Ms N Meade v Care UK Community Partnerships Ltd: 3306125/2023
EMPLOYMENT TRIBUNALS
Case No 3306125/2023
Between
Ms Natalia MeadeClaimantCare UK Community Partnerships LimitedRespondent
Before
Employment Judge ChudleighIn person for claimantMr Jackson (instructed by counsel) for respondentDate 11 September 2024
JUDGMENT
[1]The Claimant’s complaint of victimisation under s. 27 Equality Act 2010 (“EqA”) is struck out as having no reasonable prospect of success because having regard to section 18A of the Employment Tribunals Act 1996 the Tribunal has no jurisdiction to hear the claim.[2]The Tribunal has jurisdiction to hear the Claimant’s complaint of pregnancy discrimination under s. 18 EqA.
REASONS
[1]The issue at this hearing was whether the claims should be struck out as having no reasonable prospect of success because having regard to section 18A of the Employment Tribunals Act 1996 (“ETA”) and rule 9 of the Tribunal’s Rules of Procedure the Tribunal (“the Tribunal Rules”) has no jurisdiction to hear the claim, and/or because it has not been presented in accordance with the Tribunal Rules and any irregularity cannot be waived or varied under rule 6.
Background
[2]A case summary is set out in the case management order of REJ Foxwell dated 15 August 2024.[3]The Claimant was employed by the Respondent, a care company, as a carer, from 6 September 2021 until February 2024. Her daughter was born on 9 August 2023. She says that she informed the Respondent of her pregnancy on 16 December 2022 and that she had a difficult pregnancy with significant pregnancy related illness and that she was concerned that she would not carry her daughter to term.[4]The Claimant alleges that she was subjected to pregnancy discrimination, victimisation and an unlawful deduction of wages. The unlawful deductions relates to 3 weeks in hand (approximately £1,000) which she says she had worked but was not paid to her when she left her employment with the Respondent in February 2024. It arises after presentation of the claim form.[5]On 10 June 2023 the Claimant’s colleague, Kimberley Boddy who was employed by the Respondent in the role of night team leader, presented a claim to the Tribunal alleging pregnancy discrimination and sexual harassment (case number 3306124/2023). Prior to lodging her claim Ms Boddy had gone through early conciliation between 29 March and 10 May 2023.[6]Ms Boddy’s claim form identified the Claimant as a second Claimant and Ms Meade was given the consecutive case number, 3306125/2023. However, that claim form contained no details of the Claimant’s case. Ms Boddy wrote to the Tribunal on 15 June 2023 stating “there was no option to add [Ms Meade’s] statement on the application. If this is a mistake is it possible to remove her from the claim?”.[7]In fact, Ms Boddy had referred indirectly to the Claimant’s claim in box 15 of the claim form where she said “ I…..feel like Highmarket House (which is a reference to the Respondent) don’t support anybody who is pregnant there”.[8]The Tribunal wrote to both Claimants on 13 June 2023 accepting their claims. However, as Regional Judge Foxwell sated in his case management order, “acceptance” is an administrative step and does not confirm that the Tribunal has jurisdiction to hear a claim.[9]The Respondent filed a response addressing Ms Boddy’s claim and challenging whether it had received any, or any properly constituted claim from the Claimant. It is not clear from the Tribunal’s electronic file whether the response was accepted or whether it was sent to the Claimant but she was adamant she had not seen it until August 2024.[10]On 17 October 2023 the Tribunal wrote to Ms Boddy on the instructions of Employment Judge Gumbiti-Zimuto saying: “The reference to Miss Meade appears to be an error by the Claimant. Can the Claimant confirm that Miss Meade is not making a claim?” The Claimant in this context was Ms Boddy: there is no record of a reply to this letter.[11]Ms Boddy subsequently settled her dispute with the Respondent and withdrew her claim which was dismissed in judgment marked as sent on 14 January 2024.[12]On 1 February 2024 the Tribunal sent a strike out warning to the Claimant on the basis that there had been no reply to the letter of 17 October 2023 (although this had not been addressed to her) and that she had not been actively pursuing her claim (the Claimant disputes this). She responded promptly asking for her case to continue and alleging that she had been trying to pursue her claim and a case management hearing was listed for 15 August 2024.