Mrs O Gahadza v Essex Partnership University NHS Foundation Trust 3200820/2018
EMPLOYMENT TRIBUNALS
Case No 3200820/2018
Between
Mrs O GahadzaClaimantEssex Partnership University NHS Foundation TrustRespondent
Before
Employment Judge PrichardDate 18 November 2018
JUDGMENT
The judgment of the tribunal is that this preliminary hearing on jurisdictional time- points is postponed to be heard in full by any judge on Friday 9 November 2018 at East London Tribunal Service, 2nd Floor, Anchorage House, 2 Clove Crescent, London, E14 2BE starting at 10am, with a time estimate of one day.
REASONS
[1]The situation which has come out today is unprecedented, certainly in my experience. The claim on its face is late. The claim is for race discrimination and for arrears of pay/breach of contract. It is not a claim for unfair dismissal as Mr Nthini has explained. He did not consider that the claimant had a full 2 years continuous service as an employee. She was a bank worker for much of the period. At the time of her dismissal with effect on 12 May she did not have 2 years continuus employment. The claimant informed the tribunal that she was band 5 nurse and she is currently working part-time at band 5.[2]She brings a claim now in respect of many different acts, the last which is a reference the respondent made to the NMC by email of 7 December. The claimant probably knew nothing about that until she was formally notified of it by recorded delivery from the NMC on 19 December. The allegations against the claimant were:2.1 Breach of professional boundaries.2.2 Making malicious allegations against colleagues.2.3 Unprofessional behaviour towards colleagues. Whatever else we know about the claimant, she has not been struck off as a nurse.[3]The claimant referred her employment situation to Acas for early conciliation on 16 October 2017 more than 5 months after termination of her employment. The certificate was issued on 7 November 2017. The claim was not received by East London Employment Tribunal until 18 April 2018 when it came in the usual way from Leicester as an online claim form. (Mr Nthini actually filled in the claimant’s Westcliff postcode wrong. He put the same Romford post code as the respondent, when it should have been SS0 9AB).[4]Mr Nthini is on the record as the representative throughout. He clearly made efforts to get the claim in to the tribunal on time but he was ignorant of the correct way of doing this, as follows.[5]I have been shown today an email dated 2 December 2017 at 11.09 sent to London Central employment tribunal apparently with a pdf attachment called “Olipah ET1 – ENG. Pdf”. Its size was 403 KB. That ties in with the London Central automatic response timed at 11.10pm that day. I have been shown a string of London Central automated responses.[6]The next email from Mr Nthini to London Central was dated 22 December 2017. It did not reattach the claim. Mr Nthini stated “I am writing to follow up on this claim I submitted on 2 December 2017.” The ETI claim form is referred to in the heading of the email: “Submitting a claim form R196351/17 Gahadza v Essex Partnership NHS Trust”. This number was that on the EC certificate number - the certificate issued on 7 November.[7]By contrast It is hard to see at present what day A (the reference to ACAS early conciliation) was in time relative to, in the events of this case. The claimant had been formally dismissed on 12 May and 16 October is 5 months after that. That will be the claimant’s biggest problem at the postponed preliminary hearing on time points.[8]I did some research into delay in chasing up an ET1. All I could find is the case of Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 EAT. This covers unreasonable delay in following a claim up, but that was in respect of a claim that never had arrived. That was why it had never been acknowledged. In this case there is a prima facie case, even without having been shown the attachment to the 2 December email (which Mr Nthini has not brought to the tribunal today), that a claim was sent to the tribunal and it arrived, even if it was not the correct regional office. This still needs to be seen to be the case. A copy of the attachment needs to be produced to the tribunal and the respondent (see directions below). There must have been some hard copy of some sort to make a pdf scan, one presumes.[9]Mr Nthini provided his contact details but had no response from the London Central tribunal (other than the automated acknowledgements). He gave his mobile number. He next chased it again on Thursday 25 January. “Can you please provide an update on the matter above? I’ve been waiting for someone to get back to me on this matter as it appears that the matter has not been dealt with? Do you need me to resubmit the form?[10]Mr Nthini shows the tribunal there was no response to that either. Finally he emailed on 12 April 2018 and this time he attached the original attachment. There were 2 emails on 12 April at 9.18am and 11.27am. In the first email the attachment was attached. After the second email time he spoke to a woman member of staff at Central London tribunal who told him that he should submit the claim online and he then duly did so. It was very shortly after that that it was received at Leicester on 18 April 2018.[11]I made enquiries of the staff at the tribunal who confirmed that this office and presumably all tribunal regional offices are “receiving offices” for ET1 claims. If we receive one in the office delivered by hand or post we forward it by post to Leicester but we date stamp it here. The receipt date is the date it first enters the tribunal system, however it enters. I am assuming that the Central London would be the same.