Miss J Seddon v Lancashire Teaching Hospitals NHS Foundation Trust: 2402185/2024
JUDGMENT
[1]The Tribunal has no jurisdiction to consider the claim, as it was not presented within the time limit set out in s48(3) Employment Rights Act 1996 (as extended by Section 207B).[2]The claim is therefore dismissed.REASONS
[1]Miss Seddon claims she has been subjected to detriments because she made a protected disclosure. This hearing was a public preliminary hearing to consider whether the Tribunal had jurisdiction to consider the claim, given the date on which it was presented.The Hearing
[2]The hearing took place by video and was a particularly difficult hearing, for several reasons, namely:2.1 The start was delayed due to some of the participants having difficulty connecting to the CVP platform.2.2 The respondent had prepared a 138-page bundle which it had sent in electronic format, to Miss Seddon. She had printed off the first 103 pages, not realising that the print-out was incomplete. Miss Seddon joined the hearing on her phone and had no access at home to a printer or second device.2.3 Miss Seddon was visibly distressed – even distraught – for much of the hearing. As I will explain below, she has gone through a very difficult time over the last four years and she, understandably, found recounting and discussing some of those events a very difficult thing to do.[3]When we discussed the bundle of documents I asked the respondent’s solicitor, who was present on the call, to ensure that, in future, unrepresented litigants are provided with hard-copy bundles as a matter of course. I do not suggest that there was any breach of an order here, but it is a matter of good practice. Far too many video hearings are ineffective, or suffer delay, because a represented respondent has not thought to ensure that an unrepresented claimant will have proper access to the documents they will need during the hearing.[4]In the end, we were able to proceed as Miss Seddon had the majority of documents printed off, and I was able to share the other documents on screen when required. This was not ideal for a party joining on a mobile phone, but for the small number of documents involved it was satisfactory. Given these problems, and Miss Seddon’s upset, I explained to her that it was open to her to apply to postpone the hearing. She told me that she wanted to go ahead and, taking account of all of the circumstances, I decided it was right to do so.[5]The issues to be determined at this hearing were set by Employment Judge Leach at a preliminary hearing for case management on 12 August 2024. Broadly, the hearing was to determine whether the claim had been presented in time (including whether time should be extended) (“the time issue”) and whether it should be struck out, or a deposit order made, on the basis that the substantive claim had no (or little) reasonable prospects of success (“the merits issue”). I agreed with both parties that I would hear evidence and submissions on the time issue first, and reach a decision on that. If we had time in the hearing (and if the time issue had been decided in Miss Seddon’s favour) I would then hear the merits issue. The respondent had brought along a witness, Jackie Murray, but her evidence went mainly to the merits issue and, in the end, she was not called.[6]I therefore heard evidence from Miss Seddon only. She had prepared a witness statement and was cross-examined by Miss Barry. I read all of the documents in the bundle. I heard oral submissions from Miss Barry and Miss Seddon. By the time both parties had made their submissions there was only around twenty minutes left of the allocated hearing time. I told the parties I would reserve my decision on the time issue. I heard no evidence or submissions on the merits issue.[7]Due to the way Miss Seddon presented in the hearing, and certain things she had said, I was worried about the effect that receiving the decision might have on her if she was unsuccessful. I raised this, making clear that I had not yet reached a decision, but that this would be only opportunity I had to discuss the matter with her. I offered to reconvene the hearing to give an oral Judgment if it would help her to have a set date, and perhaps to arrange to have someone with her. I also offered to ask the Tribunal administration to send out a ‘warning’ email the day before the Judgment email was sent out. In the end, Miss Seddon said that she would prefer just to have the Judgment by email as soon as it was ready.The Issues
[8]As I have mentioned, this case had a preliminary hearing for case management before Employment Judge Leach on 12 August 2024. Employment Judge Leach set out the time limit issue as follows: The claimant complains that in late 2019 and in 2020 she was subjected to detriments on the ground that she had made a protected disclosure (contrary to section 47B Employment Rights Act 1996). The claim form was presented on 10 April 2024: 1. Was it reasonably practicable for the claim to be presented to the Tribunal within the time limit of three months (plus any extension of time for early conciliation) from the date of the act (the detriment) complained of? 2. If not, was it presented in further period as the Tribunal considers reasonable?Background