[13]Separately, on 3 December 2023, the Claimant lodged another claim (case number 3314145/2023). She erroneously identified her representative as an ACAS officer and in response to the question about early conciliation at box 2.3 of the ET1 form she said that “her employer had been in touch with ACAS”. This claim was rejected by the Tribunal in a letter dated 20 June 2024 on the basis that it was not supported by an early conciliation certificate from ACAS. REJ Foxwell observed in his case summary that although this claim appears to have been correctly rejected, the explanation for that rejection was wrong in that, contrary to what was said in the letter, the Claimant had explained why she had no certificate number but the explanation was incorrect.[14]The position at the hearing before me was that there was a claim before the Tribunal from the Claimant (case number 3306125/2023) but the Tribunal may not have jurisdiction to hear it for the reasons set out by REJ Foxwell in his order of 15 August 2024: 1) The Claimant may not have complied with the obligation to obtain an early conciliation certificate before starting her claim which may deprive the Tribunal of jurisdiction altogether so that it is appropriate to strike this claim out irrespective of any underlying merit. 2) The Claimant’s claim may not have given rise to common or related issues of fact or law to Ms Boddy’s or it may not otherwise be reasonable for her claim to be brought on the same claim from as Ms Boddy’s (see rule 9 of the Tribunal Rules). Failure to comply with rule 9 is an irregularity which can be waived or varied under rule 6 provided that the Tribunal considers it just to do so. Questions of what is just generally require the Tribunal to balance the prejudice to the parties in granting or refusing the relief sought.[15]In the case management hearing on 15 August 2024 the Claimant described her claims to REJ Foxwell and they were recorded in the case management order as follows: 1. Pregnancy and Maternity Discrimination (Equality Act 2010 section 18) 1.1 Did the Respondent treat the Claimant unfavourably by doing the following things:1.1.1 Failing to undertake a risk assessment.1.1.2 Requiring the Claimant to continue with heavy lifting.1.1.3 Placing the Claimant on dementia wards.1.1.4 Putting her at risk of contracting Covid.1.1.5 Calling her in for meetings to discuss pregnancy related sickness.1.1.6 Questioning whether her sickness was pregnancy related.1.1.7 Accusing her of failing to inform them of pregnancy-related absences when this was untrue.1.1.8 Making comments about the Claimant’s competence, implying that she could do tasks which she could not do. 2. Victimisation (Equality Act 2010 section 27)2.1 Did the Claimant do a protected act as follows: 2.1.1 Present a grievance in or about May 2023 regarding her treatment during pregnancy.2.2 Did the Respondent do the following things at the grievance meeting:2.2.1 Not permit the Claimant to record the grievance meeting;2.2.2 Not allow the Claimant to be accompanied by a person of her choice from outside the Respondent, but by an employee of the Respondent such that she felt unsupported;2.2.3 Accuse the Claimant of victimising her manager;2.2.4 Create an intimidating environment in which the Claimant was unsupported in a meeting with HR and her manager.2.3 By doing so, did it subject the Claimant to detriment?2.4 If so, was it because the Claimant did a protected act?2.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?[16]The case management summary also referred to a complaint about unlawful deductions but that complaint did not exist at the time the claim was presented on 10 June 2023 and was accordingly not relevant to the issues before me in the strike out application.[17]Mr Jackson on behalf of the Respondent produced written submission outlining the Respondent’s case. In summary, it was the Respondent’s position that: 1) section 18A of ETA was not complied with by the Claimant; 2) the effect of non-compliance with section 18A is that a Claimant is not permitted to present a claim to an Employment Tribunal; and 3) because the prohibition in section 18A ETA is in primary legislation (and does not allow exceptions except where prescribed in regulations), it is not an error that the Tribunal has jurisdiction to waive whether under rule 6 of the Tribunal Rules or otherwise.[18]The Claimant relied on a timeline contained in her bundle and on written submissions. In addition she made oral submissions. Her position was that neither the Respondent nor the Tribunal had brought to her attention any irregularities with her claim until August 2024, more than a year after its presentation which put her in a situation whereby she was out of time for bringing a fresh claim. She acknowledged that Ms Boddy’s claim was different to her claim in some respects as she is not alleging sexual harassment and Ms Boddy did not allege victimisation. However, she pointed out that there were many allegations about their treatment that were the same, e.g. requiting her to undertake heavy lifting.
Conclusions
[19]Section 18A Employment Tribunals Act 1996 (‘ETA”) provides: (1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7). (4) If— (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. ……….. (7) A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases. The cases that may be prescribed include (in particular)— (a) cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter; …….. (8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).[20]“[R]elevant proceedings” are defined by section 18(1) ETA. The claims for pregnancy discrimination and victimisation are “relevant proceedings” and required a certificate unless the claim came within one of the exceptions.[21]The Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014/254 (“the EC Regulations”) provide in paragraph 1 of that schedule 1 To satisfy the requirement for early conciliation, a prospective Claimant must—(a) present a completed early conciliation form to ACAS in accordance with rule 2; or(b) telephone ACAS in accordance with rule 3.[22]The Claimant agreed she had not completed an early conciliation form and there was no evidence that she had telephoned ACAS in accordance with rule 3 which provides:(1) A prospective claimant telephoning ACAS for early conciliation must call the telephone number set out on the early conciliation form and tell ACAS— (a) the prospective claimant's name and address; and (b) the prospective Respondent's name and address.(2) ACAS must insert the information provided under paragraph (1) on to an early conciliation form.[23]No ACAS Early Conciliation Certificate was produced at the hearing and the Claimant did not allege that one existed.[24]Accordingly, the issue was whether the claim came within an exception to the requirement to obtain a certificate under s18A(4) of the ETA.[25]“[P]rescribed cases” for the purpose of s 18A(7) of the ETA (where claimants can present claims without a certificate under s18A(4) of the ETA) are defined in the EC Regulations:(1) A person (“A”) may institute relevant proceedings without complying with the requirement for early conciliation where— (a) another person (“B”) has complied with that requirement in relation to the same dispute and A wishes to institute proceedings on the same claim form as B; (b) A institutes those relevant proceedings on the same claim form as proceedings which are not relevant proceedings; (c) A is able to show that the Respondent has contacted ACAS in relation to a dispute, ACAS has not received information from A under section 18A(1) of the Employment Tribunals Act in relation to that dispute, and the proceedings on the claim form relate to that dispute; …….(2) Where A benefits from the exemption in paragraph (1)(a), the requirement for early conciliation shall be treated as complied with for the purposes of any provision extending the time limit for instituting relevant proceedings in relation to that matter.[26]As the Respondent submitted, only regulation 3(1)(a) applies in this case.[27]There was no dispute that Ms Boddy had complied with the EC Regulations in relation to her own dispute and obtained a relevant certificate.[28]It was also agreed that Ms Boddy had supplied the Claimant’s name, date of birth and address on[29]Unfortunately the ETA and the EC Regulations use different wording when referring to the exception to the rule regarding ACAS conciliation. The ETA uses the phrase “the same matter” in s. 18A(7) and the EC Regulations use the phrase “the same dispute”. I could see no real difference between the two phrases although I accepted the Respondent’s submission that the wording in the EC Regulations (“the same dispute”) is the relevant wording given that they define the prescribed cases or exceptions.[30]I looked carefully at Ms Boddy’s particulars of claim. Those particulars were concerned with her own situation although her disputes were the same in some respects to the claims of the Claimant.[31]In broad terms, both women make complaints about their treatment by the Respondent when pregnant. Furthermore, there are some significant aspects of the claims that are the same in that both women make claims regarding being required by the Respondent to continue with heavy lifting and being placed on dementia wards despite being pregnant.[32]There was no authority on the meaning of “the same dispute”.[33]REJ Foxwell drew the parties attention to the decision of the Court of Appeal in Sainsbury’s Supermarkets Limited v Clark [2023] EWCA Civ 386 but that was a case where claimants had complied with the requirement to engage in early conciliation but omitted the ACAS early conciliation reference number from their claim forms. The court held that it was not open to the Respondent to argue at a later stage that the claims should have been rejected. Accordingly, it did not seem to me that the case assisted with the issues in this claim.