Mrs T Akinyosoye-Rodney v Nottingham City Commissioning Group: 3322356/2019
EMPLOYMENT TRIBUNALS
Case No 3322356/2019
Between
Mrs T Akinyosoye-RodneyClaimantNottingham City Commissioning GroupRespondent
Before
Employment Judge R BroughtonIn person for respondentDate 30 March 2021
REASONS
[1]The claim was presented to the Employment Tribunal on 17 September 2019 following a period of ACAS Early Conciliation from 2 July 2019 to 16 August 2019. The Claimant was employed by the Respondent from 18 April 2017 to 17 April 2019. It is not disputed that the Claimant had accrued two years’ continuous service as at the termination date and had been employed on a 2-year fixed term contract.[2]The claim originally came before Employment Judge Jeram on 3 January 2020 at a closed preliminary hearing. Employment Judge Jeram made a number of orders, including that the Claimant provide further information in relation to her complaints and listed the case for an attended preliminary hearing on 2 April 2020 to identify the claims, determine whether the claims had been brought in time and, if not, whether to extend time and to consider whether any claim should be struck out pursuant to rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 or a deposit order made pursuant to rule 39.[3]I then heard the preliminary hearing on 15 October 2020. The Respondent complained that, despite further particulars provided by the Claimant, it remained unclear what the claims were. The entirety of that hearing was spent trying to clarify the claims. Further orders were made as set out in the record of that hearing. Issues for today’s hearing[4]The matter has come back before me today to determine the following issues:4.1 the application to amend the claim;4.2 determine whether the time limit in respect of the claims of unfair dismissal and discrimination should be extended or the claims struck out on the grounds that they have been brought out of time;4.3 consider whether any of the claims/complaints should be struck out under rule 37 or the Claimant required to pay a deposit in order to proceed with any claim/complaint under rule 39;4.4 make further case management orders as appropriate, to include relisting the case for a final hearing. Correction of the record of the preliminary hearing of 15 October 2020[5]I attached with my record of the October 2020 preliminary hearing 3 appendices. The first appendix set out what I understood from the preliminary hearing, the claims to be. I invited both parties to read through the appendices carefully. At the start of today’s hearing the Claimant advised that the dates which I had set out at10.2.1 and Case No: 3322356/2019 (V) 310.2.2 in that appendix actually related to the same meeting which was not in March but in November 2018.
Evidence
[6]The parties had agreed a joint bundle numbering 380 documents for today’s hearing.[7]The Claimant had produced to the tribunal and the Respondent by email of 23 November 2020 a document which itself contained 3 appendices; Appendix 1 deals with the accuracy of the October 2020 order (referred to above). Appendix 2 set out further details of her claims and amendment applications which she asserted she had already made. Appendix 3 sets out a fresh application to amend the claim.[8]The Respondent submitted its response by email of 14 December 2020 and produced written submissions. I have considered those documents.[9]The Claimant had prepared a statement in support of her request for an extension of time which was set out at page 64 of the bundle. The Claimant relied upon that statement as evidence in support of her application for an extension of time and was then cross-examined by the Respondent.[10]In terms of the applications for a strike out and/or a deposit order, I did not permit the Respondent to cross-examine the Claimant on the facts of the case; those applications are to be determined on the documents, taking the case at its highest.[11]Both parties were given an opportunity to make further oral submissions.[12]The applications took the entirety of the hearing time, with significant cross examination of the Claimant by the Respondent. There was no time remaining for deliberations or case management. Time Limit Unfair/constructive unfair dismissal – sections 94 and 98 Employment Rights Act 1996[13]The parties agree that the Claimant’s last day of employment was 17 April 2019 following the expiry of her fixed term contract.[14]The ACAS early conciliation certificate records the conciliation period commencing on 2 July 2019. The certificate was issued on 16 August 2019 (page 31).[15]The primary 3-month time limit therefore expired on 16 July 2019.The 45 days of early conciliation, when added to 16 July 2019 in accordance with section 207B (3) Employment Rights Act 1996 (ERA), extends the primary time limit to 30 August 2019.The Claimant then has the benefit of a one-month extension pursuant to section 207B (4) ERA from the date the Acas certificate was issued on the 16 August 2019.[16]Any claim for unfair dismissal should therefore have been brought by 16 September 2019 pursuant to section 111(2)(a) ERA. The Claim Form was presented to the tribunal on 17 September 2019, one day out of time. Discrimination complaints Equality Act 2010 (EqA) Case No: 3322356/2019 (V) 4[17]The Claimant within her Claim Form referred to being bullied and harassed and as a result of that treatment she chose not to apply for the Programme Manager role when her 2-year fixed term contract came to an end (p 16 and 17).