Mr K Farhadi v De Montfort University: 2603694/2019
EMPLOYMENT TRIBUNALS
Case No 2603694/2019
Between
Mr K FarhadiClaimantDe Montfort UniversityRespondent
Before
Employment Judge AhmedIn person for claimantMs G Cawthray (instructed by Solicitor) for respondentDate 18 March 2021
JUDGMENT
The Employment Tribunal Judge gave judgment as follows:-[1]The Claimant’s complaints of disability discrimination have been presented out of time. It is not just and equitable to extend time. The complaints of disability discrimination are therefore struck out.[2]The complaint of unfair dismissal is struck out as having no reasonable prospect of success.[3]The complaint of an unlawful deduction of wages is dismissed upon withdrawal.
REASONS
[1]This was a preliminary hearing to determine whether the Claimant’s claims of disability discrimination should be struck out as having been presented out of time.[2]These Reasons follow a request by the Claimant following a Judgment which given orally at the end of the Preliminary Hearing on 19 February 2021 and for Case No: 2603694/2019 (V) Page 2 of 6 which a written Judgment without reasons was sent to the parties on 22 March 2021.[3]In these proceedings the Claimant brought complaints of disability discrimination, unfair dismissal and an unlawful deduction from wages. The Claimant underwent the process of ACAS Early Conciliation which he is obliged to do and which of course has an effect on time limits. The Claimant notified his claim to ACAS on 19 November 2019 and early conciliation ended on 29 November 2019. The early conciliation certificate was issued on the same day. The ET1 Claim Form was presented to the Employment Tribunal on 23 December 2019.[4]On 30 March 2020, the Claimant wrote to the tribunal withdrawing his claim for an unlawful deduction of wages, reserving his right to pursue such a claim in the ordinary courts. It appears that no formal judgment has so been issued to dismiss so that is being done now.[5]The Claimant was employed by the Respondent from 15 November 2015 to 5 April 2017 as a part-time lecturer in Engineering. The post was appointed on a fixed term contract to expire on 31 August 2016 to cover long-term staff absence. In May 2016, the Claimant was informed that his fixed term contract would not be extended. He was sent a letter notifying him of a right of appeal.[6]Pausing there it will be seen the Claimant does not have the two year qualifying period of service to bring a complaint of unfair dismissal. Accordingly, insofar as that complaint has not already been withdrawn it will be dismissed.[7]The Claimant appealed against the refusal to extend the fixed term contract. Under the University’s policies and procedures where there is an appeal against dismissal the date of termination is extended until the appeal is completed. There does not seem to be any disagreement as to when employment ended but if there is, I find that the Claimant’s employment formally came to an end on 5 April 2017 when the Claimant was informed that his appeal was unsuccessful. The Claimant’s last working day was actually 31 May 2016.[8]The Claimant has a number of disabilities. In May 2016, he reported having issues with hearing loss and also being diagnosed as dyslexic. In August 2016, which of course is after the Claimant had left the Respondent, Mr Farhadi suffered a stroke and was admitted to Leicester General Hospital where he was an in-patient for 3 months. In December 2016, he left the UK to receive medical treatment abroad in relation to cardiac issues. It is believed that in January 2017 he had a surgical balloon angiographic procedure. In June 2017 he suffered a seizure. In November 2018 he suffered a number of falls which required him to seek medical assistance. In March 2019 he was diagnosed as suffering from epilepsy.[9]I have not determined the issue of disability nor has this hearing been set down to determine that point. The claim itself has been pleaded in very general terms and has not been properly particularised. If the matter was to proceed this of course would be the next step. Case No: 2603694/2019 (V) Page 3 of 6[10]The Claimant has provided a "timeline" of events in this case setting out the alleged discriminatory events. It is unnecessary to set out all the allegations for present purposes or the timeline itself. From the timeline it is clear that the first alleged discriminatory event is said to have taken place on 5 January 2016. The last alleged act of disability discrimination was said to be the dismissal which at its very latest would be 5 April 2017. The primary time limit would therefore have expired on 4 July 2017.[11]The Claimant has had periods of being abroad from May 2016 but it is clear that he was back in the country in early June 2016. He appears to have travelled abroad for treatment again in August 2016 but was back by September 2016 as he attended a postgrad module presentation. The last time it seems he went abroad was sometime in 2017 but he was back in the UK by late November 2018.[12]In November 2018 the Claimant sought advice from the Advocacy Service of Abertawe Bro Morgannwg Community Health Council. It appears the Claimant raised the possibility of a tribunal claim but he was informed that the Advocacy Service could only provide assistance on medical matters.[13]In March 2019, the Claimant sought advice from Swansea CAB and it appears that he had an appointment with them on 28 March 2019. The Claimant states that it was suggested he raised a further appeal.[14]Between March and May 2019 the Claimant engaged in correspondence with the Respondent’s HR as to a further appeal which was refused.[15]The Claimant contacted his local Member of Parliament, Mr Geraint Davies, MP for Swansea West, who contacted the Respondent regarding the Claimant’s dismissal. Writing in May 2019 Mr Davies requested a further appeal hearing which was also refused.