Mrs W Treble v Royal Bank of Scotland and National Westminster Bank plc: 2401578/2022

EMPLOYMENT TRIBUNALS

Case No 2401578/2022

Between

Mrs W TrebleClaimant

(1) Royal Bank of Scotland (2) National Westminster Bank plcRespondent

Before

Employment Judge Cookson

Mr Millett (instructed by solicitor) for claimant

Mr Murphy (instructed by solicitor) for respondent

Date 11 November 2022

JUDGMENT

[1]The claimant’s claim for discrimination under s15 of the Equality Act 2022 and s20/21 in relation to the decision on 14 April 2021 to require her to relinquish her bank manager role and her further claim that the respondent failed to make a reasonable adjustment to its practice requiring a role to be relinquished for an employee to become entitled to disability insurance benefits, was not submitted within 3 months starting with the date of the alleged act of discrimination. However it was submitted within a further period that I find to be just and equitable in accordance with s123(1)(b) of the Equality Act 2010 so the tribunal has jurisdiction to consider these claims.

[2]The claimant has also brought further claims that the respondent had failed in its duty to make reasonable adjustments, contrary to s20 and 21 of the Equality Act which were not submitted within 3 months starting with the date of the alleged act of discrimination. Whether the employment tribunal has jurisdiction to consider those claims will be determined at the final hearing. 10.7 Judgment – rule 61 Case Number: 2401578/2022 ___ JUDGMENT having been sent to the parties on 6 January 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]These written reasons are provided in connection with a extemporaneous judgment delivered on 11 November 2022. A written judgment was prepared by me the same day although it appears from the administrative file that it was not sent to the parties until 6 January 2023. I was not aware of that an apologise to the parties for that delay. In the meantime a request for written reasons had been made in any event.

[2]This case was originally listed for an open preliminary hearing by Employment Judge Horne at a case management hearing on 19 May 2022. He had listed a preliminary hearing to determine various matters including to determine whether or not the claim was presented within the statutory time limit for the most recent allegation of discrimination and to determine whether or not it would be just and equitable to extend the time limit for that part of the claim. His order goes to provide for consideration of strike out and deposit if appropriate and to clarify case management issues including listing for final hearing.

[3]Those preliminary matters came before Employment Judge Grundy on 12 August 2022. However, that hearing did not proceed. It appears the claimant had sought to argue that issues of time should be considered at the final hearing and the claimant had not been prepared to present evidence. The application for this to be considered at the final hearing was refused and it appears that by consent following discussions with the parties, Employment Judge Grundy listed the hearing which came before me to determine the following issues (as noted in ger order):-(i) it is accepted that the disability discrimination claims were presented outside the statutory time limit and the most recent allegation of discrimination; the last act relied upon being 4 April 2021 as above;

(ii) therefore the Tribunal shall determine whether or not it would be just and equitable to extend the time limit for that part of the claim; and or any other allegation of disability discrimination which predates that one.

[4]To assist me at this hearing in addition to the case management summaries and orders from Employment Judges Horne and Grundy I received a witness statement from the claimant which is included in an agreed bundle of documents, written skeleton arguments from both the claimant and the respondents (referred to for ease by the parties and me as “the respondent”) with a bundle of authorities from the respondent, and I also received oral submissions from both parties.

[5]Having read the skeleton arguments before the hearing, it became clear that the respondent was making various submissions in relation to time points relating both to the failure to make reasonable adjustments claims brought under Sections 20 and 21 of the Equality Act 2010 and in relation to time for the claim brought under Section 15 of the Equality Act, that the claimant had been subject to unfavourable treatment because of something arising in consequence of her disability. Those were not simply submissions about time but were submissions dependent on what would require findings of fact about when particular acts of discrimination had occurred. Mr Millet told that the respondent’s arguments about that were not accepted by the claimant and in his view this raised significant disputes of fact.

[6]The respondent made submissions in relation to when time should run for those claims. In relation to the failure to make reasonable adjustments claims, the respondent argued that time should run from 26 September 2019, or, in the respondent’s words “if the tribunal is not with the respondent that the time limit should run from August or September 2019, in the alternative it is submitted that time should run from on or before the date when the claimant prepared her initial grievance statement on 16 December 2020, or, at the latest, the time limit for the claimant’s failure to make reasonable adjustments should have started to run on or before 14 April 2021”. In other words, three dates are suggested for when time should run from.

[7]Employment Judge Grundy had listed this hearing to determine whether the discrimination claims were presented outside the statutory time limit for the most recent alleged allegation of discrimination, and she expressly noted that the last action being relied upon was 14 April 2021 and that I was to determine timing in relation to that, although I also acknowledge that she goes on to say that the Tribunal shall determine whether or not it would be just and equitable to extend the time limit for that part of the claim; and or any other allegation of disability discrimination which predates that one.” It is not entirely clear what is meant by the reference by “and or” and the parties did not explain what their understanding was, but the order does not, in my view require to make a finding about any earlier act of discrimination in light of the inclusion of the word “or”. I consider it likely that the words “and or” were included to allow for the possibility of the allegation relating to 14 April falling away given the claimant’s position on what discrimination she had been subject to was still in the process of being clarified.

[8]It was also not clear to me from the case management hearing that it had been made clear to Employment Judge Grundy that there was a material dispute about the alleged dates of discrimination as reflected in the submissions of the respondent.

[9]In Caterham School Ltd v Rose EAT 0149/19 the employment tribunal had held a preliminary hearing to determine whether discrimination claims had been presented in time and made findings that that there had been treatment complained of which was ‘conduct extending over a period’ for the purposes of S.123(3)(a) EqA. The claims had only been a few days out of time, and the tribunal held that it was just and equitable to extend time.. On appeal, the EAT found that the tribunal had made a definitive determination that there was ‘conduct extending over a period’ rather than leaving the substantive determination of the issue for the full merits hearing which was an error of law for the tribunal to have made without hearing evidence on the point. Definitive determination of an issue that is factually disputed requires preparation and presentation of evidence, findings of fact and, as necessary, the application of the law to those facts, so as to reach a decision that cannot then be revisited at the full merits hearing.

[10]It seemed to be this in essence was the error of my approaching matters as the respondent appeared to suggest that I should. I am confident that cannot have been what EJ Grundy intended. Further, considering the original orders of Employment Judge Horne which Employment Judge Grundy had based her orders on, he had listed the hearing to determine whether or not the claim was presented within the statutory time limit only for the most recent allegation of discrimination and to determine whether or not it would be just and equitable to extend time for that part of the claim. In the circumstances I consider it unlikely that Employment Judge Grundy had intended to materially vary the approach that EJ Horne had provided for.

[11]Since Employment Judge Grundy’s case management hearing we have received further guidance on approaching the application of the just and equitable time extension in cases where it appears there is conduct extending over time, in the judgment of His Honour Judge Auberbach in Concentrix CVG Intelligent Contract Limited -v- Obi

[2022] EAT 149

, a decision which I drew to the attention of the parties. That decision emphasises the importance of considering forensic prejudice in weighing whether to extend time where there is conduct said to extend over a period of time. Forensic prejudice can only be considered if all of the evidence has been heard. In my view that further supports my approach that the issues raised by the respondent about the failure to make reasonable adjustment claims should be ammeters for the final hearing.

[12]When I canvassed this with the parties, Mr Murphy told me that the respondent does argue that failure to make reasonable adjustments claims occurred at an earlier time, but it did acknowledge that the 14 April 2021 was, as a matter of agreed fact the date when the claimant was told that she would have to relinquish her role as branch manager, that this was alleged to a detriment contrary to s15 and that was the latest act of alleged discrimination. On that basis it appears to be conceded by the respondent (albeit not expressly) that this is either the last act of discrimination or the end of a period of conduct said to extend over time.

[13]Having heard submissions from the parties I determined that what I should consider at this hearing was whether it was just and equitable to extend time from the last alleged act of discrimination on the 14 April 2021. If I found that it was just and equitable to extend time, the claims would proceed to final hearing at which disputes in relation to the incident and timing of earlier acts of discrimination, including whether it was just and equitable to extend time for those earlier acts, would be considered. The evidence about time and findings of fact

[14]As I have noted there are some factual disputes between the parties about when discrimination is alleged to have occurred, but it is possible to briefly summarise this case as follows.

[15]The claimant started employment on 26 January 2000 with Royal Bank of Scotland plc as a Bank Manager. She remains an employee but no longer has a job title or any roles and responsibilities. The employment relationship has been maintained to enable the claimant to receive benefits under a health insurance policy with Legal and General. As Employment Judge Horne records, the first respondent contends that since the claimant stopped working, her employment has transferred to the second respondent as part of a wider transfer of business from RBS to NatWest.

