Ms R Perchard v Sanctuary Personnel Ltd: 3316014/2019

EMPLOYMENT TRIBUNALS

Case No 3316014/2019

Between

Ms R PerchardClaimant

Sanctuary Personnel LtdRespondent

Before

Employment Judge S King

In person for claimant

Date 6 May 2020

JUDGMENT

The claimant’s claims for discrimination are dismissed. JUDGMENT having been sent to the parties on 2 July 2020 and reasons having been requested the following reasons are provided as set out below. There has been a delay in sending these reasons to the parties for the reasons I must deal with initially.

[1]Written reasons were not requested by the Claimant at the hearing which took place before the first national lockdown.

[2]The same day as the hearing (10th March 2020) the Judgment and reasons given orally at the hearing were sent to typing but the reasons were not prepared at that time as they had not been requested by the parties. They were retained for a short period in case they were requested in the usual way.

[3]The judgment only was sent to me for fairing on 20th March 2020. There was a delay due to the pandemic and this was returned by me on 6th May 2020 to be sent to the parties. It would appear that this was then sent to the parties on 2nd July 2020.

[4]On the 22nd July 2020 the Claimant emailed the Watford email address asking for a “written record of Judgement reason” which was referred to me on 18th August 2020. This was outside the 14 days time limit permitted under in accordance with Rule 62(3) of the Rules of Procedure 2013.

[5]Given the pressures on judicial resources and that the request was out of time I asked the office to double check that the judgment was sent to the parties on 2nd July 2020 and that the request came on the 22nd July 2020 as if so the request was out of time and asked that it be refused accordingly in the standard way. I heard nothing to the contrary.

[6]On 18th October 2020 I was forwarded the email from the Claimant dated 6th October 2020 stating that they did ask within the time frame. That email sent a chain with emails dated 20th March 2020 stating “whilst not appealing on a specific legal point – please may my appeal be judged in exceptional circumstances”. This was not a valid request for the written reasons although one may make some assumptions that this was What the Claimant wanted so she could appeal.

[7]The chain also had a second email dated 14th April 2020 asking for “please can the notes be sent from my hearing”. Again this is not a valid request for written reasons but certain assumptions can be made about what the Claimant wanted taken in conjunction with the other email. Neither of these emails were before me when I made my decision to refuse the request. The first time I was aware of these emails was on the 18th October 2020 when these had been sent to me.

[8]I considered that given the Claimant had emailed twice and was a lay person I could validly consider this a request for written reasons and exercise my discretion to grant the request. On 21st October 2020 in response to the new information provided on the 18th October 2020, I requested that the office provide my notes and the bundle so that this could be actioned on my return from annual leave in November. I felt that whilst I could still have refused given the contents of the email in light of the wrong information being provided by the office I would provide the written reasons taking into account all the circumstances.

[9]On 13th November 2020 a referral was made to me in respect of a complaint was made by the Claimant in respect of not sending the reasons to her. I chased the office for the bundle and notes and typing to see if the recorded reasons had still been retained given the passage of time. They were so retained and I asked for these to be typed.

[10]Typing sent me the written reasons to be faired on 24th November 2020 and these have now been faired and this has resulted in this being returned to the office today 16th December 2020 to be sent to the parties. The written reasons are as follows:

REASONS

[1]The claimant represented herself and provided a witness statement which ran to 3 pages. The respondent was represented by Mr Cumming of counsel. An agreed bundle was prepared which ran to 121 pages for the purposes of this preliminary hearing.

[2]At the preliminary hearing on the 30 September 2019 Employment Judge Warren identified a time point with the claim. The case was listed for an open preliminary hearing to determine whether the claims should be struck out as out of time or alternatively as having no reasonable prospects of success or that a deposit order should be made on the basis that the claimant had little reasonable prospects of success – this was the purpose of today’s hearing.

The Issues

[3]Issues to be determined at this hearing:(i) What are the acts or omissions complained of?

(ii) What is the date of the act complained of (in this case a failure to act)?

(iii) Is the claim out of time?

(iv) Is it just and equitable to extend time?

The Law

[4]s.123 of the Equality Act 2010 states as follows: “123 Time limits(1) Subject to sections 140A and 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.

(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.”

[5]I was also referred to the case of Matuszowicz v Kingston Upon Hull City Council

[2009] EWCA Civ 22

and I have taken into account the fact that it is for the claimant to establish whether it would be just and equitable to extend time.