[34]Brierley and others v Asda Stores Ltd (No 2) [2019] ICR 910 the Court of Appeal gave guidance on the meaning of the words “the same set of facts” in the originally enacted version of rule 9 of the Tribunal Rules. Bean LJ, giving the only judgment in that case said: [26] I agree with Mr Short [counsel for the claimants] that if two claimants, Ms A and Ms B, seek to present a multiple claim together, their factual situations do not have to be identical in every respect. Ms A may have longer hours of work than Ms B. She may have greater length of service than Ms B. I also agree with Mr Short that it is the work done by Ms A and Ms B, not their job titles, which is important, but I do not think it can be said that if Ms A is a bakery assistant and Ms B is a checkout operator their claims can be said to be based on the same set of facts, even if they are relying on the same male comparators. [27] I therefore conclude that REJ Robertson's formulation is the correct one. Multiple claims are allowed under r 9 where (whatever the titles attached) it is asserted by the claimants that their roles and the work they do are either the same, or so similar to one another that the claims can properly be said to be based on the same set of facts. It would be advisable in future for claimants' solicitors to err on the side of caution and issue multiple claims which comply with this interpretation of r 9, applying if appropriate at the stage of case management for more than one multiple claim to be heard together.”[35]Brierley was an equal pay claim where each comparison by a claimant with a comparator was a discrete cause of action and the relevant facts were the facts relating to the work of each claimant as compared with the work of the comparators.[36]The present case was not an equal pay case, both women undertook care work at Highmarket House for the Respondent and both complained of unfavourable treatment because of pregnancy. I noted that Bean LJ had remarked that the claimants “factual situations do not have to be identical in every respect” which I considered applied equally to the matter before me although I was concerned with whether the Claimants had the “same dispute”, not whether the claims were brought on the same set of facts.[37]The Respondent argued that “the same set of facts” is a broader definition than either “the same dispute” or “the same matter”. I did not agree. I considered claimants could have the same dispute even if their claims were not based on the same set of facts. Indeed, two claims by different claimants would rarely be based on the same facts as there will be particular circumstances relating to each individual.[38]Mr Jackson on behalf of the Respondent also contended that to be “the same matter” (or “the same dispute”) the causes of action and circumstances relied upon would necessarily need to be the same other than minor differences not merely similar. I agreed the situations of each Claimant do not need to be identical but the dispute had to be the same.[39]In my view, the Claimant’s claim in respect of victimisation is not the same dispute or the same matter as that which was complained of by Ms Boddy. Victimisation is a cause of action under s. 27 of the EqA whereas pregnancy discrimination arises under s. 18 EqA. Ms Boddy made no complaint relying on that cause of action.[40]However, I have reached the conclusion that the Claimant’s complaints regarding pregnancy discrimination are the same dispute as that of Ms Boddy. Both are concerned with treatment during pregnancy at Highmarket House and some of the specific complaints are the same, albeit there are individual variations such as the dates and particular circumstances. I have in mind in particular, the complaints about heavy lifting and a requirement to work on dementia wards.[41]Accordingly, I consider the Tribunal has jurisdiction to entertain the Claimant’s complaint of pregnancy discrimination under s.18 EqA despite the Claimant not having obtained an early conciliation certificate from ACAS.[42]As to whether any irregularity cannot be waived or varied under rule 6, rule 9 of the Tribunal Rules provide that: Two or more claimants may make their claims on the same claim form if their claims give rise to common or related issues of fact or law or if it is otherwise reasonable for their claims to be made on the same claim form . Where two or more claimants wrongly include claims on the same claim form, this shall be treated as an irregularity falling under rule 6.[43]The Respondent’s submission was that this provision is of no assistance to the Claimant as rule 6 only permits waiver of failure to comply with one of the Tribunal Rules and because the prohibition in section 18A ETA is in primary legislation, it is not an error that the Tribunal has jurisdiction to waive. I accepted that submission as being correct which meant that I had no discretion to waive the failure to obtain an early conciliation certificate from ACAS so as to allow the victimisation claim to proceed.