[16]The Claimant presented his claim to the Tribunal on 23 December 2019. THE LAW[17]Section 123 of the Equality Act 2010 (“EA 2010”) states: “(1) Proceedings on a complaint within section 120 may not be brought after the end of(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. (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. Case No: 2603694/2019 (V) Page 4 of 6 (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[18]In relation to how the ‘just and equitable’ extension should be exercised there are a number of relevant authorities. In Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ. 576, the Court of Appeal made it clear there is no presumption that the Tribunal should exercise its discretion to extend time. The Claimant must still demonstrate to the Tribunal that it is just and equitable in all the circumstances to extend the time limit. At paragraph 25 Auld LJ said: “When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[19]In British Coal Corporation v Keeble [1997] IRLR 336, the Employment Appeal Tribunal indicated that the Tribunal’s discretion is at least as wide as that of civil courts under section 33 of the Limitation Act 1980. Therefore, the Tribunal may wish to give consideration to the following factors:• The prejudice each party would suffer if the extension was refused;• The length 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 party sued had cooperated with any requests for information;• The promptness with which the Claimant had acted once he knew of the possibility of taking action;• The steps taken by the Claimant to obtain professional legal advice once he knew of the possibility of taking action.[20]There is however no legal obligation on a Tribunal to go through the above factors as a form of checklist (see Southwark London Borough v Afolosi (UKEAT/0243/19/VP). The Tribunal is entitled to take into account anything that it deems to be relevant (Hutchinson v Westwood Television Ltd (1977) IRLR 69).[21]In Chief Constable of Lincoln Police v Caston [2010] IRLR 327, the Court of Appeal explained that there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. Whether a claimant succeeds in doing so is a question of fact and judgment in each case.[22]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ. 640, the Court of Appeal (per Lord Justice Leggatt at paragraph Case No: 2603694/2019 (V) Page 5 of 6 18) made it clear that the Tribunal had the “widest possible discretion” on deciding whether it should extend time under the just and equitable principles. CONCLUSIONS[23]I am satisfied that there is no continuing act (or perhaps more accurately any ‘conduct extending over a period’) such that the claim can be deemed to be in time. The last discriminatory act alleged (of dismissal) was on 5 April 2017. The Claim has therefore been presented outside the time limit. I have therefore gone on to consider whether time should be extended on just and equitable grounds under section 123(1)(b) EA 2010.[24]In all of the circumstances, I do not consider that it is appropriate to exercise the discretion to extend time for the following reasons:24.1 This is not a case of a claim being days, weeks or even months out of time. This is a claim which is almost two and a half years out of time.24.2 There is no satisfactory explanation for the delay. The Claimant argues that his ill-health has prevented him from bringing the claim in time or earlier. I do not accept that the Claimant’s medical difficulties, extensive though they are, can be the real reasons for the delay. There have been a number of significant periods when the Claimant’s health was well enough for him to have presented a claim much earlier when he was able to do other activities such as travel abroad or take part in meetings for the sake of obtaining advice. 24.3. The Claimant has had advice along the way as to his employment rights and the possibility of bringing a claim from several sources. He sought advice from the advocacy service provided by Abertawe Bro Morgannwg Community Health Council in November 2018. The Claimant raised the possibility of an employment tribunal claim but was informed that the advocacy service could only help in relation to medical matters. This suggests that the Claimant was mindful of the possibility of pursuing an employment tribunal claim at that time. If the Claimant was told that the advocacy service could not assist him in relation to employment matters or legal proceedings, it would have been a reasonable step for the Claimant to make enquiries elsewhere. 24.4. The Claimant sought and obtained advice from Swansea Citizens Advice Bureau in March 2019. It is highly likely that the Claimant would have been advised about employment tribunal claims and of time limits. 24.5. The Claimant contacted his MP for advice in May 2019 when it is likely he would have been put on alert as to his employment rights as is clear from correspondence in May 2019. It is also highly likely that the Claimant would have been referred to other sources of information and advice when the matter was not resolved. 24.6 There is no medical evidence that the Claimant was physically or mentally unable to present his complaint for medical reasons until December 2019. He has Case No: 2603694/2019 (V) Page 6 of 6 undoubtedly had medical issues but there have been sufficient opportunities for him to start proceedings much earlier. 24.7 To extend time would cause significant prejudice to the Respondent. A number of potential witnesses have now left their employment. They may or may not be capable of being traced. Even if they are capable of being traced, having left they may now understandably be reluctant to give evidence on historical matters. Memories are bound to have faded and therefore the cogency of any evidence would be adversely affected.[25]For those reasons, I do not consider that it is appropriate to exercise the discretion to extend time. Accordingly the complaint of disability discrimination is struck out. _____________________________ Employment Judge Ahmed Date: 28 April 2021 Covid-19 statement: This was a remote hearing. The parties did not object to the case being heard remotely. The form of remote hearing was V – video. It was not practicable to hold a face-to-face hearing because of the Covid-19 pandemic.