[12]If the East London regional office receives an ET1 form by email we print it out, date stamp it, and forward it by post to Leicester. Leicester will then allocate the regional case number to it depending on the work place and will then send it officially to that region to process future correspondence then is with the regional office.[13]The presentation of the ETI claim form might therefore arguably have been in time relative to day B (the date of the certificate).[14]There needs to be much more explanation about day A (the date of first EC reference). This judgment really does not affect that because the normal 3-month time limit applies to make the Acas reference on 16 October 2017. I cannot see relative to what events that is in time, 5 months after the date of termination.[15]I informed Mr Massarella that if I could not decide everything today I would not decide anything today but I have to state a provisional view that his submission appears to be correct that the claim for pay is out of time whichever way one looks at, it either as a breach of contract claim or an unlawful deduction from pay claim under Part II of the Employment Rights Act 1996. It will depend on what the claimant says about “not reasonably practicable” and “such further period as the tribunal considers reasonable”. I am not deciding that today but give an indication that unless the claimant comes up with quite a strong argument it would be very difficult to extend time.[16]This time limit under section 23(4) the Employment Rights Act 1996 is one for which the only “escape clause” if it was not “not reasonably practicable” to have presented the case in time. From that point of view, tribunals regularly consider the availability of good online advice and resources on applying to the Employment Tribunal. There are CAB’s.[17]The NMC reference complaint is complicated, and not wholly separate from the jurisdictional presentation problems referred to above at London Central. Mr Nthini has been extremely straight forward in saying that the attachment to his emails to London Central remained the same through his successive presentations to London Central. Even by the time he chased it up on 22 December it is likely that the claimant knew then that her case had been referred to the NMC. The NMC was not mentioned even on 25 January. It was not raised until 18 April when the whole claim was resubmitted online. By this time it was prima facie outside the 3-month time limit.[18]If one takes into account the whole story of the earlier presentations to London Central and that tribunal’s apparent lack of action on them, then it might have some bearing on the “just and equitable” discretion under s 123 of the Equality Act 2010. Time limits under the Equality Act are comparably more favourable to claimants than the “not reasonably practicable” time limits. There is a lot of case law on s 123 which is worth looking at. The respondent’s counsel has shown me the case of Robertson v Bexley Community Centre [2003] IRLR, 434, CA (as respondents usually do).[19]Mr Massarella cited the case of Chohan v Derby Law Centre [2004] IRLR, 685, EAT, only to argue it should not apply in the present case because the claimant did not trust a “skilled” adviser, but a lay person who is a friend. I express no view on that contention at the present time because everything is up for argument next time.[20]There was no amendment application in respect of the NMC complaint, if this claim is to be considered as a continuum from the London Central claim of 2 December (whatever that was). Directions[21]First Could Mr Nthini please provide to the tribunal and to the respondent a copy of the original attachment to the 2 December email, by email is preferable please, citing this case number here 3200820/2018. I have established it was only attached to the 2 December and 12 April emails. It was not attached to the chasing emails in between. The tribunal will not make any enquiries of the London Central tribunal until we have a copy of that attachment.[22]The tribunal would also please like to see a gmail print out of those chasing emails on January 25th and December 22nd 2017.[23]Work remains to be done researching the system. This tribunal is undertaking to make enquiries of London Central. In Riley v Tesco Stores Ltd and Greater London CAB Service [1980] IRLR, 103, CA, it was suggested by the appeal court that when a third party was going to be in some way criticised in the course of a hearing like this about an apparently out of time claim, it is only fair that that third party should have a right to be heard on the point.[24]I note the ET1 form was sent after the tribunal fees had been abolished as they were in July 2017 following the Unison judgment, so that will not be a consideration in this case. I informed the parties it is likely that all the tribunals do not have access to their email inboxes going back much further than 2 months. Retrieving older ones can be an expensive process. However Mr Nthini has provided the majority of useful documentation in these bundle additions today. I just request that the extra documentation that I have requested could please be sent soon so that it can be used to make enquiries of Central London tribunal in good time before the next preliminary hearing.[25]Mr Massarella has insisted that Mr Nthini provide “all the emails”. For my own part I do not consider that Mr Nthini has not already done so. If he knows of anything he has not provided, then it would be helpful now. He even volunteered his telephone bill to show placing a call to the London Central tribunal presumably on 12 April 2018.[26]If Mr Nthini could provide that extra documentation part of which he has volunteered by 31 July 2018.[27]The case is now adjourned to Friday 9 November 2018 to be heard afresh on all issues of time. The time estimate is I day. The judge at that preliminary hearing will make any consequential directions for any future final hearing if the claims, or any of them, are not dismissed.