[18]Within the Claimant’s 23 November 2020 document, she provided further particulars. She clarifies at paragraph 11 (page 8) that the termination of her employment was itself an act of discrimination. The termination date of the Claimant’s employment would therefore be the last alleged act of discrimination, if part of a continuing act. The Tribunal today is not going to determine the issue of whether or not there was a continuing act but determine the issue of time limit based on the last alleged act of discrimination only. Whether or not there is a continuing act will be a matter to be determined at the final hearing after hearing all the evidence and legal submissions and is reserved for the final hearing. Claimant’s oral evidence Stress[19]The Claimant complains that she was under immense stress around the deadline period for the submission of her Claim Form and attributes this stress to her working experience with the Respondent and the purchase of a new home while at the same time trying to secure alternative employment.[20]The Claimant alleged that a contributory factor in the delay in submitting her claim was her mental health. When asked about this by the Tribunal, the Claimant referred to issues with her self-esteem after she left the Respondent’s employment. She has been on medication since April 2018, has tried to reduce it over the period but has had to increase the dosage a few months ago. The Claimant gave evidence that she found it very difficult to talk about her mental health and preferred “not have these levels of discussions about her mental health” because it upsets her.[21]It was evident to the Tribunal that the Claimant was in some state of emotional fragility during the hearing; she became emotional and tearful at times, as indeed she had during the previous preliminary October 2020 preliminary hearing.[22]The Claimant accepted under cross-examination that she had been aware from submissions served on her by the Respondent on 14 October 2020 (prior to the last preliminary hearing), that the Respondent had raised an issue about the Claimant not providing medical evidence in support of her assertion that her mental health. The Claimant accepted under cross examination that she had indicated to the Respondent that she would be able to produce medical records however she gave no evidence today that she had taken any steps to obtain any medical evidence prior to today’s hearing. No medical evidence was put before the Tribunal today.[23]The Claimant was however well enough to start work as a courier from July 2019 (and was still working at the time she submitted the Claim Form) and had prior to that, been well enough to submit job applications and move house in the second week of July 2019. She accepted that, with help from her mother, she had been able to arrange the move and deal with the associated administrative tasks e.g. notifying the utility companies etc. Case No: 3322356/2019 (V) 5[24]The Claimant raised as a reason for the delay in submitting the claim, not only her mental health but the various commitments and pressures she was dealing with it at the time, including her new job. With respect to her job, under cross examination she explained that her hours would vary but that she would sometimes finish at 7 pm or 5 pm and was working more or less 6 or 7 days a week and at weekends. She accepted overtime and additional shifts, which she could have refused but was not in a financial position to do so.[25]The Claimant conceded under cross examination that she could have refused one shift to specifically spend time submitting her Claim Form however she was “chasing my tail”. She conceded that in terms of submitting the claim form she had “left it to the wire because of stress” but that it was a technical issue which ultimately meant that she could not submit it in time. Technical Problems[26]The Tribunal find on a balance of probabilities that the Claimant did attempt to submit the claim on the 16 September. The Respondent was not in a position to produce evidence to rebut her evidence on that point and did not seriously challenge it under cross examination. The Claimant was however unable to explain what the nature of the problem was that she encountered in filing the form on line. She did not notify the Tribunal the next day of the difficulties she experienced and there is no evidence of any problems generally with the on-line system on the evening of the 16 September. The Claimant believed that she had taken screenshots of the error message when trying to submit the form however she had not produced the screenshots.[27]The Claimant believed that she had tried to submit the form at about 10:30 pm on 16 September, tried several times until giving up at midnight. The Claimant’s evidence was that she submitted the form at 9 am the following day and while there was no evidence to confirm that, the timing was not disputed by the Respondent.[28]The Claimant was not sure what the technical problem was and conceded that it may have been something that she had done incorrectly when trying to submit the form, and that it was not necessarily a technical problem with the online system itself.[29]Although the Claimant had talked about confusion over time limits, she conceded that she understood that the time limit did expire on 16th September and therefore her lack of understanding and any confusion previously abut time limits, was not the reason why her claim was not submitted on time. Legal Advice[30]The Claimant refers to not being able to afford to instruct a solicitor before she submitted her claim, she had however taken steps to obtain some advice about her employment situation in that she had spoken to someone at a Law Centre. After the last preliminary hearing on October 2020 she then “broke the bank” to pay for a half hour session with a solicitor before submitting the further amendment applications, including the application to add claims pursuant to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. (hereafter referred to as the Fixed Term Regulations). The Claimant has savings of approximately £2,000 but explained that it was a question of priorities in terms of how she spent it and she Case No: 3322356/2019 (V) 6 was not going to use the little savings she had on legal fees and put herself at a further detriment. The Amendment Application[31]The amendments are claim of direct discrimination brought under section 13 EqA on the grounds of the Claimant’s race. Nanook from the North (section 13): Amendment 1[32]The Claimant has made an application to amend the claim to include: “Over the course of my employment on several occasions, Roz Howie referred to me as ‘Nanook from the North’; in reference to me wearing gloves and a fur lined cap during inclement weather. On at least 3 occasions she ‘joked’, “it’s Nanook from the North” as I walked in and I found it annoying and derogatory. The fact that RH used the term on several occasions was intended, in my view to demean and embarrass me”. 