Mr R Jelti v District Surveyors Association Ltd (T/a LABC): 3313201/2023
EMPLOYMENT TRIBUNALS
Case No 3313201/2023
Between
Mr R JeltiClaimantDistrict Surveyors Association Ltd (trading as LABC) RECORD OF AN OPEN PRELIMINARYRespondent
Before
Employment Judge DanielsIn person for claimantMr Ohringer for respondentDate 11 July 2024
JUDGMENT
[1]The claims for disability discrimination and unlawful victimisation are dismissed in their entirety as the claims were presented out of time and it would not be just and equitable to extend the time limits in all the circumstances. Reasons for the judgment were given orally. Any request for written reasons for this judgment must be submitted within 14 days of the date hereof. 1 of 2 Case number 3313201/2023
REASONS
[1]The claims for disability discrimination and unlawful victimisation were dismissed in their entirety as the claims were presented out of time and it would not be just and equitable to extend the time limits in all the circumstances.[2]The Claimant was employed by the Respondent from 30 January 2023 to 22 May 2023. The Respondent represents all local authority building control teams in England and Wales, delivering impartial and professional building control services. The Respondent's teams bring together building control expertise, skills and resources from across every local authority to provide a regulated building control service for the public.[3]The Claimant commenced employment with the Respondent on 30 January 2023 in the role of Trainee Building Control Surveyor, under the Trainee Building Control Surveyor Scheme (the Scheme). At the time that the Claimant commenced his employment, he was part of a cohort of 105 trainees commencing employment with the Respondent under the Scheme. The Scheme is fully funded by the Government under the Spending Review 2021 and the Respondent is accountable for the spending of that public money. The purpose of the Scheme is to enable the trainees, over a three year period, to obtain Level 4 and 5 qualifications in Public Service Building Control Surveying (the Courses). 1 of 8[4]Trainees are required to sign an agreement to repay, on a sliding scale, the training costs incurred by the Respondent, if their employment terminates in specified circumstances. The Claimant signed to confirm his agreement to this on 24 January 2023.[5]As part of their training, the trainees are seconded to a local authority building control team, to supplement their studying on the Courses with experiential learning. The Claimant's host local authority was the London Borough of Haringey and his secondment commenced on 20 February 2023.[6]At the commencement of employment, the trainees are provided with a training plan setting out the weeks during which they will be required to attend lectures, undertake study days and attend work with their host local authority. It is also made clear to the trainees that the successful completion of the Courses is an essential requirement of their role with the Respondent and, in the event that the trainee fails to pass or complete any examinations and/or assessments, then their employment under the Scheme may be terminated.[7]On 5 April 2023, the Claimant was invited to attend a meeting with Ms Quin and Mr Brennan, to discuss ongoing concerns with his performance. A number of areas of concern were identified, including the Claimant's alleged failure to attend meetings with his LABC mentor (Ms Quin), alleged failure to respond to contact from his mentor, alleged failure to complete his self-reflection documents despite numerous reminders and his alleged behaviour during the meeting on 31 March 2023. The Claimant was informed that his probationary period was being extended by a further three months and that his behaviour would be monitored during that time. The Claimant was also notified that, should there be any repeat of these behaviours during the probationary period, the Claimant's employment would be terminated. A Letter of Expectation confirming the matters discussed was sent to the Claimant on 6 April 2023 and he confirmed his understanding of the contents of the letter by email dated 13 April 2023.[8]The Claimant was invited to attend a meeting via MS Teams on 22 May 2023 with Mr Brennan and Martin Taylor, Executive Director (Mr Taylor) to discuss his alleged failure to meet the deadline for submission of the second assignment and the concerns previously raised with the Claimant, as set out in the Letter of Expectation of 6 April 2023.[9]As a result of the alleged behaviours exhibited by the Claimant during that meeting, with reference to the areas of concern raised in the Letter of Expectation, Mr Taylor reached the decision that the Claimant's behaviour had not improved to the standard required by the Respondent and, accordingly, his employment would be terminated with immediate effect during the probationary period. The Claimant's employment was terminated with immediate effect on 22 May 2023, with payment being made in lieu of his notice entitlement. The termination of the Claimant's employment was confirmed by letter dated 23 May 2023.[10]ACAS Early Conciliation took place between 26 May and 22 June 2023. 2 of 8[11]The ordinary 3 month deadline for the Claimant to present his Tribunal Claim was 17 September 2023. The Claim was not submitted until 15 November 2023 – nearly two months late.[12]The claim submitted was for:(1) victimisation by way of dismissal on 15 May 2023; and(2) Discrimination arising from disability by way of being dismissed on 15 May 2023.[13]The Claimant acknowledged that his Claim was late and requested an extension of time. In doing so, he said that he would provide ‘any necessary documentation’ and would ‘meeting all future obligations within the stipulated timelines.’[14]His grounds for requesting an extension of time were set out in paragraph 26 of his Particulars of Claim, drafted by legal advisors. He contended as follows:[15]The Claimant will rely upon the following facts to persuade the Tribunal to exercise its just and equitable discretion to allow his claims to proceed out of time: 26a. The Claimant suffered considerably with his mental health because of his dismissal. He was prescribed sertraline and found it difficult to function on a day to-day basis for several weeks after his employment ended so suddenly.b. He has no understanding of how the legal system operates and this, coupled with his poor mental health, prompted the Claimant to entrust a lawyer to act on his behalf.c. The Claimant instructed his lawyer around the end of June 2023 and, from that moment, he understood that any action that was required would be done on his behalf as and when required. (my emphasis)d. The Claimant subsequently discovered around the end of October 2023 that his claim had not been submitted in time. He acted promptly in securing alternative representation to try and submit his claim as soon as he could.e. The Claimant avers that he has a very strong claim, especially for victimisation, and that he would suffer extreme prejudice if he were denied the chance to pursue his complaint.f. The Claimant has been unable to secure altemative work since his dismissal. He underwent a rigorous recruitment process before being selected by the Respondent. The application process to join the Respondent took several months, he had to attend an assessment day, and he was required to attend three interviews. There are limited opportunities for the Claimant to work in the field that he has spent many years studying and training for. He is substantially disadvantaged during any recruitment processes because of his dismissal. The selection process is very competitive, and the Claimant now stands out for the wrong reasons.g. If his claim is rejected, then he will lose the opportunity to be compensated for his lost income. His family relies upon his income. His dismissal has had a devastating effect on the Claimant and those around him.h. In contrast, the Respondent is unlikely to have suffered prejudice because of the delay. The Respondent was notified of the claim via Acas before the limitation period expired. In any event, the period of delay is so short that the Respondent should be in the same position to respond to the claims as it would have been had the matters been presented in time. 3 of 8 27. The Tribunal is therefore invited to exercise its just and equitable discretion to permit these claims to proceed out of time.[16]A Notice of Hearing for this PH was sent to the Parties on 28 May 2024. It included an order for the Claimant to produce a statement in support of his application for an extension of time and to disclose any documents relevant to that issue. The deadline for these steps was 11 June 2024.[17]The Claimant did nothing regarding this order despite the Respondent’s solicitors sending reminders on 13, 17 and 28 June 2023. No statement was provided for the Hearing. At the hearing the claimant did ultimately try to show photos of some medical records from 2024 on his phone and he was asked to send these to the ET which he did. Claims under the EqA[18]The time limits for claims under the Equality Act 2010 are set out in s.123 which states, so far as is material:(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) …(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.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Extension of time under the EqA[19]Where complaints are presented out of time, the Tribunal can still consider them if it would be just and equitable to extend time.[20]Nonetheless, it is for the claimant in every case to persuade the tribunal that the discretion should be exercised. (See Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327). 2 9. In Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23 the Court of Appeal observed that the discretion to extend time is ‘a very broad general discretion’ and that there is no need to refer to the factors in British Coal Corporation v Keeble [1997] IRLR 336.[21]A tribunal is required to focus on ‘(a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).’ Although it is not strictly necessary for a claimant to give evidence to explain the reason for the delay in bringing the claim, ‘whether there is any explanation or 4 of 8 apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard’. (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, para.25)[22]In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, paras. 63-64 the EAT stated that, in considering whether to extend time, the Tribunal may take into account the underlying merits of the claim. Respondent’s submissions[23]The respondent contended that proceedings in this case were commenced approximately 2 months out of time. They said the Claimant had said little by way of explanation for the delay. Further, he did not seem concerned to meet the deadlines set in the case management orders made in preparation for this hearing, or to progress his case at all.