[9]The following paragraphs set out the claimant’s claim as she put it. It is necessary to understand the claim in order to understand the time limit issue. However, I have not made findings of fact about these matters, which would have fallen to be determined by the Tribunal at the final hearing, if the case had proceeded.[10]Miss Seddon is a nurse. She works part-time, doing two shifts per week on set days. She says that in September 2019 she had cause to complete a “DATEX” form to alert the respondent to failures in the care of a patient. In that form, she named one of her colleagues whose actions the claimant believed had fallen below the required standards. (The respondent says the form was actually completed by someone else, but I do not need to resolve that for today’s purposes).[11]On 28 December 2019 Miss Seddon worked a shift with the same colleague. Following that shift the colleague made a DATEX form report which included complaints about Miss Seddon. Miss Seddon says that the allegations contained in that form were false, and that they were made in retaliation for her own DATEX report. That is the first alleged detriment.[12]In early January 2020 Miss Seddon was informed that issues had been raised that would have to be investigated. She was told that she would be placed on non-clinical duties. She was not told the details of the allegations at this stage. Miss Seddon felt that moving to non-clinical duties would be very difficult for her, as it would give rise to all sorts of questions from other colleagues. She commenced sick leave. Her evidence was that her decision to report as sick was taken at the instigation of a matron, although I reiterate that I am making no findings.[13]By a letter dated 4 March 2020 Miss Seddon was told that there would be a formal investigation, and informed of the precise allegations that had been made. The respondent’s decision to investigate the complaint is the second alleged detriment.[14]Around early August 2020 Miss Seddon was informed in a meeting that there was no case to answer in respect of the disciplinary investigation. This was confirmed in an (undated) letter. The third alleged detriment is the length of time it took the respondent to reach that conclusion.Findings of Fact
[15]I start my findings of fact by saying that the time-line I set out below is supported by the documents provided by the parties, particularly Miss Seddon, but there are gaps in the documentary evidence. Although Miss Seddon was a very emotional witness, she was also someone who had retained a clear grasp of the chronology of the events we were discussing. I found her evidence to be both credible and reliable.[16]Following the ‘no case to answer’ decision, Miss Seddon was to return to work. In view of her lengthy absence, there were discussions about how this would be handled, and a phased return was agreed. That was to start on 12 September 2020. However, she only worked a small number of shifts (two, to the best of her recollection) before, on 28 September 2020, her husband unexpectedly informed her that he was ending their relationship. Miss Seddon then had a period away from work, which seems to have been made up of emergency leave and annual leave.[17]I accept her evidence that the initial period of her separation was extremely traumatic, with police involvement and allegations of violence. This situation continued through to the end of October 2020, when according to Miss Seddon, her former husband reined in his behaviour over fear for his job. After her initial period of leave, Miss Seddon was signed off sick. During late 2020, whilst still off sick, she was also supporting her children and one child, in particular, experienced significant mental health impacts as a result of the disruption in the family. The intervention her daughter was receiving came to an end around the end of January 2021, and Miss Seddon returned to work in mid-March 2021.[18]Subsequently, Miss Seddon had a difficult time obtaining a divorce. The process took around two years with issues with the court losing paperwork. Whilst I accept that this would be intensely frustrating and concerning, I consider that it is a qualitatively different sort of problem to the initial situation outlined above, which required police involvement. People can, and do, get on with their lives in all sorts of way whilst divorce proceedings are on-going, even difficult ones.[19]Miss Seddon did, indeed, get on with her life. As I have said, she returned to work and she was able to sustain a return to work for over a year, until June 2022, with only very minor sickness absence. There is no documentary evidence of additional difficulties for Miss Seddon in the period March 2021 to April 2022, although I accept that she found work difficult in the aftermath of the investigation, and was also still impacted by the issues related to her husband and the on-going divorce proceedings. She was also suffering from physical pain in relation to an on-going back condition.[20]A very unfortunate incident took place in April 2022. I only have Miss Seddon’s version of events, and I appreciate that there may be others, but for the purposes of this hearing I must proceed on the basis of the evidence available to me. Miss Seddon’s grandfather was admitted to the hospital where she worked on 22 April 2022. On 23 April, Miss Seddon asked her former husband if he could have the children whilst she visited her grandad in hospital, as she thought he was dying. On 25 April, Miss Seddon received a message from her husband accusing her of lying, and asserting that her grandfather was not dying. It subsequently transpired that he had caused his new partner, also a member of staff at the hospital, to look at the medical records of Miss Seddon’s grandfather and pass information to him. Miss Seddon’s grandfather died on 12 May 2022.