Mr T D Bellingham v Eurorail Crash Barriers 2000 Ltd: 2601403/2019
EMPLOYMENT TRIBUNALS
Case No 2601403/2019
Between
Mr T D BellinghamClaimantEurorail Crash Barriers 2000 LtdRespondent
Before
Employment Judge BroughtonDate 21 December 2020
JUDGMENT
Judgment(1) The application to extend time under section123 Equality Act 2010 is granted and the claims for disability discrimination will proceed to a hearing.(2) The claims for holiday pay and unlawful deduction from wages are struck out as not presented within the relevant statutory time limits in circumstances where it was reasonable practicable to present them in time. Background[1]The claimant issued a claim received by the Employment tribunal on 5 March 2019. The claim form indicated at box 8 that it was a claim for disability discrimination, unfair dismissal, holiday pay and other payments. Box 12.1 of the claim form was also ticked to indicate that the claimant has a disability namely severe dyslexia.[2]The dates of employment given on the claim form were 18 May 2017 to 31 July 2018. Under section 108 of the Employment Rights Act 1996 claimants are not entitled to bring a claim of unfair dismissal under section 98 unless they have two years qualifying service. The claimant was given the opportunity to provide his reasons in writing why his complaint of unfair dismissal should not be struck out, he failed to make representations and an Order was made striking out the claim of unfair dismissal on 14 August 2019.[3]The respondent filed a response with the tribunal on 22 July 2019. The respondent disputes all the claims and raised a jurisdictional issue namely that the claims have been brought outside of the relevant limitation periods. Page 1 of 11[4]The case was listed for a Preliminary Hearing on 10 October to determine whether the tribunal has jurisdiction to hear the remaining claims of disability discrimination and a claim for outstanding holiday pay and unlawful deduction from wages. Preliminary Hearing – The Issues[5]At the commencement of the hearing the claimant was reminded that his ordinary unfair dismissal claim under section 98 Employment Rights Act 1996 had been struck out. The claimant advised the tribunal that he could not recall receiving from the tribunal the judgment of 14 August 2019 striking out the claim. During the hearing he had access to his e-mails via his mobile telephone and attempted to check whether the e-mail had been received, he was unable to access emails which predated September however after consultation with his wife, Mrs Bellingham, who was in attendance, he confirmed that the letter providing the strike out warning dated 24 June 2019, had been received by him. We went through the chronology of events and the claimant confirmed that his employment had started on 18 May 2017 and his employment ended on 31 July 2018. It was established therefore that the claimant did not have two years qualifying service in any event. The claimant had been paid a weeks notice.[6]The claimant clearly found it challenging to present his case at the hearing however he could provide some clarity regarding his claims and the dates the acts/omissions complained of took place, which are as follows: - Disability Discrimination:6.1 Humiliating treatment on 2 May 2018 (claim 1).6.2 Failure to carry out meetings at his home from 26 March to 30 July 2018 (claim 2).6.3 Putting him under pressure to return to work when he was absent with a disability (claim 3).6.4 The act of dismissal which took place on 31 July 2018 (claim 4).[7]The claimant was not able to identify the types of discrimination complained of and although some attempt was made to attach the correct legal claims to the facts as described, the claimant was becoming anxious and the tribunal therefore decided to proceed to deal with the time limit issue in relation to the dates provided and if necessary, have a further case management hearing to identify the types of discrimination. Holiday Pay[8]The claimant also seeks to bring a claim in relation to unpaid holiday pay. He claims that he was told by the respondent that they would pay him full pay for a month while he remained off work sick but in the event and without his agreement, they treated two weeks of his sick pay period as annual leave and he claims the sum of £594.[9]The claimant brings his claim as an unlawful deduction claim under section[13]Employment Rights Act 1996. Page 2 of 11 Loan – unlawful deduction of wages 10. The claimant complains that the respondent had loaned him the sum of £594.00 which was then deducted from his final salary on termination and he claims that this was an unlawful deduction. 11. The claimant’s case is that the unlawful deductions were made from his last salary which he received on 31 August 2018. The Legal Principles Unlawful deduction claims- section 13 Employment Rights Act 1996 12. Section 23 of the Employment Rights Act 1996 provides that an employment tribunal shall not consider a complaint under section 13 unless it is presented before the end of the period of three months beginning with – Section 23 (2)(a) In the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or(b) In the case of a complaint relating to a payment received by the employer, the date when the payment was received. 13. Section 23 (subsection 4) provides as follows: “Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is brought within such further period as the tribunal considers reasonable.”[14]Whether it was reasonably practicable for a claimant to bring the claim in time is a question of fact and therefore a matter for the tribunal to decide.[15]The burden of proving that presentation of the claim in time was not reasonably practicable rests on the claimant. He must show precisely why it was that he did not present his complaint in time: Porter v Bandridge Limited [1978] ICR 943 CA.[16]If the claimant fails to argue that it was not reasonably practicable to present the claim in time the Employment tribunal will find that it was reasonably practicable: Sterling v United Learning Trust EAT 0439/14.[17]Where a tribunal is satisfied that presentation in time was not reasonably practicable that does not automatically decide the issue. The tribunal must then go on to decide whether the claim was presented within such further period as the tribunal considers reasonable. Disability discrimination claims[18]Under section 123(1)(a) Equality Act 2010, claims of discrimination may not Page 3 of 11 be brought after the end of; Section 123 (1) (a) The period of 3 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.[19]To establish whether a complaint of discrimination has been presented in time it is necessary to determine the date the act complained of took place. Other than perhaps the discrete act of discrimination which the claimant refers to having taken place on 2 May 2018, the complaints of discrimination are potentially complaints relating to a continuing act. Section 123 (3) provides that for the purposes of this section;(a) conduct extending over a period is to be treated as done at the end of that period(b) failure to do something is to be treated as occurring when the person in question decided on it.[20]In the absence of evidence to the contrary, a person is taken to decide on a failure to do something either when that person does an act inconsistent with doing something or if the person does an inconsistent act on the expiry of the period within which he or she might have reasonably have been expected to do it: section 123(4).