Ms S Wright v Cumbria County Council: 2423913/2017
JUDGMENT
After hearing the parties, the judgment of the Tribunal is that the claimant’s complaints should be dismissed in their entirety on the basis that[1]the complaints were presented outside the prescribed time limit and it is not just and equitable to extend time to the date when they were presented and/or[2]the complaints were presented outside the prescribed time limit and it would have been reasonable practicable for them to have been presented before the date on which they were presented and[3]in so far as they relate to the Data Protection Acts and/or any Regulations relating to pensions, the Tribunal does not have jurisdiction to hear them[4]her claim for a redundancy payment does not have any reasonable prospect of successREASONS
[1]With the agreement of the Tribunal and the respondent, the claimant was allowed to record the hearing as a reasonable adjustment having regard to her medical conditions.[2]At the end of the hearing, the Tribunal gave its Judgment and Reasons for the Judgment. As the claimant is not represented, in view of the difficulties that the claimant described in participating in the hearing, the Tribunal considered that it should set out its Reasons in writing. Accordingly, these Reasons set out the Tribunal’s findings in support of its Judgment. Whilst the wording and order may differ from the announced version, this is with the benefit of more preparation time and is not the result of further deliberations by the Tribunal.[3]This is a complaint by Sandra Wright, the claimant, against Cumbria County Council, the respondent, arising out of her employment by the respondent. The claimant alleges that she was discriminated against on the ground of the protected characteristic of disability. She also contends that she has been subjected to bullying and harassment on the same ground. The claimant further contends that she was not paid all of the wages to which she was entitled, did not receive all of the holiday pay to which she was entitled, did not receive the notice pay to which she was entitled and did not receive a redundancy payment. Whilst the claim form raises questions about the continuation of the claimant’s employment, it can be construed as a complaint that she was unfairly dismissed.[4]The Tribunal had before it the office file which included the various documents submitted by the parties and these were noted by the Tribunal.[5]The claim form in these proceedings was presented to the Tribunal on 21 November, 2017.[6]The claimant had attended a previous private preliminary hearing on 19 September, 2018. It was clear at that hearing that the claimant was suffering from the effects of various medical conditions and was having difficulty in effectively participating in the hearing. The Tribunal decided to put various questions to her in writing as it was having difficulty in getting her to focus on her responses to those questions. They were set out in the Order which was sent in writing to the claimant after the hearing and she was given twenty eight days to respond to them. After two extensions, she finally supplied some answers on 21 February, 2019. However, all of the questions were not answered and some of the answers given were not on the point of the question.[7]Before this hearing, the claimant sought an adjournment on the grounds of health but this was refused by the Regional Employment Judge because, among other things, insufficient medical evidence had been provided. The application was not renewed at this hearing.[8]At this hearing, the claimant initially appeared less agitated than at the previous hearing but she still found difficulty in giving concise answers that were relevant and her attitude to the respondent’s representative was, at times, abusive. The Tribunal made as much allowance for the claimant as it could whilst still allowing the respondent a reasonable hearing.[9]It should be noted that the claimant’s allegations against the respondent date back to about 2004 or 2005. There is then a history of complaints and grievances about the respondent.[10]The first issue that the Tribunal sought to address was the termination of the claimant’s employment. She appeared to accept that her employment had probably ended in 2012 but the respondent considered that it was terminated in 2011. In February, 2011, the claimant, apparently through solicitors and supported by her trade union, commenced proceedings before the Tribunal alleging, among other things, unfair dismissal. It therefore seemed most likely that the claimant’s employment was terminated and that this was around 2010/2011.[11]The Tribunal was informed by ACAS that those proceedings were terminated by agreement and they were stayed but not dismissed. It might therefore be considered that they could be reinstated although it is unlikely that the Tribunal’s file is still available.[12]From the information supplied by the respondent, it appears that there was only an oral agreement of settlement and nothing in writing. The claimant argues that her trade union and her solicitors were not acting in her best interests or in accordance with her wishes. Whilst the Tribunal is not in a position to express an opinion, it may be that the claimant had cause for complaint against her advisers but it does not appear that she has pressed this very far. It is difficult to accept that if professional advisers were told that they had made a mistake, they would do nothing about it.[13]The claimant was asked to set out whether and, if so, on what basis, she contested the contents of the claim form in the earlier proceedings. She has failed to supply any information.[14]In addition, the claimant was asked to identify what she disputed about the outcome of the earlier proceedings and the steps she took to contest the outcome. She states that she disputes that a settlement was reached and that she requested reinstatement in November, 2013, but this was not forthcoming. There was nothing to confirm this. She does not appear to have taken any other action.[15]The claimant was also asked to state when she first believed that she was entitled to commence these proceedings and why she did not commence them at an earlier date but she failed to respond to these questions.[16]The claimant has failed to confirm the outcome that she is seeking in these proceedings.[17]With regard to the claimant’s claim for a redundancy payment, it appears that this is based on the fact that some of her former colleagues were offered redundancy in 2012 but it was not offered to the claimant and her employment was terminated long before the redundancy offers were made. If the claimant was redundant, a claim for a redundancy payment could have been included in her earlier complaint alleging unfair dismissal.[18]The claimant’s claim for holiday pay relates to a long period before the termination of her employment and this complaint could have been included in the earlier proceedings.[19]The claimant has not confirmed the period in respect of which she alleges that she did not receive all of the wages to which she was entitled. However, this must precede the date on which her employment was terminated and could have been included in the earlier proceedings.