Employment Judge P O’DonnellMs Ross (instructed by Solicitor) for respondentDate 25 October 2021
JUDGMENT
The judgment of the Employment Tribunal is that the last alleged act of discrimination occurred on 24 June 2020 at the latest and, as a result, the claim of age discrimination under the Equality Act 2010 was lodged out of time. The Tribunal is not prepared to exercise its discretion to hear the age discrimination out of time. The claim of age discrimination is, therefore, dismissed.
REASONS
[1]The Claimant has brought complaints of unfair dismissal and age discrimination against the Respondent.[2]The claim of age discrimination is based on an allegation that, over the period of her employment, the Respondent did not assign the Claimant to a permanent site. The Claimant identifies 26 development sites opened by the Respondent during her employment which says were assigned to younger employees in preference to her.[3]The Respondent has raised the jurisdictional defence of time bar in relation to the age discrimination claim. In the final version of their ET3, the Respondent identifies the dates on which these developments were opened and had employees assigned to them. These dates go back to 2014 with the most recent dates falling in 2020. These dates are not disputed by the Claimant.[4]The Respondent identify only one site, Dargavel Village, which was opened on a date which could potentially mean that a claim based on the assignation of an employee to this site was in time. However, the Respondent assert that the assignation of an employee to this month was done, at the latest, in June 2020 and that this would be the date of the act of discrimination meaning that a claim based on the assignation of a sales adviser to Dargavel Village was out of time. As a result, the Respondent’s position is that the whole of the claim for age discrimination is time-barred.[5]This hearing was listed to resolve the following issues:-a. What was the date of the last act of discrimination?b. If this occurred before 7 September 2020 and, therefore, the age discrimination claim was lodged out of time, does the Tribunal exercise its discretion to hear the claim out of time applying the test of whether it was lodged within such further period as the Tribunal considers just and equitable.[6]The issue of whether all of the matters relied upon by the Claimant as founding her age discrimination claim formed an act continuing over a period for the purposes of s123(3) of the Equality Act 2010 was reserved to the final hearing in this case for the reasons set out in the Note of the Preliminary Hearing dated 9 August 2021.
Evidence
[7]The Tribunal heard evidence from the following witnesses:-a. The Claimant.b. Lorraine Paterson, the Respondent’s senior sales manager.[8]This was not a case where there was a significant dispute of fact and there was no challenge to the reliability and credibility of either witness. In any event, the Tribunal found them both to reliable and credible and accepted the evidence which they gave.[9]There was an agreed bundle of documents prepared by the parties. A reference to page numbers below is a reference to the pages in that bundle. Findings in fact[10]The Tribunal made the following relevant findings in fact.[11]The Respondent is engaged in the construction of residential housing developments and the subsequent sale of houses. It operates under two brands with different types of houses; Barratt and David Wilson Homes.[12]When the construction phase at any development site comes towards its end then the sales phase will commence. The Respondent will assign a sales adviser to a new site a few months before that site formally opens for sales.[13]The Claimant was employed as a sales adviser by the Respondent from February 2012. She was originally assigned to a site called Mayfield Manor and worked there for about a year and a half.[14]After that she was what was described as a “floater” which refers to someone who did not have a permanent site but would be sent to different sites depending on the demands of the business.[15]Over time the Claimant noticed that younger employees were being appointed to new sites on a permanent basis. She began to notice this around 2014 and 2015. She also noticed that older sales advisers were being taken off sites and becoming “floaters” like her. She considered that this became more evident about 3-4 years prior to the present day.[16]The Claimant did not raise these issues with the Respondent during her employment. She did not raise this as a formal grievance. She did ask for a permanent site during performance review but did not raise the issue of younger staff being assigned to permanent sites or older employees being moved to floating. She believed that she would be given a permanent site in due course.[17]She also considered that she could not prove any claim of age discrimination as she had nothing in writing. She was aware that employees could bring discrimination claims to the Employment Tribunal. She did not seek legal advice about pursuing a claim of age discrimination, either during her employment or after she was dismissed.