[21]Employment tribunals have the discretion to hear out of time claims within whatever period they consider to be just and equitable: Trust House Forte (UK) Limited v Halstead EAT 213/86: the EAT held that the complaint that the claimant had not received very good advice was a fair one but it did not make it impracticable for her to present their claim in time. On the discrimination claim the EAT noted that the discretion given to tribunals to allow claims if they thought it just and equitable to do so was a wide one.[22]The Court of Appeal in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA: held that the judge’s findings, that C had misled her solicitors as to the facts material to establishing the ‘trigger point’ that started time running, and had done so because of her mental ill health, were plainly open to him on the evidence, and led him to conclude that C’s situation constituted ‘an exceptional circumstance’ making it just and equitable to extend time[23]Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434 the Court of Appeal provided the following guidance on the application of section 123(1)(b) Equality Act: “There is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.” Page 4 of 11[24]It is therefore for the claimant to convince the tribunal that it is just and equitable to extend the time limit. However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds.[25]Section 123 Equality Act does not set out a list of specific factors which the tribunal is required to consider when exercising its discretion.[26]In Southwark London Borough Council v Afolabi [2003] ICR 800 the Court of Appeal confirmed that whilst the checklist in Section 33 of the Limitation Act 1980 provides a useful guidance for tribunals, it need not be adhered to slavishly.[27]The relevant factors in Section 33(3) of the Limitation Act 1980 deals with the exercise of discretion in civil courts and personal injury cases and requires the Courts to consider: -• The prejudice which each party would suffer as a result of the decision reached• Regard to all the circumstances of the case, in particular the length of and reasons for delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the parties sued has cooperated with any request 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.[28]In Southwark the Court of Appeal suggested there were two factors which are almost always relevant when considering whether to exercise the discretion:-• The length of and reasons for the delay• Whether the delay has prejudiced the respondent[29]In Drewery v Carphone Warehouse Limited ET case number 3203057/2006 the claimant had been in contact with ACAS. Following his dismissal, he contacted his local job centre and after expressing concern over his dismissal, he was referred to ACAS. ACAS advised there was little point in pursuing a tribunal claim until after his internal appeal against dismissal was concluded. ACAS did not advise him of the three-month time limit for making an appeal. The appeal hearing was delayed and the claim was presented out of time. The tribunal found that it was not reasonably practicable for the employee to have presented his claim in time. Whilst his ignorance of the time limit would not have excused his late claim, he contacted the job centre and ACAS. The latter he considered to be an authoritative body and relied on ACAS’s advice to await the outcome of his appeal. The Employment Tribunal held that if such misleading advice had been given by an independent adviser the claim would probably have been rejected but with an organisation such as ACAS, it was to be expected that callers would be informed of the limits on its role. Evidence Page 5 of 11[30]I heard oral evidence from claimant as to the reasons why the claims had not been brought in time and oral evidence from Mrs Bellingham.[31]The claimant’s oral evidence was that he had taken advice from ACAS in November 2018, ACAS had informed him that he did not have a claim for unfair dismissal. He then took advice from a solicitor (at the firm representing him in connection with a personal injury claim) who advised him that he may have a claim for unfair dismissal relating to health and safety or discrimination and a claim for unlawful deduction of wages. He could not recall when he obtained this advice but believed that it was ‘perhaps two or three days’ after speaking to ACAS. The claimant then went back to ACAS and was told by a manager that he had been given incorrect information by the first ACAS advisor. Mr Bellingham could not recall when he had spoken to ACAS the second time, his recollection was that it would have been perhaps a week later. The claimant went on to explain that he had been told that there was going to be an investigation by ACAS into the initial advice he had received. Mr Bellingham referred to having received a letter from ACAS which confirmed this however he had not brought with him, his recollection was that he received this sometime after 21 November. The claimant by this stage understood that a claim for discrimination was already out of time however he believed that if ACAS admitted that they had provided him with incorrect advice this may support an out of time application to the tribunal. The claimant’s evidence was that the investigation by ACAS took about 2 months and he believes he received a follow up letter from them in about December 2018 or perhaps January 2019.[32]The claimant stated that he went to see ACAS originally because he believed he had been unfairly treated and understood that ACAS was the ‘first place he had to go to.’ When asked how he had known that he needed to contact ACAS, he said that he had been told this by the solicitor. That was not consistent with his evidence that he had sought advice from the solicitor after speaking first to ACAS however, I do not find that the claimant was being dishonest rather he was presented as trying to recall events but became flustered and confused over the chronology.[33]Mrs Bellingham gave oral evidence and informed the tribunal that her husband had received two ACAS certificates, however she had not brought those with her.[34]Mrs Bellingham described the claimant as getting himself into “knots” trying to recall events and that the correct sequence of events was as follows; that on the first occasion when the claimant had contacted ACAS he was advised that he had not worked for the company for two years and hence could not pursue a claim of unfair dismissal. ACAS had advised that he could bring a claim for the unlawful deduction of wages and they were asked if they wanted a certificate to enable them to pursue that claim. Mrs Bellingham’s evidence was that she had spoken with claimant at the time and he had decided against it, he felt that; “there was no point pursuing a claim for holiday pay; because there were bigger things concerning him” and he was concerned that the respondent may issue a counter claim.[35]Mrs Bellingham’s recollection was that the initial contact with ACAS was in about September 2018 and that ACAS did liaise with the respondent but she was not sure when the first certificate was issued.