J Mackie v Norfolk and Norwich University Hospitals NHS Trust and K Zechmeister: 3305899/2024

EMPLOYMENT TRIBUNALS

Case No 3305899/2024

Between

J MackieClaimant

Norfolk and Norwich University Hospitals NHS Trust and K ZechmeisterRespondent

Before

Employment Judge W Anderson

In person for claimant

B Breslin (instructed by counsel) for respondent

Date 14 February 2025

JUDGMENT

[1]The claimant’s claim for unfair dismissal was not presented in time and the claimant was not able to show that it was not reasonably practicable for the claim to have been presented in time, in accordance with s111(2)(b) Employment Rights Act 1996. The tribunal has no jurisdiction to hear the claim, and it is dismissed.

[2]The claimant’s claim of age discrimination was not presented in time and the tribunal found that it was not just and equitable to extend time for the filing of the claim in accordance with s123(1)(b) Equality Act 2010. The tribunal has no jurisdiction to hear the claim, and it is dismissed.

REASONS

[1]The claimant was employed by the first respondent as a secretary from October 2015 until 18 July 2023. She resigned on 7 July 2023. She began working on a bank basis for the first respondent on 19 July 2023. Early conciliation with the first respondent commenced on 2 May 2024 and ended on 7 May 2204. Early conciliation with the second respondent commenced on 20 May 2024 and ended on 24 May 2024. The second respondent is a consultant surgeon with whom the claimant worked.

[2]The claim is one of age discrimination and constructive dismissal. The respondents deny that the claimant was dismissed or that they discriminated against her on the grounds of age. In their responses it was raised that the claims are out of time and the tribunal has no jurisdiction to hear them. A preliminary hearing was listed for 10 February 2025 to determine that point.

The Hearing

[3]The parties filed a joint bundle of 116 pages which included witness statements from the claimant, Laura Beal and Holly Northfield. All of the witnesses attended the hearing and gave evidence on oath. Ms Breslin filed a skeleton argument and a bundle of authorities. The claimant filed a document the day before the hearing entitled ‘Note for hearing re timing out – 10.2.25’. Judgment was reserved.

Law

[4]Employment Rights Act 1996 111.— Complaints to employment tribunal(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case 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. (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a). …

[5]Equality Act 2010 123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. …

Findings of Fact

[6]The claimant resigned from her employment with the first respondent on 4 July 2023, providing notice.

[7]The claimant’s employment terminated on 18 July 2023.

[8]The claimant commenced employment with the first respondent as a temporary bank worker on 19 July 2023.

[9]On 28 September 2023 the claimant raised informally her complaints of discrimination with the first respondent’s HR department.

[10]On 2 October 2023 the claimant emailed Lisa Johnson of HR as follows: I have been subjected to ageism and intimidation and have been accused of making mistakes without any evidence or proof being provided and in the end it became so bad that I was forced to resign my position. I would therefore like an appointment to discuss all this and provide all the notes I have on the matter to a member of HR before taking it to an employment solicitor.

[11]On 1 December 2023 the claimant raised a formal grievance in relation to matters that occurred before she resigned. An outcome was provided to the claimant on 27 March 2024 which she appealed on 31 March 2024. In the appeal letter the claimant stated: I have therefore taken the necessary steps to engage an employment solicitor in order to achieve a fair and just outcome.

[12]The claimant set out in an email to the respondent’s solicitor that she first obtained legal advice on 24 April 2024. In cross examination she said she could not remember whether it was 31 March 2024 or 24 April 2024 without going to get her diary. I find that the claimant obtained legal advice on a date between and including 31 March to 24 April 2024.

[13]Early conciliation with the first respondent commenced on 2 May 2024 and ended on 7 May 2024.

[14]The grievance appeal outcome was provided to the claimant on 20 May 2024

[15]Early conciliation with the second respondent commenced on 20 May 2024 and ended on 24 May 2024.

[16]The claimant filed a claim with the employment tribunal on 12 June 2024.

[17]The claimant’s employment with the first respondent terminated on 18 July 2023. Any claim of unfair dismissal should have been filed by 17 October 2023. The claim was filed on 12 June 2024, almost eight months late. The claimant has not sought to argue that it was filed in time. I find that it was not filed in time for the purposes of s111(2)(a) Employment Rights Act 1996.

