Employment Judge HeathIn person for claimantMs G Holden (instructed by Counsel) for respondentDate 9 May 2023
JUDGMENT
At the relevant time, between 3 May 2021 and 2 August 2021 the claimant was a disabled person for the purposes of section 6 and Schedule 1 of the Equality Act 2010.
REASONS
[1]An Open Preliminary Hearing (“OPH”) was listed by EJ Fredericks at a Case Management Preliminary Hearing (“CMPH”) held on 2 November 2022. The purpose of the OPH was to consider:a. Whether the claimant’s claims, particularly in relation to things done prior to three months before bringing his claim, are brought in time and whether the Tribunal has jurisdiction to hear them;b. Whether any of the claimant’s claims should be struck out because they have no real prospects of success; and/orc. Whether any of the claimant’s claims should be made subject to a deposit order as a condition of their continuation; andd. To conduct any case management as may be necessary in anticipation of the hearing of any surviving claims at the Final Hearing.[2]At the CMPH the claimant was not certain that he would proceed with a disability discrimination claim. However, if he were to proceed with one, the OPH would decide whether he was a disabled person having regards to the statutory definition. This judgment deals solely with this issue. I have dealt with other matters in other documents. Claims and issues[3]The claimant was employed by the respondent between 3 May 2021 and 21 May 2021. He claims that he was constructively dismissed by the respondent on this latter date, but began working for them as an agency worker. He further claims that he applied for further employed roles with the respondent, but was unsuccessful in his applications.[4]At the CMPH, the claimant was unsure whether he wished to bring a disability discrimination claim. He was given time in which to indicate whether he was pursuing such claim. He subsequently did give such an indication. However, probably because of the claimant’s position at the CMPH, no reference to a disability discrimination claim was made in the list of issues.[5]Early in the OPH, it was therefore necessary for the tribunal to establish what the issues in any disability discrimination claim were. Following discussion with the parties, and scrutiny of the ET1, the following claims were identified:a. Breach of the duty to make reasonable adjustments during the claimant’s employment between 3 and 21 May 2021. The allegation appears to be (section 8.2 ET1 at page 8 OPH bundle) that a PCP was applied requiring the claimant to begin work between 8 pm and 12am. This placed him at a substantial disadvantage due to the lack of sleep he experienced because of his mental health issues. A reasonable adjustment would have been to allow him to start work earlier in the band.b. Discrimination arising from disability while the claimant was an agency worker. On 2 August 2021 the claimant alleges (ET1 continuation sheet at page 14 OPH bundle) he was treated unfavourably by being suspended. He alleges the suspension was for infringements which arose from his disability.
Procedure
[6]I was provided with 80 page bundle, further documents relating to driver infringements, further documents relating to applications for permanent roles and a skeleton argument from Ms Holden.[7]The claimant gave evidence and was questioned by myself and by Ms Holden. His evidence was largely concerned with the issue of disability, but he was asked questions relating to time limits.[8]The parties gave closing submissions. The hearing did not conclude until after 3:30 pm and so I reserved my decision. The law Disability
The law
[9]Section 6 EA provides: - (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities[10]Section 212 EA provides that ““substantial” means more than minor or trivial”.[11]Schedule 1 Part 1 Paragraph 2 of the EA provides: - 1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. If[12]Paragraph 5 of Schedule 1 includes: An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a)measures are being taken to treat or correct it, and (b)but for that, it would be likely to have that effect. (2)“Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.[13]Part 2 of the same schedule obliges tribunals to take account of such guidance as it thinks is relevant. The “Equality Act 2010 Guidance: Guidance on matters to bet taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EA 2010.[14]The relevant point in time in assessing whether the claimant is disabled under section 6 EA is the time of the alleged discriminatory acts (Cruikshank v Vaw Motorcast Ltd [2002] ICR 729). This includes the question of whether the effects of the impairment are long-term (McDougal v Richmond Adult Community College [2008] ICR 431).