[36]The claimant was due to have an operation at Christmas and Mrs Page 6 of 11 Bellingham explained that they were both very much focussed on that and his rehabilitation. At some point she recalled that they spoke again with a solicitor about their experience dealing with ACAS and were advised that there were ‘special circumstances’ in which a claim for unfair dismissal could be brought where for example there were issues of health and safety. The solicitor advised that they needed to go back to ACAS and were advised to put in a letter of complaint.[37]Mrs Bellingham states that they then spoke with a different case handler at ACAS who said that the claimant may have a potential claim for discrimination. They were then issued with a second certificate to bring a claim of discrimination but told to wait because they would have to explain to a tribunal why the claim had not been brought out of time. The matter was escalated she believes to a director at ACAS and they waited to receive a letter confirming that they had been given incorrect advice. According to Mrs Bellingham, the investigation took approximately eight weeks and then they received the letter however it was of no assistance. The letter failed to confirm that they had been given incorrect advice, it simply repeated that the claimant had insufficient service to bring a claim of unfair dismissal. Mrs Bellingham referred to their difficult circumstances during this period, including the health of the claimant and their financial concerns.[38]Unfortunately, Mr and Mrs Bellingham did not bring the letter from ACAS with them. They could not recall exactly the date of the letter, they thought it was “about February or March of this year”.[39]On receipt of that letter from the director of ACAS they decided to proceed to file a claim with the employment tribunal.[40]Mrs Bellingham informed the tribunal that claimant had received two certificates from ACAS. Medical Evidence[41]The claimant had brought with him a copy of a psychological report to evidence that he has learning disabilities (including dyspraxia). The content of this report was not disputed by the respondent nor did the respondent seek to rebut the evidence of the claimant and his wife that he has a learning disability.[42]The claimant also states that the injury to his leg which occurred at work is also a physical impairment that led to the need for surgery in December 2018. He relies on both the physical and mental impairments as disabilities under section 6 Equality Act 2010. Respondent’s Submissions[43]Mr Hignett argued that the reasons put forward by the claimant in a “nutshell” do not engage the discretion to extend time on a just and equitable basis. That what the claimant relies upon is “faulty advice” from ACAS but that this advice was not accept in fact the reason for the delay and referred to the conflicting evidence given by the claimant and his wife. The claimant’s evidence is that he went to ACAS in November after the primary limitation period has already expired and that in any event the advice was correct, in that he did not have the qualifying service to bring an unfair dismissal claim. The claimant had failed to explain what he did between the termination date of 31 July 2018 when his employment terminated and the end of the 3 months period from that date (i.e. to the end of Page 7 of 11 October 2018).[44]Further Mr Hignett referred to the increasingly confusing picture which emerged from Mrs Bellingham’s evidence because she suggested that a second ACAS certificate had been issued. The certificate produced to the tribunal is dated 21 November 2018 and Mr Hignett argues that in the absence of the second certificate this should be discounted from the tribunal’s consideration. Mr Hignett argues that the delay appears to be due to a whole range of factors including “difficult life circumstances” which do not engage the discretion.[45]Mr Hignett referred to the Court of Appeal case of Robertson v Bexley and submitted that there must be cogent reasons for extending time and that the limitation periods for discrimination claims must be “enforced strongly.”[46]Mr Hignett did not make any submissions regarding any specific prejudice or hardship that the respondent may suffer because of any extension of time or any difficulty an extension of time may present with respect to the cogency of the evidence. Mr Hignett’s submissions were not concerned with the impact on the respondent or the evidence which may arise if the application was granted and did not allude to any hardship or prejudice. Mr Hignett did not assert that a fair trial would no longer be possible and nor did he address the tribunal on the potential merits of the discrimination claims.[47]With regards to the unlawful deduction claims; Mr Hignett made the point that although the limitation period did not begin to run until later ie the date of the last payment of wages from the company on 31 August 2018, the evidence of Mrs Bellingham is that the claimant had the ACAS certificates before the limitation period expired but had elected not to pursue the claim. Claimant’s submissions[48]Mrs Bellingham made some submissions on behalf of the claimant which focussed on their difficult personal circumstances, she explained that they were going through turmoil because of the claimant’s loss of employment, the financial consequences for the family ( including the threat of eviction from their home) and his health issue arising from the injury at work. The claimant had wanted to deal with the employment issues himself but became “frustrated with the legal jargon”. Mrs Bellingham argues that her husband was confused and that it was an unfair situation, and that they had waited to receive a letter from ACAS explaining that the delay was due to the incorrect advice they had received. Following the hearing[49]The claimant was given the opportunity to send into the tribunal the letter from ACAS and the second ACAS certificate. Mrs Bellingham sent a letter to the tribunal which she stated was to clarify what she had been trying to explain at hearing; namely that the claimant had contacted ACAS in August 2018. He was advised to complete a form online. Mrs Bellingham had to include herself on the claim in order to help explain the situation to ACAS and this took some time to arrange. ACAS advised that as Mr Bellingham had less than two years’ service he could only pursue a claim for unlawful deduction of wages, the respondent when contacted by ACAS, threatened to bring a counter claim. The certificate was issued on the 21 November 2018. The claimant decided not to issue proceedings. Mrs Bellingham reports that it was after this date that they were then told they may have been advised wrongly (she neglects to mention in the letter the date of this Page 8 of 11 advice was and provides no supporting evidence). A complaint was sent to ACAS which she refers to as having been “at the same time as helping Tim with his rehabilitation after his foot surgery in December 2018. This takes us to January 2019”. Mrs Bellingham then writes that she was told that the claimant may have a possible claim for unfair dismissal and discrimination but waited for her complaint to be sent to different departments. She was then sent a certificate around March 2019 “which I think is the same certificate as November but amended “however in a follow up email of the 11 October 2019, Mrs Bellingham provided an email from ACAS dated 26 February 2019 attaching a; “copy of the certificate to allow you to go to the employment tribunal”.[50]Mrs Bellingham also provided within her follow up letter to the tribunal, a copy of a letter from the complaints department at ACAS which is dated 21 March 2019. It refers to a letter from Mr Bellingham dated 26 February 2019 and confirms that advice was given in November 2018 that without two years’ service Mr Bellingham did not have a claim for unfair dismissal. It is to be noted that the respondent was provided by the tribunal with a copy of the letter and enclosures and asked for their comments. The respondent simply confirmed that the November ACAS certificate was the only certificate they had been provided with. Findings of Fact[51]I find on the evidence, namely the oral evidence of the claimant and Mrs Bellingham and the 21 March letter from ACAS, that claimant was told by ACAS initially that he had no right to bring a complaint in relation to the dismissal, only in relation to the unlawful deduction of wages claim.[52]It is not in dispute that the claimant’s employment ended on 31 July 2018. I find based the letter of notification from ACAS, that the date of receipt by ACAS of the notification was not until 8 November 2018, by which time the time limit for the discrimination claim had already expired.[53]Mrs Bellingham states in her follow up letter to the tribunal that the claimant had first contacted ACAS in August 2018, however in oral evidence at the hearing she had said September and the claimant had said November. While I have attached some weight to the content of the follow up letter, I have attached less weight to it then the evidence which was given orally at the hearing, Mrs Bellingham was essentially within her letter attempting to revisit the evidence given orally and the respondent had not had the opportunity to cross examine Mrs Bellingham on this evidence.[54]On the evidence I find that the initial contact by the claimant with ACAS was in November, this is consistent with not only the claimant’s own oral evidence at the hearing but the date ACAS record as the date of receipt by ACAS of the EC notification (8 November 2018).[55]I have considered why the initial contact with ACAS was not within time, the claimant refers to being told by a solicitor that he needed to contact ACAS. The claimant was in receipt of legal advice in connection with a personal injury claim against the respondent and therefore had access to legal advice, hence the advice he did receive about his employment rights.[56]Mrs Bellingham in her letter states that they were then made aware that Page 9 of 11 they may have received incorrect advice. The claimant and Mrs Bellingham were consistent in their evidence regarding the length of the investigation by ACAS, they both believed that it had taken about 2 months to complete from their complaint being raised. Mrs Bellingham registered a formal complaint in writing on 26 February 2019 which was the same date the claimant had been sent a copy of the email from ACAS attaching a copy of the November certificate; “to allow you to go to the employment tribunal”. I find however that based on the oral evidence of the claimant and his fie that he was aware that he could issue a claim in or around the middle to the end of January 2019 (two months before the outcome letter of the 21 March 2019). I have considered why the claimant waited from January 2019 from when he learnt that he had been given incorrect advice to filing the claim on 5 March, which would have been about 6 weeks later; Mrs Bellingham’s explanation for the further delay was that they had waited until their complaint was dealt with by ACAS, hoping that it would support a late application. The response from ACAS was however dated 21 March 2019 but the claim was received by the tribunal on 5 March 2019. This is not consistent with the explanation provided and thus I find that the reason for the further delay was not because the claimant understood that he needed to wait for the letter from ACAS setting out the outcome of the investigation, otherwise he would have submitted his claim on or after 21 March 2019 after he had received the letter. I find that the more likely reason for the delay between January and March, based on the oral evidence at the hearing is that the claimant was more concerned during this period with other matters, such as his serious financial concerns (including the threat of eviction on or around the Christmas period) and his rehabilitation after surgery. The claim by this stage was over 4 months outside of the primary 3 month time limit. Conclusion Claims for holiday pay and loan[57]In respect of the claim of unfair dismissal the claimant accepts that he was advised by ACAS in relation to the claim of unlawful deduction of wages and told that he could pursue a claim. It was clear from the evidence of Mrs Bellingham that the claimant had made a conscious, informed decision not to issue the claim because at the time there was too much else going on but also, he was concerned that the respondent may issue a counter claim. The tribunal is satisfied that it was reasonably practicable for the complaint to be presented before the relevant period of three month. Disability Discrimination Claims[58]A tribunal when considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted his claim in time.[59]The tribunal is required to weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other.[60]The respondent did not assert that there would be any prejudice or hardship to the respondent of allowing the application to extend time or make reference to any adverse impact on the cogency of the evidence. I am mindful that there are inherent difficulties with any delay however no specific difficulties were raised by Page 10 of 11 the respondent.[61]There is an obvious prejudice to the claimant of depriving him of the opportunity to seek redress,[62]I have considered the difficulties this claimant more likely than not encountered in obtaining the necessary advice and submitting a claim, given not only the personal and health issues he was dealing with at the time, but I find on the evidence, both his oral evidence and that of Mrs Bellingham and the report provided from the learning disabilities service, that this claimant has some learning difficulties. The claimant clearly became agitated and confused while giving oral evidence. I am not satisfied that the claimant has provided an adequate explanation for the delay, either the initial delay from 31 July through to November when he contacted ACAS, or the further delay from being aware of the alleged incorrect advice in or around January 2019 to 5 March 2019. The explanation of waiting for ACAS to confirm that their advice was incorrect in writing is not consistent with the documents produced by the claimant and the date his claim was issued. Nonetheless, considering all the circumstances of this case, the tribunal has determined that it is just and equitable to allow the claim to be brought within 3 months of this claimant finding out that he was able to bring a claim in connection with the termination of his employment without having two years’ qualifying service, which would require the claim to have been brought by the middle of April 2019. The time limit is thus extended and the claim having been brought within that further period, will proceed to a hearing.[63]The claim will be listed for a case management hearing to determine the issues and make appropriate case management order.
