Mrs S Ryan v Essex Partnership University NHS Foundation Trust (EPUT): 3200569/2021
JUDGMENT
[1]The claim for damages for breach of contract under Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 is DISMISSED because an Employment Tribunal has no jurisdiction to hear it.[2]The claim has been brought out of time by reference to Article 7 of the 1994 Order because it was not presented within the period of three months following the effective termination of the Claimant’s contract of employment on 31 March 2020. It was not lodged within the extended time limit which applies in relation to the ACAS early conciliation provisions. Case Number: 3200569/2021[3]I am satisfied that it was not reasonably practicable for the Claimant to bring her claim within the primary time limit but thereafter she did not present it within such further period as I consider reasonable and consequently it is out of time.[4]The Respondent applies for a costs order by reference to Rules 74 -78 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. There was insufficient time to deal with the application at this Hearing. Accordingly the Respondent shall make a written application stating the grounds on which the application is made by no later than 23 August 2021 addressed to Employment Judge Elgot and send a copy to the Claimant. A detailed breakdown and calculation of the costs incurred and claimed must be included.[5]The Claimant shall respond to the costs application in writing addressed to the Employment Judge by no later than 13 September 2021 including information about her ability to pay.[6]Thereafter theREASONS
[1]The Claimant brings one claim which is for damages for breach of contract under Employment Tribunals (Extension of Jurisdiction) Order 1994 because she says that she was not given the full period of contractual notice to which she was entitled at the date of the termination of her employment on 31 March 2020.[2]Her claim was filed substantially out of time. The ET1 Claim was lodged on 16 February 2021 almost one year later. The Judgment sets out my decision that, although I am satisfied that it was not reasonably practicable for her to have brought her claim within the primary time limit she thereafter failed to lodge her claim within such further period as I consider reasonable. Consequently I found that an Employment Tribunal has no jurisdiction to hear the claim because it is out of time and it was dismissed.[3]The Claimant’s application for reconsideration sets out three grounds which I will address in turn. I have also read the Respondent’s response to the reconsideration application which is set out in an email dated 23 August 2021 timed at 17:15 from the Respondent’s solicitor Ms Streets. The Claimant replied the same day at 18:52 :-[4]First the Claimant says that there was a ‘misunderstanding’ of her ‘mental health condition’ which is moderately severe and chronic depression with variable symptoms. I cannot agree with this contention. The Claimant gave evidence on her own behalf using the video CVP facility and was cross examined. She prepared a written witness statement which is contained within a Preliminary Hearing (PH) Bundle consisting of 173 pages and which includes her GP medical notes for the relevant period. The content of that PH Bundle was discussed and agreed between the parties. I was therefore supplied with and duly considered that comprehensive information about the Claimant’s mental health difficulties.[5]The second and third paragraphs of the Respondent’s email of 23 August 2021 sets out the process and dialogue by which the parties identified and agreed the content of the PH Bundle with the Claimant’s full participation. The Claimant concedes in her reply that she does not allege that any documents were intentionally omitted from the PH Bundle by the Respondent which had the responsibility of preparing the documents. She states clearly that there was a mistake by her and an ‘error on my part ’and ’I did not check the document bundle thoroughly enough’ when a Mental Health Team letter of 25 February 2021 was not included.[6]I am satisfied that I heard detailed evidence and had sufficient knowledge and understanding of the Claimant’s mental health difficulties following the effective date of termination of her employment. I therefore appreciated the difficulties she had in complying with the primary time limit under the 1994 Order and my judgment reflects that finding.[7]However I was satisfied by reference to the evidence in the agreed PH bundle that by the end of November 2020 when she obtained new employment and by reference to her GP’s note of 16 December 2020 the Claimant’s health had improved sufficiently to enable her to pursue her claim. She described herself in her written evidence as improving when ‘my medication levelled out in January 2021 as per GP Notes page 3 13 Jan 2021’ and in her oral evidence as ‘much stronger’ by midJanuary 2021. Her GP’s notes record encouraging progress in her condition on 13 January and 8 February 2021. She still did not take any formal steps to lodge her claim until mid- February 2021 but was then able to prepare a detailed four page Grounds of Complaint. In my judgment that was an unreasonably lengthy further period outside the primary time limit. The reasons for my decision were carefully explained to the Claimant at the Preliminary Hearing on 2 August 2021.[8]The Claimant asks me to reconsider my judgment by seeking to refer to evidence which was available at the time of the Preliminary Hearing but which she omitted to include amongst her documents to be placed in the joint PH Bundle. The evidence consists of a letter dated 25 February 2021 about her and her medication from the Mental Health Team.[9]I reiterate that this is not a new piece of evidence which has emerged since the PH and the promulgation of the judgment. There is no suggestion that this is new evidence having an important influence on the outcome of this case which could not reasonably have been known of or foreseen at the time of the Hearing. Instead the Claimant failed to discharge her individual responsibility to ensure that the letter was disclosed and placed in the PH bundle (despite several opportunities in correspondence with the Respondent to ensure that the bundle was comprehensive and complete). No criticism of the Respondent is justified in the circumstances. The Claimant now seeks to correct her error and utilise this document to entirely re-argue her case. I conclude that it is not in the interests of justice, which principle applies to both parties, to permit her to have a second opportunity to put forward her arguments in relation to the time limit issue.