33.. This specific allegation was not contained within the original Claim Form.[34]The Claimant complains of a number of incidents of what she considers to be harassment and bullying behaviour from her previous line managers, including Rosalyne Howie (RH) within the Claim Form but not this specific incident.[35]At the preliminary hearing on 3 January 2020, Employment Judge Jeram had referred at paragraph 12 of her record, to discussions with the Claimant in which the Claimant had indicated that there was at least one other comment that she felt was related to her race. Employment Judge Jeram made directions about an amendment application, explained how to make the application and referred her to the Presidential Guidance.[36]Following that hearing, the Claimant submitted a document on 31 January 2020 to the Tribunal copied into the Respondent within which (page 70) she made an application to make this amendment to the claim. That amendment was therefore submitted on 31 January 2020, 4 ½ months from the date the claim form was presented. The order of 15 October 2020 (p.15) refers to this amendment application.[37]The Claimant’s case is that the ‘Nanook’ comments were made during the period September to December 2018 but cannot be more specific than that. The Tribunal notes that in the Respondent’s report dated July 2019 (p.200) following the investigation into the Claimant’s grievance, the ‘Nanook from the North’ comment is clearly mentioned and was investigated.[38]The Claimant had made this allegation during the internal grievance process and therefore the Respondent was on notice of this allegation even before the claim form was filed.[39]The Claimant gave oral evidence today that this allegation had not been included in the claim originally because during the Respondent’s internal investigation into her grievance, RH had denied making the comment and she did not think that she would Case No: 3322356/2019 (V) 7 be able to prove it. She is unable to call witnesses to support her claim that these comments were made and therefore had considered it ‘ill advised’ to include it. However, after Employment Judge Jeram had asked her to pinpoint examples of race discrimination and explained that she could make an application to amend her claim, she had reflected on other instances.[40]RH no longer works for the Respondent, she was however questioned during the investigation process about this allegation.[41]The Claimant referred to the negative impact this comment had on her, it was she alleges, usually said in the mornings when other people were present and it made her feel undermined. She described it as demeaning. Spelling of name (section 13): Amendment 2[42]The document the Claimant submitted on the 31 January 2020, included various parts to it. This was in response to an Order by EJ Jeram requiring the Claimant to clarify what the claims of discrimination were and what were matters to be relied on as background only. It included a section headed amendments (where she set out the wording of the amendment application in respect of the ‘Nanook’ comment) and in a separate section provided ‘further particulars for clarification of the claim’. Within that latter section, the Claimant referred to an allegation that RH when first introduced to the Claimant, mentioned that she found it difficult to spell her name when sending emails (para 1.3 p 65). The Claimant conceded today that this was not included within the part of her document ‘headed amendments’ however she had understood they would be “linked up”.[43]With regard to this comment, the Claimant accepted that she did not object to it at the time because she had recently returned from sick leave and was lacking in workplace confidence; she felt because of her recent absence, she was “stepping on egg shells”.[44]The Claimant’s evidence is that she had been sent the witness statements from the internal investigation on 10 August 2019 and read them 9 months later in February or March 2020 and only then did she understand that there had been what she described as a “witch hunt” against her. Although she had read the witness statements in February or March, she still did not make the application to make the further amendments (which she applied to make at the October 2020 preliminary hearing), until the October 2020 hearing itself, some 7 months later, because as she explained, she did not understand that she could make an application in between hearings[45]The Claimant accepted that there was no reason why this allegation could not have been included in the original Claim Form. This was an allegation that she had made in April 2019 therefore making this claim was not reliant upon reading the witness statements from the internal investigation. The first time she accepted she had made this allegation within these proceedings was on 31 January 2020 and applied formally to add it as a claim on 15 October 2020.[46]The Claimant complains that this is a complaint of direct race discrimination. Counsel for the Respondent put it to her that it was not obviously about race, the same comment would have been made to anyone with a surname which difficult to spell Case No: 3322356/2019 (V) 8 however, she alleges that it was said to make her uncomfortable and delivered in a ‘flippant’ way by someone who was the Equality Lead for the Respondent.