Ms M Cork v Ocado Central Services Ltd: 3313925/2020
EMPLOYMENT TRIBUNALS
Case No 3313925/2020
Between
Ms M CorkClaimantOcado Central Services LtdRespondent
Before
Employment Judge BedeauIn person for claimantMr J Cainer (instructed by Counsel) for respondentDate 15 November 2021
JUDGMENT
[1]The claim of unauthorised deduction from wages is struck out because the tribunal does not have jurisdiction to hear and determine it as it was presented out of time and time is not extended.[2]The claimant is not pursuing claims of bullying and breach of the duty of care and understands that the tribunal has no jurisdiction to hear them.
REASONS
[1]The background to this case has been summarised by Judge Doyle in the case management summary in respect of the hearing held on 18 May 2021.[2]The Judge allowed the claimant to serve further, and better particulars of her disability discrimination claims by 8 June 2021.[3]I was satisfied that the Judge, having read the claim form and after listening to the claimant’s account of how she put her case against the respondent, was of the view that she was pursuing claims of disability discrimination. The Judge did 1 ph outcome re case management July 2014 version not require her to make an application to amend. The respondent was ordered to serve its amended response by 6 July 2021, and “in doing so it should make plain its application to strike out the claim and, if so, on what grounds.”[4]The claimant’s further information is in narrative form with the absence of any dates, and type of claims under the Equality Act 2010, as she was ordered to provide.
The evidence
[5]I did not hear any oral evidence but submissions. The parties, however, produced an amended bundle of documents comprising of 62 pages. Submissions and conclusions[6]Before me, Mr Cainer, counsel on behalf the respondent, confirmed that the respondent was proceeding with its strike out applications. He prepared a detailed skeleton argument setting out its position. He submitted, in relation to the bullying and failure of duty of care claims, that the tribunal does not have jurisdiction to hear and determine them.[7]This issue did not cause much concern on the part of the claimant as she clarified that they were not claims she was pursuing but the wording was her way of describing her treatment by the respondent’s managers. They are not separate and discrete claims.[8]Mr Cainer’s second strike out application was in relation to the claim for unauthorised deductions from wages. He submitted that it was presented out of time and that time should not be extended on the basis that it was not reasonably practicable for the claim to have been presented in time. The claim was in respect of the claimant being denied three or possibly four days’ pay while on sick leave between 14 May to 11 June 2020.[9]She told me that she contacted her local Citizens Advice Bureau and spoke to someone about her case, in particular, her loss of wages. From June to either late September, or early October 2020, she received advice and assistance from a solicitor. In her email dated 27 September 2020, sent to the respondent, she wrote that she had previously requested that her solicitor be provided with the “best contact details…in order to potentially take legal action for loss of my loss of income and compensation, but have as yet not received a response.” (Page 58 of the bundle).[10]She said that no one told her about time limits before an Employment Tribunal, and at the time she presented her claim form, she was still suffering from depression and anxiety and was under medication. I was not referred to any medical evidence evidencing that the claimant was unable present her claim in time.[11]Mr Cainer asked for the Judge’s order requiring the claimant to provide further information, be either varied or revoked, as she had misled the Judge, in that, the Judge noted in paragraph 9: “The claimant tells me that she completed the ET1 claim form in hospital while awaiting or recovering from major surgery and with the tribunal time limits pressing upon her.”[12]Mr Cainer submitted that the claimant had misled the Judge whom she influenced into making the order for further information. In fact, Mr Cainer submitted, the claimant’s operation, according to the claimant, was in October 2020. On 4 November 2020, following her request for a transfer, she was 2 ph outcome re case management July 2014 version transferred to a different department working as a Covid Tester. She was, therefore, fit and able to work by that date, yet the claim form was presented to the tribunal on 23 November 2020, when not in hospital recovering from major surgery.[13]The claimant said to me that what she told the Judge was based on the best of her recollection and that she found it difficult to remember events when she had been denied access by the respondent to her emails and other documents to refresh her memory. I acknowledged that at the time she presented her claim form she was already working and not in hospital or at home recovering from her surgery.[14]I was, however, not persuaded by Mr Cainer’s argument that the Judge was influenced by the claimant’s account as set out in paragraph 9 of the case management summary, when he made the order for further information. That is an extrapolation which is not clear from reading paragraph 9, and Mr Cainer was not present at that hearing. I was unable to see a causal connection between paragraph 9 and the issuing of the order for further information. Accordingly, I refused the application to either vary or revoke the order for further information.[15]In relation to the further information, Mr Cainer’s position is that the claimant had raised new claims which require the application of the Selkent principles. He submitted that the claims are considerably out of time; if allowed will affect the cogency of the evidence to some extent as some of the respondent’s material witnesses have left the respondent; the claimant had access to legal advice; and that the respondent is likely to suffer prejudice in getting together relevant information to mount a successful challenge to any disability discrimination claims.[16]The claimant said that she is also prejudiced as she would not be able to question the respondent’s witnesses who have left.[17]I do also consider that were I to treat the further information as an application to amend, and were it to be rejected, the claimant would have no claims against the respondent.[18]I looked at the relevant paragraphs in the case management summary by Judge Doyle, namely paragraphs 10 to 14, and concluded that the Judge interpreted the claimant’s case is one of disability discrimination and did not require her to make an application to amend. That approach had not been challenged by the respondent after the orders and case management summary was sent to the parties onn18 May 2021, save for the application before me today to either vary or revoke the order for further information.[19]I discussed the further information with the claimant, and she was able to clarify those acts she would be relying on but unable to identify the claims under the Equality Act save for direct disability discrimination. I do not consider that the respondent is seriously prejudiced by the further information elaborated on by the claimant. It would not be a difficult exercise in contacting all relevant witnesses whether they have left the respondent or not. It also has documents pertaining to the claimant’s grievance and outcomes as well as her sick leave.[20]I, therefore, allowed the claimant to proceed with her direct disability discrimination claims relying on those matters set out in the separate case management summary and orders. 3 ph outcome re case management July 2014 version[21]In relation to her unauthorised deductions from wages claim, I considered section 23(2)a Employment Rights Act 1996, and conclude that, with the assistance of either the CAB or her solicitor, the claimant could and should have presented this claim in time. If I accept that she should have been paid for the days of sickness absence on 28 May 2020, she had until 27 August 2020, to notify ACAS but this was not done until 30 September 2020, outside of the three months’ time limit. The certificate was not issued until the 29 October 2020. She cannot avail herself of the automatic extension because of conciliation.[22]I was not given a reason for the delay and was, therefore, unable to determine whether it was not reasonably practicable for the claim form to been presented within three months, and I was not referred to any medical evidence as to her mental state at the time. In any event, I considered that the presentation of the claim on 23 November 2020 was too long after the expiration of the primary limitation period, that being 27 August 2020.[23]This claim was presented out of time and the tribunal, accordingly, does not have jurisdiction to hear and determine it. It is, therefore, struck out. Disability discrimination[24]The claimant has identified the acts of direct disability discrimination. Some or all may fall under other disability discrimination claims in the Equality Act. I have set out her claim in the case management summary and orders, which is a separate document accompanying this judgment and ruling.