[18]In late September or early October 2020, the Respondent opened a site at Dargavel Village in Bishopton for sales. There had been discussions regarding the appointment of a sales adviser for this site since early 2020 with a particular person being identified early on. These discussions took place before the company closed down during the first national pandemic lockdown in March 2020.[19]By letter dated 24 June 2020 (p67), Lorraine Paterson, senior sales manager, wrote to the employee assigned to Dargavel Village confirming that the Respondent was still awaiting for a launch date for “your new development, DWH@Dargavel Village” and explaining that they would move this person to another David Wilson Homes development to give them experience of this type of development before they start at the new site. The letter goes to set out other arrangements for the start of the new site.[20]The employee assigned to Dargavel Village was engaged in work related to that site in August and September 2020 including following up sales leads (pp68-74).[21]The Claimant was dismissed on 2 November 2020 and this was confirmed by letter dated 10 November 2020 (pp75-76).[22]The Claimant engaged ACAS Early Conciliation on 6 December 2020 and the ACAS Certificate was issued on 23 December 2020.[23]The Claimant presented her ET1 on 17 January 2021. The ET1 raises a claim of unfair dismissal and age discrimination. The Claimant felt able to raise the discrimination claim now that she was no longer working for the Respondent.[24]After her dismissal, she had been informed by a former colleague of a comment allegedly made by a manager of wanting to get the “oldies out”.[25]The particular allegations setting out the assignation of younger employees to 26 specific developments which the Claimant relies on as the basis of her age discrimination claim were not contained in the ET1. These were set out by the Claimant in a document lodged with the Tribunal on 17 May 2021(p53) in response to an Order of the Tribunal dated 5 May 2021 (pp51-52) for the Claimant to provide further particulars of her age discrimination claim. Respondent’s submissions[26]The Respondent’s agent made the following submissions.[27]Mr Anderson started by outlining the relevant statutory provision noting that the time limit runs from when the act of discrimination occurs. He submitted that the letter at p67 was an absolute answer to this issue in this case; the letter was self-explanatory and shows the decision was taken prior to the date of the letter. There was no challenge to the evidence led by the Respondent on this point and it is conclusive.[28]Turning to the issue of the just and equitable extension, it was submitted that the Respondent did not have the burden of proof on this point. The Claimant did not get any benefit from the extension of time for Early Conciliation.[29]There was no evidence that the issue of age discrimination was raised prior to the ET1 and that this was done in response to the Claimant being dismissed. It was submitted that it was a relevant factor that the claim of age discrimination was retaliation for the Claimant’s dismissal.[30]Reference was made to the case of Keeble (below) and that the Tribunal can have regard to the factors set out in that case but were not bound by them.[31]Mr Anderson pointed out that the Claimant was aware of the Tribunal and believed that there was age discrimination for several years. It was submitted that she made a positive choice to not issue proceedings.[32]Reference was made to the terms of the claim and, without going into the merits of the claim, Mr Anderson submitted that a scattergun approach had been adopted by the Claimant. He drew attention to the ages of the various people appointed to the 26 sites.[33]Although the issue of whether a continuing act was not being addressed at this hearing, it was submitted that exercising the Tribunal’s discretion in the Claimant’s favour does open up the Respondent to such a case. There is a prejudice to the Respondent in this given that matters go back to 2014 and 2015. The Respondent will need to call evidence about these matters and are prejudiced in having to try to get witnesses to recall matters from so long ago. There are a significant number of decisions which the Respondent will have to explain.[34]It was submitted that the existence of the discrimination claim will extend the length and complexity of the final hearing which may do the Claimant no favours either. Claimant’s submissions[35]The Claimant made the following submissions.[36]She did not start the claim because she expected to win but because she had been discriminated against. She had worked for the Respondent for 9 years and expected to retire from them. She has not found herself unable to find a new job.[37]She did ask for a permanent site and had to watch whilst younger employees were given these. It was not a coincidence that all sites given to younger staff.[38]The Claimant submitted that she had not been given the performance reviews which she had asked the Respondent to provide. These would show that she got good reviews and there was not an issue with her work.
Relevant Law
[39]The provisions relating to the time limit for bringing a claim under the Equality Act 2010 to the Employment Tribunal is set out in s123 of the 2010 Act:- (1) Subject to section 140B [a reference to the provision extending time for ACAS Early Conciliation] proceedings on a complaint within section 120 [the section giving the power to the Tribunal to hear claims under the Act] 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.[40]The time limit runs from when the act of discrimination occurs and not when the claimant becomes aware of it (Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24).[41]The Tribunal does have a broad discretion to hear a claim out of time under s123(1)(b) of the 2010 Act. In British Coal Corpn v Keeble [1997] IRLR 336, it was suggested that the factors set out below are ones which the Tribunal should take into account in exercising its discretion. However, in subsequent decisions it was made clear that the Tribunal has been given a very wide discretion under the 2010 Act and it should not treat these factors as a “checklist” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5) but, rather, should take into account all relevant factors with no one factor being determinative.[42]The length and reason for any delay as well as the question of any prejudice to the Respondent arising from the delay have been said to always be relevant factors (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050) although the Tribunal requires to bear in mind that no one factor is determinative.[43]The factors which may be relevant to the exercise of the Tribunal’s discretion are:-a. the length of and reasons 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 party sued had co-operated with any requests for information;d. the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action;e. the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[44]The burden of proof in the exercise of the discretion lies on the Claimant and past cases have made it clear that it should be the exception and not the rule, with no expectation that the Tribunal would automatically extend time (Robertson v Bexley Community Centre [2003] IRLR 434). This does not, however, mean that exceptional circumstances are required for the Tribunal to exercise its discretion and the test remains what the Tribunal considers to be just and equitable (Pathan v South London Islamic Centre UKEAT/0312/13).[45]The first question for the Tribunal is what was the date of the last alleged act of discrimination. The last alleged act related to the assignation of an employee to the Dargavel Village site.[46]The Claimant did not challenge the position asserted by the Respondent, either factually or legally. The date when the appointment was made was not within the Claimant’s knowledge and so she could neither concede nor dispute the evidence from the Respondent about when this occurred.[47]It was quite clear to the Tribunal from the evidence that, by 24 June 2020 at the latest, an employee had been assigned to the Dargavel Village site. It may have been earlier than that but Ms Paterson could not recall an exact date. What was clear from the letter dated 24 June 2020 at p67 was that the employee in question had been assigned to the site by the time that letter was issued.[48]The Tribunal also notes that this was not a nominal appointment as the evidence showed that the employee assigned to Dargavel was carrying out work in relation to the site (such as following up sales leads) in August and September 2020.[49]The act of discrimination alleged by the Claimant is that she was not assigned to this site (and others) because of her age. In these circumstances, the Tribunal agrees with the submissions made on behalf of the Respondent that the alleged act of discrimination takes place when the Respondent made the assignation and not when the site in question opened.[50]For these reasons, the Tribunal finds that the last alleged act of discrimination occurred, at the latest, on 24 June 2020.[51]This means that the ET1 was not presented to the Tribunal within the period of 3 months from the date of the last alleged act of discrimination and so the Tribunal turns to the question of whether it exercises its discretion to hear the claim out of time.[52]The Tribunal pauses to note that the Claimant does not get the benefit of the “stop the clock” provisions in relation to ACAS Early Conciliation because she commenced the EC process on 6 December 2020, more than 3 months after 24 June 2020.[53]In deciding whether to exercise its discretion, the Tribunal starts by considering the explanation for the delay in lodging the claim. The Tribunal notes that this is not a case where the Claimant asserts some sort of impediment which prevented her from pursuing her claim. She does not, for example, say that she was ignorant of the law or the facts, that she was given wrong advice, that the Respondent had concealed relevant facts (or refused to disclose information) that would have allowed her to bring her claim sooner or that she was not fit to pursue the claim timeously.[54]Indeed, the Claimant, on her own evidence, had come to the view that she was being discriminated against on the grounds of her age in relation to being assigned a permanent site as far back as 2014 with her view on this becoming more firm in the last few years. She also accepted that she knew of the potential to bring a claim of age discrimination to the Employment Tribunal.[55]The only explanation given by the Claimant for not raising the matter sooner was that she did not think she could prove that she was being discriminated against by the Respondent and had nothing in writing. However, she also stated that she trusted that she would be given a permanent site in time and the Tribunal draws the inference from this that the Claimant was, to some degree, content to let the matter lie in the hope that it would resolve itself.[56]In these circumstances, the Tribunal considers that the reason why the Claimant did not raise the claim sooner was because she chose not to do so. The Tribunal does not consider that this is a particularly adequate reason for the delay. Whilst the Claimant had reasons for making this choice, it was her choice and she has to bear the consequences of that choice.[57]Inextricably linked to the reason for the delay is the question of why the Claimant brought the claim when she did and whether she acted timeously in doing so.[58]As noted above, this is not a case where there was some sort of impediment which was removed and the Tribunal has to assess how quickly the Claimant acted once any impediment was gone. Rather, this is the case where the Claimant simply changed her mind about pursuing a claim once there was a change of circumstances, that is, she was no longer employed by the Respondent. The Claimant gave clear evidence, when asked by the Tribunal why she decided to include the age discrimination claim in her ET1, that she had done so because she was away from the stress of working for the Respondent.