[47]The Claimant alleges that it was the spelling and not the pronunciation which RH had mentioned however, she was taken to the notes from the internal investigation where the allegation that was put to RH was that when she had first met the Claimant, she had allegedly remarked; “You are the one with a name I cannot pronounce?” (paragraph 4.2.2, page 200). The Claimant also did not dispute under cross-examination that other members of staff had said that they had asked how the Claimant pronounced her surname but she raised no complaints about them because they did not also call her ‘Nanook’ or question if her aggression was down to her culture. Treatment of Claimant’s health issues compared to DD July 2018 (section 13): Amendment 3[48]The Claimant complains about how she was treated by RW in respect of her health issues as compared to the treatment shown to the Claimant’s former colleague, DD. This application to amend was made during the preliminary hearing on the 15 October 2020.[49]The Claimant refers to RH not cancelling meetings with DD. At the last preliminary hearing, the Tribunal ordered the Claimant to provide further particulars of this claim, to include dates and occasions when the less favourable treatment/harassment took place. The replies (p.114) refer to references by RH and RW to the Claimant being late to meetings when DD was often late and this was deemed acceptable. There are no specific dates provided for the meetings when DD was late or did not attend at all or details of how RH and RW were ‘supportive’ of DD. The Claimant complains that she often felt on the outside of any dialogue, having to chase up to find out the status of projects but fails to provide details of those occasions, other than one occasion when she asserts that she has an email trial where staff were sent an email informing them, about DDs return to the office in February 2019, which she was not copied into. However, the allegation regarding communication around DDs return, appears to be an allegation about how DD treated the Claimant, not RH or RW. The Claimant confirmed at the October hearing, that she is not alleging discrimination by DD. Amendment 4:4.1The Fixed Term Employees (Prevention of less Favourable Treatment) Regulations 20024.2 Victimisation claim 4.1 Fixed Term Regulations amendment[50]The Claimant explained today that she is not pursuing a claim of victimisation or direct discrimination with respect to how she was treated at the end of her contract and specifically about the alternative post that she did not apply for and/or the role of Head of Personalised Care (HPC) offered to DD, what she is seeking to do is amend her claim to include a complaint under the Fixed Term Employees (Prevention of less Case No: 3322356/2019 (V) 9 Favourable Treatment) Regulations 2002 hereafter referred to as the Fixed Term Regulations. This application was made on the 30 November 2020. The Respondent opposes it on the basis that it is out of time and remains unparticularised.[51]The Claimant explained today that she is complaining that the Merged Programme Manager Role was in effect the job that she was doing for the Respondent and it should have therefore been given to her. She argues that she should not had to apply.[52]It is not in dispute that the Respondent had expressly informed the Claimant about the vacancy and told her how to apply. The Claimant complains, however, that she did not apply because she believed it was futile to do so in the context of how she had been treated.[53]The Fixed Term Regulations had been referred to at the preliminary hearing in October 2020 when counsel for the Respondent made the point that a breach of these Regulations had not been alleged. The Claimant had sought some legal advice after that October hearing and has made this application to amend. The Claimant’s case is that she was not aware these Regulations before the October hearing but conceded that she could have taken some advice earlier and could have researched it. The Claimant referred in her application to other allegations she wanted to raise of alleged acts of victimisation (p.117 para 6.1 to 6.8 of the application) in support of the complaint[54]In terms of paragraph 6 of the amendment (paras 6.1 to 6.8) the Claimant explained, that these are the crux of the matter and show how she was treated. She wished she had read the investigation witness statements sooner. The additional factual details help explain her claim and would prejudice her if not included.[55]The Claimant confirmed that the allegations set out in paragraphs 6.1 to 6.8 are allegations brought under the Fixed Term Regulations and are allegations of less favourable treatment under those Regulations. However, she stated she was not sure whether they can be described as separate claims or just background in support of her claim in connection with why she did not apply for the HPC role; they are incidents which she states in effect prevented her from applying for the new role. She confirmed that all of those allegations could have been raised within the Claim Form. The allegation which the Tribunal understand the Claimant to be pursuing under the Fixed Term Regulations are; 1. The Merged Programme Manager Role: she should not have had to apply for this role because it was her job – her comparator DD was slotted into another role. 2. The creation of the HPC was not mentioned to avoid C raising a complaint During the period November 2018 to April 2019; 3. RH informed investigator Claimant (C) was underperforming, did not share those concerns with Claimant despite seeking advice from HR because she her fixed term contract was coming to an end. 4. RH/RW had on denied at meeting on 13/12/18 that C was being performance managed Case No: 3322356/2019 (V) 10 5. Failure to address performance issues with C to allow her to address them 6. Failure to follow performance management process 7. Performance issues were because of stereotyping/ unconscious bias [ this is not a claim under the Fixed Term Regulations but a claim of race discrimination] 8. Dona Strain (DS) alleges meeting with C and DD was relating to Cs behaviour when C understood it was for C and DD to address DSs behaviour. 9. RW and DD supported DS to encourage her to put in complaint about C. 10. RW was supporting DS to meet with HR about C while C understood her to be progressing mediation between DS and C 11. Natalie Dunn stated in grievance investigation that RH had stated about C “don’t worry she’s not going to be here for much longer” and she was encouraged by DD to complain to RW about C. 4.2 Victimisation claim[56]The Claimant confirmed today that the allegations at para 6.1 to 6.8 on pages 11 and 12 of her application (p 117 and 188 of the bundle) relate to the above claim under the Fixed Term Workers Regulation although the document itself refers to them as alleged acts of victimisation, albeit it does not reference the EqA.[57]The Claimant’s document which she submitted setting out her amendment application, referred to victimisation and appeared to be a claim that she was not told about the role offered to DD to avoid her complaining about ‘preferential treatment’. She does not allege expressly that there was a belief that she would make a complaint for the purposes of the EqA, or indeed who held this belief and the grounds for her maintaining that this was the reason for her treatment. She confirmed however that this is a claim under the Fixed Term Regulations however given the lack of clarify over what she said about this amendment, the Tribunal will address the possibility that she is also seeking to add a victimisation claim, which had been the Respondent counsel’s understanding and is addressed in her submissions. Treatment of health – pre - July 2018: Amendment 5[58]The Claimant had referred to returning from sick leave in July 2018 in the Claim Form but made no complaint about her treatment prior to that.[59]The Claimant had confirmed at the hearing in October 2020 that she was not bringing any claims in relation to events before July 2018 and had also made no complaints in the internal grievance about the events predating July 2018.[60]The Claimant explained that her reasoning for including these allegations, although she said she may be confusing matters, is to show the impact of not being fully supported. She went off sick; there was no support and it had an impact on her mental health. Case No: 3322356/2019 (V) 11 The Claimant argues that in terms of the type of amendment, she is adding new factual details.[61]The Claimant has not particularised the complaints in relation to pre-July 2018 and conceded under cross examination that it may be difficult for those involved to recall what had happened before July 2018. Most of the relevant individuals have since left the Respondent’s employment including the main putative discriminator, RH who had left the Respondent’s employment on 14 September 2020. The Claimant accepted that there was no reason why she could not have included these allegations within the original Claim Form. Respondent’s submissions Original claim – Time limits[62]The Respondent’s key submissions in summary are as follows;• Counsel submits the claim brought is one of ordinary unfair dismissal but in any event the time limits are the same and submits that it was reasonably practicable for her to present her claim in time• The Claimant had produced no evidence from her doctor to support her assertions about the stress she is alleges she experienced.• On the Claimant’s own evidence, she had been not prioritised submitting the claim as there were other more pressing matters for her.• There is no presumption of an extension.• With regards to the technical difficulties in submitting the claim, there is no evidence to corroborate the Claimant’s account. There is no evidence to say that the system was down and the Claimant accepted that she may herself be responsible for doing something wrong when she submitted the claim.• The Clamant knew the time limit was 16 September 2019 and Counsel therefore argues that the claims of discrimination and unfair dismissal should be struck out. Amendments and time limits[63]Counsel submits that the Claimant has had many months to take steps to decide what claims she was bringing. The fact that she did not know about her legal rights is not a justification to bring amendment applications so far out of time and it would not be just and equitable to allow them. Nanook comment• Turning to the Nanook comment, Counsel referred in her written submissions (page 119); that this allegation was not raised until 9 months after the date of termination, the comments were made between September and December 2018 and it would cause prejudice to the Respondent to allow the amendment as the perpetrator is no longer employment by the Respondent. These interviewed during the internal investigation all denied the comment was made. Case No: 3322356/2019 (V) 12 Spelling of name – July 2018• This amendment was made on 15 October 2020 there was no reason why that could not have been made in the original Grounds of Claim. It was set out in the 31 January 2020 document but Counsel argues it was not specifically raised as an amendment at that point so the employment tribunal will have to take it from the date that the actual application was made and thus it is significantly out of time. In terms of the merits of that amendment application, Counsel argues that other people had asked her to pronounce her name and she had only taken issue with RH saying the same thing and that there is no reasonable prospect that claim of direct discrimination would succeed. Treatment of health issues compared to DD• The amendments application was made on 15 October 2020. It is a new cause of action. It is unclear how this is linked to race and allegations are unclear. The Fixed Term Employees (Prevention of less Favourable Treatment) Regulations 2002• In terms of the Fixed Term Regulations, the application is made significantly out of time. This was first raised on 30 November 2020. Complaint is unparticularised with reference to the provisions of the 2002 Regulations. Victimisation• The application to amend to include a section 27 EqA claim was made on 30 November 2020, 19 months after the EDT and 14 months after issue of ET1. It appears to refer to not just the HPC role but also alleged lack of support. Precise basis of the claim is unclear, there was no protected act prior to EDT or allegation of discrimination by victimisation and the allegation is out of time. Events pre- July 2018.• The Claimant applied to include this complaint only in her application on 30 November 2020. She confirmed on the 15 October she was not pursuing this claim and the claim is unparticularised.• Counsel complains that the amendments have been piecemeal and that the Claim Form should not be used as something to start the ball rolling: Chandhok v Tirkey [ 2015] ICR 527. Strike Out and/or Deposit Order: Application[64]The Respondent applies for Strike Out/ Deposit Order in respect of the following allegations (adopting the paragraphs in the Order of the 15 October 2020 in summary are) and relies substantively on written submissions which make the following points in support of the applications;• Allegations pre- July 2018:no factual allegations and not particularised• Allegation 1.2.2.3: lacks particularisation Case No: 3322356/2019 (V) 13• Allegation 2.1: lacks particularisation and is vague• Allegations about medication 3-5: unclear how could conclude because of race• Allegation 6.4: suggestion by others goal posts moved- does not suggest related to race• Allegation 10.1: email of 14 March 219 – difficult to see how linked to race• Allegation of less favourable treatment in relation to health issues in amendment application: vague and unclear how test met.• Direct discrimination in relation to dismissal: informed EJ Broughton not being pursued and unclear how could pursue given expiry of FTC• Constructive unfair dismissal: no resignation and unclear what basis of claim is• New victimisation claims: no protected act pleaded and causation unclear• Fixed Term Employee Regulations: lack of articulation and not clear how test met Claimant’s submissions[65]The Claimant made brief submission with respect to the time limits and amendment application as follows;• That the circumstances such as moving to a new house exacerbated the situation with regards to her ability to submit the claims in time.• The ‘Nanook’ comment about the difficultly RH had in spelling her name; these are comments which were ‘brought to the fore’ as racist in context of the question whether she was aggressive because of her culture.[66]The Claimant declined to make any submissions on the application for a Strike Out/ Deposit Order. Legal principles Unfair dismissal[67]Section 111 ERA “(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) … an employment tribunal shall not consider a complaint under this section 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.”[68]Porter v Bandridge Ltd [1978] ICR 943 – CA - The onus of proving the presentation in time was not reasonably practicable rests on the Claimant. Case No: 3322356/2019 (V) 14[69]Palmer and anor v Southend-on Sea Borough Council [1984] ICR 372 CA – Reasonably practicable does not mean reasonable nor physically possible, it means something like “reasonably feasible”.[70]What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. As Lord Justice Shaw put in Walls Meat Company Ltd -v- Khan [1979] ICR 52 CA: “The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province.”[71]Lady Smith in Asda Stores Ltd v Kauser [EAT/0165/07 explained it thus : “… the relevant test is not simply a matter of looking at what was possible but asking whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done. …”[72]In Akhavan-Moossavi v Association of London Government [EAT/0501/04] the Claimant presented his claim electronically on 24 July, which was the final day of the 3-month time limit. On pressing submit, he received a thank you message and informing him that an email acknowledgment would be sent within one day and that he should contact the tribunal if he did not receive it. He had not received the email confirmation by 3:45 pm the next afternoon and on ringing the tribunal office found that they had no record of his claim. He submitted it the following day, one day out of time. Although rejected by the employment tribunal, which drew attention to the guidance on electronic applications that accompanied the online claim form, stating that there was no guarantee that claim forms would be received on the same day. On appeal to the EAT, noted that while an electronic application can usually and reasonably be expected to be received on the date it was sent, something more is required of claimants in these circumstances in line with the tribunals guidance on electronic applications. However, given the ambiguous nature of the thank you message the claimant received, it could be read by an inexperienced claimant as acknowledging presentation of the claim. The Claim Form therefore was allowed to proceed.[73]Illness may prevent a claimant from submitting a claim in time, usually this will only constitute a valid reason if supported by medical evidence as to the extent and effect of the illness. Discrimination[74]The section of the EqA which deals with the applicable time limits is section 123, which provides as follows: (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. Case No: 3322356/2019 (V) 15 (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.[75]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 – CA, the Court of Appeal stated that in its view, rigid adherence to a checklist can lead to mechanistic approach to what is meant to be a very broad general discretion. The best approach a tribunal considering the exercise of the discretion is to assess all the facts as is in the particular case that it considers relevant, including in particular the length of and reason for the delay. Fixed -Term Employees (Prevention of Less Favourable Treatment) Regulations 2002[76]Section 3 less favourable treatment of fixed term employees Regulation 3(1) A fixed term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee- (a) As regards the terms of his contract; or (b) By being subjected to any other detriment by any act, or deliberate failure to act, of his employer.(2) Subject to paragraphs (3) and (4) the right conferred by paragraph (1) includes in particular the right of the fixed term employee in question not to be treated less favourably than the employers treats a comparable permanent employee in relation to- (c) the opportunity to secure any permanent position in the establishment.(3) The right conferred by paragraph (1) applies only if- (a) the treatment is on the ground that the employee is a fixed term employee and (b) the treatment is not justified on objective grounds (6) in order to ensure that an employee is able to exercise the right conferred by paragraph (1) as described in paragraph (2) (c) the employee has the right to be informed by his employer of available vacancies in the establishment (7) for the purposes of the paragraph (6) an employee is “informed by his employer” only if the vacancy is contained in an advertisement which the employee has a reasonable opportunity of reading in the course of his employment of the employee is given reasonable notification of the vacancy in some other way. Time limit Regulation 7 Case No: 3322356/2019 (V) 16 (1) An employee may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation 3 or (subject to regulation 6(5)), regulation 6 (2). (2) Subject to paragraph (3) an employment tribunal shall not consider a complaint under this regulation unless if is presented before the end of the period of three months beginning- (a) In the case of an alleged infringement of a right conferred by regulation 3 (1) or 6 (2) with the date of the less favourable treatment or detriment to which he complaint relates or where an act of failure to act is part of a series of similar acts or failures comprising the less favourably treatment or detriment the last of them (b) In the case of an alleged infringement of the right conferred by regulation 3 (6) with the date, or if more than one the last date, on which other individuals, whether or not employees of the employer, were informed of the vacancy (3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers it just and equitable to do so. Strike out application – section 37 and application for deposit order section 36
Legal principles
[77]Employment tribunals must look to the provisions of rule 37 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 when considering whether to strike out a claim.[78]Rule 37 provides as follows: 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;[79]It is not sufficient to determine that the chances of success are fanciful or remote or that the claim or part of it is likely, or even highly likely, to fail. Strike out is the ultimate sanction and, for it to be appropriate, the claim or part of the claim that is to be struck out must be bound to fail. As Lady Smith explained in Balls v Downham Market High School & College [2011] IRLR 217 (paragraph 6): “… the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word "no" because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. …” Case No: 3322356/2019 (V) 17[80]Claims and complaints where there are material issues of fact which can only be determined by the employment tribunal will rarely, if ever, be apt to be struck out on the basis of having no reasonable prospect of success before the evidence has had the opportunity to be ventilated and tested: In Anyanwu & anor v South Bank Student Union & anor [2001] ICR 391, [2001] UKHL 14, Lord Steyn said: “… For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. ….”[81]Lord Hope of Craighead added at paragraph 37: “… I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence. …” Deposit orders rule 39[82]Rule 39 provides as follows: 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.[83]Just because a Tribunal concludes that a claim or allegation has little reasonable prospect of success does not mean that a deposition order must be made. The tribunal retains a discretion in the matter and the power to make an order under rule 39 has to be exercised in accordance with the overriding objective, to deal with cases fairly and justly having regard to all of the circumstances of the particular case: Hemden v Ishmail and anor 2017 OCR 486 EAT. Direct Discrimination[84]It is also necessary to consider the law in respect of the discrimination claim that the Claimant advances. Section 13 Equality Act 2010 provides that: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Case No: 3322356/2019 (V) 18[85]It is for a Claimant in a complaint of direct discrimination to prove the facts from which the Employment Tribunal could conclude, in the absence of an adequate non-discriminatory explanation from the employer, that the employer committed an unlawful act of discrimination (Wong v Igen Ltd [2005] ICR 931).[86]If the Claimant proves such facts, the burden of proof will shift to the employer to show that there is a non-discriminatory explanation for the treatment complained of. If such facts are not proven, the burden of proof will not shift. Madarassy v Nomuna International Plc [2007] IRLR 246:[87]In deciding whether an employer has treated a person less favourably, a comparison will in the vast majority of cases be made with how they have treated or would treat other persons without the same protected characteristic in the same or similar circumstances. Such a comparator may be an actual comparator whose circumstances must not be materially different from that of the Claimant (with the exception of the protected characteristic relied upon) or a hypothetical comparator. Amendment application – legal principles[88]The employment tribunal has a broad discretion to allow amendments at any stage of the proceedings under rule 29 of the Tribunal Rules. The discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly in accordance with rule 2.[89]In Cocking v Sandhurst (Stationers) Ltd & anor [1974] ICR 650, NIRC how the key principles in exercising their discretion and involves tribunals having regard to all the circumstances and in particular to any injustice or hardship which may result from the amendment or a refusal to make it.[90]The then President of the EAT, Mr Justice Mummery, provided guidance on how the tribunal should approach applications for leave to amend in Selkent Bus Company Ltd -v- Moore [1996] ICR 386. A tribunal must also carry out a careful balancing exercise of all the relevant factors having regard to the interests of justice and to the relative hardship that will be caused to the parties by granting or refusing the amendment. Mr Justice Mummery explained that relevant factors to consider would include the nature of the amendment, the applicability of time limits and timing and manner of the application. Nature of the Amendment[91]The tribunal will have to decide whether the amendment of the claim the Claimant is seeking is minor or a substantial alteration pleading a new cause of action. Applications may involve the addition of factual details to existing allegations, addition or substitution of other labels for facts which have already been pleaded or more substantial amendments which involve entirely new factual allegations which change the basis of the existing claim. Applicability of time limit[92]If the application to amend includes adding new claims or causes of action, the tribunal must consider whether that claim is out of time and, if so, whether the time limit should be extended. Case No: 3322356/2019 (V) 19[93]Presidential Guidance on General Case Management for England and Wales Guidance Note 1: Para 5.2 “If a new complaint or cause of action is intended by way of amendment, the Tribunal must consider whether that complaint is out of time and, if so whether the time limit should be extended. Once the amendment has been allowed, and time taken into account, then that matter has been decided and can only be challenged on appeal. An application for leave to amend when there is a time issue should be dealt with at a preliminary hearing to address a preliminary issue.” Para 11.1: “The fact that the relevant time limit for presenting the new claim has expired will not exclude the discretion to allow the amendment”.[94]Rawson v Doncaster NHS Primary Care Trust EAT 0022/08: EAT observed that; “if it would be just and equitable to extend time that would be a strong, although … not necessarily determinative, factor in favour of granting permission. It if is not just and equitable to extend time that would be a powerful, but again not determinative factor, against”.[95]Galilee v Commissioner of Police of the Metropolis 2018 ICR: EAT held that it is not always necessary to determine time points as part of the amendment application. Granting an amendment does not automatically deprive the respondent of any limitation arguments it might have in relation to the new claims. A tribunal can decide to allow an amendment subject to limitation points.[96]Hammersmith and Fulham London Brough Council v Jesuthasan 1998 ICR 640 CA: authority for the proposition that where the amendment is simply changing the basis or, or relabelling the existing claim, it raises no question of time limits. Timing and manner of the application[97]It is relevant for the tribunal to consider why the application was not made earlier and why it has now been made. In Martin v Microgen Wealth Management Systems Ltd [EAT/0505/06], the EAT stressed that the overriding objective requires, amongst other matters, that cases are dealt with expeditiously and in a way which saves expense; undue delay may well be inconsistent with these aims.
Conclusions
[98]To make it easier for the parties I have set out the conclusions in a separate Appendices and the parties are referred to those appendices
Summary
[99]The Claimant confirmed at the October 2020 preliminary hearing that she was not pursuing a claim of race discrimination in respect of the offer of the HPC role to DD, however it has always been her case that she was in effect forced out because of the alleged discrimination she was subjected to by her managers (RW and RH) and that as a consequence of that discrimination, that she did not apply for the alternative role of Head of Personalised Care. Case No: 3322356/2019 (V) 20[100]The Claimant alleges that the termination of her employment was thus an act of discrimination. This is confirmed at page 14 of the record of the October 2020 preliminary hearing (para 11). Whether this is a dismissal within the meaning of within section 39 (2)(c) EqA or whether this is a detriment claim under section 39 (2) (d) (where subject to issues of causation, the Claimant may still seek to recover losses arising from the termination of her contract on the basis that they are losses which ‘flow’ from the acts of discrimination), is a matter for the Tribunal to determine at the final hearing after hearing all the evidence and legal submissions. However, the crux of her claim has always been that she felt that she was treated differently on the grounds of her race and the comment about whether she was aggressive because of her culture, is clearly at the heart of it and the other comments and behaviours are she feels, to be viewed in the context of the ‘unconscious’ discrimination she considers to have been revealed/illustrated by that comment. Case Management[101]The case will be listed for a 90-minute telephone case management hearing now to list the case for a final hearing and make case management orders.