Findings of fact
[28]The Claimant said at the hearing that she was not mentally well after the summer of 2017 which affected her ability to put in her claim on time. The only medical evidence produced was the letter dated 26th June 2018 (page 121) which said that she needed long-term counselling. This letter did not amount to evidence of her state of health during the latter part of 2017 and early 2018 but was a general statement made in June 2018 that she needed counselling. Whilst it was said at the hearing that she had evidence in her GP records these were not provided for this hearing. Further, what the Claimant was able to achieve in the latter part of 2017 was inconsistent with a claimed inability to submit her claim on time due to being mentally unwell. I find that she was able to move to Belfast in around October 2017 and look for agency work from around December 2017. If she could work in a skilled job from December 2017 she was mentally able to bring her claim in time. She was able to prepare with Mr Nthini’s help an extremely detailed letter of appeal prior to her appeal hearing on 20th October 2018 (page 55). The emails sent by the Claimant between July and September 2017 as regards the organisation of and preparation for her 20th October 2018 appeal hearing (pages 95-109) did not say that the reason for the postponements being requested by the Claimant was because of health problems but were for other reasons (page 95,100).[29]I therefore find that the Claimant was not affected by her mental health such that she was affected in her ability to bring her claim in time. She was not relying therefore on the help of Mr Nthini because she needed to, but because she chose to hand the matter over to him. She was not relying solely on Mr Nthini’s advice about submission of the claim because she already knew herself about time limits and had had access to advice about how to bring a claim in the right way.[30]I therefore find that this was not therefore a situation where the Claimant from the outset handed the matter over to Mr Nthini. She handed it over to him (in circumstances where I have found she did not need to due to her health) when already aware of time limits and having received the EC certificate. The Claimant was in a position to and capable of submitting the claim herself, knowing about time limits, but chose not to do so. Relevant law – time limits[31]The relevant law as regards the claim for unpaid wages is s23 Employment Rights Act 1996 which provides that a claim must be brought before the end of the period of 3 months from the date of deduction unless the Tribunal is satisfied that it was not reasonably practicable for the claim to be presented before the end of that period and that it was presented in such further period as the Tribunal considers reasonable. It is for the Claimant to satisfy the Tribunal that it was not reasonably practicable for her to submit this claim in time.[32]The relevant law as regards the claim for race discrimination (including victimisation) is s123 Equality Act 2010 which provides that a claim must not be brought after the end of the period of 3 months starting with the date of the act complained of or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period.[33]As regards the race discrimination claim, the factors set out in s33 Limitation Act 1980 are factors of assistance as regards the discretion to extend time, in addition to considering the balance of prejudice between the parties (British Coal Corporation v Keeble [1997] IRLR 336, Abertawe Local Health Board v Morgan [2018] ICR 1194).[34]Chohan v Derby Law Centre [2004] IRLR 685 decided that where the delay in bringing the claim was due to incorrect advice from a solicitor, that should not be visited on the employee as otherwise there would be a windfall for the employer. Barber v Bernard Matthews Food Ltd 1501308/00 decided that where a solicitor had not told the employee about the tribunal time limit it was reasonable for the employee not to know about it and to have reasonably relied on the solicitor.[35]Taking into account the above findings of fact, the Claimant’s claim for unpaid wages was made outside the 3 month time limit for such a claim and it was reasonably practicable for her to have brought this claim so within that 3 month period. Disability discrimination (including victimisation) claim[36]The relevant factors of assistance set out in s33 Limitation Act 1980 are factors(a) (length of and reasons for delay),(b) (due to delay, evidence likely to be less cogent), (d) (duration of any disability), (e) (extent to which acted promptly and reasonably once knew possible claim and (f) (steps taken to take medical, legal or other advice).