[6]Also, for the purposes of exercising my discretion to allow out of time claims the Employment Tribunal may have regard to factors in s.33 of the Limitation Act 1980 as indicated by the Employment Appeal Tribunal in British Coal Corporation v Keeble

[1997] IRLR 336

Findings of Fact

[7]The respondent was providing vacancy lists to the claimant and others on its books. The claimant and others would express an interest in a particular vacancy and their details would be passed onto the end client. The respondent describes itself as a middle man, it would be the end client who would determine the requirements of the role, skills, qualifications and any adjustments.

[8]The claimant had a contractual relationship with an unconnected legal entity, namely a third-party Sapphire Accounting and also temped for another agency in a non-medical role during this period. The respondent is not a recruitment agency that seeks appointments for those on its books in the traditional way by approaching clients with the details of those on its books to locate a suitable role.

[9]The claimant having expressed an interest in a particular role on 15 October 2018, the respondent wrote to an NHS Trust (Medway for the purposes of this claim) and asking if the claimant could work ad hoc shifts despite not having her full PMVA. She was not able to fully complete the course she says because of her disability (pacemaker).

[10]No response was received. The claimant was told on 16 October 2018 that the respondent was waiting to hear. By the 4 November 2018 the claimant had not had an answer and so she wrote to the respondent again asking to be put forward for elderly work only as she would not need the PMVA training.

[11]On 2 November 2018 the claimant was told by email to obtain a PMVA certificate privately as without it there would be a delay in finding work.

[12]By email dated 27 November 2018 the claimant emailed the respondent saying she needed assistance with PMVA training and had not been placed.

[13]Between the 31 October 2018 and 21 December 2018 the claimant attended her GP or sought advice on seven occasions in respect of a cough/asthma. By 21 December 2018 this was said to not limit her activities or disturb her sleep. The claimant also went to A&E on one occasion during this period. The medical condition was physical and not related to her disability.

[14]In early December 2018 the claimant went to Iceland with her daughter for a few days on holiday.

[15]By email dated the 19 January 2019 the claimant emailed the respondent querying reasonable adjustments. It is not disputed that during this period the respondent continued to send vacancies to the claimant and the claimant did not express an interest until well into 2019 in respect of one role.

[16]On the 4 April 2019 having sought advice from the CAB the claimant submitted a grievance to the respondent around discrimination. Even then she did not start ACAS early conciliation at this time.

[17]On the 10 April 2019 the claimant wrote an email to her late father referencing the CAB sessions and discrimination/ACAS.

[18]On the 25 April 2019 the claimant commenced ACAS early conciliation, the certificate was issued on the 22 May 2019 and the ET1 was submitted on the 28 May 2019. Conclusions What are the acts or omissions?

Conclusions

[19]This case is brought as a failure to make reasonable adjustments. The omission occurs when the decision was taken, at the end of a reasonable period or when actions taken and in consistent with that failure.

[20]The claimant brings two claims of failure to make reasonable adjustments; one in respect of failing to find her work which involved low level interventions that is work with elderly people which would not require her to have a PVMA qualification (incorrectly labelled as 7.1 in the preliminary hearing case management order on page 28 but adopted for the purposes of these reasons). This was raised by the claimant on 4 November 2018.

[21]In respect of the second element of the claim (this is incorrectly labelled as 7.2 in the case management order but again adopted for the purposes of these reasons), namely failing to negotiate with a NHS Trust such as Kent and Medway that she could be engaged upon an assignment in which it was understood she would not be required to be involved in restraint or there would be a managed approach, in which Ms Perchard’s role would be to draw up rapid tranquilisation medication in injection form and administer intra-muscular medication (IM). In terms of time, when is the end of a reasonable period?

[22]I find that the claimant’s email dated 27 November 2018 when she chases this and queries she had not been placed was when the claimant could have considered it reasonable for the respondent to have complied in respect of the act complained of under 7.1, namely the work for elderly people. This is the date of the act complained of in respect of 7.1.

[23]In respect of Medway, this was on the 15 October 2018 for the introduction and I find that the date of the 4 November 2018 when the claimant suggested other alternative low interventions the end of the reasonable period in respect of the allegation at 7.2 and therefore this is the date of the act complained of.

[24]In summary, the date of the act complained of at7.1 is the 27 November 2018 and in respect of

7.2 is the 4 November 2018. Is the claimant out of time?

