Mr G Jumbo v Zonal Retail Data Systems: 3304609/2018
EMPLOYMENT TRIBUNALS
Case No 3304609/2018
Between
Mr G JumboClaimantZonal Retail Data SystemsRespondent
Before
Employment Judge S JenkinsMr D Gray-Jones (instructed by Counsel) for claimantMr H Sheehan (instructed by Counsel) for respondentDate 18 April 2019
JUDGMENT
The Claimant’s applications: to amend his claims to include claims of victimisation, wrongful dismissal, and pay in respect of accrued but untaken holiday; and to expand his claim of discrimination to encompass a failure to pay accrued but untaken holiday pay; are refused.
REASONS
[1]The preliminary hearing was to identify issues and make case management orders, which have been addressed in a separate document. I also however considered an application made by the Claimant to add in four additional paragraphs to his particulars of claim. These essentially sought to amend his claims in the following manner:1.1 By the addition of a claim of victimisation under section 27 of the Equality Act 2010 (“EqA”) by reference to an alleged protected act in the form of a comment made by the Claimant to two of the Respondent’s managers at a meeting on 27 July 2017. The Claimant contended that the acts he complained of in his original claim form as giving rise to claims of disability discrimination should also be considered to be complaints of victimisation on the basis that they arose from that asserted protected act.1.2 By the addition of a claim in respect of accrued but untaken holiday under regulation 30 of the Working Time Regulations 1998 (“WTR”) Page 1 of 6 and/or as a breach of contract. The basis of that claim was the Claimant’s assertion that he had been entitled to 11 days’ accrued but untaken holiday at the point of the termination of his employment, but that the Respondent had refused to make a payment to him in lieu of that leave, and had, incorrectly, stated to him, in an email dated 28 December 2017, that he was not entitled to payment in respect of accrued annual leave because he had been dismissed by reason of gross misconduct.1.3 That alleged failure to pay the Claimant in respect of accrued but untaken holiday was also asserted to amount to direct discrimination under section 13 EqA, and/or a detriment because of something arising in consequence of the Claimant’s disability under section 15 EqA, and/or an act of victimisation under section 27 EqA.1.4 By the addition of a claim for wrongful dismissal on the basis that the Respondent had terminated the Claimant’s employment without notice or payment in lieu of notice when it did not have grounds to do so. Issues and Law[2]The parties’ representatives both made cogent submissions to me in relation to the tests to be applied in relation consideration of applications to amend. Both made reference to the sections of the Presidential Guidance on Case Management dealing with applications to amend. I was also referred to the case of Selkent Bus Company Ltd v Moore [1996] ICR 836, and I was also myself mindful of the direction provided by the case of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650.[3]The guidance provided by that case was that the key principle when considering the exercise of the discretion to allow an amendment is to have regard to all the circumstances, and in particular any injustice or hardship which would result from the amendment or refusal to amend.[4]In Selkent, the Employment Appeal tribunal set out a non-exhaustive list of relevant factors which are to be taken into account in considering the balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by the granting or refusing of the amendment. These were; the nature of the amendment, the applicability of time limits, and the timing and manner of the application.[5]The Presidential Guidance reaffirms the Cocking and Selkent guidance, noting that relevant factors include the three matters outlined in Selkent, and also noting that tribunals draw a distinction between amendments which seek to add or substitute a new claim arising out of the same facts as the original claim, and those which add a new claim entirely unconnected with the original claim. Page 2 of 6[6]With regard to time limits, the Presidential Guidance notes that the fact that the relevant time limit for presenting the new claim has expired will not exclude the discretion to allow the amendment, and also that it will not always be just to allow an amendment even where no new facts are pleaded. In particular, the Guidance notes that where there is no link between the facts described in the claim form and the proposed amendment, the tribunal must consider whether the new claim is in time and will take into account the tests for extending time limits. In this case, those were; the just and equitable formula in relation to the victimisation claim and the expanded detrimental treatment claim, and the not reasonably practicable formula in relation to the failure to pay unpaid holiday and wrongful dismissal.
Conclusions
[7]Applying the guidance provided by Cocking, Selkent and the Presidential Guidance, my conclusions in relation to the various amendments were as follows:-[8]Victimisation 8.1. Notwithstanding the submissions of Mr Gray-Jones on behalf of the Claimant, I did not consider that the proposed amendment had any link with the facts initially included in the claim form. 8.2. The acts stated to amount to victimisation are indeed in the claim form, as they are the same acts which were said to amount to discriminatory treatment on the ground of the Claimant’s disability. However, there was no reference within the original claim form to any form of protected act which would fall within section 27 EqA. The reference to the meeting on 27 July 2017 in the claim form simply stated that the Claimant had made his managers aware that he had anxiety about driving on the motorway. 8.3. Furthermore, the test to be applied in considering a victimisation claim is fundamentally different from that which will apply in relation to the claim of disability discrimination. Indeed, it does not require the Claimant to establish that he was disabled or that any claim of disability discrimination succeeded. In my view therefore, this amendment was a substantial one with no clear link to the facts described in the initial claim form. 8.4. In the context of a victimisation claim, the test for extending time is whether it would be just and equitable to do so. In this regard, I noted that the Claimant’s original claim form, submitted in the Glasgow Employment Tribunal in January 2018, and his revised claim form, issued in the Watford Employment Tribunal, contained entirely the same pleaded facts, expanded only in the latter document to deal with a complaint of unfair dismissal. The Claimant’s employment had in fact ended on 5 December 2017, and therefore all acts of Page 3 of 6 victimisation, save in respect of the failure to pay holiday pay, which I discuss below, must have taken place by then. The application to add in a victimisation claim was therefore brought significantly out of time. 8.5. I considered the tests for exercising the just and equitable extension, noting the Claimant’s contention that the applicability of time limits is only a factor and is not conclusive. I noted that the test for extending time on this basis was clarified by the case of British Coal Corporation v Keeble [1997] IRLR 336, which confirmed that it would be appropriate to consider the terms of section 33 of the Limitation Act 1980, which applies in relation to applications to extend time in civil cases. 8.6. That section requires consideration of the prejudice which each party would suffer as a result of the decision reached, and regard to all the circumstances of the case, in particular: the length of, and reasons for, the 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 has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Considering those elements, I was not satisfied that it would be appropriate to extend time to allow the claim to proceed. 8.7. The Claimant, in his covering letter with which the application to amend was submitted, on 11 October 2018 just prior to the previously scheduled preliminary hearing which had been postponed, noted that he had taken advice on disability discrimination from a law centre just prior to the submission of his first complaint in January 2018, but that this did not include advice on victimisation. Nevertheless, the factual background to the Claimant’s alleged victimisation claim would have been in his knowledge prior to the termination of his employment. The Claimant had therefore delayed significantly in submitting any victimisation claim, notwithstanding that he had taken advice at a relatively early stage in the process. 8.8. I noted that the Claimant had submitted a comprehensively worded claim form in January 2018, and that that had been supplemented by further complaints relating to unfair dismissal in March 2018. He had then done nothing further until taking advice on 27 September 2018. 8.9. In my view, the factors set out in section 33 of the Limitation Act operated against the Claimant and therefore led me to conclude that this application to amend should be dismissed.[9]Accrued holiday pay 9.1. As with the victimisation claim, I considered that the claim in respect of accrued but untaken holiday pay was not connected to anything Page 4 of 6 within the initial claim forms, and indeed the Claimant’s representative conceded that. The issue of the compliance with time limits was therefore material. 9.2. Whether considered as a claim under the WTR or as a claim of breach of contract under the Extension of Jurisdiction Employment Tribunals (England & Wales) Order 1994, the test for extending time is that of reasonable practicability. That required me to consider whether it had been reasonably practicable for the Claimant to have submitted the claim within time, and, if it was considered not to have been reasonably practicable, whether the claim had been submitted within a reasonable time thereafter. 9.3. I considered closely the underlying direction provided by Cocking and Selkent and the Presidential Guidance which is to have regard to all the circumstances and in particular any injustice or hardship which would result. In that regard, I noted that the comment made by the Respondent’s manager in December 2017 was very likely to have been incorrect, unless the wording of the Claimant’s contract was worded very specifically to allow for no payment, or only very limited payment, to be made. The Claimant would therefore seem to have had a fairly compelling case in relation to his claim in respect of accrued but untaken holiday. 9.4. However, as has been made very clear on many occasions, notably by the Court of Appeal in Bexley Community Centre v Robertson [2003] EWCA Civ 576, albeit in the context of a just and equitable extension, employment tribunal time limits are there to be complied with. No cogent rationale was advanced as to why the Claimant had not brought this claim at an earlier stage, and I noted that the Claimant had taken advice prior to the presentation of his first complaint, i.e. in January 2018. Bearing in mind that the Claimant included significant detail relating to various claims; of discrimination, unauthorised deduction from wages and disability discrimination in January 2018, and then unfair dismissal in March 2018; and delayed by a further seven months before asserting this claim, I did not consider that this amendment should be accepted.[10]Amendment to add in the failure to pay accrued but untaken holiday as matters of discrimination and/or victimisation 10.1. I can deal with this aspect very briefly in that I have already concluded that it would be inappropriate to allow the Claimant to amend his claim to include one of victimisation and also to amend his claim to include a claim in respect of accrued but untaken holiday. 10.2. Notwithstanding that the alleged act of victimisation, i.e. the failure to pay holiday pay, occurred slightly later than his earlier alleged act, it still took place some ten months before he first raised it as a possible Page 5 of 6 issue. For the same reasons therefore, I did not consider it appropriate to allow the claim to be extended in this regard as well.[11]Wrongful dismissal11.1 Again, I considered that the claim in respect of wrongful dismissal was not connected to anything within the initial claim forms, which required me to consider time limits. The test for extending time in relation to a wrongful dismissal claim is also that of reasonable practicability. Again therefore, the fact that the Claimant had delayed so long in raising this issue, notwithstanding that he had taken legal advice from a law centre in January 2018, was a significant factor.11.2 I noted the Claimant’s representative’s submissions that the issues to be considered in relation to a wrongful dismissal claim already needed to be considered in the context of his claim of unfair dismissal which had been submitted in time. However, I could not agree with that.11.3 The test for wrongful dismissal is very different to that applying in an unfair dismissal claim, focusing on the tribunal needing to objectively form a view as to whether the Claimant had committed an act of gross misconduct which would have justified his summary dismissal. By contrast, the test for unfair dismissal will not encompass the question of whether the Claimant had or had not committed the stated act of misconduct, but on whether the Respondent had acted reasonably in concluding that he did and in dismissing him in that regard.11.4 Again therefore, I did not consider that it would be appropriate to allow the amendment to be made.