment. It was not appropriate for the Tribunal to make any findings about bullying and harassment as the claim of discrimination had been struck out at an earlier hearing.

[3]The Tribunal has provided clear reasons for its decision after considering all of the evidence presented by the parties. In the circumstances, I do not consider that the application discloses any arguable basis for the judgment to be reconsidered. There is therefore no reasonable prospects of the original decision being varied or revoked. The application for reconsideration is refused.