[25]In respect of 7.1, the primary limitation was the 26 February 2019. The claimant had not commenced a claim or commenced ACAS early conciliation by this time.

[26]In respect of 7.2, the primary limitation was the 3 February 2019, again the claimant had not commenced a claim or commenced ACAS early conciliation.

[27]In the alternative nothing had happened between the November 2018 complaints and 19 January 2019. So if I am wrong about my findings as to the timing of the acts complained of then I find it would have been apparent to the claimant before Christmas that the omissions were not to be rectified and therefore the latest the primary limitation would have been was 20 March 2019 as this would be the 21 December 2018.

[28]Given the primary limitations on my analysis expired in February 2019 and the Claimant did not commence ACAS Early conciliation until 25th April 2019 the claims were already 8 weeks out of time. There was then a further delay whilst conciliation was underway but this cannot stop the clock in the usual way as the Claimant was already out of time. Once the Claimant had the certificate on 22nd May 2019 she issued proceedings within 6 day but the claim was by this time 3 months out of time. Is it just and equitable to extend time?

[29]If the claim as in this case are out of time then I have discretion to extend time if it is just and equitable to do so. I have sympathy with the claimant in this case as she did attempt to seek advice in early April from the Citizen’s Advice Bureau however my sympathy is not the test which must be satisfied.

[30]The claimant must show me that it would be just and equitable to extend time and that is for her to establish. Her father’s death, complexities with his estate and her mental health issues all arose after ACAS had concluded, so not relevant for my considerations as the Claimant was already out of time for bringing her complaints.

[31]The claimant did have a period of ill-health but this was not impacting on her activities or sleep. She still went on holiday and was able to work in her temporary role for most of this period. She was not prevented from doing so until later. Looking at the factors for my discretion, I am not convinced that the explanation for the delay meant she could not seek advice sooner or present a complaint. She prepared a witness statement and I also explored with her in evidence what was happening in the relevant period.

[32]If limitation did expire at the end of February at the latest as I found it is unfortunate when she sought advice in early April 2019 this was not highlighted and she did not immediately obtain her certificate and submit a claim. Another 6 weeks had passed and the stop the clock provisions of ACAS were not in force as the time limit had already passed. In essence a further delay occurred then.

[33]She was not ignorant of her rights for the entire period, she referred to reasonable adjustments in January 2019 and by April 2019 had complained of discrimination and knew about ACAS. Had she presented a complaint in April I may have considered it just and equitable to extend time has she been able to demonstrate that it was just and equitable for her to do so, but not for another 6 weeks when she was receiving advice at the relevant time and taking the circumstances as a whole. The test for discrimination cases is different to unfair dismissal so the test is not whether it is reasonably practicable for her to do so but whether it was just and equitable for her to have the extension.

[34]I have considered her disability and its nature, but this did not impact on her during the relevant time periods. I have considered the balance of prejudice and it is in this regard that I must have consideration to the merits of claim. The claimant knew of her rights within the primary limitation period, was working and went on holiday so there is no reason why a claim could not have been brought in time. The claimant has not established having heard her evidence any factual basis which would mean it is just and equitable to extend time taking into account all the circumstances of this case.

[35]If I had not found the claimant out of time I would have in any event found that the facts of this case given the respondent’s role in the process, the case would not have reasonable prospects of success and felt compelled to strike it out. Whilst I have not heard submissions on this aspect as to prospects, it is clear from the papers and the preliminary hearing of September 2019 before Employment Judge Warren that there are some issues with the claimant’s claim. I am not convinced the claim has been brought against the right respondent in this regard. The respondent’s role was not to pro-actively engage and it did not offer vacancies but merely passed on details to the Claimant. The basis for the claim is set out in the list of issues from the last Preliminary hearing which includes the PCP’s that the claimant relies on. The Respondent continued to offer her vacancy lists during the period and it suggested she get training privately as without it, there was a risk of delay in any placement. This training was from a third party. Any claims she may have had against the training provider and Medway directly for not considering her application or requiring her to complete the training in a certain way that she says she could not comply with are not claims before this employment tribunal.

[36]The claimant is a litigant in person and reasonable adjustment claims are complex. I do have sympathy for the claimant in that she did not receive advice as she should have done, but I find that the claimant’s claims are out of time and it is not just and equitable to extend time. This means that the Tribunal does not have jurisdiction to hear those complaints and her claims are dismissed.