REASONS
[1]Mr and Mrs Bellingham gave evidence on their own behalf and acted as joint advocates. Mr Perry represented the Respondents and he called Mr Phillipson their Managing Director, Mr Green their foreman and Messrs George and Geddes who were fellow employees of Mr Bellingham. There was an agreed bundle and references are to page numbers in that bundle.[2]The issues in this case are set out in the record of the Preliminary Hearing held by Employment Judge Clark on 2 April 2020 and are set out at paragraphs 4, page 58 of the bundle, paragraph 5 also on page 58 and claim 4, paragraph 8 onwards on pages 59 and 60 as follows:- “1) This hearing was listed to further identify the issues in the case following the hearing before EJ Broughton in November 2019. At that hearing, she identified in broad terms, the essence of the claimant’s areas of complaint. For reasons she explains, it was not possible to develop those further at that hearing to identify the underlying legal elements of the claims by reference to the statutory forms of unlawful conduct set out in the Equality Act 2010. Page 1 of 12 The four broad issues were summarised as these:- a) Humiliating treatment on 2 May 2018. b) Failure to carry out meetings at his home from 26 March to 30 July 2018. c) Putting him under pressure to return to work when he was absent with a disability. d) Dismissal on 31 July 2018. 2) It was necessary to clarify at the outset the nature of the disability relied on. Mr Bellingham confirmed it flowed from his mental impairments defined as ADHD, Dyslexia and Learning Difficulties. The reason that needed to be clarified is because the underlying sickness absence from which this claim springs was a discrete physical injury to his foot following an accident at work. To be clear, that is not advanced as a disability.[3]We spent some time exploring the way the four claims translated into an appropriate form of statutory discrimination. I am grateful to Mr Hignett for his recognition that the Tribunal had a role to play in putting Mr Bellingham’s claim into its proper form. I explained to Mr Bellingham that did not go so far as to find a case or new allegations for him to advance. In one respect I was, quite properly, invited to reflect on whether the second claim, as it was eventually articulated by Mr Bellingham, was actually pleaded. I concluded it was sufficiently intimated in the ET1, even though he may have conflated the issue of venue (meeting at home) with the real essence of having his wife accompany him. Conversely, when all aspects of the claim were fully understood, it became clear that the third complaint could not be sustained. Mr Bellingham was in agreement that his absence did not relate to his disability. That part of the claim is withdrawn. The elements of each claim of the remaining claims were summarised as follows. “Claim 1 – Humiliating Treatment on 2 May 2018[4]This is a claim of harassment under s.26 of the Equality Act 2010. a) The unwanted conduct spans the day of 2 May 2018 when the claimant attended work to attempt to perform light duties. In particular, and in addition to the matters set out in the ET1 about this day, the claimant alleges unwanted conduct in:- i) Being told he had to stand up and ask permission to leave his workstation to use the toilet. ii) Being constantly watched and captured on CCTV. iii) Being made a mockery of all say, in particular at the end of the day his boss saying words to the effect of “fuck of home and don’t return to work” and “that will show all staff that [I’m] not the sort of person to be messed with” Page 2 of 12 b) The claimant will say this conduct was related to his disability because his boss knew that these were the only duties he could do and because he knew of his learning difficulties, he knew that the claimant would not question what was happening to him. Claim 2 – Failure to conduct the meetings at home[5]This is a claim of failure to make reasonable adjustments. It flows from the claimant’s concern that when he attended meetings with his employer, particular in respect of his personal injury claim arising from the accident at work, he was concerned that he would not be able to read any documents put before him and that he might end up signing away his rights. There was clearly some conflation of the issue in the way the claimant had previously expressed this as being about the venue of the meeting. The reason he has previously referred to the meeting taking place at home was because he wanted his wife present, as she supports him with reading and writing. The reality, however, is that the issue was not the venue but the need for her support at the meeting. a) The PCP alleged, therefore, is that where the employer invites and employee to be accompanied (whether the meeting engages the statutory provisions or not) the employer applies the categories of employee companion as set out in section 10 of the Employment Relations Act 1999 (i.e. TU official or representative or a work colleague). b) The substantial disadvantage is said to be that the claimant cannot read sufficiently well and was put at a greater worry or anxiety that he may be put in a position whereby he signs away his rights. This is said to have been between 26 March and 30 July 2018 but specifically in respect of the meeting of 26 June 2018 when the situation with his personal injury claim was discussed. c) The adjustment contended for was for the respondent to permit his wife to be present. d) The claimant will say the Respondent had knowledge of the disadvantage as by then it was aware that the claimant had difficulty reading and he made a specific request for his wife to accompany him which was refused.[6]I did agree to record that the respondent appears to have offered to hold meetings at the Claimant’s home (but not with his wife as his companion). It also invited a note taker, Neil Newman and invited the claimant to pick a colleague from work to attend with him to help with documents. The claimant will have to demonstrate why this did not remove any disadvantage. Page 3 of 12 Claim 3 – being pressurised to return to work whilst off sick with a disability[7]It is agreed that the claimant was off sick with the infection to his foot following the accident at work. It is agreed that there is no aspect of his absence that relates to his disability. Whether or not there were aspects of fairness, this claim cannot succeed as one of disability discrimination. The Claimant understood the implications of this and agreed that his disability was not the reason for his absence. Claim 4 – Dismissal on 31 July 2018[8]There was potentially some overlap between this allegation and claim which would have created similar difficulties for the claimant save in one respect. It is common ground that the respondent and claimant discussed alternative employment when it became known that he could not continue with his substantive role and could not undertake any “physical” activities in the immediate future. It is also common ground that the potentially available office work was work the claimant agreed he could not do due to his literacy skills. The claimant accepted that had he been able to do that office work, it would have been available to him. The claimant asserts that within that discussion he asked to be able to do some form of menial sedentary work in the office, such as staking papers. He says the respondent refused on the basis that there simply wasn’t any such work or any need for it.[9]So far as that scenario unfolds within the provisions of the Equality Act, it seems it is either or both a claim of reasonable adjustment and/or a claim of unfavourable treatment although in many respects they can be said to be two sides of the same coin.[10]As a claim of a failure to make a reasonable adjustment:- a) The PCP appears to be the respondent’s approach to considering alternative temporary redeployment from physical work in the warehouse, to sedentary work and limiting it to existing office roles/functions. b) The substantial disadvantage this is said to put the claimant to is that he was unable to undertake any of the existing office roles because of his learning difficulties, dyslexia and literacy skills generally and therefore missed out on the opportunity of saving employment by temporary redeployment. c) The adjustment that the claimant contends for is that the employer should have created a role that he could have performed doing menial, sedentary tasks such as stacking papers. Page 4 of 12[11]As a claim of unfavourable treatment because of something arising in consequence of a disability under s.15 of the Equality Act 2010:- a) The unfavourable treatment is the decision to dismiss. b) The something arising is said to be the claimant’s inability to perform the only potentially available alternative sedentary office work. c) The claimant will say the casual link is established because were it not for his inability to perform the existing office based functions due to his disability, he would not have lost his employment at least not on 31 July 2018. d) Subject to the determination of the related reasonable adjustment claim, the respondent may of course seek to justify its decision.