[16]The claimant was diagnosed as having Parkinson’s Disease in 2017. Initially she had been able to continue working full time in her role, but in 2019 that had become increasingly difficult. The claimant was assessed by Occupational Health and there had followed some discussions with the claimant’s line manager about reasonable adjustments. The claimant’s last day at work was 8 October 2019 and after that she began a period of long term absence. Steps were taken to explore whether the claimant would be eligible to receive payments under a disability cover scheme which is provided by Legal and General as a third-party insurer. That resulted in time in a number of decisions and appeals including a complaint to the Financial Ombudsman. The claimant also went through a grievance process.

[17]On or around 14 April 2021 the respondent wrote to the claimant noting that she was required to formally confirm that she accepted the disability cover scheme rules and to agree to a variation to her terms and conditions of employment relinquishing her role in order that she could continue to receive the disability cover payments.

[18]In terms of explaining what she had done in relation to her complaint that this amounted to discrimination, the claimant explained that she had initially sought to use the first respondent’s in-house procedures for resolving issues at work. When her final grievance had been declined on 10 November 2021 she had then sought to progress her complaint and she began the process of seeking legal advice.

[19]In November 2021 she contacted Thompsons Solicitors but on 6 December 2021 she received a letter rejecting her case. In December she had been able to obtain a name from the Law Society and spoke to a solicitor on a number of occasions but unfortunately he too was unable to progress the claim any further. The claimant continued to try and seek advice but found it difficult to make contact with lawyers over the Christmas and New Year period. That lawyer provided the claimant with details of another solicitor who the claimant spoke to in around January 2022 and in turn he suggested that the claimant speak to Citizens Advice.

[20]In January 2022 the claimant had also become involved in some clinical studies in relation to Parkinson’s Disease which included an overnight stay in London and this impacted on progress made during January.

[21]In February 2022 the claimant made a complaint to the Financial Ombudsman in an attempt to progress the issues, but they declined to become involved.

[22]The claimant was finally able to speak to someone from Citizens Advice in February 2022 when, for the first time, it appears the claimant was advised that she could bring a claim to the Employment Tribunal and as soon as the claimant became aware of that she took immediate steps, within three days, to initiate the ACAS early conciliation process. Submissions

[23]I have only sought to briefly summarise here the parties’ submissions here.

[24]Having clarified orally that we were considering time from 14 April 2021, Mr Murphy made oral submissions (which is in slightly different terms to the written submission) that the claimant should have contacted ACAS by 13 July 2021. The claimant did not contact ACAS until 22 February 2022 which is plainly more than three months after the date of the alleged act of discrimination. Accordingly, the claim had been submitted some ten months after the date of the act complained of. On this basis the respondent argued that it would not be just and equitable for the Tribunal to accept the claims have been made out of time.

[25]Mr Murphy argued that the burden falls on the claimant to show it would be just and equitable to extend the time limit and I was referred to a number of authorities for that including the well-known quote from Lyndsey J the then President of the Employment Appeal Tribunal in Robinson -v- The Post Office

EAT/1209/99

in which he said “it is to be borne in mind that time limits in employment cases are in general strictly enforced”. I was also referred to another well know quote from Lord Justice Auld in Robertson -v- Bexley Community Centre

[2003] EWCA CIV 576

as follows “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. Quite the reverse. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So the exercise of discretion is the exception rather than the rule”.

[26]The respondent also refers me to the list of factors identified by the Employment Appeal Tribunal in the case of British Coal Corporation -v- Keeble and Others

EAT/496/96

[27]In relation the delay the respondent argues did not relate to the alleged discrimination arising as something in consequence to the claimant’s disability and so the internal process should have no bearing at all in relation to the claimant’s reason for delay in bringing that claim. Further, I am reminded that in Apeloqun-Gabriels -v- Lambeth London Borough Council

[2002] ICR 713

the Court of Appeal made it clear that a delay caused by a claimant awaiting completion of an internal procedure may justify the extension of the time limit but will not automatically do so, and a grievance or other internal procedure is only one factor to be considered in any particular case. It is also highlighted to me that in Robinson Lindsay J had observed that, in relation to the then Disability Discrimination Act 1995, that Parliament had quite deliberately not provided that invariably the running time against an employee should be delayed until the end of domestic processes.