[59]The Tribunal would not go as far as describing this as “retaliatory” (which was what was put to the Claimant in cross-examination) but it is clear that once she was no longer employed by the Respondent that she felt able to pursue her claim.[60]There was no other explanation given by the Claimant why she lodged the claim when she did and this was not a case where, for example, the Claimant was asserting that she only took legal advice after being dismissed and learned of the potential to claim age discrimination at that time. It was her evidence that she had identified the matter as age discrimination and was aware that she could pursue such a claim to the Tribunal long before her dismissal.[61]Similarly, there was no assertion that the Claimant only learned of the fundamental facts giving rise to the claim of age discrimination after her dismissal; her evidence was very clear that she had been aware of younger employees being appointed to permanent sites for some years. The only fact which the Claimant learned after her dismissal which may have been relevant to her claim of age discrimination was a comment allegedly made by a manager about “getting rid of the oldies”.[62]The Tribunal does consider that the Claimant, once she was dismissed, did not delay in pursuing her claim. She engaged ACAS Early Conciliation within a short period after her dismissal and presented her ET1 within a month of the ACAS Certificate being issued (noting that the Certificate was issued just before the Christmas period).[63]However, at that point, there was already a significant delay in relation to many of the alleged acts of discrimination with many of them occurring years ago. This was not a case where the fact that the Claimant lodged her ET1 quickly mitigated the effects of the delay.[64]Turning to the issue of prejudice to the Respondent, the Tribunal does agree with the submission made on behalf of the Respondent that it is not just a question of whether the Respondent is prejudiced in defending the claim based on the last alleged act but, rather, whether there is a prejudice in defending the claim as a whole.[65]If the Tribunal does exercise its discretion in the Claimant’s favour then the Respondent does not only have to explain the decision to assign the particular employee to Dargavel Village but also all 26 matters relied on by the Claimant. Many of these occurred several years with some going back 7 or 8 years by the time this case would proceed to a full hearing. Whilst the Respondent did not lead any evidence about whether the people who made the relevant decisions are still with the company (or can be contacted if they are not), the Tribunal considers that it is within judicial (if not common) knowledge that the passage of time will erode the recollection of witnesses especially given the very significant passage of time in relation to some of the acts relied on by the Claimant.[66]The Tribunal notes that there was no written record of the decision who to assign to Dargavel Village and this suggests that such decisions are not recorded in writing by the Respondent. The Respondent would, therefore, be relying solely on the recollection of witnesses in relation to the reasons for each appointment.[67]There was also nothing to alert the Respondent to the potential claim at an early stage from which it could be said that they should have taken steps to retain information which would allow them to defend such a claim. The Claimant had not raised the allegations of age discrimination with the Respondent, whether by formal grievance, informal complaint or any other means, at any time during her employment.[68]Indeed, the Respondent was not even aware of the basis of the age discrimination when the ET1 was presented; the original pleadings set out very broad allegations of discriminatory treatment and it was not until 17 May 2021 when the Claimant lodged her response to the Tribunal’s Order dated 5 May 2021 that there was specification of the acts of discrimination forming the basis of the claim.[69]The Tribunal does consider that there would be a prejudice to the Respondent in exercising its discretion to hear the age discrimination claim out of time given the passage of time and the effect this would have on the recollection of any witnesses. This prejudice becomes more significant the further back in time the claim goes.[70]There is also the fact that the age discrimination claim is based on a completely separate factual matrix from the unfair dismissal claim with little or no overlap in evidence. This will mean that a hearing which includes the age discrimination claim will be longer than a hearing just dealing with unfair dismissal. This will increase the time and costs of such a hearing for both parties.[71]The prejudice to the Respondent has to be weighed against the prejudice to the Claimant in not being able to pursue the claim. The Tribunal bears in mind that, regardless of its decision on the age discrimination claim, the Claimant will be able to pursue the unfair dismissal claim and so she is not being denied access to justice.[72]The parties have not raised, and the Tribunal has not identified, any other relevant factors. This is not a case, for example, where the Claimant says she was given negligent advice on time limits and so would have a potential alternative remedy against a legal adviser. Similarly, it has not been said that there was a failure by the Respondent to cooperate in responding to requests for information which would have disclosed the existence of the claim at an earlier date.[73]In the Tribunal’s view, the exercise of its discretion turns on an assessment of the reason for the delay and the balance of prejudice to the parties. As stated above, the Tribunal does not find the explanation from the Claimant to be particularly adequate or persuasive; she made a choice to not pursue the matter earlier and there are consequences to such a choice which the Claimant has to bear. Further, the Tribunal does consider that there is a prejudice to the Respondent in being able to produce evidence to defend the claim arising from the delay which becomes increasingly significant the further back in time the alleged acts of discrimination are said to have occurred. This prejudice is outweighs the prejudice to the Claimant who can still pursue her unfair dismissal claim.[74]In these circumstances, the Tribunal is not prepared to exercise its discretion to hear the age discrimination out of time.[75]In summary, the Tribunal has found that the last alleged act of discrimination occurred on 24 June 2020 at the latest and, as a result, the claim was lodged out of time. The Tribunal is not prepared to exercise its discretion to hear the age discrimination out of time and the claim is time-barred. The Tribunal, therefore, dismisses the claim of age discrimination.