Ms G Asamoah v Cheshire and Wirral Partnership NHS Foundation Trust and D Jones: 2406616/2023
EMPLOYMENT TRIBUNALS
Case No 2406616/2023
Between
Ms G AsamoahClaimantCheshire and Wirral Partnership NHS Foundation Trust and D JonesRespondent
Before
Employment Judge BensonIn person for claimantMr A Gibson - solicitor for respondentDate 27 March 2024
JUDGMENT
All claims against the First Respondent and the Second Respondent were not presented within the applicable time limit. It is not just and equitable to extend the time limit. The claims against both respondents are therefore dismissed.
REASONS
[1]The claimant brings complaints of disability discrimination (harassment, a failure to make reasonable adjustments and discrimination arising from disability) direct race discrimination and victimisation against the first respondent and a claim against the second respondent, the claimant’s union representative alleging race discrimination. A preliminary hearing was listed to consider whether the claimant’s claims could proceed on the basis that although they were presented outside the time limits set out in section 123 of the Equality Act 2010, they were presented within such other period as the tribunal thinks just and equitable. Essentially, I must decide whether time should be extended.[2]In listing this hearing, it had been decided that day one would be to consider whether time should be extended to permit the claim against the first respondent to proceed and day two would be to consider it in respect of the claim against the second respondent. Case No. 2406616/2023 2[3]I have produced two separate sets of reasons even though the judgment related to both claims.[4]These reasons relate to the claim against the first respondent heard on 26 March 2024.[5]There was a delay at the start of the hearing as the claimant was looking after her two young nieces who were present in the room and needed caring for. The hearing was delayed for an hour or so while the claimant contacted their parents (or someone on their behalf) to collect them. Evidence and submissions[6]I had evidence from the claimant by way of her witness statement and cross examination and also considered the documents that have been put before me. I have also considered the submissions of both Mr Gibson and the claimant which I found very helpful.
The Facts
[7]The allegations of discrimination which the claimant relies upon in respect of the first respondent took place between 2017 and March 2020. The claimant’s employment ended on 31 July 2020. She commenced new employment on 3 August 2020. The claimant had contacted ACAS for the purpose of early conciliation on 5 June 2023. The claim form was submitted on 9 June 2023. The claims are therefore more than three years out of time.[8]The claimant’s explanations for the delay were:a. That she was unaware of her right to go to a Tribunal, and indeed in of the availability of the Tribunals, until she was told about it in December 2022. The claimant says therefore that she was not aware of the deadline of three months. She says that when she contacted ACAS after that date she was told her claim was out of time.b. That there was an ongoing grievance submitted on 12 January 2020. Following its various stages, a stage three outcome to her grievance appeal was provided on 21 April 2022. She suggests that grievance process was deliberately delayed.c. Following the unsuccessful grievance, Treasury approval was sought for a compensatory arrangement. That was rejected by the Treasury in December 2022 and it was formally confirmed to her on 5 January 2023. She says it was only then that she looked at other options.[9]The claimant is an intelligent woman. She is a graduate and a registered Mental Health Nurse. She had access to the internet and to a laptop throughout her employment and since, and she was represented by a trade union throughout the grievance process.[10]The claimant submitted a grievance to the first respondent about aspects of her treatment. That grievance was submitted on 12 January 2020. She did not Case No. 2406616/2023 3 receive the outcome of the final appeal until 21 April 2022. There was no evidence put forward which supported the claimant’s suggestion that it had been deliberately delayed.[11]The respondent sought Treasury approval for a compensatory package for the claimant. That approval was rejected, and the claimant was advised on this in December 2022, and it was formally confirmed on 5 January 2023.[12]The claimant had also investigated a separate personal injury claim with the assistance of the trade union solicitors, Thompsons, and during the period from 2020 she confirms that she had various conversations with Mr Jones and Mr Martin of her trade union, ACAS and the Employment Advisory Support Service and also the Citizens Advice Bureau. Although I accept a number of these discussions focussed upon her personal injury claim, both ACAS and EASS are both advisory bodies focussing on employment rights, and in the case of EASS specifically upon discrimination and equality issues. In correspondence with Thompsons to which I was referred, the claimant refers to a three-month time limit.[13]The claimant has a number of health conditions but confirmed to the Tribunal that these were not put forward as explanation for the delay.