[28]In relation to the claimant’s argument that she was unaware of the time limits to raise a complaint I am referred to the comments of Mr Justice Underhill in the case of Hunwicks -v- Royal Mail Group Plc in which Mr Justice Underhill stated “the fact that a claimant may have been unaware of relevant time limits does not necessarily make it just and equitable to extend them, particularly where, as here, the claimant is a person of some intelligence and some education with access to legal advice. It will frequently be fair to hold the claimants bound by time limits which they could, had they taken reasonable steps, have discovered. This is no doubt what the Chairman meant, albeit that it somewhat provocatively phrased, when he said in his review decision that “you should have known the statutory time limits”.

[29]The respondent emphasised that during the period when the claimant should have raised the claim with ACAS, she was clearly able to pursue her dispute through other processes, for example the internal procedures at the respondent, the insurer and the Financial Ombudsman. She had been able to inform herself of the required processes, procedures and deadlines. The respondent also suggested that the matters complained of were historic and evidence, particularly witness evidence, may be affected by the passage of time involved and it is suggested that relevant documentary evidence may no longer be available or available in satisfactory form. However, although that submission has been made, I was not pointed to any documents which this could be said to apply to.

[30]Mr Murphy emphasised in his oral submissions was that the claimant herself had found it difficult to recollect some dates and other details in her oral cross examination and that this pointed to potential impact on the cogency of the evidence available to the Employment Tribunal. Finally, it is pointed out to me that there is no question that the respondent had failed in any way to cooperate with requests for information from the claimant and that answers had been provided to two subject access requests.

[31]The respondent is also critical of the time taken by the claimant to obtain advice. Mr Murphy highlights the decision in Mensah v Royal College of Midwives

UKEAT/124/94

, where it was held that Tribunals are entitled to ask questions about a claimant's knowledge of their claim and that in connection with the discrimination arising from disability claim / relinquishing her role, the claimant will have been aware of the requirement to relinquish her role from December 2019 when she received the DC policy terms.

[32]The respondent argued that the balance of prejudice in this case fell in favour of the respondent.

[33]Mr Millett in his submissions for the claimant accepted that the complaints were presented out of time but argued that the delay was not as significant as suggested by the respondent. Mr Millett pointed out that the primary time limit for presentation for an early conciliation certificate notification in this case had been 13 July 2021. Had the claimant presented an early conciliation notification on that date and the early conciliation certificate had been produced one month later, as would commonly be the case, on 13 August 2021 the claimant would have been in time for presenting her claim had she brought it to the Tribunal on 13 September 2021. He argued that in those circumstances, the impact of the delay is not as significant as the respondent appears to seek to suggest.

[34]Mr Millet also stressed that throughout the period from 14 April to 10 November 2021 the claimant had been exhausting the internal processes that she had believed would resolve her grievance. It was clear that the claimant was not in a position even when she came to submit her claim to present them in terms as she had still fully failed to appreciate the legal case that she was presenting. This was not a case in which the claimant had abandoned matters and then revisited them after a long delay, there had only been a period of three months and 14 days from the outcome of her grievance appeal being communicated to her and her presenting her claims to the employment tribunal during which time she had actively sought advice from various sources. Mr Millett submitted that although the claimant had been stoic in her evidence, it is also clear that she is unwell and reminded me that the claimant had not been fit to work since 2019, the claimant has a significant medical condition which amounts to a disability and that condition needs to be taken into account in weighing the decision.

[35]Like Mr Murphy, Mr Millett highlighted the factors set out in British Coal Corporation -v- Keeble and reminded me that in the case of London Borough of Southwark v Afolabi

[2003] IRLR 2020

it had been found there was no legal obligation on the Tribunal to go through the list provided there is no significant factor left out. In the case of DPP v Marshall it had been held that the emphasis should be on whether the delay affected the ability of the Tribunal to conduct a fair hearing.

[36]Significantly in this case Mr Millett argued that the length of the delay, although more than trivial, was not one which caused the respondent any great disadvantage in answering the issues before the Employment Tribunal. This is a case which concerns the application of policies and is well documented and the respondent had not suggested any particular reason why the respondent’s witnesses would not be able to give evidence or would not have been able to give evidence at the relevant time had the claim been presented in time. Insofar as the claimant’s memory had been affected by the passage of time that is a prejudice which falls on her and not the respondent. Mr Millett argued that the detriment to the claimant in not being able to have her claims heard vastly outweighs any detriment to the respondent in addressing such matters. Why I reached my conclusion that it would just and equitable to extend time

[37]In terms of how I should approach the question of exercising my discretion in addition to the cases I have been referred to by the parties I note there is significant, and widely known, guidance in other case law including Abertawe Bro Morgannwg University Local Health v Morgan

[2018] EWCA CIV 640

. In that case Leggett LJ said this “it is plain from the language used (“such other period as the Employment Tribunal thinks just and equitable”) that Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike Section 33 of the Limitation Act 1980, Section 123(1) of the Equality Act does not specify a list of factors to which the Tribunal is instructed to have regard, and they will be wrong in those circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list. Although it has been suggested that it may be useful for a Tribunal in exercising its discretion to consider the list of factors specified in Section 33(3) of the Limitation Act 1980 the Court of Appeal has made it clear that the Tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account. The position is ……………. to that where a Court or Tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under Section 7(5) of the Human Rights Act 1998.

[38]Although both parties emphasised the list of factors in Keeble above, I also reminded myself that of the Court of Appeal guidance on how to approach this case as set in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, CA. With regard to the Keeble factors, the Court of Appeal cautioned that Keeble does no more than suggest that a comparison with S.33 might help ‘illuminate’ the task of the tribunal by setting out a checklist of potentially relevant factors; it certainly did not say that that list should be used as a framework for any decision. The Court of Appeal emphasised that the Keeble factors should not be taken as the starting point for tribunals’ approach to ‘just and equitable’ extensions and that rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, including in particular – as Mr Justice Holland noted in Keeble – the length of, and the reasons for, the delay. The Court of Appeal noted that, while it was not the first to caution against giving Keeble a status that it does not have but that repetition of the point may still be of value in ensuring that it is fully digested by practitioners and tribunals and that is point that is worth reiterating here too.

[39]Returning to my decision, the exercise of this broad discretion involves the multi factual approach, taking into account all the circumstances of the case in which no single factor is determinative of the starting point. In addition to the length of the delay, the extent to which the weight of evidence is likely to be affected by the delay, the merits, and the balance of prejudice; other factors which may be relevant include the promptness with which a claimant acted once he or she knew factors giving rise to the course of action and the steps taken by the claimant to obtain the appropriate legal advice once the possibility of taking action is known.

[40]The respondent had highlighted to me the judgment of the Court of Appeal in Robertson -v- Bexley Community Centre which reminds me that when Tribunals consider their discretion to consider a claim on the amount of time on just and equitable grounds there should be no presumption that they do so unless they can justify the failure to exercise discretion. However I have also reminded myself that that does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law does not require that, it simply requires that an extension of time should be just and equitable – Pathan -v- London South Islamic Centre EAT 0312/13.

[41]It is clear that this claim was submitted out of time and, as Mr Millett acknowledged, that delay was not trivial. However I have given careful regard to the circumstances of the case. In this case the claimant had believed that by pursuing internal processes she could resolve matters with the respondent, who remained her employer. It is clear the claimant had made various attempts to obtain legal advice from a variety of sources. It is regrettable that to some extent her case appears to have been passed from lawyer to lawyer and it was not until February that she received any significant advice on her rights in the Employment Tribunal. It seems clear to me that the claimant had promptly contacted the union and she had persistently also sought legal advice without realising the urgency with which she was required and also recognising that whilst the claimant was doing that and also pursing matters with other bodies (as the respondent pointed out) she continued to be impacted by a significant and serious medical condition..

[42]I was significantly persuaded by Mr Millett’s arguments in relation to the cogency of evidence and prejudice. It is clear to me that there are significant disputes in this case about, for example, when time should run on the basis of particular decisions which were taken by the parties, but I accept what Mr Miller says that in large part this case may turn on what the relevant policies say and this is a case in which documents will be very significant. This is not a case, for example, where there will be arguments about who said what to whom or whether particular things happened.

[43]Balancing all of the factors into account on balance I find that this is a case where the balance of prejudice falls clearly in favour of the claimant. I am not persuaded that the respondent faces significant prejudice from delay and in the circumstances it would be just and equitable to extend time in relation to the alleged discrimination on the 14 April 2021.

[44]I emphasise that I am not making any finding in relation to whether the claimant was subject to discrimination continuing over time or whether it is just and equitable to extend time in relation to any earlier alleged acts of discrimination. Those are matters which should be determined by the Employment Tribunal having heard all of the evidence in the case at final hearing.