[21]It was clear to me, listening to Miss Seddon, that she feels a very deep sense of betrayal from her former husband, colleague and her employer around these events. That is hardly surprising if the circumstances are as she describes. She says that the staff member in question has never been disciplined and this adds to the sense of betrayal. I cannot know for sure whether the events are exactly as Miss Seddon describes them, but I am sure that that is genuinely the way that she sees them.[22]Miss Seddon commenced another sickness absence in June 2022, as I have said. Although this was ostensibly for physical health reasons, she has told me today, and I accept, that the underlying reason for this absence was that she was struggling with her mental health in the light of everything she had gone through.[23]Miss Seddon became pregnant in January 2023, and had a difficult pregnancy. She also returned to work in January 2023, although she had inconsistent attendance in subsequent months due to pregnancy-related issues and other problems. She was on maternity leave from September 2023 until September 2024.[24]Whilst Miss Seddon was receiving care as a pregnant woman and new mother, it came to the attention of those responsible for her care that she was suffering from significant mental health problems. This led to some counselling and, ultimately a diagnosis of PTSD (although the diagnosis was not made until October 2024). Through exploring the causes of her difficulties with those supporting her, Miss Seddon traced her problems back to the original allegation and investigation in 2019/2020.[25]I surmise that Miss Seddon was encouraged to do something about those issues (although the evidence of exactly what, or who, prompted her to act was unclear). In the first instance she approached the Trust’s “Freedom to Speak” team, which I take to be a team designed to support in-house whistleblowing. There was a conversation in January 2024, and from that conversation, she learned about the possibility to making a claim to the Employment Tribunal.[26]Miss Seddon engaged in early conciliation, as she is required to do. The ACAS certificate shows that the date when she commenced Early Conciliation (‘Day A’) was 25 February 2024. The date when the certificate was issued (‘Day B’) was 15 March 2024.[27]Miss Seddon then presented her claim on 10 April 2024. Relevant Legal Principles[28]It is evident from what I have set out above that this claim was presented well outside the primary time limit set out in s48(3) Employment Rights Act 1996 (“ERA”), taking account of the extension of term under s207B ERA.[29]S111(2)(b) provides that the Tribunal can extend time for the presentation of the claim where it was “not reasonably practicable” for the claim to have been presented within the primary time period, and it was presented within such time thereafter as the Tribunal considers reasonable.[30]The “not reasonably practicable” test is a strict one (in contrast with the discretion to extend time on “just and equitable” grounds which applies in some other types of claims, and is much broader). The onus of showing that it was not reasonably practicable to present the claim in time lies on the claimant.[31]Something is “reasonably practicable” if it is “reasonably feasible” (see Palmer v Southend-on-Sea Borough Council [1984] ICR 372, Court of Appeal). The question is not whether it was physically possible to present the claim in time, nor whether it was reasonable not to, rather the test lies between these two extremes.[32]Ignorance of one’s rights can make it not reasonably practicable to present a claim within time, as long as that ignorance is itself reasonable: Walls Meat Co v Khan [1979] ICR 52. An employee aware of the right to bring a claim can reasonably be expected to make enquiries about time limits: Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488, EAT.[33]Where the Tribunal is satisfied that it was “not reasonably practicable” for the claim to be presented within the primary time limit it must consider whether it was presented within such time thereafter as the Tribunal considers reasonable. That does not require the claimant to present the claim as soon as reasonable practicable after the expiry of the time limit. The test is simply whether any subsequent delay was reasonable, and that test is less stringent: University Hospitals Bristol NHS Foundation Trust v Williams EAT 0291/2012. This requires a broad assessment of the factors contributing to the delay as well as the overall period of the delay, but, in making that assessment, it is important to keep in mind the short primary limitation period and the strong public interest in claims being brought promptly: Nolan v Balfour Beatty Engineering Services EAT 0109/2011.[34]In considering whether to exercise a discretion to extend time, it is also permissible for the Tribunal to take account of the position of the respondent, in particular, it will be relevant if they delay is such as to cause the respondent particular difficulties in answering the claim: Biggs v Somerset County Council 1996 ICR 364. Submissions[35]The respondent’s submission was that was reasonably practicable for Miss Seddon to present her claim in time or, if not, it was at least reasonable for her to present it at some earlier point. Whilst acknowledging that there had been difficult things going on in Miss Seddon’s life, Miss Bary, emphasised that there had been lengthy periods where Miss Seddon was working and argued that if she was able to work in a professional role, she must have also been able to take the relatively simply steps of going through the ACAS early conciliation process and completing the ET claim form. She also argued that claims in respect of the first and second detriment should have been made before September 2020, and therefore before the claimant began to experience problems in her personal life.[36]Prior to the hearing, the respondent had approached the case as being simply one of delay. Following Miss Seddon’s evidence, it became apparent that the idea of making a claim had simply not occurred to her prior to her January 2024 conversation with the Freedom to Speak team. Miss Barry submitted that ignorance was not an excuse, and not a reason to extend time.[37]Miss Seddon emphasised how hard it had been for her to keep going through all of the period in question, and how unfair she felt it would be if the respondent did not have to answer for what it had done.Discussion and conclusions
[38]I have taken the limitation starting point to be the date in early August when Miss Seddon was informed of the investigation outcome. Although the first and second detriments occurred months before this, I consider there is a legitimate argument that all of the alleged detriments can be linked, either as part of a series of similar acts (s.48(3)(a)) or as an act extending over a period (s.48(4)).[39]It is unfortunate that we do not have an exact date for the meeting in which Miss Seddon was informed there was no case to answer, but it is clear that it took place early in the month. I am going to assume it was no later than Friday 14 August 2020, although nothing in my decision would change if the actual date was earlier (or even later) in the month.[40]That would give a primary time limit for Miss Seddon to start early conciliation of 13 November 2020. I find that it was not reasonably practicable for Miss Seddon to start early conciliation, and thereafter to bring her claim, within that period. That is due to the drastic and exceptional circumstances unfolding in her personal life from 28 September 2024. Those could not have been predicted, meaning that she cannot be criticised for not acting promptly within the initial part of the limitation period. I accept that whilst it might have been physically possible for her to present a claim during the initial period of her marriage breakdown, it was not reasonably feasible for her to do so, and to expect her to do so would be to apply an unrealistic standard.[41]I must, however, go on to assess whether Miss Seddon has brought her claim within “such further period as the tribunal considers reasonable”.[42]Unfortunately for Miss Seddon, my conclusion is that she has not. Whilst I accept that the whole of this four year period was difficult for her, I also conclude that it would have been feasible for her to bring the claim, at the very latest, a few weeks after she returned to work in mid-March 2021, and anytime between then and April 2022, when her grandfather became seriously ill and was admitted to hospital. I am satisfied that the reason she did not do so, was simply because the possibility had not occurred to her.[43]I then have to consider whether that “ignorance” (which is the term used in the cases, and is not used in a pejorative sense) was reasonable. The cases generally consider the position with unfair dismissal. I take account of the fact that Miss Seddon’s claim, of being subjected to detriment whilst remaining in employment, is somewhat more subtle. However, I consider that there must be a degree of obligation on an employee who is unhappy with something that has happened at work to seek to find out what their rights are.[44]In modern times the availability of Employment Tribunals is well known. Miss Seddon is a professional woman with no particular barriers in terms of access to technology or use of the English language. I do not criticise her at all for having other priorities during this period but that does not mean that I can simply conclude, in effect, that she should not be held to the time limit.[45]In the circumstances of this case, Miss Seddon’s failure to investigate the possibly of bringing a claim for a period of years, simply because it did not occur to her cannot be classed as reasonable ignorance.[46]My conclusion that the time limit should not be extended in this case is strengthened by a consideration of the respondent’s position. I accept that the respondent would face genuine evidential difficulties in defending this claim, given that it revolves around matters happening five years ago, and about which it had no warning a claim may be brought. This is illustrated by the fact the that it has been impossible to identify for the purposes of this hearing the exact date on which Miss Seddon was informed of the ‘no case to answer’ decision.[47]In those circumstances, my conclusion is that the text for an extension of time is not met. The Tribunal has no jurisdiction to hear the claim, and it must be dismissed.