The Law
[14]The time limit for Equality Act 2010 claims appears in section 123 as follows: “(1) Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three 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… (2) … (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”.[15]The particular act complained of must be identified. Where the alleged discriminatory act is dismissal, the relevant date is when notice expires or the date the employer's repudiatory breach is accepted in the case of constructive dismissal. A complaint concerning the outcome of an internal grievance dates back to the time the decision on it was reached and not the date it was communicated to the complainant. Time starts to run afresh on each occasion the employer refuses on alleged discriminatory grounds to confer a benefit on an employee providing it is an occasion on which the matter was reconsidered. Case No. 2406616/2023 4[16]A continuing course of conduct might amount to an act extending over a period, in which case time runs from the last act in question. The case law on time limits to which we had regard included Hendricks –v- Commissioner of Police of the Metropolis [2003] IRLR 96 which deals with circumstances in which there will be an act extending over a period.[17]By subsection 123(3)(b), a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person is taken to decide on a failure to do something when that person does an act which is inconsistent with doing it or, in the absence of such an inconsistent act, on the expiry of the period on which that person might reasonably have been expected to do it.[18]There is a continuing omission where the allegation of discrimination involves the employer's failure to take action in breach of a promise to the employee to implement changes in the workplace.[19]Time may be extended if in all the circumstances the tribunal considers it just and equitable to do so as provided for in section 123(1)(b). The test is less strict than in unfair dismissal cases and the tribunal has a wide discretion. The Tribunal should not extend time without receiving representations from the respondent.[20]It is for the claimant to show that it would be just and equitable to extend time. The exercise of discretion has been said to be the exception, not the rule (Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576).[21]As confirmed by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill at paragraphs 37 and 38 stated that the best approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. This will include the length of and reasons for the delay. If it checks those factors against the list in Keeble, well and good; but he would not recommend taking it as the framework for its thinking.[22]The British Coal Corporation v Keeble [1997] IRLR 36 suggested that a tribunal would be assisted by the factors listed in section 33 of the Limitation Act 1980. That section deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has co-operated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[23]The fact that the claimant was awaiting the outcome of a grievance or appeal is aa relevant, but not a decisive, factor. Case No. 2406616/2023 5[24]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, Leggatt LJ, having referred to section 123, stated, at paragraphs. 18-19 of his judgment: "18. … [I]t 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 any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, 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 (see [Keeble]), 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: see [Afolabi]. … 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)."[25]In the case of Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 at Sedley LJ [31] and [32] that there is “no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised” and that whether to grant an extension “is not a question of either policy or law” but “of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it”. For this reason, the exercise of the discretion is rarely subject to successful appeal.[26]In Jones v Secretary of State for Health and Social Care 2024 EAT 2, His Honour Judge James Tayler reviewed the authorities relating to extensions of time on just and equitable grounds and noted that there was a ‘common practice’ among those seeking to argue that time limits should not be extended of relying on the comments of Auld LJ in Robertson v Bexley Community Centre t/a Leisure Link (above), that time limits in the employment tribunal are ‘exercised strictly’ and that a decision to extend time is the ‘exception rather than the rule’, as if they were principles of law. HHJ Tayler stated that the practice of relying on these comments out of context should cease. In the EAT’s view – adopting a similar approach to that taken by Wall LJ in Chief Constable of Lincolnshire Police v Caston (above) – the propositions of law for which Robertson is authority are that employment tribunals have a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere, and therefore the comments of Auld LJ needed to be viewed in that context. The EAT suggested that a greater focus be placed on some other Court of Appeal authorities – such as Abertawe Bro Morgannwg University Local Health Board v Morgan (above).[27]In the case of Harden v(1) Wootlif and(2) Smart Diner Group Ltd UKEAT/0448/14 the Employment Appeal Tribunal reminded employment tribunals Case No. 2406616/2023 6 that we must considering the just and equitable application in respect of each respondent separately and that it is open to us to reach different decisions for different respondents.[28]The potential merits of the claim may well be a factor that falls to be considered (Kumari v Greater Manchester Mental Health Foundation Trust [2022] EAT 132) although care needs to be taken not to conflate the determination of a time point and the application of the just and equitable test with the tests to be applied when considering an application for a strike out or a deposit order under the tribunal rules.