[18]I then need to go on to consider whether it was reasonably practicable for the claimant to have filed her claim by 17 October 2023. The reasons given by the claimant for late filing do not specifically refer to the period up to 17 October 2023 but cover the whole period of the delay and are as follows: the claimant was waiting for the internal grievance process to be resolved; she was not aware that there were time limitations for filing an employment tribunal claim so why would she have researched that?; she was hoping to secure a transfer away from the second respondent and delayed in the hope that that would be a solution; she was caring for a sick relative during the period April to May 2023. In cross examination it was suggested by Ms Jacobs that HR should have provided the claimant with legal advice.

[19]The claimant did not provide any reason why, after obtaining legal advice she still delayed in filing her claim for between seven and ten weeks. The claimant had, previous to the hearing on 10 February 2025 stated that a reason for late filing was that she was given incorrect information by HR that she needed to wait until after the grievance process before she could begin legal proceedings. She agreed in the hearing that she had not been given that advice.

[20]The claimant contacted HR about her complaints on 28 September 2023. She noted in an email to Lisa Johnson of HR on 2 October 2023 that she was intending to approach an employment solicitor. She did not go on to file a formal grievance until 1 December 2023. Other than that she was unaware that there were time limits for filing a claim, the claimant has provided no reason as to why it was not reasonably practicable for her to file a claim of constructive unfair dismissal by 17 October 2023. There was no internal process being pursued during those months. If the claimant hoped to resolve the matter informally with HR, no reason is given as to why HR were not contacted until two months after her resignation. She was clearly aware of her right to file a claim in the tribunal as she referred to it on 2 October 2023.

[21]If the claimant is relying on the argument that she was trying to exhaust the internal processes before filing a claim, even though she did not instigate a formal internal process before the 17 October 2023, I do not find that this is a reason justifying a conclusion that it was not reasonably practicable to file in time ( Palmer and anor v Southend-on-Sea Borough Council

1984 ICR 372

, CA). She has accepted that this was not advice she received from HR and she was aware of her right to file a claim. The claimant has not suggested that there was any reason why she could not have looked into this by internet research or contacting a legal advice charity if she could not afford a solicitor at that time, which is a point she raised.

[22]My conclusion is the same in relation to the point that the claimant was ignorant of the fact that time limits applied in the employment tribunal. She was aware that she had the right to bring a claim and it was therefore her responsibility to obtain the information she required in order to enforce that right, either by carrying out her own research, perhaps asking someone to do that for her (Ms Breslin noted that the claimant was assisted by Ms Jacobs, her daughter in law, during the grievance process, and she was again assisted by her today), or obtaining legal advice (Trevelyans (Birmingham) Ltd v Norton

1991 ICR 488

, EAT). Again the claimant has provided no explanation as to why she was not able to do this during the relevant time, i.e. the three month period after her dismissal, ending on 17 October 2023. I do not accept that HR or Ms Northfield had any responsibility to provide legal advice on filing a claim to the claimant.

[23]The other reasons raised by the claimant for late filing of the dismissal claim are not relevant to the period from resignation (18 July 2023) until the filing deadline (17 October 2023). The transfer out of the office of Ms Zechmeister was a matter under consideration before she resigned. The illness of the claimant’s relative, though undoubtedly stressful, again took place before she resigned. The internal process began on 1 December 2023, after the filing deadline had passed.

[24]I find that it was reasonably practicable for the claimant to have filed a claim for constructive unfair dismissal before a period of three months commencing on the date of termination. For this reason time cannot be extended and the tribunal has no jurisdiction to hear the claimant’s claim of unfair dismissal. The claim of unfair dismissal is dismissed. Discrimination

[25]Where a discrimination claim is out of time the tribunal has the power to extend time for the filing of such a claim where it decides that it is just and equitable to do so. The claimant’s complaints of age discrimination relate to her relationship with the second respondent, from the period 2020 until, at latest, her resignation on 18 July 2023 when she stopped working with second respondent. It is not entirely clear from the pleadings when the last act of alleged age discrimination by the second respondent took place. However, even relying on the last date, 18 July 2023, the claim should have been filed by 17 October 2023 and is many months out of time.