[15]“Likely to recur” means that “it could well happen” (para C3 of the Guidance). The Guidance gives the example (C6) of a woman with two discrete episodes of depression within a 10 month period. She would not be covered by the Act because at this stage the effects of their impairment have not lasted more than 12 months after the first occurrence and there was no evidence that the episodes are part of an underlying condition of depression which is likely to recur beyond the 12 month period. The Guidance makes the point that if there was evidence to show the two episodes did arise from an underlying condition of depression, the effects of which are likely to recur beyond the 12 month period, she would satisfy long-term requirement.[16]In J v DLA Piper UK LLP UKEAT/0263/09/RN the EAT observed at paragraph 42: - The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – "adverse life events".[ We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians – it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para. 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived
The facts
[17]The claimant is a 48-year-old man born in 1975. His GP records appeared in the bundle, along with three letters from a local provider of talking therapies, Medway Talking Therapies.[18]The claimant had a traumatic childhood, which he has clearly spoken about in consultations with his GP. The details will not be set out here.[19]In 2002 there is reference in the medical records to “phobic anxiety disorders”. The claimant was candid that he could not remember anything about this issue, which also recurred in 2006.[20]In October 2010 the claimant saw his GP for a psychiatric assessment following feeling low for months. He declined antidepressant medication, set out some family background and took a PHQ-9 questionnaire. The result of this was a score of 19, which is at the top end of “moderately severe depression”. On 1 November 2010 the claimant was prescribed antidepressant medication. On 30 December 2010 the claimant spoke to his GP about work stress during the past year stemming from his beliefs that he had been the victim of racial discrimination. The GP did not believe he was depressed but thought that he may be stressed.[21]The claimant did not see his GP again for mental health related issues until 11 years later, although he did visit his GP for other issues. I accept the claimant’s evidence that he does not wish to take antidepressants. I also accept as evidence that just because he did not visit the GP does not mean that he did not have periods where his mental health was not good. He had his ups and downs but felt that he just had to “live with things”. The claimant’s evidence was that he had certain traits which led him to getting depressed and down, and which he did experience during the period 2011 to 2021.[22]In 2021 the claimant’s family business closed with significant financial losses as a result of the pandemic. I accept the claimant’s evidence that during this period he felt “useless” and “like a letdown” and that the episode came with “a lot of trauma”.[23]On 10 February 2021 the claimant had a telephone consultation with his GP. He made reference to his childhood trauma and expressed worry that he would become mentally unwell like a family member. He agreed to selfrefer to talking therapy.[24]On 10 March 2021 the claimant was assessed with Medway Talking Therapies. He scored 20/27 on the PQ-9 depression questionnaire (indicating severe depression) and 15/21 on theGAD7 anxiety questionnaire (indicating severe anxiety). The Psychological Well-being Practitioner who assessed the claimant wrote to his GP on 10 March 2021 observing that the claimant “presented with severe symptoms of anxiety and low mood. Client reported low self-esteem, past traumatic experiences, and feelings of guilt and regret. Client’s mood is also impacting his motivation as well as his sleep and appetite”. The claimant was put on a waiting list for Step 3 Counselling.[25]On 3 May 2021 the claimant took up employment with the respondent. His application was to work on what were, essentially, night shifts as a lorry driver. On 21 May 2021 he gave notice having been told by management that he would not be able to start work earlier. On a couple of occasions in evidence the claimant said that he left the respondent’s employment “on good terms”.[26]On dates unknown between March and July the claimant attended seven appointments for counselling which was delivered over Zoom and telephone. His final session was 2 July 2021.