Mr F Mulla v Royal Mail Group Ltd: 2408623/2022
JUDGMENT
[1]The complaints of race and disability discrimination are struck out on the grounds that they have no reasonable prospect of success because of time limit issues.[2]The complaint of unauthorised deduction from wages is dismissed on withdrawal by the claimant.REASONS
[1]This was a public preliminary hearing to decide on a number of issues set out in a letter from the tribunal dated 2 April 2025. The claimant confirmed at this hearing that he was not making any application to amend his claim to add further complaints of disability discrimination. The claimant withdrew his complaint of unauthorised deduction from wages, saying he had been paid the amount claimed prior to the preliminary hearing. I, therefore, dismiss that complaint on withdrawal by the claimant.[2]I told the parties I would deal first with the issue of whether to strike out all or any of the claims on the grounds that they have no reasonable prospect of success because of time limit issues. The letter of 2 April 2025 informed the parties that this would require consideration of whether the claim or any part of it should be struck out because the claimant had no reasonable prospect of establishing that:(a) there was discriminatory conduct over a period ending on or after 22 May 2022; or(b) it would be just and equitable to extend the time limit for bringing the claim. Because of my decision on this issue, it has not been necessary to deal with the issues at paragraphs 2 and three of the letter.[3]The claimant confirmed that the complaints of race discrimination and disability discrimination were as set out in the list of issues prepared by the respondent. These were complaints of direct race discrimination and discrimination arising in consequence of disability in relation to unsuccessful applications for promotion. The unsuccessful applications in respect of which race discrimination complaints were made dated from 7 May 2015 to 12 June 2019. The unsuccessful applications in respect of which disability discrimination complaints were made dated from 7 May 2015 to 6 July 2021. Neither party could tell me the exact dates on which the applications were refused. However, the claimant told me that the refusals were at most four weeks after the date of the application. For the purposes of considering strike out, I said I would take the date a month after each of the last applications as being the latest date of the alleged discrimination. In respect of race discrimination, therefore, the last alleged act of discrimination was assumed to be 12 July 2019. In respect of disability discrimination, the last alleged act of discrimination was assumed to be 6 August 2021.[4]The claimant brought an internal grievance in the summer of 2019 which included complaints of disability discrimination in relation to not getting a substantive managerial role. The claimant provided me and the respondent, during an adjournment, with a copy of the grievance outcome dated 23 August 2019. The claimant told me that he did not appeal against the outcome since it was not possible at the time to appeal a stage I grievance. The claimant did not bring any complaint in the employment tribunal following the unsuccessful grievance until the complaint he presented in October 2022. The grievance had not made any allegation of race discrimination.[5]The claimant says that after each unsuccessful application he spoke to his line manager who encouraged him to continue developing himself and making further applications.[6]The claimant told me that he did not think of there being any race discrimination in the refusals of promotion until a managerial restructure in 2022 resulted in all white employees being placed, as the claimant understood it, without any application process, in the managerial roles in the delivery office. The claimant had worked and fulfilled various temporary managerial roles in that office.[7]The claimant confirmed at this hearing that he was not making any complaint in these tribunal proceedings of race or disability discrimination in relation to the managerial restructure.[8]The claimant brought a grievance in May 2022. The claimant referred in this grievance to being disadvantaged by his disability in relation to applications for promotion. The written grievance did not make any mention of race discrimination. The claimant told me that he believes he made some mention of race discrimination in the grievance hearing and grievance appeal hearing. There is no specific mention of race discrimination in the outcome letters and I have not seen minutes of those meetings. The claimant said that his complaints were predominantly of disability discrimination. The grievance outcome dated 27 July 2022 dismissed his complaints of discrimination. The grievance appeal outcome dated 15 November 2022 dismissed his appeal.[9]Early conciliation with ACAS took place in the period 25 August 2022 to 6 October 2022. The claimant presented his claim on 28 October 2022.[10]The claimant provided dates of relevant applications in respect of which he claimed race and/or disability discrimination on 17 October 2024. The respondent made an application to strike out his claims on grounds including the time limit issue by letter dated 24 March 2025. Two days of what was to have been the final hearing in this case were converted to this preliminary hearing.[11]I accept that the claimant has no legal experience. The claimant was a member of the CWU but I have no information on what, if any, advice he was given by them.[12]The respondent has a document retention policy which, until April 2021, required the destruction of documents relating to unsuccessful candidates for positions within six months and, after that date, within 12 months. The respondent has been able to find some documents relating to some of the applications, where these documents were kept outside the normal retention policy e.g. as attachments in individual email accounts. The respondent has a far from complete documentary record in relation to the claimant’s various applications. I accept that those involved in the shortlisting and interview processes are very unlikely to have any specific recall about their reasons for their decisions in the period 2015 to August 2021.Law