Conclusions
[24]In his Particulars of Claim, the Claimant accepted that the limitation period for the presentation of his claim expired on 17 September 2023, almost two months prior to the date on which the Claimant presented his claim to the Tribunal.[25]In respect of all claims pursued under the EqA, the claimant has not set out any cogent basis for arguing that there was a continuing act of discrimination.[26]The Respondent contended that there are no good grounds upon which it would be just and equitable for the Tribunal to exercise its discretion to allow the claim to proceed.[27]The Claimant confirmed at the hearing that he instructed a lawyer (who is a skilled adviser for the purposes of relevant case law) to act on his behalf 'at the end of June 2023', around the time that the Acas early conciliation process concluded and prior to the expiry of the relevant limitation period. The Claimant further confirmed that the skilled legal adviser was instructed to take such action as was necessary at that time to pursue the Claimant's claim.[28]It was therefore reasonable to assume that the skilled adviser was aware of the relevant limitation period and had a duty not to act negligently in failing to submit the Claimant's claim prior to the expiry of that limitation period.[29]The Claimant confirmed that he discovered that his claim had not been submitted 'around the end of October 2023', yet it was a further 2 – 3 weeks before the Claimant submitted his claim. The Respondent therefore contends that the Claimant did not submit the claim within a reasonable period of becoming aware that his claim had not been submitted by the instructed skilled adviser. 5 of 8[30]The claimant relied upon medical evidence shown to the ET on the day from his phone (and later emailed) from the Summerfield Medical centre dated 18 June 2024 which referenced his depression and the medication (sertraline) he was receiving. The notes reference that the depression was greatly affecting him. However, no evidence was provided as to the position between August and September 2023, the crucial period when his claim was late. In any event, at this time he had legal advisors acting so his health at that time should not have affected his ability to submit a claim and he made clear that he was relying on them to take any action.[31]Further, there was also evidence through the repeated missed tribunal deadlines that the claimant was not progressing his case expeditiously or taking these proceedings seriously. Time and time again deadlines were repeatedly missed by him. Including for this PH where he was completely unprepared. Prejudice[32]The Respondent submits that it would suffer prejudice in the event that the Claimant's claim is permitted to proceed, given the delay in the presentation of that claim. They suggest the appropriate recourse available to the Claimant is in respect of the negligence of his skilled adviser in failing to present his claim within the relevant statutory limitation period.[33]The claimant said he would suffer prejudice if the claim was not allowed to proceed. “The Claimant has been unable to secure altemative work since his dismissal. He underwent a rigorous recruitment process before being selected by the Respondent. The application process to join the Respondent took several months, he had to attend an assessment day, and he was required to attend three interviews. There are limited opportunities for the Claimant to work in the field that he has spent many years studying and training for. He is substantially disadvantaged during any recruitment processes because of his dismissal. The selection process is very competitive, and the Claimant now stands out for the wrong reasons. g. If his claim is rejected, then he will lose the opportunity to be compensated for his lost income. His family relies upon his income. His dismissal has had a devastating effect on the Claimant and those around him. “[34]However, the contention above does presuppose that the claimant’s case had merit. Of course, no findings of fact could be made on the merits of the claimant’s case but a broad brush rough assessment could be made at this stage by the employment tribunal.[35]It appeared to the employment tribunal that the claimant’s claim based on the undisputed facts was weak. In these circumstances there was potentially 6 of 8 less prejudice to the claimant from being allowed to pursue a claim which at first sight seemed to be weak.[36]First, the claimant was mainly challenging the end of a probation period where a relatively low hurdle applied to the respondent’s actions. They were not required to have compelling reasons to end probation but reasons which were of substance. One might informally say that an employee on probation had less rights and less protection in practice than a confirmed permanent member of staff who had been confirmed to have met the required standards of the employer.[37]Second, it appeared to be admitted facts that the claimant had repeatedly missed a number of assignments, that he had not always followed the clear procedure for seeking extensions and a number of extensions had been provided. This made it less likely that his challenge to the decision was sound as he would need to explain how further adjustments etc were reasonable in that apparently unfavourable context.[38]Third, his conduct was also said to be an issue and whilst I obviously made no findings on that, this appeared to be a potentially plausible added ground for the decision to end the probation period. If the alleged evidence that he had been rude and discourteous to other employees stood up to scrutiny, it might well provide another ground for there being no less favourable or unfavourable treatment. On the face of it there was a genuine case for him to seek to explain with regard to his conduct.[39]Fourth, there were regulatory factors and rules to take into account with regard to the surveyor training system and what adjustments could be offered in exams etc. It appeared clear that the employer had repeatedly addressed their mind to these issues and they did not have carte blanche to offer unlimited extensions or adaptations. At some stage they might be entitled to say enough was enough regarding missed deadlines.[40]Finally, there were some inconsistencies in the claimant’s apparent case where he first blamed laptop issues then other non dyslexia related matters for the delays. The claimant was not entitled to adjustments for matters that had no relevance to his disability and the inconsistencies in his case cast doubt on the merits of his challenge to his treatment.[41]Overall, the claim appeared to be weak at first sight. This was another reason suggesting any prejudice was apparently low for the claimant and was relevant to what would overall be in the interests of justice.[42]In addition the delay in filing a claim was substantial. And at a time he had legal advisors acting. In so far as they were at fault in negligence, he may have a remedy against them. Any such remedy might reduce any apparent prejudice to him. Conclusions 7 of 8[43]This is not a case where it would be just and equitable to accept a late claim for all of the above reasons. The application was therefore dismissed.