[26]In considering whether it is just and equitable to extend time in this case I have considered all of the reasons put forward for the delay as set out in paragraph 18 above, as well as the Ms Breslin’s submissions on prejudice to the respondents due to delay, and the claimant’s comments about delay on the part of the first respondent in disclosing documents under a subject access request.

[27]As noted by Ms Breslin, the tribunal has a wide discretion in considering whether it is just and equitable to extend time. There is no fixed list of factors it should consider. It should consider all relevant factors and those should usually include a consideration of the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent. Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

[28]The deadline for filing a claim was 17 October 2023. The claim was filed on 12 August 2024. This is a significant delay. The claim was filed eight months late. The claimant argues that she was unaware of the deadline as a litigant in person until she spoke to a solicitor, at the latest on 24 April 2024. She said she delayed seeking advice from a solicitor until that point, despite knowing of her right to file a claim in the tribunal, because of the cost and because she was awaiting the outcome of an internal grievance process which was instigated on 1 December 2023. I have considered that argument above. The claimant received advice that her claim was out of time no later than 24 April 2024. Nevertheless, she still did not file the claim until 12 August 2024. I asked the claimant directly why she had not filed a claim on 8 May 2024 when early conciliation with the first respondent had ended and she did not give any reason for the further delay.

[29]The claimant’s claims of age discrimination date back to 2020. The claimant said she did not rely on the comment she alleges was made by the second respondent that the claimant should retire, as it was too long ago, however, Ms Breslin noted that that was the only clear example of alleged age discrimination set out by the claimant in her particulars of claim and the respondent would need to respond to it. I note that the claimant relies on various allegations of poor treatment by the second respondent from 2020 to 2022 and clearly this is a significant part of her claim that the respondents would be required to respond to. The claimant did not raise a grievance about age discrimination until four months after she had resigned from her employment and did not file a claim until eight months after she finished working with the second respondent. Ms Breslin said the respondents would be significantly prejudiced by the delay. I accept that they would be prejudiced but also note that the complaints about the second respondent were set out in a grievance which was resolved on 20 May 2024. I conclude from that, that documents and statements relating to the period 2020 to 2022 will already have been gathered and recorded.

[30]The claimant raised on a number of occasions in the documents before me that the first respondent had not provided a document it should have provided under a subject access request, and that the document would prove her case. That is not something I can take a view on today and it is not relevant to my consideration of whether time should be extended, other than in as far as it is argued by the claimant that she was waiting for the document before she filed her claim i.e. the same point she makes about waiting for the internal process to conclude.

[31]Having considered all of these factors I find that the claimant has not proven that it would be just and equitable to extend time to file her claim of age discrimination from 17 October 2023 until 12 June 2024. I accept that the claimant was not aware that there was a time limit to file a claim in the employment tribunal until she spoke to a solicitor in March or April 2024 but I do not accept that it was reasonable to be ignorant of that fact. From at least as early as 2 October 2023 she had held the view that she may issue a claim and she did not take any steps to inform herself of the relevant information needed about filing such a claim. The claimant did not make any submission that she was incapable of doing so, saying merely that it had not occurred to her.

[32]I also accept the claimant’s evidence that she wanted to see if the matter could be resolved by way of the grievance process before issuing a claim. However, the claimant sought legal advice in March or April 2024, before the grievance process concluded on 20 May 2024, so can have been in no doubt that time was of the essence. She still failed to file her claim until 12 August 2024 and could provide no reason at all for this further delay, i.e. the delay in commencing early conciliation after receiving legal advice and the further delay after conciliation ended with each respondent in filing her claim.

[33]Where time is not extended, there is clearly prejudice to the claimant as her claim will be at an end. However, time limits apply in the tribunal, and they should be adhered to. A respondent is entitled to some certainty and finality in relation to the possibility of proceedings being instigated. The claimant is a capable woman who has engaged in a lengthy grievance process. She was aware of her right to issue a claim in the tribunal before the deadline to file expired on 17 October 2023. She will have been aware that the time limit for filing had passed from the date she had legal advice and yet she still delayed in contacting ACAS and the further delayed in filing. The grievance appeal outcome was provided on 20 May 2024 and she then delayed a further three and a half weeks before filing her claim. No reason was given for the post legal advice delays. For these reasons it is my view that it would not be just and equitable to extend time. As I have not extended time the discrimination claim is out of time and the tribunal does not have jurisdiction to hear it. Approved by: