Mr R Magnus v Car World (Cambs) Ltd: 3302493/2021
JUDGMENT
[1]No judgment in favour of the claimant having been issued it was unnecessary for me to consider whether or not to set such a judgment aside.[2]The claim for unlawful disability discrimination was presented outside the three month primary limitation period. It is just and equitable to extend that period from 25 (or 28) February 2021 to 1 March 2021 such that the claim was presented in time and the tribunal has jurisdiction to hear it.REASONS
[1]This public preliminary hearing was set down by Employment Judge Postle at a hearing on 21 November 2022 which had been intended to be the full merits hearing. This hearing is to deal with two matters:1.1 The possible setting aside of a judgment under Rule 21 dated 23 May 2021, and1.2 Whether or not the tribunal has jurisdiction to hear this claim it having been raised for the first time before Judge Postle that the claim appeared to have been presented one day outside the primary limitation period.[2]The claim form in this case was presented on 1 March 2021, a notice was then sent to the respondent giving it until 2 April 2021 to provide its response.[3]On 29 March 2021 those then representing the respondent made an application in writing to the tribunal to extend time for the presentation of the response. That application was a reasoned application the reasons being associated with covid and the furloughing of relevant staff. That application does not appear to have been dealt with by the tribunal at the time.[4]On 15 April 2021 the response from the respondent was submitted.[5]On 23 May 2021 the tribunal, on the instruction of Employment Judge Ord, wrote to the parties as follows:5.1 In a letter directed to the respondent (copied to the claimant) it was noted that the response had been received out of time and that no application had been made to extend time.5.2 In a letter to the claimant (copied to the respondent) it was noted that the tribunal could give judgment as no response had been presented in time but that the tribunal needed further information to be provided by the claimant before this could be done.[6]I note that despite Employment Judge Postle asserting that there was a Rule 21 judgment issued on 23 May, there was no such judgment.[7]On 24 May the respondent’s then representatives reminded the tribunal of the 29 March application to extend time by way of response to the assertion that no application had been made. That letter from those representatives also asked that the judgment be reconsidered. The representatives were a trade body and not legally qualified as they themselves note in subsequent correspondence. It appears to me that they had misread the letter from the tribunal to the claimant which did not assert the judgment had been issued but that one could be issued.[8]On 5 July 2021 the employment tribunal wrote noting the presentation of a response and noted that there had been an application to extend time with reasons given and gave the claimant the opportunity to respond to that application.[9]So far as I can tell, the claimant did not avail himself of that opportunity. In any event, on 25 September 2021, Employment Judge Ord extended time for the presentation of the response.[10]On 1 April 2022 Employment Judge Tynan gave case management orders and directions to set the matter down for a full merits hearing on 21 November 2022.[11]As I have already noted, the matter came before Employment Judge Postle on that day and rather than hearing the matter, he decided that there needed to be a further preliminary hearing to deal with the possible setting aside of the judgment (which did not exist) and also to deal with a claim in time point.[12]That claim in time point had properly been raised by Mr Flood on behalf of the respondent. It was agreed between counsel and the Judge that the claim ought to have been presented on or before 28 February 2021. It may be that this was incorrect and that, in fact, the claim ought to have been presented on or before 25 February. It does not appear to me that it is material to consider those two possibilities separately or to resolve which of the two ways of analysing the sequence of events and the impact of the law is correct.[13]Pausing there, I can deal easily with the first of the two points which are before me today. There having been no judgment issued in May 2021 there is no judgment for me to set aside. Had there been a judgment issued it is plain and obvious to me that that judgment would have had to be set aside for the very reasons which caused Employment Judge Ord to grant an extension of time for the presentation of the response.[14]Hence, I turn to the second question of whether the claim was presented in time. This will necessitate me looking at the possible invocation of the secondary limitation period for claims for discrimination. That period can be invoked if it is just and equitable to do so. It is necessary for me to look to see what was the reason for the delay. It is necessary for a claimant in such circumstances to put before me evidence of the reason for delay.[15]In this case I have the benefit of a witness statement of 23 March 2023 in which the claimant explains why the claim was presented a little late. Mr Flood, very sensibly in the circumstances, did not find it necessary to cross examine the claimant as to what is said in his witness statement.[16]I can summarise what he says very quickly. During the primary limitation period Mr Magnus suffered from cancer; he was undergoing chemotherapy until 31 December 2020, he was “very unwell” during the whole of that period and was “upset and stress[ed]” as a result of his dismissal which he regards as an act of discrimination . I am satisfied that he has explained the delay.[18]I remind myself that the extension of time into the secondary limitation period is the exception rather than the rule in such cases and that the burden is on the claimant to satisfy me that it is just and equitable to extend time up to the date of presentation of the claim. I have also had regard to the factors set out in s.33 of the Limitation Act 1980, in accordance with the guidance given by the Employment Appeal Tribunal In British Coal Corporation v Keeble [1997] IRLR 336.[19]In this case I have had particular regard to the length of and reason for the delay, to the impact on the cogency of the evidence likely to be required and the overall prejudice to each of the parties.[20]The delay was short and is, in my view, explained adequately by the witness statement to which I have referred.[21]I very much doubt that the delay of either four days or one day would have had any impact on the cogency of the evidence in this case. I note in passing that any such impact would be likely to be far less than the delay resulting from the respondent’s failure to put in its response in time and the unfortunate chronicle of misunderstanding and confusion which led to this case not being heard, as it should have been, in November 2021.[22]Undoubtedly there is some prejudice to the respondent; it faces a claim which, if I did not extend time, it would not face at all. There is, in my view, far greater prejudice to the claimant. He has produced a reasoned claim. I express no view as to its prospect of success but it is certainly not a claim which has no, or little, prospect of success on the face of the materials that I have so far seen. I am of the view that it is a claim which the tribunal ought to hear and that in all the circumstances will hear.[23]In those circumstances, I am satisfied that it is just and equitable to extend time for the presentation of the claim to 1 March 2021. Hence, the claim was presented in time and the tribunal has jurisdiction to hear it.[24]I shall go on to consider the relisting of the claim for a full merits hearing and the orders originally made by Employment Judge Tynan in due course, but that listing and any consequential impact on the orders are matters which I propose to deal with in a separate record of a preliminary hearing. The Claimant was dismissed on 24 November 2020.[2]The Respondent having accepted that such dismissal was an act of unfavourable treatment because of something arising (absence) from the Claimant’s admitted disability (cancer), the Claimant has a finding of unlawful discrimination, specifically unfavourable treatment because of something arising from his disability, contrary to s15 Equality Act 2010.[3]The Claimant has been out of work since the dismissal. He has been unfit for work throughout that period and has not attempted to mitigate his loss and his financial losses are nil.[4]The Claimant and the Respondent have agreed that an appropriate sum by way of payment for injury to feelings is £15,000 and the tribunal endorses that agreement.[5]Finally, the Claimant is entitled to interest on that sum at 8% per annum from the date of the act of discrimination, 24 November 2020, to date. Three years, 118 days amounting to £3,989.00. Case Number:- 3302493/2021.[6]The total award to the Claimant is: £18,989.00 25 March 2024 JUDGMENT having been sent to the parties on 16 April 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:[1]This was a Final Hearing to consider the Claimant’s complaint of disability discrimination. Disability and knowledge at the relevant time were accepted by the Respondent.[2]The Claimant was employed from 18 March 2019 until 24 November 2020 by the Respondent. His role was to inspect and to assess vehicles on arriving at the Respondent’s premises following purchase online at auction, or otherwise. This is described as a very important role within the Respondent’s business and it was accepted at all times that the Claimant was very good at it.