[20]The claimant has not fully particularised any complaint that she may have in respect of the protected characteristic of disability. However, it does appear that it mostly relates to the period from 2004 to the termination of her employment, with some alleged events in the year or two afterwards.[21]The claimant has attempted to but has not satisfied the Tribunal that it has jurisdiction to hear any complaint that she may have in respect of the Data Protection Acts or any Regulations relating to pensions. She had previously been warned that it was unlikely that jurisdiction could be established and the claimant has been unable to refer to anything that would support her case on jurisdiction.[22]The claimant has failed to supply requested information concerning her allegations that the respondent breached its grievance, discipline and/or harassment policies.[23]The claimant did indicate the adjustments that she would require for future hearings. Basically, these relate to the need for additional time and rest breaks to allow for the illnesses of herself and her daughter.[24]The Tribunal recognised the difficulties that the claimant faced in representing herself. She informed the Tribunal that she felt capable of managing her affairs. She had not sought legal advice and did not consider that she would qualify for assistance from Citizens’ Advice or a Law Centre.[25]The claimant frequently failed to allow the respondent to address the Tribunal and made various allegations against the respondent’s representative. This made it extremely difficult to conduct a reasonably fair hearing. In addition, the claimant was rambling when addressing the Tribunal and failed to answer the questions being put to her.[26]The respondent contends that these proceedings were commenced outside the prescribed time for pursuing the complaints and that further time should not be allowed in the circumstances of this case.[27]Section 123(1) of the Equality Act, 2010, which is relevant to the complaints relating to disability, states that …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.[28]The time limits for presenting complaints to a Tribunal and the extent to which a Tribunal has discretion to extend them is set out in Section 23 (deductions from wages), and Section 111 (unfair dismissal) of the Employment Rights Act, 1966, and Regulation 7 (breach of contract/notice pay) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order, 1994. In each case the prescribed time is three months or such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[29]The prescribed period in respect of claims for a redundancy payment is set out in Section 164 of the Employment Rights Act, 1996.[30]The Tribunal also had regard to Rules 37, 51 and 52 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations, 2013, which deal with striking out proceedings and the effect of a claim being dismissed on withdrawal. In this instance the earlier proceedings were never dismissed but only stayed. It can therefore be argued that those proceedings are still available to be restored. Because of her medical conditions and the effect that they have on her, the Tribunal did not consider the claimant’s conduct and whether it amounted to one of the types of conduct described in Rule 37, referred to above.[31]The claimant did not explain why she was prevented from pursuing her complaints in the current proceedings at an earlier time. Whilst evidence might still have been available when the current proceedings were commenced, the respondent was entitled to believe that matters had been concluded so that required evidence and memories may not have been preserved. There was nothing to suggest that the conduct of the respondent had in any way contributed to the delay in commencing the current proceedings. The claimant did not contend that she was prevented by a disability or any other cause from commencing the current proceedings at an earlier time. The claimant did not act promptly in commencing the current proceedings as she obviously knew of her rights to do so when the original proceedings were commenced. The claimant had had the benefit of legal advice.[32]The Tribunal accepted that the very latest when the claimant was employed by the respondent was some time in 2012 but her employment was probably terminated early in 2011. Accordingly, any claim alleging unfair dismissal, unpaid holiday pay, unpaid wages or unpaid notice pay should have been commenced within three months after the termination of employment which was well before the date when these proceedings were commenced. The claimant did commence proceedings in 2011 alleging, among other things, unfair dismissal at a time when she was advised by her trade union and solicitors. It would have been possible for all of these claims to be made at that time so that it was reasonably practicable for the claimant to commence proceedings within the prescribed period. It is not appropriate to extend the claimant’s time for commencing the current proceedings to the date when they were actually commenced and they should therefore be struck out.[33]In so far as the claimant’s allegations relate to alleged discrimination or harassment on the ground of the protected characteristic of disability, the claimant has failed to provide all of the supporting information that she has been requested to provide. The earliest events that she refers are alleged to have occurred in 2004 and the latest might be in 2012 or 2013. There is nothing to suggest that the respondent was on notice of the possible complaints so that it was able to safeguard its position to the extent that this may have been possible depending on the actual circumstances. The complaints have now been brought well outside the prescribed period of three months. Because of the delay and the facts that the allegations cover an extremely long period and the claimant has not demonstrated that the respondent was on notice of her allegations, the Tribunal finds that it is not just and equitable to extend the time for presenting these complaints to the date when they were presented.[34]In respect of the complaint that the claimant did not receive a redundancy payment to which she was entitled, the claimant did present a complaint that she was unfairly dismissed within six months of her dismissal. However, the claimant does not have any reasonable prospect of success and should be struck out.[35]With regard to the complaints relating to Data Protection Acts or any Regulations relating to pensions, the Tribunal does not have jurisdiction to hear them and they are struck out.[36]The Tribunal recognised the difficulties that the claimant faced but this was the second occasion when the Tribunal had attempted to elicit from the claimant what it was that she relied on, especially with regard to the time that had elapsed since the events in question are alleged to have occurred. The claimant had been asked to provide information in writing but had failed to do so in full and the information supplied did not really assist her. The Tribunal was not satisfied that even if the claimant was allowed even more time she would be able to supply sufficient information that would enable the Tribunal to allow her complaints to proceed.[37]Having regard to all of the above, the Tribunal finds that all of the current proceedings should be dismissed in their entirety.