Mr D Calder v Metroline Travel Ltd: 3300701/2023 and 3311222/2023
EMPLOYMENT TRIBUNALS
Case No 3300701/2023, 3311222/2023
Between
Mr D CalderClaimantMetroline Travel LtdRespondent
Before
Employment Judge ManleyIn person for claimantMs C Nicolau (instructed by solicitor) for respondentDate 1 October 2024
JUDGMENT
[1]The final hearing is postponed to 22 to 26 June 2026 to be heard by an employment judge and two non-legal members as set out in the accompanying case management summary.[2]The parties consented to the employment judge determining whether any or all of the second claim (3311222/23), which was presented out of time, should be allowed to proceed at the outset of the hearing. No formal notice had been given under the Employment Tribunal Rules of Procedure 2013 but many of the allegations needed to be considered in the context of the first claim and it was in the interests of justice to deal with that matter first.[3]Parts of the second claim (3311222/23) brought under Equality Act 2010 are out of time but are allowed to proceed on just and equitable grounds. Further details of those parts appear in the case management summary which includes an amended list of issues. They are as follows:- 1) Under Harassment related to race, matters raised in paragraphs 11 and 12 of the claim form; 2) Under Victimisation, matters raised in paragraph 18 of the claim form[4]Other claims brought under Equality Act 2010 are out of time and it is not just and equitable to extend time to allow them to proceed. These include the matters raised as direct race discrimination, indirect disability discrimination by association and matters other than those above under harassment and victimisation. 10.2 Judgment - rule 61 Case Nos:3300701/23 and 3311222/23[5]The claim for public interest disclosure detriment or dismissal was presented out of time and the claimant cannot show that it was not reasonably practicable for him to have presented the claim in time. Money claims mentioned in that claim form are part of the first claim and proceed to be heard as above. JUDGMENT having been given orally to the parties on 1 October 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The background and relevant procedural history of this matter is as set out in the judgment sent to the parties on 4 November 2024. The claimant then asked for written reasons on 11 November 2024 of the decisions made on which allegations contained within his claim under case no 3311222/23 could proceed and which could not.[2]The parties consented to the employment judge determining whether any or all of the second claim 3311222/23, which was presented out of time, should be allowed to proceed at the outset of the hearing. No formal notice had been given under the Employment Tribunal Rules of Procedure 2013 but many of the allegations needed to be considered in the context of the first claim and it was in the interests of justice to deal with that matter first.[3]Claim no 3311222/23 was presented on 28 September 2023. It was presented after the claimant’s application made on 6 August 2023 to amend his first claim 3300701/233 was refused on 19 September 2023, primarily because there was insufficient detail of the allegations.[4]The claimant provided details of the claims he wants to bring alongside his first claim which is for unfair dismissal, notice pay, holiday pay and unauthorised deduction of wages. The claims he now seeks to bring are for direct race discrimination, indirect race discrimination, harassment related to race, victimisation, disability discrimination by association and whistleblowing. These are explained in paragraphs 2 to 29 of particulars of claim.[5]In paragraphs 2 and 3 are allegations of direct race discrimination; between paragraphs 4 and 12 are allegations of harassment, between paragraphs 13 and 19 are allegations of victimisation; paragraph 20 concerns alleged indirect disability discrimination and between paragraphs 21 and 29 matters related to the whistleblowing complaint.[6]In summary, the matters raised as direct race discrimination are about things which occurred in 2016. Some of the matters raised as harassment between paragraphs 4 and 12 were also alleged to have taken place in 2016 and others make no allegation that the treatment related to race. The last two at paragraphs 11 and 12 are allegations about Dan Harris, a manager and relate to either late 2021 or early 2022. Of the victimisation allegations between paragraphs 13 and 19, these are said to relate to a complaint raised in 2016 but Mr Harris, who is mentioned a number of times, did not start as a manager at Edgeware until 2019. The indirect disability discrimination by association claim at (and around) paragraph 20 is about the respondent’s requirement that engineers work on two buses on the night shift which the claimant alleges was difficult for him as his parents’ carer. Finally, the whistleblowing allegation is about the complaint in 2016 and matters which occurred that year and in 2021 as well as a letter written in February 2022. The law and submissions[7]For all the claims brought under claim 3311222/23, the time limit is three months from the date of the act complained of. For the direct race discrimination, harassment and victimisation claims brought under Equality Act 2010, section 123 provides for a three month time limit and that claims may be in time if there is conduct extending over a period, in which case it is to be treated as done at the end of the period. Otherwise, a claim may be brought under section 123 (1) b) in “such other period as the employment tribunal thinks just and equitable”.[8]The whistleblowing claim must also be made within three months of the act (or failure to act) complained of. Section 48 (3) Employment Rights Act 1996 also states that it can be made “within such further period as the tribunal considers reasonable where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”[9]The tribunal will have jurisdiction to hear the Equality Act claims for which I decide that time can be extended on the basis that it would be just and equitable. In British Coal Corporation v Keeble [1997] IRLR 336 it was said that the discretion is as wide as that given to the civil courts by section 33 of the Limitation Act 1980. I am required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all the other circumstances, in particular the length of and reasons for the delay, the extent to which the cogency of evidence is likely to be affected by delay, the extent to which the party sued has cooperated with any requests for information, the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action. However, it is clear that there is no legal requirement on a judge or tribunal to go through such a list in every case provided of course that no significant factor has been left out of account by in exercising discretion.[10]A claim under the Employment Rights Act 1996, which applies to the whistleblowing claim here, cannot proceed unless I am satisfied that it was not reasonably practicable for the claimant to have presented the claim in time. That is that it was not reasonably feasible for the claimant to have brought this claim in time.[11]The claimant said that there was conduct extending over a period because he had made many complaints over the years. He also said it would be just and equitable to extend time as he had been misled by barrister who had presented an unfair dismissal complaint only when these other claims had been discussed with him. He reminded me that he had tried to amend the first claim.[12]The respondent said that the claimant’s second claim was all made out of time and he been aware that he needed to make an application to amend with all the necessary facts which he had failed to do. The respondent said there would be serious prejudice to them as many more witnesses, perhaps as many as seven, would be needed to deal with the matters now raised by the claimant. Many of them went back some years and it was not yet clear which witnesses were still employed by the respondent.
Conclusions
[13]This was a difficult matter because it was not always clear when certain events were alleged to have happened and whether they were background information or claims of unlawful treatment. I read the particulars of claim and listened to what the claimant and the respondent’s representative had to say.[14]I first had to consider whether any of the matters amounted to conduct extending over a period so as to bring the claims in time. Given that the claimant’s employment ended on 19 December 2022 and this claim form was not presented until 28 September 2023, even if there was such conduct, those claims would still be out of time.[15]I decided that distinct parts of the second claim should be allowed to proceed on just and equitable grounds. Further details of those parts appear in the case management summary which includes an amended list of issues. They are as follows:- 1) Under Harassment related to race, matters raised in paragraphs 11 and 12 of the claim form; 2) Under Victimisation, matters raised in paragraph 18 of the claim form[16]I considered the length of the delay which is over nine months, if not longer. Many of the matters the claimant mentions relate back to 2016 and, even if they could be said to amount to conduct extending over a period, they must be out of time. There is significant prejudice to the respondent to have to meet these claims, having for many months understood the claims to be unfair dismissal (and some related money claims). There is also prejudice to the claimant for those matters where his claims cannot proceed but he still has claims that are to be determined.[17]I decided that some limited parts of the claim should be allowed to proceed. This was because they related to Dan Harris and were relatively close in time to the dismissal so that prejudice to the respondent was limited. I decided it was just and equitable for the tribunal to determine those relatively clear claims. I accepted that the claimant had tried to amend his first claim but had been a little slow in making it clear what those claims were and the alleged facts which supported them.[18]All other claims brought under Equality Act 2010 are out of time and it is not just and equitable to extend time to allow them to proceed. These include the matters raised as direct race discrimination, indirect disability discrimination by association and matters other than those above under harassment and victimisation. As indicated, many of the matters mentioned related to some years ago, were not always stated to be related to race and, for the most part, were too vague and of a general nature to be capable of determination.[19]The claim for public interest disclosure detriment or dismissal was presented out of time and the claimant cannot show that it was not reasonably practicable for him to have presented the claim in time. The claimant really has no reason for this claim to have been mentioned so late in the proceedings. What is more, that claim has little detail on what alleged detriments are claimed to have arisen from any disclosures made. I cannot find, on the evidence before me, that it was not reasonably practicable for him to have presented that claim within the three months in the Employment Rights Act.[20]Money claims mentioned in that second claim form are part of the first claim and proceed to be heard with the other claims as now set out in the list of issues in the case management summary.