Conclusions
[29]There are three factors which are always going to be relevant in this type of case, and those are: the length of the delay, the reason for the delay and the balance of prejudice which may be caused to the parties, in allowing or refusing the application, but I may also have regard to other factors that may be relevant such as for instance the speed at which the claimant acted once she says she realised she had a claim and the matters which are mentioned in Keeble.[30]In this case there was an extensive delay from March 2020 until June 2023, and many of the allegations were earlier than 2020. The claimant says that the primary reason for that delay was that she did not know she could bring a claim. I am unable to accept that that is the position. I find that it is very likely that she was told about the deadline by a number of bodies. She referred specifically to speaking with ACAS and EASS prior to submitting the grievance, which was in in January 2020. Both are both advisory bodies focussing on employment rights, and in the case of EASS specifically upon discrimination and equality issues. She would have been told about the deadline. She says she also spoke to the CAB. She refers in a response to Thompsons of September 2020 about missing a deadline of three months. I do not accept as she suggests, that on the reading of it that the claimant meant to say three years as she gives an example of the deadline being missed and it being three months – she talks about from May to August. There may have been some confusion in her mind about personal injury claims and employment claims, but I am satisfied that the claimant was told of the deadline for bringing a claim to the Employment Tribunal. She had also spoken to her union representative, he will say that he told the claimant about the time limits for bringing a claim to the Employment Tribunal in March 2020 – I make no findings as to whether this is true or not as I have not heard evidence from him, but it does accord with what the claimant herself seems to suggest in the correspondence that Mr Gibson referred to. Although the claimant says that she very first heard about the Employment Tribunal in December 2022, I consider that that is unlikely.[31]I do however accept that the claimant was progressing her concerns by way of a grievance and via a potential personal injury claim, and it is possible that she was distracted from the notion of a claim to the Tribunal, and possibly putting all her trust in the grievance process and taking that through to fruition.[32]Awaiting the outcome of an internal process is one of the factors which it is appropriate that I consider, but it is in itself not determinative. In any event, the claimant was provided with the grievance outcome in April 2022, but did not at that Case No. 2406616/2023 7 stage make any efforts to find out her rights herself even though she had access to the internet where there is plenty of information about Tribunal claims. Although she then proceeded to wait to see if the Treasury would approve a compensation package, that did not prevent her making her own enquiries and even then, it took from December to until June for the claimant to start early conciliation. I again accept that when the claimant spoke to ACAS they said a claim would be out of time, but it was perfectly open to the claimant to look into that issue herself if she wished to do so.[33]I find therefore that the claimant had knowledge of her rights to pursue her claim initially in March 2020, but I find had decided not to pursue them at that stage, and they went to the back of her mind and instead she focussed her efforts upon the grievance and the Treasury process.[34]Even if she had forgotten about the advice she had been given, or was confused by it, the case law confirms that ignorance of rights has to be reasonable, and I find that in these circumstances it was not. The claimant had access to the internet and could at any stage have checked matters out.[35]The final and a key issue that I must then consider is the impact that delay has had upon the respondent and the respective prejudice to the respondent as against the prejudice caused to the claimant in not being permitted to proceed with her claim.[36]These allegations are historic. They range from 2017 through to March 2020 at the latest, though most allegations relate to 2018 and 2019. The grievance was investigated in 2020 and it was at that stage that witnesses were spoken to about these issues. We are now in 2024 – four years later. It is inevitable that the memories of those involved will have faded and it will be extremely difficult for them to rely on or recall events after all this time. That impacts and prejudices the respondent’s ability to defend these claims. I appreciate and weigh against that the fact that the claimant has claims which she now is no longer able to pursue, and I have taken that into account in balancing the relative prejudice caused to the parties.[37]I have also taken into account that the claimant herself has been impacted by these delays in that it is clear that from the previous two case management hearings that she has had some considerable difficulty in recalling and explaining the claims that she wants to bring.[38]Considering all of these factors and weighing them up I find that the claim was not brought within such further period as was just and equitable, and because of that the claim must now be struck out.[39]I apologise to the parties for the delay in providing these written reasons which has been caused by a combination of pressure of work and absence. Case No. 2406616/2023 8