Miss M Yearwood v Governing Body of Mitchell Brook Primary School and London Borough of Brent: 3306455/2021

EMPLOYMENT TRIBUNALS

Case No 3306455/2021

Between

Miss M YearwoodClaimant

Governing Body of Mitchell Brook Primary School and London Borough of BrentRespondent

Before

Employment Judge Manley

Ms McCarthy (instructed by lay representative) for claimant

Mr Lester (instructed by counsel) for respondent

Date 25 April 2022

REASONS

[1]The claimant presented this claim for unfair dismissal and disability discrimination on 28 April 2021. She was dismissed on 5 July 2019 so the claims were clearly out of time. The matter was therefore listed for this open preliminary hearing to determine whether the claims should be struck out as they were presented out of time. Orders were made for witness statement and the preparation of a bundle of documents.

[2]As there were claims for unfair dismissal and disability discrimination, the issues would be firstly, whether the claimant could show that it was not reasonably practicable to present the unfair dismissal in time, and/or secondly, that it was just and equitable to extend time to allow the disability discrimination claim to proceed.

[3]The hearing was a little delayed because there was no available judge and we then had to make arrangements for the bundle of documents to be accessed and for me to read the witness statement, relevant documents and the respondents’ representative’s skeleton argument. We then heard evidence from the claimant, the representatives made oral submissions and, after an adjournment, I gave oral judgment. Facts

[4]The claimant had over 20 years’ service at the first respondent school working as a nursery nurse. She was dismissed summarily, the respondents say, for gross misconduct on 5 July 2019. The claimant appealed and, after an appeal hearing on 23 September 2019, her dismissal was upheld.

[5]The claimant referred the matter to ACAS under the early conciliation procedure on 30 September and received a certificate on 15 October 2019. She then presented an employment tribunal claim on 15 November 2019. That claim was in time. Unfortunately, the claimant had not ticked the boxes indicating what claim she wanted to bring. She was sent a letter on 11 December 2019 asking for clarification but she did not respond to the questions asked. She then received a letter informing her the claim was rejected on 17 January 2020. She wrote to the named judge on 24 January 2020 asking that her claim be considered. There appears to have been no reply to that letter.

[6]Well over a year later, the claimant referred the matter again to ACAS on 20 March 2021 with a certificate dated the same day. She presented this claim on 28 April 2021.

[7]The claimant’s explanation for the delay, which is extensive, relates to her deteriorating health and, to some extent, difficulties arising from the pandemic. She said she had serious health problems since 2015 and, since 2019 those included chronic pain, headaches, blurred vision, loss of memory, anxiety and depression. She is on several kinds of medication and receiving physiotherapy. She was shielding during the various lockdowns of the pandemic. I have seen medical documents which confirm she has several health issues.

[8]The claimant explained that the trade union had assisted her at the disciplinary and appeal hearing and a family friend had helped with her appeal letter. She completed the first claim form by herself. She didn’t read the tribunal letter asking for clarification but her sister read it to her. She did try the trade union helpline in December 2019 but was very unwell at this time. She described herself as being like a zombie and not coping. She also received advice from the trade union in June 2020 and was told the claim would be out of time. She got further advice in 2021 and someone from an advice centre helped her with the second claim form. She was aware that the claim was out of time. The law and submissions

[9]Section 111 Employment Rights Act 1996 (ERA) provides a tribunal shall not consider a complaint of unfair dismissal 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”.

[10]The time can be extended through ACAS early conciliation where a potential claimant refers the matter to ACAS before the time limit expires.

[11]Section 123 Equality Act 2010 (EQA) states that a complaint 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 tribunal thinks is just and equitable”

[12]The words “reasonably practicable” in section 111 ERA mean that the tribunal must ask if it was reasonably feasible to present the complaint to the tribunal within the relevant three-month period.

[13]As far as the just and equitable extension under section 123 EQA is concerned, there is some guidance from cases. 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. The court is 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 she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once she knew of the possibility of taking action.

[14]There is no legal requirement on a tribunal to go through such a list in every case provided that no significant factor has been left out of account by the tribunal or judge in exercising its discretion. Robertson v Bexley Community Centre

2003 IRLR 434

reminds tribunals that the discretion to extend time should be exercised as an exception rather than the rule.

[15]The claimant’s representative urged me to consider the claimant’s significant health issues which it has been very difficult to diagnose and get appropriate treatment. She submitted that the claimant did engage with the tribunal in relation to her first claim in spite of her health problems. The claimant was shielding during the pandemic and it was submitted that there was no prejudice to the respondent caused by the delay. It was submitted that there was a good prospect of success because of alleged procedural breaches.

[16]The respondents’ representative referred to his skeleton argument which sets out the law as above. He went on the remind me of the claimant’s evidence about her health and the steps she had taken in 2019 to present the first claim. He also pointed to the advice she had had during the disciplinary process and afterwards. He submitted that the delay was extensive and would cause prejudice to the respondent, especially in relation to the disability claim which had not been mentioned in the first claim.

Conclusions

[17]The claimant has not shown that it was not reasonably practicable for her to present her unfair dismissal claim within three months. She did present a claim, albeit a defective one, within the time limit in 2019. She has not been able to provide a satisfactory reason for her failure to respond to a letter from the tribunal seeking clarification. Whilst the claimant’s health and the impact of Covid might well lead to some flexibility in the time limits in certain circumstances, they do not explain a delay of this length of time. In short, the delay is well over a year. I appreciate the claimant might need assistance with a claim but she had that assistance at various times. Tribunal time limits are strict and the unfair dismissal was not presented in time. It was reasonably feasible for her to present the claim in time. The tribunal has no jurisdiction to hear it.

[18]As far as the disability discrimination claim is concerned, there is more flexibility, as I can consider whether to allow the claim to proceed on just and equitable grounds. This claim is also considerably out of time, the claimant having been dismissed on 5 July 2019 and the claim presented on 28 April 2021, which is almost 22 months after the act complained of (presumably the dismissal). That explains the length of the delay.

[19]The reasons for the delay relate to the claimant’s health and the impact of the pandemic. My view is that the length of the delay will seriously affect the cogency of the evidence and cause considerable prejudice to the respondent as it will be many months before the matter could be heard. Having balanced the factors and taken into account the evidence and submissions, I have decided it is not just and equitable to extend time for this disability discrimination claim to proceed. Whilst I am sympathetic to the claimant, whose health is poor and who was very upset to lose her job after many years, that does not amount to sufficient reasons to extend time on a just and equitable basis. The time limitation rules are strict and this is not one of those exceptional cases where time should be extended.

[20]The tribunal has no jurisdiction to hear these claims and they are dismissed.