Mr M Goodrum v Virgin Media Ltd and Mr J Parkin: 3321023/2019

EMPLOYMENT TRIBUNALS

Case No 3321023/2019

Between

Mr M GoodrumClaimant

(1) Virgin Media Limited; and (2) Mr J Parkin RECORD of a PRELIMINARY HEARINGRespondent

Before

Employment Judge KJ Palmer

In person for claimant

Date 14 April 2021

REASONS

(4) This matter came before me today listed as a three hour Preliminary Hearing to be conducted by Cloud Video Platform pursuant to three other Preliminary Hearings in this matter, the most recent of which was 26 August 2020 before Employment Judge Postle. 1 of 8 (5) The issues before me were narrow and were twofold:5.1 To hear and deal with the Respondent’s Application for a Strike Out of certain of the Claimant’s claims contained within his ET1 on the grounds that they were historic and out of time; and

5.2 An Application by the Claimant to amend his claim to add two further claims in disability discrimination. (6) The Claimant, who remains employed by the Respondent, presented claims before this Tribunal in an ET1 presented to the Tribunal on 30 July 2019. (7) The Claimant is not represented and has throughout been conducting his own litigation in what is a complex and difficult area of discrimination. (8) His claim is therefore home made. In it he raises claims for constructive unfair dismissal, direct discrimination because of age, indirect discrimination because of age, indirect discrimination because of disability, discrimination arising from his disability, victimisation, a claim for reasonable adjustments and a combined discrimination claim under Section 14, Equality Act 2010. (9) There have been three previous Preliminary Hearings in this matter. Because of the complexity of the issues and the recent pandemic, the matter really for all intents and purposes remains in its fairly early stages. (10) I do not propose to go into the history in great detail, save to say that pursuant to a Preliminary Hearing before Employment Judge Kurrein on 26 March 2020, the Claimant withdrew all disability discrimination claims other than those arising from his interview in March 2019. The Claimant accepted that the Respondents had no knowledge that he was, or might be, disabled prior to October 2018 and a Deposit Order was made in respect of the Claimant’s remaining claims of disability discrimination on the grounds that they had little reasonable prospect of success. (11) The latest Preliminary Hearing took place on 26 August 2020 before Employment Judge Postle and this was principally to consider the Deposit Order which had not been paid and the operation of which had been suspended by Employment Judge Kurrein as a result of closure of the Bristol Finance Office. That issue was tidied up by that Preliminary Hearing and the Deposit Order has now been paid. (12) The issues before me were then listed by Employment Judge Postle and those are the issues that I deal with today. 2 of 8 The Respondent’s Application for Strike Out of certain of the Claimant’s Claims in Discrimination (13) I had before me a Skeleton Argument produced by the Respondent’s Counsel which Mr Goodrum agreed that he had and that he had had the opportunity of reading. (14) At paragraph 12 of that Skeleton Argument, Mr Keen set out the historic allegations which the Respondents argue should be struck out of this claim. They relate to claims put forward by the Claimant relating to incidents occurring in Autumn of 2013, Spring of 2014, Summer of 2014, Spring of 2015 and Spring of 2016. (15) The main meat of the Claimant’s claim revolves around his interview and failure to be appointed pursuant to an internal job application in March of 2019. (16) Thus, the historic claims all relate to incidents occurring between three and six years prior to the incident in March of 2019. (17) On the fact of it therefore, these claims are manifestly out of time. (18) I do not propose to repeat the written submissions before me, or indeed the oral submissions pursued by Mr Keen. Mr Goodrum also made submissions. I listened carefully to all of them. Time Limits – Section 123, Equality Act 2010 (19) S.123 of the Equality Act 2010 sets out that proceedings relating to complaints under the Act must not be brought after the end of the period of three months starting with the date of the act to which the complaint relates, or such other period as the Employment Tribunal thinks just and equitable. S.123(3) states that conduct extending over a period is to be treated as done at the end of that period. (20) The first question to deal with is whether these historical allegations amount to conduct extending over a period. (21) Mr Keen pointed out that the various historic acts between 2013 and 2016 all related to applications made by the Claimant for internal jobs. We know of course that the incident in March of 2019 related to the application for an internal job. However, there were distinct differences between the various historic events and different individuals appeared to have been involved at each stage. Mr Parkin, who is joined into these proceedings as a Second Respondent, was the Respondent’s employee principally concerned with the act complained of, namely the failure of the Claimant to be successful for an interview for a role in March 2019. The application in Autumn 2013 involved a Mr Ogden, there was no interview in respect of the role in 2014, in respect of the application in 2015 a Mr Tony Lee was involved and in respect of the application in 2016 a Richard Smith was involved. 3 of 8 (22) Moreover, there was no obvious connection between the various roles applied for. (23) There was a huge gap between the last historic act complained of in Spring 2016 and the act which appeared to spawn this claim in March 2019. (24) There is little or no explanation from the Claimant as to why he waited so long to pursue a claim incorporating all of those earlier historic acts. (25) The acts themselves appeared to be entirely disconnected with each other and I am referred to and have taken into account the leading Authorities on what constitutes a continuing act under s.123(3) of the Equality Act 2010. These are:

• Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

;

• Owusu v London Fire and Civil Defence Authority

[1995] IRLR 574

;

• John Arthur v London Eastern Railway Limited [2006] EWCA Civ paras 31 and 35; and

• Unilever UK Plc v Hickinson & Anor

UKEAT/0192/09

. (26) I agree with Mr Keen that even taken at its absolute highest, there is no act that is capable of forming part of a series of similar acts. There is simply no evidence put forward of any connection between the various acts. The acts involve different types of conduct, some complain of a failure at interview and some concern a failure to advertise a role. They involve different people operating in different parts of what is a very large organisation. There is no allegation that there was a written policy governing those various individuals’ conduct. These are separate recruitment decisions over a very lengthy period of time. On any analysis they cannot constitute a continuing act and it is my Judgment therefore that it would be absurd to conclude that they did. Therefore, the historic claims are manifestly out of time. Discretion to Extend Time – Section 123(1)(b), Equality Act 2010 (27) I therefore must consider whether in the circumstances I should extend time to validate those acts. I must do so on the basis of the just and equitable principal. That is the wording of s.123(1)(b) Equality Act 2010. I am guided by previous Authorities and am duty bound to consider a number of principles. These are:

a. The length and reason for the delay;

b. The extent to which the cogency of the evidence is likely to be affected by the delay;

c. The extent to which the Respondent has co-operated with any request for information; and

d. The promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action. (28) I was addressed by Mr Keen and Mr Goodrum. 4 of 8 (29) The historic acts are all manifestly out of time. The most recent is now some five years ago and was over three years prior to the presentation of the Claimant’s claim. There is no doubt that the Respondent will be caused significant prejudice by that delay. Whilst the claims are not well particularised, none of the individuals involved in the acts complained of remain employed by the Respondent. None of the documents relating to the roles the Claimant applied for in respect of the historical acts remain and it will almost be impossible for the Respondent to put forward any cogent defence. (30) It must be remembered that the Claimant’s claim arising out of his application for promotion in 2019 remains, is in time and will proceed. (31) Taking into account all of the issues, I cannot see any justification for extending time to validate those claims, the earliest of which is now some eight years ago and the most recent of which is five years ago. No proper explanation has been put forward by the Claimant as to the delay and the prejudice suffered to the Respondent is manifest. On the basis of those issues that I must consider and the overriding objective in the Employment Tribunal Rules of Procedure 2013, I will not extend time and those claims do not survive. They are therefore struck out. For the avoidance of doubt, all of those claims listed in paragraph 12 of Mr Keen’s Skeleton Argument to this Tribunal, being claims arising out of the following, are struck out for being out of time: a. Autumn 2013, the Claimant applied for a HOD for the Anglia Region under Ricky Hobdon and was unsuccessful; b. Spring 2014, John Williamson was appointed HOD for Anglia without an interview; c. Summer 2014, John Donnalon was appointed to HOD for South Coast, without an interview; d. Spring 2015, an HOD role for Networks disappeared without notice; and

e. Spring 2016, the Claimant applied for and was not appointed to a Regional Manager job for Anglia. The Claimant’s Application to Amend (32) The Claimant also pursues an Application today to amend his claim to include two further fresh claims in direct disability discrimination under Section 13 of the Equality Act 2010 and perceived disability discrimination. (33) It should be borne in mind that this Application is heard today pursuant to an Application made by the Claimant in June 2020, a year after his original presentation of this claim. Having discussed his Application made in a detailed home made document running to some seven pages, I am in difficulties understanding precisely the nature of that Application in terms of how it is supported by factual allegations. He argues that he should be permitted to add a claim of direct disability discrimination, yet his explanation of that claim appears simply to be a reinforcement of his existing claim under s.15 Equality Act 2010 for discrimination arising from a disability. It is not clear to me from 5 of 8 the documents in front of me or the explanation received from the Claimant, that he is actually advancing a claim in direct discrimination. The same can be said for the perceived disability discrimination claim. He seems simply to be articulating his s.15 claim. Naturally he will get the opportunity of dealing with that in great detail at the Full Merits Hearing of this matter. (34) I am reminded by Mr Keen that a leading Authority on such Application to Amend is Selkent Bus Company Limited v Moore

[1996] IRLR 661

. As always, such an Application requires a balancing exercise. The Tribunal must consider all the relevant circumstances and balance the hardship and injustice to each party of allowing or refusing the amendment. Relevant factors include: a. The nature of the amendment; b. The relationship between the new and old claim; c. The timing of the Application; d. Whether the new course of action is out of time and whether it is just and equitable to extend time; e. The explanation for any delay and the promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action;

f. The availability of any relevant witnesses; and

g. The overriding objective. (35) I have considered all of these in light of that which I have heard from the parties. (36) I do not consider that the documents advance any clear claims in direct disability discrimination, or perceived disability discrimination. The Application was made nearly a year after the original claim was submitted and was not ventured at earlier Preliminary Hearings before Employment Judge Kurrein. We are now some two years on from the issue of these proceedings and the matter has progressed at a snail’s pace. That is partially due to the pandemic, but it is important that I bear in mind the overriding objective to be fair to both parties and to deal with matters proportionately, timeously and with cost in mind. (37) These are Applications for fresh actions to be added which do not, in my judgment, add anything to the claim already being pursued. (38) Applying the principles in Selkent I therefore refuse the Claimant’s Application to Amend and his claim will proceed, subject to the Strike Out above, as originally constituted. (39) It is necessary for there to be a Case Management Preliminary Hearing to isolate and clarify the remaining issues in the Claimant’s claim and to consider other directions including the listing of this matter for full trial. (40) I therefore list it for a two hour Telephone Preliminary Hearing for a Case Management Discussion to take place at 10am on 25 August 2021. 6 of 8 (41) The parties should liaise prior to that Telephone Preliminary Hearing and produce an Agreed Case Management Agenda, an Agreed List of Issues and an Agreed set of Directions to be before the Employment Judge dealing with that Case Management Discussion at least 7 days before 25 August 2021. Other Matters (42) The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’, which can be found at: www.judiciary.gov.uk/publications/employment-rules-and-legislation-practice- directions/ (43) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise) …” If, when writing to the tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written. (44) The parties are also reminded of their obligation under rule 2 to assist the Tribunal to further the overriding objective and in particular to co-operate generally with other parties and with the Tribunal. (45) If the Tribunal determines that the Respondent has breached any of the Claimant’s rights to which the claim relates, it may decide whether there were any aggravating features to the breach and, if so, whether to impose a financial penalty and in what sum, in accordance with section 12A Employment Tribunals Act 1996. (46) The following Case Management Orders were uncontentious and effectively made by consent. ORDERS Made pursuant to the Employment Tribunal Rules of Procedure

[1]Further Preliminary Hearing1.1 That there be a further Preliminary Hearing by telephone to consider matters of a Case Management nature which will take place by telephone on 25 August 2021 at 10am. Two hours are allowed. At that Hearing the Judge will consider the issues that will need to be considered at a Full Merits Hearing of this matter.

1.2 It is to be hoped that the matter can at that Hearing be set down for a Full Merits Hearing and detailed directions made. One issue which remains to be considered is the Claimant’s disability. Currently, the Respondents indicate that they do not concede that disability, although at the Hearing today the Claimant said that he had attended a medical appointment arranged for him by the Respondents. It may be that by 25 August 2021 that Report will have 7 of 8 been produced and the matter of disability may have been conceded. That will be something that will need to be discussed at that Hearing.

[2]Complaints and Issues The parties must inform each other and the Tribunal in writing within 14 days of the date this is sent to them, providing full details, if what is set out in the Case Management Summary section above about the case and the issues that arise is inaccurate and / or incomplete in any important way.

[3]Other Matters3.1 The above orders were made and explained to the parties at the Preliminary Hearing. All Orders must be complied with even if this written record of the Hearing is received after the date for compliance has passed.

3.2 Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Any further applications should be made on receipt of these orders or as soon as possible.

3.3 The parties may by agreement vary the dates specified in any order by up to 14 days without the Tribunal’s permission except that no variation may be agreed where that might affect the Hearing date. The Tribunal must be told about any agreed variation before it comes into effect.

3.4