[12]Again, without giving any view on the reasonable prospects of success, the claimant will have to have some evidential basis to advance why the creation of such a limited role would have been reasonable in circumstances where he appeared not to be engaging with the employer in its requests for medical information to assess the likely duration of his absence. Similarly if there is found to be no failure to make a reasonable adjustment, and even if the s.15 claim is otherwise made out, there would appear to be some force in the likely justification defence.” Findings of fact 3. Mr Bellingham was employed by the Respondents as a labourer/forklift truck driver from 18 May 2017 to 31 July 2018 when he was dismissed with pay in lieu of notice. 4. The Respondents are a small company manufacturing safety barriers employing some 14 people at the relevant time. Mr Phillipson who is the Managing Director interviewed Mr Bellingham on 18 May 2017 and completed with him the questionnaire that we see at page 122. There is a conflict of evidence between Mr Bellingham and Mr Phillipson. Mr Bellingham says that he told Mr Phillipson that he had dyslexia and could not read and write and gave full details of his upbringing and education. Mr Phillipson denies that there was any such conversation. We think it likely that Mr Bellingham did say that he struggled to read and write and the response would have been well that is not an issue. We do not accept that he went into his educational background at that time. 5. We do accept that Mr Bellingham has very limited ability to read and write and we further accept that all of the correspondence that we see in the bundle whether letters, e-mail or texts were all typed and sent by Mrs Bellingham. 6. Mr Bellingham performed his tasks well and had no difficulties in dealing with matters such as the acceptance of deliveries. Mr Phillipson described Mr Bellingham as being “bloody good at his job”. Page 5 of 12 7. On 13 November 2017 Mr Bellingham says that he stood on a nail at work and it penetrated his work boot which he says was split at the time. There was an accident report at page 138. It is entirely plausible that Mr Bellingham knows that he will find it difficult to find work and is in a job that suits him and fears being out of work and unable to support his wife and family will tend to ignore an injury that he thinks is minor, hoping that it will clear up without intervention. Unfortunately, the injury to his foot worsened and at page 130 we see a lengthy text from Mrs Bellingham describing in some detail how the condition has deteriorated and that there needs to be an operation. That led to Mr Bellingham being signed off work for 2 weeks from 22 March 2018 and it is further recorded that he was unable to wear safety boots. 8. At about this time Mr Bellingham had begun personal injury proceedings against the Respondents in respect of the injury to his foot. Mr Phillipson had an investigatory meeting on 11 April 2018 and the transcript begins at page 186. Mr Phillipson was obviously concerned that the details of the accident had taken 4 months to fully emerge. 9. At page 188 the following exchange between Mr Phillipson and Mr Bellingham is recorded: “So I mean there’s if the doctor says standing up on it makes you limp I am thinking what else we could put you on because if that’s going to damage your back further I can’t be responsible for damaging your back. I mean Andy’s in here because he’s because you’re inaudible, you’re not really office material are you?” Mr Bellingham replies: “Well I’ve got dyslexia and I can’t read or write.” 10. Mr Phillipson explained what he meant by “you’re not really office material” in the following terms namely that the Respondents manufacture crash barriers to a statutory standard which have to be quality tested and therefore the paper trail has to be both transparent and meticulous. 11. The meeting was recorded by the Respondents without Mr Bellingham’s knowledge or permission. Mr Phillipson now accepts that that was wrong. 12. After Mr Bellingham left the meeting the recording continued and the Phillipson’s were joined by Mr Green, Mr Bellingham’s line manager and Ms Piper. The discussion is unsympathetic to Mr Bellingham and some highly offensive remarks are made for example “limpy Tim”. There appears to be a general belief that Mr Bellingham is exaggerating his symptoms in relation to the foot injury. There is also anger and irritation that Mr Bellingham is pursuing a personal injury claim.
Findings of fact
[13]At page 197 is the only remark that is relevant to the impairments that are the basis of the claim before us in that Mr Phillipson is recorded as saying “had Tom in bits earlier on. Phone Tom said it isn’t me that’s sending the texts. Tom says he can’t read and write. Do you think I can send texts like that. He is on his uppers, he’s got no money”. That was met with laughter. Some of the remarks about Mr Bellingham in this private meeting are disgraceful and the Bellingham’s have every right to be offended. Page 6 of 12[14]On 30 April Mr Bellingham asked for a meeting with Mr Phillipson and again that meeting was recorded without Mr Bellingham’s knowledge. The transcript begins at page 190. Mr Bellingham is in dire financial straits. He is £900 in debt and he asked for a loan. In return he offers to work for 3 weeks without pay to repay that loan of £900. Mr Phillipson offers £500 to be repaid at £100 a month. Mr Phillipson identifies a drilling role drilling caps, sitting at a fixed drill.[15]At page 194 Mr Phillipson says “you’ll be basically be cordoned off in your area and you don’t go anywhere outside. You sit there and you drill clips”. There is further reference on that page to a risk assessment and we see that risk assessment at pages 152(a) and (b). We accept that that risk assessment and its actions were compiled on the advice of Ms Cuff of Proactive.[16]On 2 May Mr Bellingham reported for duty to carry out the role of drilling clips. It is common ground that this was a one-off task. The events of that day form the basis of the first claim and there are many conflicts of evidence and we will return to that in our conclusions.[17]Mr Bellingham did not return to work after 2 May. On pages 132 to 134 are records of texts etc between Mr Phillipson and Mr Bellingham dealing with Mr Bellingham’s continuing absence from work and that is for the period 2 May to 21 May.[18]There then follows a series of letters from the Respondents to Mr Bellingham the first of which is dated 22 May at pages 155 and 156. In that letter Mr Phillipson sets out the chronology of the events up to and including 2 May and thereafter a record of the texts to which we have already referred.[19]There then follows at 156(a) on 24 May a request “we would like to contact your GP to request a full copy of the medical details regarding your current sickness”. Thus, the request was for medical evidence in respect of the foot injury and nothing more. The consent form is attached and in accordance with the Access to Medical Reports Act Mr Bellingham was entitled to withhold consent or he had the ability to see the report before it was sent or to carry out any amendments that he thought were appropriate.[20]On 8 June a further letter is sent at page 157 and the consent form is sent again.[21]On 15 June a further letter is sent at page 158 requesting a welfare meeting “we propose to hold the welfare meeting at your home address on Tuesday 26 June at 9:00 am. Page 7 of 12 That letter was responded to by the Bellingham’s at 158a and the letter read as follows: “Dear Colin I am writing to inform you I will not be holding a meeting at my address on 26 June the reason being that I have discussed this with my solicitor and he has advised me against this deeming it unnecessary. Also I am not willing to give permission for you to access my medical records as advised by solicitor also.”[22]There is a further letter at 159 on 28 June repeating the request for a meeting and the need to access medical records. A similar letter is sent on 13 July at page 160.[23]On 20 July a further letter is sent inviting Mr Bellingham to a formal meeting on 31 July. The letter states that an outcome of this meeting could be the termination of employment due to medical capability. Apart from the letter at 158(a) there was no response from Mr Bellingham. As a consequence on 31 July by letter at page 161 Mr Bellingham’s employment was terminated and a payment was made in lieu of notice.