[27]On 18 May 2021 the claimant attended his GP surgery complaining of insomnia. He said that he was not sleeping well and did not get to sleep at all throughout the night. He said the problem worsened two weeks previously when he works nights and goes to bed early in the morning. He said his mental health was not good.[28]On 2 July 2021 the claimant’s counsellor from Medway Talking Therapies wrote to his GP. She identified the presenting problem as being “Depressive episode and generalised anxiety”. She set out that he had attended the seven sessions, the final one being on 2 July 2021. She set out his initial PHQ-9 score of 20 and his post-treatment score of 13. This score indicates moderate depression. His initial GAD7 score was 15, and remained so post-treatment. This indicated severe anxiety. The counsellor indicated that the claimant had cancelled some sessions due to work commitments and had been “struggling with his concentration and anxiety”.[29]On 20 July 2021, the claimant attended his GP surgery. He spoke of his childhood experiences, indicated he did not want to take medication, said that his sleep was better now that he had stopped working nights, and said his mental well-being had improved. Strategies for further improvement were discussed and he was signposted to local mental health services.[30]In terms of day-to-day activities the claimant had some difficulty in articulating quite how his mental health problems impacted his life. This is not uncommon.[31]The claimant said that he felt paranoid when his mental health was poor. He said, and I accept, that he has always been prone to some paranoia. However, he felt that he was watched during the period of summer 2021 when he incurred infringements. He felt under pressure and anxious when he was asked questions. He tried to minimise contact with others as he lost a lot of trust in them. He denied that his feelings about getting infringements were the normal worry anyone would feel when their work performance was being picked up.[32]The claimant gave evidence that he had PTSD symptoms stemming from his childhood trauma. He said that he always felt in “survival mode”. When he was depressed, he did not interact with his family. He said he just sat there and did not communicate with them and was “in a world of my own”.[33]The claimant said he lost complete interest in all activities when depressed. He said he would always do some housework and shopping (but not a lot) but did not do this when he felt depressed. He said that it he did not go out at all as a family, and this was not simply to do with pandemic restrictions.[34]It was put to the claimant that is insomnia was linked to working at night, and he agreed that this was potentially the case. He did not agree, however, that night shifts caused insomnia rather than depression.[35]The claimant said that his mental health problems meant that he did not go to the gym. However, he found it difficult to pinpoint when this was, and believed that he stopped going to the gym after he was suspended in August 2021.[36]On 6 October 2021 the claimant attended his GP surgery, where he advised his GP that he was managing his mental health by exercise, eating healthily and had developed coping with conditions when feeling anxious. On 20 October 2021 the mental health nurse at his GP practice wrote a letter indicating that the claimant suffers with his mental health: “Anxiety, depression and symptoms of PTSD”. She said that stopping working nights “has significantly improved his mental wellbeing”. On 1 February 2023 the claimant again attended his GP surgery requesting counselling for childhood trauma and building relationships with his family.[37]Going back to the claimant’s work with the respondent, after he gave notice, he joined an agency. It appears that he worked for the respondent as a driver through the agency, and had working hours which he found easier to cope with. I saw and heard no evidence of the agency arrangements, though the claimant says he was employed by an agency, and placed with the respondent as an end user.[38]In June, July and August 2021 the claimant incurred a number of infringements relating to working time. On 1 August 2021 he was suspended from working for the respondent due to the number of infringements he had incurred.[39]The claimant also made a number of applications for permanent roles with the respondent. I did not hear detailed evidence on this point, but it appears that most applications were rejected, although one interview was declined by the claimant.[40]On 27 September 2021 the claimant notified ACAS under the Early Conciliation (“EC”) procedure. On 7 November 2021 he was provided with an EC certificate. On 5 December 2021 he presented a claim form to the tribunal.
Conclusions
[41]The period I am looking at is between May and August 2021.[42]Prior to this, in February 2021 the claimant was clearly struggling with his mental health following on from the collapse of his family business. On 10 March 2021 the claimant completed PHQ-9 and GAD7 questionnaires that indicated that he was experiencing severe depression and severe anxiety that this point in time. There has been no suggestion that the claimant was exaggerating his symptoms when completing these questionnaires, and I take these self-assessments at face value.[43]The claimant has had some difficulty in pinpointing how his mental health problems have affected his ability to carry out day-to-day activities at various points in time. This is entirely understandable. Looking back to a period of time around two years ago and attempting to differentiate how one lived one’s life and what differences in behaviour one exhibited to other periods of time are difficult enough for anyone. Add to this undisputed assessment of severe depression and anxiety and the exercise becomes even more difficult.[44]The claimant’s evidence was that he was never a great one for household chores, but that when depression hit, he was “in a world of his own” and was entirely unmotivated to do anything around the home or take any active part in family life. He expressed the desire to his GP in February 2021 to “move forward from past and enjoy his family”. A diagnosis of severe depression inclines me to accept that the claimant would not have been able to motivate himself to help with such activities as shopping. The Medway Talking Therapies letter of 10 March 2021 refers to the impact on the claimant’s motivation as well as his sleep and appetite.[45]The evidence would suggest that counselling helped the claimant with his symptoms of depression. The counselling constitutes “measures” for the purposes of Schedule 1, paragraph 5 EA. I consider that but for the counselling, the claimant would have been likely to continue to experience symptoms of severe depression from May to August 2021. I consider that without this help he is unlikely to have even been able to work for the respondent.[46]Ms Holden submitted that the claimant’s insomnia was clearly linked to his working nights and not his depression. The evidence does not support this submission. Again, the letter from Medway Talking Therapies of 10 March 2021 (almost two months before he began night working) refers to how the claimant’s mood impacts upon his sleep, among other things. While the evidence also demonstrates that the claimant’s sleep patterns improved when he was no longer working nights, this also corresponded to the improvements in his mental health sustained during the course of counselling. While I have no doubt that the working hours played a significant role in affecting the claimant sleep, I also find that his depression had an impact that was more than minor or trivial.[47]Ms Holden similarly submitted that what the claimant described as paranoia was an understandable reaction to the claimant’s performance being picked up by management. During the period I am focusing on to determine disability, the claimant experienced symptoms of severe anxiety. I accept his evidence that paranoia is something he has often experienced in his life. This ties in with previous references to anxiety disorders and possibly even to familial history. His description of being in “survival mode” is in keeping with the suggestion of symptoms of PTSD observed by his mental health nurse. I find that it is more than likely that the claimant experienced feelings of anxiety and paranoia which went beyond the normal experiences of people in the workplace whose work is being taken to task. I find it more likely than not that these feelings impacted the way he interacted with colleagues, making him more vigilant and anxious as he considered himself to be constantly watched.[48]I find that in the period between May and August 2021 the claimant’s symptoms of depression and anxiety had a more than minor or trivial effect on his ability to carry out day-to-day activities such as interacting with his family and his colleagues, carrying out household chores, doing shopping and sleeping. I find it more likely than not that there was such an adverse effect, but had he not attended counselling this would be beyond any doubt whatsoever. This is not one of those cases, referred to in J v DLA Piper, where there is some “looseness” in terminology in describing impairments. The substantial adverse effects on the claimant’s ability to carry out day-to-day activities were because of anxiety and depression, the presenting problems identified by mental health professionals. These are the impairments I find the claimant experienced.[49]I now consider whether or not the effect of the impairments, anxiety and depression, were long-term.[50]The effects of the impairments which the claimant experienced while working for the respondent began, in all likelihood at the beginning of 2021. It is likely that he experienced before 10 February 2021 when he went to his GP.[51]His GP noted improved mental well-being on 28 July 2021, and no concerns were noted in October 2021. What is not known is what effect the impairments would have had but for his counselling. This hypothetical is extremely difficult to gauge without the assistance of expert evidence. On the face of it, and putting things fairly neutrally, the claimant appears to have experienced the effects of symptoms of depression and anxiety for around six months.[52]This episode of poor mental health does, however, have a context. The claimant had a traumatic childhood, appears to show symptoms of PTSD, experienced anxiety disorders requiring medical attention in 2002 and 2006 (albeit ones which, candidly, he was unable to give meaningful evidence about) and he experienced severe depression 2010 and 2021 and severe anxiety in 2021. There are references in his medical records to his resistance to taking antidepressants. I find that this is in keeping with the evidence that the claimant gave that not seeing a doctor about mental health issues between 2010 and 2021 did not mean that he did not experience mental health difficulties. I accept the claimant’s evidence that he had “ups and downs” in this period which I find were recurrences of bouts of depression. On balance of probabilities, the childhood trauma and presence of phobic anxiety disorders is suggestive that anxiety is likely to have been a recurrent issue for him and not something emerging from a clear blue sky on a couple of isolated occasions in his life.[53]The picture made up by the evidence is not a perfect one. But there are strong indicators of a history of an underlying depressive condition whereby the claimant experiences recurrent bouts of depression and periods of elevated anxiety. It is highly likely that stressful life events such as perceptions of discrimination in employment and the collapse of the family business bring depressive and anxious symptoms to the fore. Doing as best as I can to place myself at a vantage point located in the summer of 2021, posing myself the question whether the effects of the impairments of depression and anxiety “could well recur”, I find, on balance, that their recurrence was likely.[54]In the circumstances, I find that the claimant satisfied the definition of a disabled person in May and August 2021.
Conclusions
[1]The claimant’s complaint of unfair dismissal is dismissed.[2]The claimant’s claims of disability discrimination are not struck out either on the basis of time limits or on their merits.[3]The claimant’s claims of race discrimination are not struck out either on the basis of time limits or on their merit. CASE MANAGEMENT ORDERS 1. The application to amend the claim to bring a complaint of automatic unfair dismissal for health and safety reasons is refused. 2. No deposit order is made in respect of the claimant’s disability discrimination claims either on the basis of time limits or on their merits. 3. No deposit order is made in respect of the claimant’s race discrimination claims either on the basis of time limits or on their merits.
Introduction
[1]An Open Preliminary Hearing (“OPH”) was listed by EJ Fredericks at a Case Management Preliminary Hearing (“CMPH”) held on 2 November 2022. The purpose of the OPH was to consider:a. Whether the claimant’s claims, particularly in relation to things done prior to three months before bringing his claim, are brought in time and whether the Tribunal has jurisdiction to hear them;b. Whether any of the claimant’s claims should be struck out because they have no real prospects of success; and/orc. Whether any of the claimant’s claims should be made subject to a deposit order as a continuation of their continuation; andd. To conduct any case management as may be necessary in anticipation of the hearing of any surviving claims at the Final Hearing.[2]At the CMPH the claimant was not certain that he would proceed with a disability discrimination claim. However, if he were to proceed with one, the OPH would decide whether he was a disabled person having regards to the statutory definition. I have dealt with this matter in a separate judgment. Claims and issues[3]The claimant was employed by the respondent between 3 May 2021 and 21 May 2021. He claims that he was constructively dismissed by the respondent on this latter date, but began working for them as an agency worker. He further claims that he applied for further employed roles with the respondent, but was unsuccessful in his applications.[4]EJ Fredericks set out the issues which the tribunal was to decide following discussion with the parties at the CMPH. The claims set out under the heading “The Issues” were:a. Time limits - whether the claims were brought in time, if not whether there was conduct extending over a period and the claim was made at the end of that period, and if not whether it is just and equitable to extend time.b. Unfair dismissal - this was expressed to be a constructive dismissal based on the breach of the implied term of trust and confidence. The claimant’s length of service was set out as an issue. It was also set out that the claimant may be for automatic unfair dismissal based on the respondent having “no regard for his health and safety”.c. Direct race discrimination - three allegations of less favourable treatment were asserted by the claimant. During his employment, not permitting him to changes shift times despite having knowledge of his disability. After his employment terminated, suspending him following tachograph infringements. Finally, not recruiting him for employed positions between July and October 2021.[5]At the hearing before EJ Fredericks, the claimant was unsure whether he wished to bring a disability discrimination claim. He was given time in which to indicate whether he was pursuing such claim. He subsequently did give such an indication. However, probably because of the claimant’s position at the Case Management Preliminary Hearing, no reference to a disability discrimination claim was made in the list of issues.[6]Early in the OPH, it was therefore necessary for the tribunal to establish what the issues in any disability discrimination claim were. Following discussion with the parties, and scrutiny of the ET1 the following claims were identified:a. Breach of the duty to make reasonable adjustments during the claimant’s employment between 3 and 21 May 2021. The allegation appears to be (section 8.2 ET1 at page 8 OPH bundle) that a PCP was applied requiring the claimant to begin work between 8 pm and 12am. This placed him at a substantial disadvantage due to the lack of sleep he experienced because of his mental health issues. A reasonable adjustment would have been to allow him to start work earlier in the band.b. Discrimination arising from disability while the claimant was an agency worker. On 2 August 2021 the claimant alleges (ET1 continuation sheet at page 14 OPH bundle) he was treated unfavourably by being suspended. He alleges the suspension was for infringements which arose from his disability.