[3]Prior to joining the Respondent in March 2019, the Claimant had been out of work for a period of eight months and was waiting for an operation on his back. The Respondent was aware of this and took the Claimant on, notwithstanding the impending operation. During 2020 and 2021, the Claimant had a significant amount of absence as detailed in Mr Fazal’s statement, including from 27 January to 6 April 2020 due to the operation on the Claimant’s back.[4]Later in 2020 the Claimant suffered pain and was passing blood in his urine. Tests disclosed Stage 2 Bladder Cancer. The Claimant was given a Fit Note for six weeks commencing 24 November 2020 as he was to undergo Chemotherapy. That Fit Note was sent by the Claimant to the Respondent on 24 November 2020 and on that same day Mr Fazal rang the Claimant and asked him to attend what he described to us today as a welfare meeting.[5]There had been no previous welfare meetings held with the Claimant, despite his previous absences and despite the nature of his lengthy absence earlier that year.[6]The events at the meeting on 24 November 2020 and the reason for it are in dispute. The Claimant says he attended the Meeting notwithstanding the fact that he was under a Fit Note saying he was unfit for work and that such a meeting could have been held remotely. He was told by Mr Fazal that he had had 191 days absence which was too much and that he was letting the Claimant go. The Claimant asked that this should be put in writing, that he should receive a P45 and that Mr Fazal had told him that he wished to tell the Claimant this face to face.[7]According to the Respondent, Mr Fazal had asked the Claimant how he was, at which point the Claimant asked to be placed on Furlough for financial reasons. According to Mr Fazal when the Claimant was told this was not possible the Claimant left the meeting.[8]In the Respondent’s Grounds of Resistance it is said that the Claimant then “walked out of the meeting and out of the premises”. There was no comment on the Claimant’s demeanour.[9]According to Mr Fazal’s Statement, the Claimant did not take well to the rejection of Furlough and walked out of the premises. According to his evidence today, the Claimant was shouting in the office and “got loud” and was angry. Unanimously, the Members of the Tribunal find that this was Mr Fazal seeking to gild the lily and that that behaviour was not the case on the day.[10]On the balance of the evidence we have heard, we prefer the Claimant’s version of the events of this Meeting and therefore find that the Claimant was dismissed by Mr Fazal in the face of his submitting a Fit Note and that he was about to start a period of Chemotherapy following a diagnosis of Cancer, having previously had periods of absence from work.[11]We reach this decision based on what we see as a degree of evolution in Mr. Fazal’s evidence. He paints a picture of anger and shouting based on a rejection of furlough which had not been previously suggested. The claimant’s evidence was, by contrast, consistent.[12]Accordingly on that day the claimant was dismissed by the Respondent.[13]Mr Fazal accepted that he knew at the time of the Meeting that the Claimant was both diagnosed with Cancer and about to commence Chemotherapy.[14]The Respondent has accepted that a finding of dismissal would be a finding of unfavourable treatment under s.15 of the Equality Act 2010.[15]Throughout the period since his dismissal the Claimant has been out of work. He was offered work without seeking it on four occasions between April 2021 and October 2022. All of which he rejected due, he says, to his mental health. There was no evidence connecting any mental health issues to his dismissal adduced before us. All four offers were made direct to the Claimant, he was not seeking work and the Claimant has adduced no evidence to suggest that he has at any time since his dismissal, sought work.[16]Accordingly the claimant has been, on his evidence, unfit for work since the time of his dismissal. He has been in receipt of benefits equal to those he would have received had he not been dismissed and remained unfit for work.[17]In those circumstances we are satisfied that the Claimant has not established that he has any financial loss. The benefits he has received since November 2020 are the same as he would have received without the dismissal as he has been unable to work since dismissal and he has adduced no attempts to find work since the termination of employment with the Respondent.[18]The parties have agreed that an Award for Injury to Feelings should be in the sum of £15,000 and we accept that as an agreed sum for which the Claimant has Judgment by consent. The Claimant is entitled to interest at 8% per annum from the date of the act of discrimination to date, which amounts to £3,989.00.[19]The total Award to the Claimant is: £18,989.00 18 June 2024