Conclusions
[24]We turn now to the issues that we have to determine but there needs to be an introductory passage because the Bellingham’s approach before us was that because of the injury suffered at work on 13 November 2017 Mr Bellingham lost his job, he lost his dignity and as a consequence suffered economic loss including loss of wages from May 2018 onwards. We have every sympathy with that position.[25]However, at page 57 again from the hearing held on 2 April 2020 Employment Judge Clark said at paragraph 2: “It was necessary to clarify at the outset the nature of the disability relied on. Mr Bellingham confirmed it flowed from his mental impairments defined as ADHD, dyslexia and learning difficulties. The reason that needed to be clarified is because the underlying sickness absence from which this claim springs was a discrete physical injury to his foot following an accident at work. To be clear that is not advanced as a disability.”[26]This led to two e-mails from the Bellingham’s and in particular one dated 1 May which appears at pages 68 and 68(a). At 68(a) the following is said: “Because I was unable to do my day to day activities and the condition worsened to the point where I couldn’t walk resulting in surgery and immense pain I consider this as a disability under the Equalities Act and not just an injury.”[27]That correspondence was referred to Employment Judge Clark and at 86(aa) we see his response of 26 May. He makes it clear that the disability relevant to the determination of these issues remains ADHD etc and he says for the avoidance of doubt the claims remain as articulated in the order of 2 April as set out as claim 1, claim 2 and claim 4. Those then are the issues that we have to determine. Page 8 of 12 Claim 1[28]As to claim 1 at page 58 the impairment concerned is a mental impairment, namely ADHD and learning difficulties. Mr Perry sensibly concedes that dyslexia which is also advanced by Mr Bellingham overlaps with these other two matters and he takes no point.[29]Thus, we are concerned with the events of 2 May. Mr Bellingham’s account of that day begins with an allegation that he was taken to Mr Phillipson’s office, told he could not move from a cordoned off area and that there was a camera pointed at him and if he moved once “he is gone”. Mr Phillipson denies that there was any such instruction and he tells us, which we accept, that the camera is in a fixed position and has always been in that fixed position as was the drill to be used by Mr Bellingham.[30]We think it likely that Mr Phillipson did instruct Mr Bellingham not to move from the area but did not threaten him with dismissal. Mr Bellingham may have taken the instruction literally ie that he could not move at all but we note that there are elements of exaggeration in Mr Bellingham’s evidence for example he claims he was placed in the middle of the factory floor which was plainly not the case. As to the cordon we accept Mr Green’s evidence that the purpose of the cordon was so Mr Bellingham did not have to get up and avoid passing traffic of forklift trucks whereas the norm would be that the forklift truck would take precedence and the individual would have to move.[31]Mr Bellingham also alleges that he could not go to the toilet without first raising his hand and being escorted like a school child to the toilet. Both Mr Phillipson and Mr Green deny that allegation. Mr George who was given the task of doing Mr Bellingham’s heavy lifting could not recall seeing Mr Bellingham either go to the toilet or raise his hands but that was probably because Mr Green was screened off in his welding position. But Mr Green does recall seeing Mr Bellingham at break times outside the cordoned area.[32]Mr Bellingham also alleges that he was sniggered at by Mr Phillipson and by other employees he does not name. Mr Phillipson, Mr Green and Mr George all deny that they sniggered at him. Mr Geddes was not present and therefore could not give relevant evidence. We do not accept Mr Bellingham’s evidence on this point principally because he has failed to name employees other than Mr Phillipson. Mr Bellingham further claims that at the end of the shift Mr Phillipson told him to “fuck off home” and not return to work. Mr Phillipson denies any such comment and points to the text messages immediately following 5 May. Indeed we see at page 132 a text message actually on 2 May at 8:02 in the evening ie a few hours after the shift had ended which says: “Just to remind you I’ve got doctor’s appointment in the morning. I did tell you the other day. Will be in afterwards.” That is a message from Mr Bellingham to Mr Phillipson. That is wholly inconsistent with both the comment to “fuck off and not return to work” and to having been humiliated at work on that day. We note further that there is no reference thereafter to the events of 2 May. We also note that Mr Phillipson not wishing Mr Bellingham to return to work would be inconsistent with Mr Phillipson’s desire to be repaid the loan of £500. Page 9 of 12[33]In determining whether there has been unwanted conduct as alleged by Mr Bellingham in accordance with Section 26 of the Equality Act, subsection 4 reads as follows: “(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account:-(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[34]Firstly is the perception of Mr Bellingham, we accept that he did feel humiliated by being cordoned off though we suspect that much of his anger is concentrated upon the recording that occurred after he left the meeting of 11 April which he did not see until after these proceedings began. As to the other circumstances we rely on the risk assessment and the evidence of Mr Phillipson and Mr Green to conclude that any measures that were put in place were with a view to the protection of Mr Bellingham’s health and safety and further the protection of the Respondent’s from future liability. Thirdly whether it is reasonable for the conduct to have that effect. Again we can fully understand Mr Bellingham’s reaction but the camera was not deliberately placed so as to watch him and all of the other measures were there for his own protection.[35]In conclusion balancing the three factors therefore we do not consider that Mr Bellingham has suffered unwanted conduct. If we are wrong on that point and there was unwanted conduct we do not believe that it was related to a relevant protected characteristic as is required by Section 26. In this case the protected characteristic must be the impairment relied on ie ADHD, learning difficulties and dyslexia. Mr Bellingham submits that it was related to that disability because Mr Phillipson knew that the drilling was the only duty he could do because he was not capable of office/administrative duties and that was because of his disability. We do not accept that submission. We accept that the test is not a “but for test” but we cannot see that the conduct complained of is associated with the impairment but rather it is associated with the injury to Mr Bellingham’s foot. It is one step too far removed. Not only was there no administrative work that Mr Bellingham could do, there was no such work at all. Claim 2, page 58, failure to conduct meetings at home[36]The PCP alleged is accepted as being applied by the Respondents namely the invitation of the employee to be accompanied in accordance with Section 10 of the Employment Relations Act 1999. The second element is that there must be a substantial disadvantage to Mr Bellingham arising from that PCP and it is said that because Mr Bellingham cannot read sufficiently well he was put at a greater worry or anxiety because he feared he would sign away his rights at meetings.[37]We do not accept that there was a substantial disadvantage. Had Mr Bellingham been accompanied by a work colleague as was required by the PCP in our view any written material could have been read to him and then dealt with by Mr Bellingham. Page 10 of 12[38]Further we find as a fact that there was no such request for Mrs Bellingham to attend as companion and whilst that failure to make the request is not fatal to the claim nevertheless in our view the Respondents would have needed to have been clairvoyant to understand that that was what was required. We also note the letter at page 158(a) which made it plain that the reason for non-attendance at meetings was because of legal advice. That claim too must therefore fail. Claim 4, dismissal on 31 July 2018[39]This is put firstly as a failure to make a reasonable adjustments under Section 20 and 21 of the Equality Act. The PCP relates to the Respondent’s approach to considering alternative temporary redeployment from physical work to sedentary work and limiting it to existing office roles and functions. We accept that that is capable of being a PCP. As to the substantial disadvantage that is said to be that Mr Bellingham was unable to undertake any of the existing office roles because of his learning difficulties etc and therefore missed out on the opportunity of saving employment by temporary redeployment. We reject this because it is clear that there was no temporary sedentary work available.[40]As to the adjustment put forward that is that such a role should have been created. In terms of a creation of a role that is capable of being a reasonable adjustment but it is dependent on the facts of the case. Here we have a small employer manufacturing crash barriers to stringent specifications. All the administrative work supporting this thus needs to be meticulous and it is common ground that Mr Bellingham could not perform such task. However, as we have set out Mr Bellingham had refused all requests to attend welfare meetings, he had refused requests to provide medical evidence relevant to his foot injury and we therefore cannot see how in the circumstances, even of a limited role, how it could have been reasonable for the Respondents to agree to such a role because they had no basis upon which to determine what Mr Bellingham was capable of. They were working in the dark. Thus the claim of reasonable adjustment must fail.[41]As to the claim put under Section 15 the unfavourable treatment is accepted as the decision to dismiss. The something arising is said to be the inability to perform the only potential available sedentary office work but as we have said we do not consider that that was available. Mr Bellingham says that no causal link is established because were it not for his inability to perform existing office based functions due to his disability he would not have lost his employment at least not on 31 July, but there was no such work. However, if we are wrong and unfavourable treatment is made out then we accept the employer’s submission as set out in their response form beginning on page 77 at paragraph 35: “Further, alternatively, the dismissal of the Claimant was justified in all the circumstances.”[43]It is averred that the following represented legitimate aims:-(i) Ensuring its staff are fit to carry out the duties required of them.(ii) Not permitting staff to carry out duties which they are incapable of or cannot carry out safely. Page 11 of 12(iii) Taking appropriate steps to maintain a work force with good attendance.”[44]We accept that they are legitimate aims and we further accept that the dismissal was a proportionate means of achieving those legitimate aims there being so far as we can see no alternative less discriminatory approach. That claim must also fail and therefore we conclude that all of Mr Bellingham’s claims fail. That is our decision. RECONSIDERATION JUDGMENT (Corrected in accordance with rule 69) Pursuant to Rule 72, paragraph 1 of schedule 1 of the Employment Tribunals Constitution and Rules of Procedure Regulations 2013 1. The application for a reconsideration dated 28 December 2020 is refused as having no reasonable prospect of the original decision being varied or revoked.
Conclusions
[1]Mr Bellingham made a lengthy application for reconsideration dated 28 December 2020. The relevant rule is as follows: Rule 72:- “(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.”[2]The first matter raised is an allegation that there was an incomplete bundle based on the absence of a psychological report. Given that the Respondent’s conceded Mr Bellingham’s disability it has no relevance and it is a matter that could have been raised at the hearing and it was not. Page 1 of 2 Case No: 2601403/2019[3]The rest of the application is dealt with in paragraph 24 to 27 of the judgment sent to the parties on 21 December 2020, the judgment which Mr Bellingham now seeks to have reconsidered. Those matters were expressly dealt with in the judgment and Mr Bellingham raises nothing new in the application of 28 December 2020. It therefore follows that the application has no reasonable prospect of success.