Procedure
[7]I was provided with 80 page bundle, further documents relating to driver infringements, further documents relating to applications for permanent roles and a skeleton argument from Ms Holden.[8]The claimant gave evidence and was questioned by myself and by Ms Holden. His evidence was largely concerned with the issue of disability, but he was asked questions relating to time limits.[9]After evidence had been heard and just before submissions, the claimant made an application to amend his claim to assert he had been automatically unfairly dismissed for health and safety reasons. I took the claimant through the factors normally considered by tribunals when considering applications to amend, and Ms Holden resisted the application.[10]In relation to his application to amend, the claimant alleged that he had been forced to resign because his manager refused to adjust his work times. The claimant said that he brought to his employer’s attention that he believed he was at risk of falling asleep at the wheel when he was driving. He was told that there were no changes that could be made to his work times, and so he gave his notice. He said that he was making the application to amend now because he researched last night and found that he needed more than two years’ service to claim unfair dismissal. He said that he did not pick up on this issue at the last hearing because he was overwhelmed by the hearing itself.[11]The parties gave closing submissions. The hearing did not conclude until after 3:30 pm and so I reserved my decision. The law Time limits EA
The law
[12]Section 123 EA provides: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[13]The key question in determining whether there was conduct extending over a period is whether there was an ongoing situation or continuing state of affairs which amounted to discrimination (Hendricks v Metropolitan Police Commissioner [2002] IRLR 96). The claimant bears the burden of proving, by direct evidence or inference, that numerous alleged incidents of discrimination are linked to each other so as to amount to a continuing discriminatory state of affairs.[14]As to extending time, the Court of Appeal in Abertawe Bro Morgannyg University Local Health Board v Morgan [2018] IRLR 1050 observed that the wording of section 120(1)(b) “such other period as the employment tribunal thinks just and equitable” gives the Tribunal a wide discretion in considering whether to extend time. Leggatt LJ said that “factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reason for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claims while matters were fresh).”[15]Tribunals are encouraged to “assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular… ‘The length of, and the reasons for, the delay’ ” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 22).[16]In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] UKEAT 132 the EAT held that the potential merits of a claim, which was not so weak as to be struck out under Rule 37, are not irrelevant when it comes to deciding whether it is just and equitable to extend time. If these the merits are weighed in the balance against the claimant the assessment of the merits “must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing, and taken proper account, particularly where the claim is one of discrimination, of the fact that the tribunal does not have all the evidence before it, and is not conducting the trial”.[17]Reviewing the authorities, the learned editors of Harvey’s set out a nonexhaustive list of factors that may prove helpful in assessing individual case:a. the presence or absence of any prejudice to the respondent if the claim is allowed to proceedb. the presence or absence of any other remedy for the claimant if the claim is not allowed to proceed;c. the conduct of the respondent subsequent to the act of which complaint is made, up to the date of the application;d. the conduct of the claimant over the same periode. the length of time by which the application is out of time;f. the medical condition of the claimant, taking into account, in particular, any reason why this should have prevented or inhibited the making of the claim;g. the extent to which professional advice on making a claim was sought and, if it was sought, the content of any advice given. Time limits and preliminary hearings[18]In the case of E v X and others UKEAT/0079/20 the EAT reviewed previous authorities and identified a number of key principles to be applied when time points are being considered at a preliminary hearing. I set them out in full: h. In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin. i. It is appropriate to consider the way in which a claimant puts their case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson. j. Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar. k. It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated; or(2) substantively to determine the limitation issue: Caterham. l. When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar. m. An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar. n. The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz. o. In an appropriate case, a strike-out application in respect of some part of a claim can be approached assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required – the matter will be decided on the claimant's pleading: Caterham. p. A tribunal hearing a strike-out application should view the claimant's case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson. q. If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham. r. Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham. s. Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham. t. If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may be no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background to more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham Strike out and deposits[19]Rule 37 of the ET Rules provides:- At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;[20]In Mechkarov v Citibank NA [2016] ICR 1121 the EAT summarised the principles that emerge from the authorities in dealing with applications for strike out of discrimination claims: ''(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.''[21]The guidance in Mechkarov followed from a line of authorities including Anyanwu v South Bank Students’ Union [2001] IRLR 305 and Eszias v North Glamorgan NHS Trust [2007] IRLR 603. Chandok v Tirkey [2015] ICR 527 shows that there is not a “blanket ban on strikeout application succeeding in discrimination claims”. They may be struck out in appropriate circumstances, such as a time-barred jurisdiction where no evidence is advanced that it would be just and equitable to extend time, or where the claim is no more than an assertion of the difference in treatment and a differencing protected characteristic. Eszias also made clear that a dispute of fact also covers disputes over reasons why events occurred, including why a decision-maker acted as they did, even when there is no dispute as to what the decision maker did.[22]In Ahir v British Airways plc [2017] EWCA 1392 the Court of Appeal held that tribunal’s should “not be deterred from striking out claims, discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger in reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context”.[23]Rule 39 ET Rules provides: -(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[24]In the case of Hemdam v Ishmail [2017] IRLR 228 the Court of Appeal gave guidance to tribunals on the approach to deposit orders. The guidance included:-a. The test for ordering a deposit is different to that for striking out under Rule 37(1)(a).b. The purpose of the order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and creating a risk of cost. It is not to make access to justice difficult or to effect a strike out through the back door.c. When determining whether to make a deposit order a tribunal is given a broad discretion, is not restricted to considering purely legal questions, and is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and reach a provisional view as to the credibility of the assertions being put forward.d. Before making a deposit order there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence.e. A mini trial on the facts is not appropriate. Amendment[25]Selkent Bus Co Ltd v Moore [1996] ICR 836 sets out a non-exhaustive number of factors to be borne in mind by a tribunal considering an application to amend. These include the nature of the amendment, the applicability of time limits and the timing and manner of the application. Selkent makes clear that “the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment”. Vaughan v Modality Partnership UKEAT/0417/20 urges a focus on the real practical consequences of allowing or refusing an amendment.
The relevant facts
[26]I have set out the facts I have found relating to the claimant’s disability status in a separate judgment. I will not repeat those facts here, but will add and underline a couple of points.[27]The claimant experienced severe depression and anxiety in March 2021. He received a course of counselling which helped in improving his mental state over the course of the next few months.[28]The claimant was directly employed by the respondent between 3 May 2021 and 21 May 2021 when he “parted on good terms” with the respondent. He then signed up with an agency who placed him with the respondent.[29]The claimant currently works for an agency earing around £600-700 per week. His wife earns around £1000 per month. He has two grown up children who are not dependant, but do not contribute to the family’s income. His outgoings are £330 pcm on energy, £50 pcm on water, £140 pcm on house and car insurance, £360 pcm on car finance, £250 pcm on council tax, £500 pcm on shopping, mobile phones and fuel. The family has savings of £22,000 and his wife has savings of £15,000. Ms Holden calculated a monthly income for the family of £3800 with outgoings of £1630. Conclusions Amendment
Conclusions
[30]I do not allow the application to amend to include a claim under section 100 Employment Rights Act 1996.a. The claimant has not been able to set out the circumstances in which he says section 100 applied. He did not know whether there was a health and safety representative or committee at his former place of work (though he imagined there was one), and there was a degree of speculation as to how he might fit within the section. While it was not easy to see how extensive his amendment might be, it certainly would take matters beyond the current trust and confidence related constructive dismissal claim he was bringing.b. The claimant was alerted to the possibility of amending his claim that the CMPH on 2 November 2022, but did nothing about it until halfway through the OPH. While I accept he may have been overwhelmed during the hearing, he was sent the case management summary on 10 January 2023, and he took no steps to make an application to amend.c. I find that he would have no reasonable prospect of showing that an amended claim was in time.d. The only reason given for such a late application appears to be that the claimant find out very late stage that he did not have ordinary unfair dismissal claim.e. Refusing the application to amend obviously deprives the claimant of the chance of running a claim. But balanced against this is the prejudice the respondent faces in defending a claim which in all likelihood the claimant will not be able to establish is in time. Unfair dismissal[31]There is a fundamental problem with any ordinary unfair dismissal claim. I have not allowed an amendment to bring an automatic unfair dismissal claim, and so the claimant must show that he had two years’ service in order to bring ordinary unfair dismissal claim. All evidence points to the fact that he did not have this requisite service. Indeed, his attempt to apply to amend his claim demonstrates an acknowledgement that he did not have such service. The claimant has no reasonable prospects of succeeding in an unfair dismissal claim, and this claim struck out. Disability discrimination[32]The claimant’s first claim (breach of the duty to make reasonable adjustments) related to his period of employment which ended on 21 May 2021. His second claim related to his suspension on 2 August 2021. He notified ACAS on 27 September 2000, receiving a certificate on 7 November 2021, and he brought his claim on 5 December 2021. He notified ACAS almost a month out of time. I note, from the evidence, that the claimant’s mental health had improved during this period, but he appears to have been experiencing anxiety and paranoia during this period.[33]The second claim appears to be in time. With respect to the first claim, the claimant did not approach ACAS until a month after the time limit expired. In respect of the first claim, I note the claimant accepted a number of times in evidence that he had parted on good terms.[34]I do not propose making findings of fact to determine whether the claims were in time, whether they form part of a continuing act and whether it is just and equitable to extend time. No witness statements were ordered for the hearing before me, and while I did hear some evidence, it was not sufficiently detailed for me to feel safe in making findings. This task is much better conducted by a tribunal hearing the whole evidence in its appropriate context. I also bear in mind the theme in the authorities which points towards discrimination claims being heard rather than struck out other than in fairly exceptional circumstances.[35]Ms Holden makes powerful arguments suggesting that there is no continuing act when the claimant moves from employment to (in all probability) contract work. However, I am not in a position properly to determine whether there is no or little reasonable prospect of the claimant establishing a continuing act, or of persuading a tribunal that it was just and equitable to extend time in respect of the first disability discrimination claim.[36]In terms of the merits of the first claim, while it might be said that leaving on good terms is inconsistent with having been discriminated against I do not consider that the threshold either for strike out or a deposit order has been met. Evidence needs to be heard on this point.[37]In respect of the second claim, which is in time, the respondent submits that it will be difficult for the claimant to prove the reason why he was suspended arose out of his disability, when he offers other reasons such as race. The authorities on discrimination have made clear how difficult it is for claimant to prove the reason why an employer acted as it did. The proof will depend on what inferences it is reasonable to draw having heard the evidence of relevant matters. The reason why an employer acted as it did is a factual dispute, and as such a tribunal would rarely consider it appropriate to strike out claim. I also do not consider it appropriate to order a deposit, which may amount to a back door strikeout. Race discrimination[38]The claimant claims that decisions about his shift times (while in employment) and suspending him in early August 2021 were also acts of race discrimination as well as different forms of disability discrimination. Arguments in relation to time are identical, and I do not strike out the claimant’s claims for time limit issues or subject them to a deposit.[39]Equally, the reason why the respondent did not alter the claimant’s shift times and why they suspended him on 2 August 2021 are matters about which evidence must be considered.[40]The merits of the claimant’s direct race discrimination claim in respect of not being recruited must similarly be adjudicated upon after hearing evidence. While the respondent asserts that cogent reasons were advanced for the claimant not being offered a role, I heard no evidence myself on the point.[41]I do not strike out any of the race claims, and I do not make them subject to a deposit.