[10]In addition the omitted evidence is unlikely to influence my decision. The letter of 25 February 2021 is dated 9 days after the date that the ET1 was filed. It therefore describes the Claimant’s state of mental health at a later date and insofar as it refers retrospectively to the previous course of her illness and the drug therapy prescribed it does not negate or contradict the totality of the other evidence contained in her GP Notes which were properly disclosed and upon which I have relied in making my decision as stated in paragraph 8 above. The level of medication is only one factor in assessing the severity, nature and effects of mental health impairment.[11]The second ground for reconsideration is described by the Claimant as ‘key evidence was missing from the evidence bundle’. This seems to be a reference to the letter of 25 February 2021 (the omitted evidence) and I have set out above my reasons for refusal of the application for reconsideration on this ground.[12]The third reason given by the Claimant as to why I should reconsider my judgment is that ‘key evidence was not reviewed’. I understand that the Claimant wishes me to take account of the entirety of her submissions and references to evidence contained in paragraph 2 and the Conclusion and Summary set out in her 6 August 2021 application. In that part of the application she argues that her substantive claim does have a good prospect of success and that the evidence demonstrates its merits. Those arguments are however irrelevant to the judgment which the Claimant asks me to reconsider.[13]The PH was decided on the ground that the Tribunal had no jurisdiction to hear the Claimant’s breach of contract claim because she had brought it outside the time limits prescribed by the 1994 Order. That is the reason why her claim was dismissed. The claim was not struck out on the ground of no reasonable prospect of success although I did give an indication that I considered the merits of the Claimant’s case to be weak and that, if she had been permitted to pursue it out of time, she was likely to be unable to successfully resist a strike out or at least a deposit order.[14]The said indication as to the merits was given by way of an attempt to assist the Claimant in understanding why her claim was unlikely to succeed even if she had won on the time point. However I decline to address the full reasons for that merits assessment because, as stated, the prospects of success were not the reason for my judgment and therefore cannot be reviewed or reconsidered under Rule 70 of the Employment Tribunal Rules.[15]In all the circumstances the request for reconsideration fails. Case Number: 3200569/2021 EMPLOYMENT TRIBUNALS Claimant: Ms S Ryan Respondent: Essex Partnership University NHS Foundation Trust (EPUT) Heard at: East London Hearing Centre (by Cloud Video Platform) On: 2 August 2021 Before: Employment Judge B Elgot Representation: For the Claimant: In person For the Respondent: Mr A Webster, Counsel[1]The Respondent’s application under Rule 76 for a costs order against the Claimant is REFUSED and no payment is ordered.[2]The Respondent’s application is set out in a letter sent by email dated 23 August 2021 and asks for part of the costs incurred by it in preparing for and attending the preliminary hearing on 2 August 2021 at which it instructed counsel. The application for costs is limited to the amount of counsel’s fees and other costs incurred subsequent to a costs warning sent to the Claimant on 27 July 2021.[3]The costs order is pursued on the ground that the Claimant’s claim for damages for breach of contract had no reasonable prospect of success, that she was warned of this position but unreasonably continued to pursue her claim at the Preliminary Hearing. The Hearing was listed to consider whether her claim should be struck out because it had been brought outside the time limits for submitting such a claim and/or whether it should be struck out or a deposit order made because the claim had little or no reasonable prospect of success.[4]My judgment sent to the parties on 5 August 2021 strikes out and dismisses the Claimant’s claim because it was brought out of time by reference to the relevant time limit in Article 7 Employment Tribunals’ Extension of Jurisdiction (England and Case Number: 3200569/2021 Wales) 1994. I have refused the Claimant’s application for a reconsideration of this judgment.[5]It was not part of my judgment that the claim had little or no reasonable prospect of success. It was unnecessary to make findings in this respect. I did however comment in open tribunal that I considered the merits of the Claim to be ‘very weak and likely to be struck out’. I did not, looking at my contemporaneous note, express strike out on the merits to be inevitable nor use the words ‘extremely weak’.[6]The Claimant’s response to the costs application is contained within part of her email requesting reconsideration which is also dated 6 August 2021.[7]I am satisfied that I have sufficient information to decide this application for costs by reference to the written representations and without the need for a further hearing.[8]My decision not to grant the Respondent’s application for part of their costs in relation to the 2 August Preliminary Hearing is made for the following reasons:-(i) The Claimant’s submissions in relation to the missed time limits were not without reasonable prospect of success or misconceived. Her personal and medical evidence was required in order for me to decide whether it was practicable for her to lodge her complaint in time. She indeed did persuade me that the evidence showed that it was not practicable to comply with the primary time limit but I was not convinced that she thereafter lodged her claim within a further reasonable period. She did not act unreasonably in pursuing her arguments in relation to time limits.(ii) Secondly, although I observed that the substantive case was very weak there were contentions made by the Claimant regarding the terms of her renewed contract, the incorporation of certain EPUT policies in to her contract of employment, and some alleged verbal variation to her contract and/or misrepresentation which in fairness needed to be fully ventilated before I made a strike out or deposit order on the basis of the merits of her claim. In fact it was unnecessary to hear all of that evidence because the case was struck out because it was brought out of time. It was not unreasonable for her to decline to withdraw after the Respondent’s cost warning on 29 July 2021.(iii) There have, for the avoidance of doubt, been no other unreasonable actions of the Claimant in the bringing or conducting of these proceedings.