[37]The time limit for bringing Claim B based on the last event complained of (the December 2017 NMC referral) was 6th March 2018 and the length of the delay was therefore between that date and when the claim was brought on 18th April 2018, around 5 weeks later. Taking into account the Claimant did not find out about the referral till she received the letter dated 19th December 2017) (presumably on 20th December 2017) that would be an additional period of around 2 weeks delay when the Claimant could not do anything about it, because she did not know about it. However even taking this into account, this Claim B was still not brought until 18th April 2018. I have found that the Claimant was not relying on Mr Nthini solely as regards time limit advice throughout the period because she already knew about them, including at this stage.[38]The fact that Mr Nthini was in error in sending Claim A to the London Central email address should not be visited on the Claimant. However I distinguish Chohan and Barber because the delay in the presentation of Claim B by the Claimant was not due to incorrect advice about time limits from Mr Nthini because the Claimant was already aware of them, based on the above findings. She was not relying on Mr Nthini’s advice about time limits. The Claimant did rely on him entirely to present her claim in time but that was not reasonable given I have found she was aware of time limits and able to present the claim herself. This was the case up to and after the December 2017 NMC referral. Whilst Claim A was sent to London Central within the (then) time limit, the Claimant did not act reasonably in handing over entire responsibility to a friend to get the claim in on time and in the right way; this is a very different situation from handing it over to a solicitor, advice worker or a trade union representative on whom an employee might reasonably rely. Given she nonetheless chose to hand it over to him, she reasonably should not have relied on him but should have checked herself what was going on between the period when she handed it over to him to submit it and the expiry of the time limit.[39]The allegations in Claim B were said to date back 2 years (page 8). Whilst the disciplinary process in the second half of 2017 was documented by the Respondent and was not so long ago that evidence about it would be hard to recall, the matters before that, were by the time Claim B was presented, over a year old. The second protected act referred to in February 2017 (page 8) was said in evidence and at page 55 to be an email from the Claimant dated 22nd February 2017. The Respondent’s case was that no such email had been sent (page 71) because they had looked for it and not found it. The Claimant has not produced this email to date. The Respondent also identified at this stage (October 2017) that the Claimant’s failure to escalate any issue (it was said she had to the contrary confirmed at the appeal meeting that it had been resolved) had undermined their ability to investigate it. This was around 6 months after the claimed complaint by the Claimant. Claim B was brought over a year after the claimed complaint by the Claimant and in the absence of her production of the email she says was the second protected act, a significant pillar of her claim is not in place. In addition witnesses would have to be recalling what happened or was said in February 2017, quite some time ago.[40]Weighing up these factors, in particular the reasons for and length of the delay and the extent to which the delay has prejudiced the Respondent (Abertawe para 19) and the balance of prejudice (including the fact that a decision against the Claimant will mean she is unable to pursue her claim) I conclude that it is not just and equitable that the Tribunal extend time for her race discrimination (including victimisation) claims. In a nutshell, the Claimant had trade union advice, had advice from ACAS and knew of the time limits. She did not act reasonably in handing the whole matter over to Mr Nthini a friend and lay representative and it was not reasonable for her to rely on him as regards submission of her claim. Whilst it was unfortunate that she relied on him and he was trying to help, she chose to do that when she did not need to. Although Claim A was sent within the (then) time limit and is a factor I have taken into account, it is not just and equitable to extend time taking into account that the Claimant did not act reasonably when she failed to double check herself over several months that Claim A had been accepted. It was equally not reasonable to rely on Mr Nthini to submit the further NMC referral claim when it arose in December 201, after Claim A had been sent.