[13]Rule 38 of the Employment Tribunal Procedure Rules 2024 include the power for the tribunal to strike out all or part of a claim on grounds which include that it has no reasonable prospect of success.[14]Section 123 of the Equality Act 2010 provides that proceedings may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable. Section 123(3) provides that conduct extending over a period is to be treated as done at the end of the period.[15]Time limits are extended to take account of time spent in the early conciliation process with ACAS, if notification to ACAS is made within the normal time limit.[16]The Tribunal has a wide discretion as to whether to extend time on just and equitable grounds, taking account of relevant factors. Discussion and Conclusion[17]On the basis of the agreed dates, it is clear that all the complaints of race and disability discrimination were presented outside the normal 3 month time limit. Assuming rejection of the last relevant application for race discrimination to be 12 July 2019, the claim should have been presented by no later than 11 October 2019. No extension because of early conciliation applies because early conciliation was not begun within the primary time limit. The complaints of race discrimination were, therefore, presented more than three years outside the normal time limit. Assuming rejection of the last relevant application for disability discrimination to be 6 August 2021, the claim should have been presented by no later than 5 November 2021. For the same reasons as given in relation to the complaints of race discrimination, no extension because of early conciliation applies.[18]The only issue for me to consider, therefore, is whether the claimant has any reasonable prospect of success in an argument that it would be just and equitable to extend the time limit to allow all or some of these complaints to proceed.[19]The claimant says it would be just and equitable to extend time because he did not realise until the management restructure that he may have been the victim of race discrimination in relation to his previous applications for promotion. The appointment of all white managers in that restructure made him reflect on past events. The claimant says it would be just and equitable to extend time in relation to all his complaints because the delay in bringing proceedings was because he was following the advice of his managers after each application to continue developing himself and he was following the advice of ACAS to complete the internal process before bringing a tribunal claim.[20]The respondent says there is no reasonable prospect of the claimant successfully arguing that it would be just and equitable to extend time. If the claimant had brought his claims in time, it is likely that documents would have been retained. However, the respondent is now in a position that it cannot defend itself through no fault of its own. Time limits are there for a reason and any extension is an exception rather than the rule.[21]The respondent also argued that there was no reasonable prospect of the claimant successfully arguing that the separate refusals of promotion constituted a continuing act. I have not considered it necessary to engage with the respondent’s argument on the continuing act point, since, for the reasons I give, I would strike out the claims, assuming, in the claimant’s favour, that the claimant had a reasonable prospect of successfully arguing that there was a continuing act of discrimination.[22]I conclude that there is no reasonable prospect of the claimant succeeding in an argument that it would be just and equitable to extend time for his complaints of discrimination.[23]In relation to the race discrimination complaints, the claim was presented more than three years after the normal time limit had expired. The claimant had exhausted the internal grievance procedure by August 2019, although he did not raise issues of race discrimination in that procedure. Taking the claimant’s case at its highest and, therefore, proceeding on the basis that it did not occur to him until after the management restructure that there may have been race discrimination, I do not consider that this late realisation means that there is any real prospect of a tribunal considering it would be just and equitable to extend time by the extent necessary. Assuming, in the claimant’s favour, that he mentioned race discrimination in the course of the grievance hearing in August 2022, I do not consider that these internal proceedings give any realistic prospect of a just and equitable argument succeeding. The internal proceedings were begun long after the normal time limit for a complaint had passed.[24]Whether there should be an extension of time must be considered in all the circumstances. These include the practical difficulties the respondent would face in defending the claims. The majority of relevant documents have been destroyed in accordance with the normal process, the respondent not having been put on notice of a potential claim and, therefore, the need to retain the documents. It is unrealistic to expect those taking part in the shortlisting and interviewing to have any real recollection of relevant matters after such a long time. The respondent would be seriously disadvantaged if the claimant was allowed to proceed with his complaints of race discrimination presented so long after the normal time limit. In these circumstances, I consider there is no reasonable prospect of success in an argument that it would be just and equitable to extend time to allow the complaints of race discrimination to proceed.[25]Turning to the complaints of disability discrimination, the complaint in relation to the last application was presented more than a year outside the normal time limit. Since the claimant presented a grievance in the summer of 2019 about disability discrimination in relation to unsuccessful promotion applications, it is clear he was thinking, at least by the summer of 2019, that there may have been disability discrimination involved in his lack of success. On the claimant’s case, he then suffered further discrimination in relation to an application made in July 2021. However, he did not present his claim until October 2022. The 2022 grievance was not presented until long after the normal time limit in relation to the last alleged act of discrimination had expired. There is no reasonable prospect of the following of internal procedures providing just and equitable grounds to extend time in relation to the disability discrimination complaints. Nor do I consider that there is any reasonable prospect of following line manager’s advice to keep developing himself after unsuccessful applications providing just and equitable grounds to extend time in relation to the disability discrimination complaints.[26]Although the lapse of time since the last complaint is not as lengthy as in relation to race discrimination, by the time the claim was presented in October 2022, relevant documents would have been destroyed in accordance with the respondent’s normal retention policy. The delay is substantial in relation to the last complaint and very substantial in relation to the earliest complaint of disability discrimination which dates back to 2015. The respondent would be considerably disadvantaged, through no fault of its own, in if it had to defend the complaints. In these circumstances, I consider there is no reasonable prospect of success in an argument that it would be just and equitable to extend time to allow the complaints of disability discrimination to proceed.[27]For these reasons, I strike out the complaints of race and disability discrimination on the grounds that they have no reasonable prospect of success because of the time limit issues. The only other complaint, that of unauthorised deduction from wages, has been withdrawn by the claimant, so this judgment brings the claim to an end. Approved by: