Miss J Donohoe v Scotspeed and A McGhee: 4100253/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100253/2021
Between
Miss Julie DonohoeClaimantScotspeed and A McGheeRespondent
Before
Employment Judge R KingDate 17 February 2022
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant's application for reconsideration of the rejection of her claim against Scotspeed is successful on the ground that the notified defect can be rectified.
REASONS
[1]On 13 January 2021 the claimant presented claims for unfair dismissal, discrimination on the grounds of disability, sex and sexual orientation and for notice pay, holiday pay, arrears of pay and for other payments. All claims were made against both her former employer Scotspeed and its owner Alistair McGhee.[2]Although her ET1 set out her complaints against both parties, her claim against Scotspeed was rejected by letter dated 20 January 2021 because her ET1 did not contain an ACAS early conciliation certificate number for that respondent.[3]By letter dated 18 February 2021 the claimant's representatives made an application for reconsideration of that decision and this preliminary hearing has been fixed for that purpose.[4]The Tribunal heard the evidence from the claimant only. Findings in fact[5]Having heard the claimant's evidence, the Tribunal finds the following facts to be admitted or proved.[6]The claimant was formerly employed by Scotspeed at certain times between 22 August 2018 and 3 September 2020, although intermittently and she did not have continuous service.[7]Following the claimant’s dismissal on 3 September 2020 she contacted Acas with a view to obtaining advice about her rights to bring a claim. Having done so, she subsequently contacted the University of Strathclyde Law Clinic's initial advice service in October 2020. She was advised by Ben Brown, an adviser at the Law Clinic, that she had grounds to make a claim and that she would need to engage with Acas early conciliation as the first part of that process.[8]At this time the Law Clinic was providing the claimant with general advice but it was not formally representing her in relation to her potential claim. The claimant therefore contacted Acas personally with a view to engaging with early conciliation. She found the process of early conciliation stressful and the advice from Acas unhelpful. Her stress while going through the early conciliation process was compounded by having to deal with underlying health conditions, including thyroid issues, stress, anxiety and PTSD, which affect her concentration and are debilitating.[9]In due course Acas issued two separate early conciliation certificates; the first in respect of Alistair McGhee dated 12 December 2020 (R218309/20/48) and the second in respect of Scotspeed dated 18 December 2020 (R220513/20/00).[10]Having completed early conciliation the claimant submitted her claim to the Employment Tribunal on 18 January 2021. Although she was not represented by the Law Clinic at that time and had not even taken its advice before completing her ET1 she nevertheless completed Ben Brown's details in section 11 of the ET1, indicating that he was her representative.[11]Although she had received separate early conciliation certificates for Mr McGhee and Scotspeed, she inserted the early conciliation certificate number for Mr McGhee (R218309/20/48) twice; correctly in the section of the ET1 for the claim against Mr McGhee and incorrectly in the section in which she should have inserted the early conciliation certificate number she had obtained for Scotspeed. She did so because she understood that one Acas early conciliation certificate number applied to her complaints against both respondents.[12]On 21 January 2021 the claimant formally instructed the University of Strathclyde Law Clinic to represent her. When the Law Clinic representatives informed the Judge at the preliminary hearing on 18 March 2021 that the claimant wished to proceed only with her claim against Mr McGhee that was an error on their part that did not reflect the instruction they had been given. Submissions Submissions for the claimant[13]On behalf of the claimant Miss Tait submitted that the claimant had made an administrative mistake when completing her ET1. She had inserted the same EC number for her claim against Mr McGhee and Scotspeed in circumstances where she had in fact gone through early conciliation in respect of both proposed respondents and had an early conciliation certificate number in respect of both, which was evidenced by those certificates.[14]She invited the Tribunal to accept that the claimant's mistake had been an understandable one in the circumstances because at the time of the submission of her ET1 on 18 January 2021 she was not formally represented by the University Law Clinic and she had therefore submitted the application on her own.[15]In the circumstances the claimant had lacked proper legal advice to complete the form and the absence of legal advice was exacerbated by factors such as the Acas advice which she had found confusing. However, this had been her only source of advice and she had relied on it.[16]While the Tribunal had rejected her ET1 against Scotspeed for lack of an early conciliation certificate number the claimant had complied with early conciliation in respect of both proposed respondents but had inserted the wrong certificate number for Scotspeed in the ET1 by mistake.[17]Miss Tait also submitted that the Tribunal's letter of 20 January 2021 rejecting the claim against Scotspeed was not compliant with Rule 12(3) because it had not set out details of how to apply for a reconsideration of that decision. To compound matters for the claimant that letter had been sent only in hard copy to the offices of Strathclyde University Law Clinic at a time when due to Covid restrictions there was nobody in attendance at the office until 4 February 2021 when it was discovered by chance.[18]Having discovered this letter on 4 February the claimant’s representatives had made an application for reconsideration on 18 February 2021. That was within fourteen days from the date of having received notice of the decision, albeit it was not within fourteen days of the date of the decision.[19]Miss Tait invited the Tribunal to accept that the claimant’s evidence had been credible and reliable. She had been suffering from acute stress and financial pressure at the time when she submitted her claim. She had been suffering from panic attacks that had affected her mental health and wellbeing. She had taken advice from Acas and she understandably relied on that.[20]Prior to this preliminary hearing, Miss Tait’s understanding was that Acas had merely advised the claimant but it appeared from her evidence that Acas had submitted her ET1 on her behalf.[21]In all the circumstances it would be in the interests of justice to allow the claim against Scotspeed to proceed. That would not be prejudicial to the respondent whereas the claimant would suffer an unjust loss if her claim against Scotspeed was not allowed to proceed. Submissions for the respondent[22]On behalf of the respondent Mr James invited the Tribunal to reject the claimant’s application for reconsideration. He noted that it was accepted that an early conciliation certificate had been issued in respect of Scotspeed on 18 December 2020. It must have been provided to the claimant. It could safely be said that at the time when she lodged her claim on 18 January 2021 she was in receipt of the early conciliation certificate.[23]Mr James referred to the case of Fforde -v- Black UK EAT/68/80. He submitted that the interests of justice ground could only be successful if something had gone wrong with the tribunal's procedure so that a party was denied natural justice. He submitted that was not the case in respect of the circumstances of this case.[24]In the first place there was no administrative error on the Tribunal's part. It had acted correctly when it had identified a substantial defect in the ET1 having regard to the EC certificate number against Scotspeed being identical to that in respect of the claim against Mr McGhee. A unique EC certificate number was a prerequisite for the claim and its absence was a substantive error. The Tribunal was correct in rejecting the claim against Scotspeed for that reason, in circumstances where, based on the timeline in her evidence, the claimant could have included the correct reference number.[25]Mr James submitted that while the claimant had given evidence that she suffered from a number of health conditions she had not relied on those as the reason she could not identify the correct EC number. Her health had therefore had no impact on her ability to complete the claim form.[26]Despite what the claimant's representative had asserted, the claimant did have legal representation from the Law Clinic in or around September/October 2020 and 21 January 2021 was not the first occasion when she had obtained representation. The claimant did have access to legal advice when she submitted her claim but had simply chosen not to take that advice because she believed that it was a simple process. She had made an informed decision not to take advice at the time.[27]In respect of the evidence that the claimant had given that Acas had completed the form on her behalf, he submitted that this was peculiar standing their neutral position and that her evidence in that regard was simply not plausible.[28]Mr James also referred to the fact that at the preliminary hearing the claimant’s representative had said that she did not want to add an additional respondent to the claim against Mr McGhee. It was significant that this point had been specifically discussed and a discussion had been recorded in the Judge's note to the effect that a claim would not be proceeding against Scotspeed. The note of the preliminary hearing had expressly recorded that the claimant’s representative had confirmed the claim had correctly been brought only against Mr McGhee. There had been no confusion.[29]Mr James submitted that there would be no prejudice to the claimant if the claim against Scotspeed was not allowed to proceed. All of the allegations she had made in her ET1 were against Mr McGhee and there were no further distinct allegations against Scotspeed distinct from those against him. She still had the right to pursue all of her claims against Mr McGhee. In all those circumstances he invited the Tribunal to reject the application.
The Law
[30]So far as relevant Rules 12 and 13 of the Employment Tribunals (Constitutions and Rules of Procedure) 2013 provide as follows:- 12.— Rejection: substantive defects(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be— … (c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies;(2) The claim, or part of it, shall be rejected if the Judge considers that the claim, or 25 part of it, is of a kind described in sub-paragraphs (a), (b), (c) or (d) of paragraph (1). … (2) If the claim is rejected, the form shall be returned to the claimant together with a notice of rejection giving the Judge’s reasons for rejecting the claim, or part of it. The notice shall contain information about how to apply for a reconsideration 5 of the rejection. 13.— Reconsideration of rejection (1) A claimant whose claim has been rejected (in whole or in part) under rule 10 or 12 may apply for a reconsideration on the basis that either— (a) the decision to reject was wrong; or (b) the notified defect can be rectified. (2) The application shall be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. It shall explain why the decision is said to have been wrong or rectify the defect and if the claimant wishes to 15 request a hearing this shall be requested in the application.(3) If the claimant does not request a hearing, or an Employment Judge decides, on considering the application, that the claim shall be accepted in full, the Judge shall determine the application without a hearing. Otherwise the application shall be considered at a hearing attended only by the claimant.(4) If the Judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified. Discussion and Decision[31]In the first place the Tribunal finds that the claimant's application for reconsideration should be considered although presented late. In reaching that decision it takes into account that only a hard copy of the Tribunal's 20 January 2021 rejection of the claim against Scotspeed was sent to the Law Clinic's offices and because of Covid restrictions was not collected until the original 14 day limit had expired. It also takes into account that this letter was deficient because it did not set out details of how to apply for a reconsideration of the decision. In those circumstances, the claimant's delay in making her application was reasonable. Applying Rule 5, it therefore finds that the time for making the application should be extended to 18 February 2021 when that application was made.[32]The principal question for the Tribunal in terms of Rule 13(1) is whether the defect identified can be rectified. It was not in dispute that the claimant had, despite the difficulties she had described, completed the Acas early conciliation process in respect of both Alistair McGhee and Scotspeed and had obtained early conciliation certificates in respect of both potential respondents, albeit they were not issued on the same date. The claimant was therefore in receipt of both early conciliation certificates by 18 January 2021 when she submitted her claim form.[33]However, when she submitted her claim form, because of confusion, ill health or having received advice from Acas that she did not properly understand, she inserted the same early conciliation certificate number for both respondents. In those circumstances the Judge correctly rejected the claim against Scotspeed under Rule 12(2).[34]However, the Tribunal concludes that in circumstances where the claimant has subsequently, in her application for reconsideration dated 18 February 2021, produced an early conciliation number in respect of Scotspeed (R220513/20/00), obtained prior to the presentation of her rejected claim, that the defect has been rectified.[35]In reaching this decision the Tribunal takes into account the interests of justice 30 and the overriding objective to deal with cases fairly and justly. It has had regard to the fact that the claimant had engaged with early conciliation and obtained early conciliation certificates for both respondents. In that regard she had done everything required of her before presenting her claim. When she presented her claim she did not take advice about its completion and she was also suffering from stress and anxiety.[36]Under the previous ET rules a decision was capable of being reviewed if it could be argued that an administrative error had resulted in a wrong decision. In Sodexho Ltd v Gibbons UKEAT/0318/05, UKEAT/0319/05 & UKEAT/0320/05, the EAT held that administrative error included errors by the parties, as well as by the tribunal staff. However, it was necessary for the party seeking a review to show that the administrative error had led to the wrong decision being made. Although that decision was made under a different set of rules, the Tribunal considers that it should be taken into account. It is clear that the claimant's error was an administrative one and that it resulted in a wrong decision in circumstances where the claimant had complied with the early conciliation requirement in relation to both respondents.[37]The Tribunal also accepts that the claimant's representatives' failure to oppose the rejection of the claim against Scotspeed during the preliminary hearing on 18 March 2021 was a mistake on their part and did not reflect the claimant's position. In that regard the Tribunal takes into account that the claimant’s representatives are university students and not professional representatives. In any event the defect is now deemed to have been rectified by the date of the preliminary hearing.[38]The Tribunal did not accept the claimant's evidence that Acas completed and submitted her claim form on her behalf. Her evidence about that was confused and, as Mr James submitted, entirely implausible in light of its neutral role. Had Acas submitted her claim form they would not have completed the same early conciliation number for both respondents.[39]In all the circumstances the Tribunal concludes that as the claimant has produced an early conciliation certificate (R220513/20/00) in respect of Scotspeed, dated prior to the presentation of her rejected claim, that the defect has been rectified. Her claim against Scotspeed is therefore treated as having been presented on 18 February 2021 when her representative provided the Tribunal with confirmation of the relevant early conciliation certificate number. Time bar[40]There remains a live preliminary point in respect of time bar and therefore a further open preliminary hearing to deal with that issue in respect of the claims against both respondents should now be fixed. Employment Judge: Robert King Date of Judgment: 22 June 2021 Entered in register: 22 June 2021 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100253/2021 Held on 24 January and 9 February 2022 (By CVP) Employment Judge: L Doherty Ms J Donohoe Claimant Represented by: Ms Tate and Mr Crombie - Student Advisors Mr A McGhee First Respondent Represented by: Ms Hatch – Counsel Scotspeed Limited Second Respondent Represented by: Ms Hatch – Counsel[41]The claimant stated in her written statement that she had had a conversation in around December 2018 when she confided in the first respondent, a Mr Paul Brown, a production worker, and a Mickey Docherty, manager, regarding her problems with alcoholism and abuse from her father. She said that in this 25 conversation she made aware of her mental health issues of depression and anxiety.[42]In cross examination the claimant departed from the statement, stating firstly that conversation had happened in 2019, and secondly, that it had not involved either the first respondent, or Mr Mickey Docherty, ( who was not a 4100253/2021 (V) Page 9 manager) but instead another manager by the name of Micky. In so far as making those who were party to the conversation aware of her mental health issues, her evidence on cross examination changed again from her written statement, and she that she stated her father was like ‘Fritzel’ and she left it at that.[43]On the basis of this material inconsistencies, for which no convincing explanation was given, the Tribunal rejected the claimant’s evidence as to the alleged discussion which had taken place about her mental health issues with her manager or co-workers.[44]The claimant’s written statement contained something to the effect that she 10 confided regularly in the first respondent, Mr Brown, and Mr Doherty ,about her ongoing issues until she was dismissed, in the hope that disability would be treated seriously, but instead she was met with insults.[45]No detail was provided at all in terms of how she confided regularly, or what she said to any of these individuals which would have given rise on their part 15 to knowledge that she was disabled, and the Tribunal did not find the claimant’s evidence on this point to be either credible or reliable.[46]In her written statement the claimant relied upon the fact that she kept her thyroid medication at work, and that she considered that the respondent and other members of the management team were aware of her condition as she 20 had to take this medication regularly in their presence. She also stated that she saw the first respondent see her take the medication on the factory floor on many occasions. She said she took her medication at 11 o’clock and the first respondent was aware of this.[47]The claimant however accepted in cross examination that she did not have a 25 locker, and that she kept her medication in the draw of her sewing machine. She also stated that the first respondent would have been able to watch her take the medication from a CCTV camera on which he would watch from his office and, on which she said he observed everything that happened in the factory on a daily basis. 4100253/2021 (V) Page 10[48]The inconsistencies in the claimant’s position were unexplained, and it seemed highly implausible to the Tribunal that the first respondent would, as suggested by the claimant have spent all day observing CCTV footage of the factory floor. The Tribunal therefore did not conclude that the first respondent, or anyone else, had regularly observed the claimant take medication.[49]The Tribunal did not accept that Mr McGill had compared the claimant to a contractor, implying that she was ‘Fucked up’, or a friend had reported her condition to the respondents on 3 September. There was no convincing evidence upon which it could reach such conclusions. The Tribunal accepted Mr Gills evidence that another member of staff had telephoned regarding the 10 claimant on the 3 September, and that the purpose of her call was to express concern at the prospect of working alongside the claimant, not to report that she had a thyroid episode. Submissions[50]Both parties helpfully provided written submissions, which they supplemented 15 with oral submissions. In the interests of brevity these are not reproduced here, but the relevant elements of the submissions are dealt with in the Tribunal’s Note on Evidence and Consideration.
Consideration
[51]Section 123 of the EQA provides as follows; (1) Subject to section 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 25 equitable.[52]Conduct extending over a period is treated as done at the end of the period (Section 123(3)(a)). 4100253/2021 (V) Page 11[53]The time limit is subject to any extension of time limits which may apply where the claimant is subject to the requirement for early conciliation and the stop the clock mechanism in s.207B ERA 1996.[54]The claimant brings the following claims; 1. Direct disability discrimination (section13 EqA 2010); 2. Discrimination arising from disability ( section 15 EqA 2010); 3. Harassment on the grounds of sex ( section.26 EqA 2010)[55]In her written case the allegations are said to have taken place on the flowing dates;(a) Allegations of Direct disability discrimination under Section 13 10 and 15 of the EQA; The claimant alleges that her dismissal on 3/9/2020 was an act of direct disability discrimination, alternatively an act of discrimination for something arising from her disability.(b) Harassment allegations under Section 26 of the EQA The claimant alleges 5 acts of harassment in her written case ; (i) From June 2019 onwards she received inappropriate text messages from the first respondent, including him asking why she had been single for 12 years; (ii) In June 2020 the first respondent sent her a by text message if she had 20 ever had a threesome; (iii) In June 2020 the first respondent asked the claimant for pictures of her daughter’s “arse”; 4100253/2021 (V) Page 12 (iv) In July 2020 the first respondent grabbed the claimant’s crotch in what he described was an attempt to “move her out of the way” (although the nature of this allegation changed during evidence) (v) On 26 August 2020 the first respondent said to the claimant “You know I love you” during a conversation in the office. Date from which time runs Disability discrimination claims[56]In the relation to the claims of disability discrimination the primary time-limit for the disability discrimination claims under section 13 and 15 expired on the 2 December 2020, three months from the date of dismissal. Sex discrimination claims[57]The Tribunal was satisfied that the primary time-limit for the harassment claim under Section 26 of the EQA was 25 November 2020, that being three months the date the last allegation. It did not accept the claimant’s submission that the date of the last act for the purposes of the sex discrimination claim should 15 be 3 September,( the date of dismissal) on the basis that there was an act extending over a period. There is no allegation of harassment on the grounds of sex after 26 August. Dismissal is said to be an act of discrimination on the grounds of disability, and therefore there was no act extending over a period for the purpose of the section 26 claim. Claims against the second respondent[58]Although on the face of it at odds with her written submissions , Ms Tait indicated in her oral submissions that the claim of disability discrimination were brought against second respondent, and the claim of sex discrimination was brought against the first respondent.[59]In any event, the claims against the second respondent are presented in time. The extension effected by the ACAs certificate is calculated by looking at number of days starting with the day after Day A (i.e. 19/11/20) and ending 4100253/2021 (V) Page 13 with Day B inclusive (18/12/20) . The revised time limit expiry date falls in the period starting with Day A and ending 1 month after Day B The claim should have been be presented against the second respondent by 1 month after Day B, ( i.e. by 18/1/21), which it was. Claim against the first respondent[60]The claimant contacted ACAS 12 November 2020, and the ACAS certificate was issued on 12 December. The revised time limit for the claim falls in the period starting with Day A ( 12/11/20) and ending 1 month after Day B (12/12/20).The claim should have been be presented by 1 month after Day B ( i.e. by 12/1/21).[61]The claims against first respondent, on the basis of the claim presented on 18/01/21, was late by a factor of 6 days. That claim was however rejected, but allowed on reconsideration when it was deemed to have been accepted on 18 February. Extension of time[62]The Tribunal then went on to consider if time should be extended under section 123 to consider the claim against the first respondent. The Tribunal has a wide discretion; it is entitled to take into account anything that it considers relevant. The Tribunal however keeps in mind that there is a strict application time limits in the employment Tribunal, and that the exercise of 20 discretion is the exception and not the rule. Ms Hatch made submissions to that effect , referring the Tribunal to Robertson v Bexely Community Centre (2003) EWCA 576 , and Department of Constitutional Affairs v Jones [2007] EWCA Civ 894.[63]Ms Hatch also took the Tribunal to Chief Constable of Lincolnshire Police v 25 Caston [2009] EWCA Civ 1298, [2010] IRLR 327, in support of the proposition that whether a claimant persuades the Tribunal to extend time is a question of fact 4100253/2021 (V) Page 14[64]Furthermore, the Tribunal reminded itself, as submitted by Ms Hatch that the burden of persuading the Tribunal to exercise its discretion rests with the claimant.[65]Ms Hatch referred to Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278 at [9] the EAT, HHJ Peter Clark, identified a proposition which would 5 seem to follow from this burden of persuasion that ; 'if the claimant advances no case to support an extension of time, plainly, he is not entitled to one'.[66]The Tribunal considered the factors which are relevant to the exercise of its discretion. In doing so reminded itself of what was said in British Coal 10 Corporation v Keeble (1977)IRLR 336. There it was suggested that the Tribunal will be assisted by considering the factors listed in Section 33 of the Limitation Act 1980. That section deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and have 15 regard to all the circumstances of the case. Those circumstances are in particular the length of the delay and the reason for it; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which claimant acted once she knew the facts giving rise to 20 the cause of action; and the steps which the claimant took to obtain the appropriate legal advice once she knew of the possibility of taking action.[67]That is not to say the Tribunal should slavishly follow a checklist approach and it must always keep in mind that it should asses all the factors in a particular case which it considers relevant ( Adedeji v University Hospitals 25 Birmingham NHS Foundation [2021] EWCA Civ 23)][68]The first matter the Tribunal considered was the length of the delay and the reason for it. After applying the extension effected by the issue of the ACAS certificate, the claim against the first respondent was lodged late by a factor of six day. That claim was however rejected because the incorrect ACAS 4100253/2021 (V) Page 15 certificate number was contained in the ET1, and was deemed to have been presented on reconsideration on 18 February, which is over a month after the expiry of the time limit.[69]The respondents were critical of the claimant for not having taken steps to present her sex discrimination claim earlier, particularly when she had access 5 to legal advice.[70]The Tribunal takes into account the fact that the claimant had access to legal advice, even if only in the form of attendance at a drop-in clinic, from a relatively early stage. She had the benefit of this when she submitted the conciliation notice to ACAS. She also spoke to ACAS , who made her aware 10 of time limits.[71]However at the point when the claimant lodged her claim with the Tribunal she was unrepresented, and she had to contend with two ACAS certificates against two respondents, which were issued on different dates, and contained different conciliation numbers. The claimant was also experiencing 15 of stress in having to deal with the Tribunal process in lodging a claim, and because of problems with her eye, she required to enlist the help of a friend to act as a scribe in submitting her ET1 .[72]The Tribunal notes Ms Hatch’s submission to the effect that the claimant was able to work as a machinist without any difficulty which did not support the 20 conclusion she was experiencing difficulties with her eyesight.[73]However, despite Ms Tate’s submissions, the claimant did not rely on problems with her eyesight as an impairment giving rise to a long-term substantial adverse effect on her day-to-day abilities, but explained she had a problem with looking at the text in order to lodge the ET 1 forms, and she 25 explained that she needed a friend to scribe for her, which caused some delay.[74]Notwithstanding the Tribunals overall view of the claimant’s credibility generally, it considered that fact that the claimant explained the issue she had and the type of help she required with some degree of specification, gave 4100253/2021 (V) Page 16 her position on this particular point credibility, and the Tribunal accepted her evidence on this matter.[75]The Tribunal was prepared to accept that it was these factors ( the fact that the claimant was unrepresented, that she had to deal with a relatively complicated process; that she was experiencing stress, and an eye problem 5 which meant that she was reliant on the assistance of a friend in completing her ET1 application) brought about the delay in the claim being lodged.[76]Even taking into account the deferred acceptance of the ET1 as a result of the inclusion of the correct ACAS number when the claim was initially lodged, the cogency of the evidence is not likely to be affected by the delay. No 10 submissions were made to the effect that it would be.[77]The claimant did take steps to obtain legal advice, and did so with some promptness , albeit she did not secure legal representation until after she had lodged her claim.[78]The Tribunal considered against these factors the prejudice each party would 15 be likely to suffer as a result of time being extended, or not, under Section 123.[79]The prejudice is that the respondents will have to defend a claim of sex discrimination, which has been lodged out of time. It does however remain open to them to defend the claim.[80]The prejudice to the claimant is that she will be prevented from pursuing her complaint of discrimination.[81]Balancing all the factors present in this case, including the relative prejudice to the parties, the Tribunal was satisfied that it was the correct exercises discretion under Section 123 of the EQA to extend time to allow the claim of 25 sex discrimination to proceed. Disability Status[82]The Tribunal began by considering the relevant legislation. 4100253/2021 (V) Page 17 1. Section 6 of the Equality Act 2010 provides: (1) A person (P) is disabled if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day 5 activities. 2. Schedule 1 provides: PART 1[83]Ms Tate submitted these have a substantial and longMs Tate submitted these have a substantial and long--term adverse effects on term adverse effects on the claimant’sthe claimant’s ability to carry out normal dayability to carry out normal day--toto--day activities. She referred to day activities. She referred to 20 the disability impact statement and the claimant’s evidence, about the nature the disability impact statement and the claimant’s evidence, about the nature of her disabilities and the effect they have on her. of her disabilities and the effect they have on her.[84]Ms Tate referred to from the claimant’s General PractitMs Tate referred to from the claimant’s General Practitioner report (page 86 ioner report (page 86 of the bundle).The claimant’s GP’s report confirmsof the bundle).The claimant’s GP’s report confirms thatthat the claimant suffers the claimant suffers from hypothyroidism and anxiety with depression. Although Post Traumatic from hypothyroidism and anxiety with depression. Although Post Traumatic 25 Stress Disorder is not included in the GP’s report, Ms Tate submitted that Stress Disorder is not included in the GP’s report, Ms Tate submitted that historical trauma is referred to and asked the historical trauma is referred to and asked the TribunalTribunal to accept the claimant’s to accept the claimant’s 4100253/2021 (V) Page 20 evidence in relation to this condition. evidence in relation to this condition.[85]In departure from the clear position taken at the outset of the PH, to the effect In departure from the clear position taken at the outset of the PH, to the effect tthat the claimants eye issues were not relied upon as an impairment, Ms Tate hat the claimants eye issues were not relied upon as an impairment, Ms Tate made detailed submissions to the effect that the made detailed submissions to the effect that the TribunalTribunal should have regard should have regard to the claimant’s sight impairment, and the effect of this. to the claimant’s sight impairment, and the effect of this.[86]The The TribunalTribunal did not consider that it was proper for it to do so. The did not consider that it was proper for it to do so. The respondents conducted this PH on respondents conducted this PH on the basis that sight impairment was not the basis that sight impairment was not relied upon, there was no cross examination on this. In circumstances, where relied upon, there was no cross examination on this. In circumstances, where the claimant gave a clear position at the start of the PH as to the impairments the claimant gave a clear position at the start of the PH as to the impairments relied upon, and stated that she was not relying in her srelied upon, and stated that she was not relying in her sight impairment, it is ight impairment, it is 10 not permissible for the not permissible for the TribunalTribunal to take that into account at this at this sto take that into account at this at this stage tage of submissions. of submissions.[87]The The TribunalTribunal was prepared to accept that the claimant had impairments of was prepared to accept that the claimant had impairments of hypohypothyroidism, and anxiety and depression. These are the impairments thyroidism, and anxiety and depression. These are the impairments evidenced by GPs report, and spoken to by the claimant. While the GP’s evidenced by GPs report, and spoken to by the claimant. While the GP’s 15 report mentions an element of historical trauma, that was insufficient to allow report mentions an element of historical trauma, that was insufficient to allow the the TribunalTribunal to conclude that the claimant was suffering from an impairment to conclude that the claimant was suffering from an impairment of PTSD.of PTSD.[88]The The TribunalTribunal went on to consider if these impairments had a substantial longwent on to consider if these impairments had a substantial long--term adverse effect on the claimant’s ability to carry out dayterm adverse effect on the claimant’s ability to carry out day--toto--day actiday activities, vities, 20 applying the relevant legislation and guidance noted above. applying the relevant legislation and guidance noted above.[89]It is important to note that the It is important to note that the TribunalTribunal has to assess the effect of the has to assess the effect of the impairment, and whether that is substantial and long term, not whether the impairment, and whether that is substantial and long term, not whether the impairment itself is long term.impairment itself is long term.[90]It is also important to keep in mind that the It is also important to keep in mind that the TribunalTribunal is required to assess if is required to assess if 25 the claimant was disabled in terms of section 6 at the relevant time, (i.e. at the the claimant was disabled in terms of section 6 at the relevant time, (i.e. at the time of the alleged discrimination). As ptime of the alleged discrimination). As pointed out by Ms Hatch, the GP reportointed out by Ms Hatch, the GP report,, although conforming the claimant’s diagnosis, gave no informalthough conforming the claimant’s diagnosis, gave no information about the ation about the claimant’sclaimant’s abilities as the relevant time. abilities as the relevant time. 4100253/2021 (V) Page 21[91]The claimant’s evidence about the effects of her impairments on her abilities The claimant’s evidence about the effects of her impairments on her abilities to carry out dayto carry out day--toto--day activities was given in fairlyday activities was given in fairly general terms. general terms. Ms Hatch Ms Hatch submitted that the claimant did not give evidence as to the effects of her submitted that the claimant did not give evidence as to the effects of her impairment at the relevant time, however it appeared to the Tribunal that timpairment at the relevant time, however it appeared to the Tribunal that the he claimant’s impact statement did refer to the impact of her impairment at the claimant’s impact statement did refer to the impact of her impairment at the 5 relevant time, as she refers to her the effects of her thyroid condition at the relevant time, as she refers to her the effects of her thyroid condition at the date of dismissal, and she refers to her history of depression and its effects, date of dismissal, and she refers to her history of depression and its effects, providing an exproviding an explanation as to why she stopped taking medication for it in planation as to why she stopped taking medication for it in 2017.2017.[92]AlbeitAlbeit,, as submitted by Ms Hatch the claimant did not provide medical as submitted by Ms Hatch the claimant did not provide medical 10 evidence to support this, and she had been ordered to produce the medical evidence to support this, and she had been ordered to produce the medical evidence on which she intended to rely, the evidence on which she intended to rely, the TribunalTribunal accepted her evidence accepted her evidence that she had a Thyroid related episode at about the time of her dismissal, that she had a Thyroid related episode at about the time of her dismissal, as there was there was medical evidence to support that the claimant had been as medical evidence to support that the claimant had been diagnosed with Thyroid, and was on medication for it, at that time. It also diagnosed with Thyroid, and was on medication for it, at that time. It also 15 accepted as credible her evidence as to why she stopped taking medication accepted as credible her evidence as to why she stopped taking medication for her depression. The fact that the claimantfor her depression. The fact that the claimant stopped taking medication may stopped taking medication may hhave anave an impact on an assessment of her judgmentimpact on an assessment of her judgment or good reasonor good reason, but the , but the TribunalTribunal did not conclude , as suggested by Ms Hatch, that it meant her did not conclude , as suggested by Ms Hatch, that it meant her depression was not serious enough to warrantdepression was not serious enough to warrant medication.medication.[93]Furthermore the medical report produced confirms that the claimant’s Thyroid Furthermore the medical report produced confirms that the claimant’s Thyroid condition has been controlled by medication since 2010,which meant that her condition has been controlled by medication since 2010,which meant that her Thyroid was controlled by medication during the relevant period. Thyroid was controlled by medication during the relevant period.[94]The claimant ‘s depression, which was diagnosed in 1996, and for which she The claimant ‘s depression, which was diagnosed in 1996, and for which she has taken no medication, has taken no medication, and her and her thyroid conditionthyroid condition,, have have affected her ability affected her ability 25 to sleep, her general mood, her ability to concentrate and her energy leveto sleep, her general mood, her ability to concentrate and her energy levels.ls.[95]The effect on The effect on the claimant’s ability to concentrate has meant the claimant’s ability to concentrate has meant that shethat she has has struggled to carry out her personal business tasksstruggled to carry out her personal business tasks and has often found having and has often found having to deal with personal business tasks to deal with personal business tasks such as the administration of her such as the administration of her mortgagemortgage, overwhelming. , overwhelming. 4100253/2021 (V) Page 22[96]TheThe other example which the claimant again about how their ability to other example which the claimant again about how their ability to concentrate affectedconcentrate affected dayday--toto--day activities, was that she burned her arm while day activities, was that she burned her arm while cooking, but did not notice this immediately. cooking, but did not notice this immediately.[97]Ms Hatch submitted that the claimants proven drug use could be the cause Ms Hatch submitted that the claimants proven drug use could be the cause of the effects which she complains of, rather than her impairments. of the effects which she complains of, rather than her impairments.[98]The The TribunalTribunal take into account that it is the claimant who has the burden of take into account that it is the claimant who has the burden of proof. She has produced a meproof. She has produced a medical report confirming her impairments and the dical report confirming her impairments and the medications she takes. She also gave evidence as to the effects of her medications she takes. She also gave evidence as to the effects of her condition , which was not incredible. The condition , which was not incredible. The TribunalTribunal had no evidence of the had no evidence of the effect effect ofof the claimant’s drug use, much beyond the claimant’ evidence to the the claimant’s drug use, much beyond the claimant’ evidence to the 10 effect that she took cannabis for medical reasons. effect that she took cannabis for medical reasons. Against that background it Against that background it was not possible to reach the conclusion the claimant had failed establish the was not possible to reach the conclusion the claimant had failed establish the effects of her impairment, due to the fact that she also used illegal drugs.effects of her impairment, due to the fact that she also used illegal drugs.[99]The The TribunalTribunal takes into account that in assessing the effect of an impairment, takes into account that in assessing the effect of an impairment, it has to disregard the effects of medication. It also takes iit has to disregard the effects of medication. It also takes into account during nto account during 15 the relevant period the claimant was taking medication forthe relevant period the claimant was taking medication for herher thyroid thyroid conditiocondition. This is confirmed by her GP report, which states that her condition n. This is confirmed by her GP report, which states that her condition has beenhas been controlled by medcontrolled by medication and that this is likely to be lifelong. ication and that this is likely to be lifelong.[100]In determining the effects of an impairment without medication, the In determining the effects of an impairment without medication, the TribunalTribunal would need to consider how the claimants abilities had been affected at the would need to consider how the claimants abilities had been affected at the 20 material time, whilst on medication, and then to consider the question as to material time, whilst on medication, and then to consider the question as to the effect which it thinks there would have been for the medication. The the effect which it thinks there would have been for the medication. The quequestion is whether the actual and induced effects of the stion is whether the actual and induced effects of the claimant’sclaimant’s abilities abilities to carry out dayto carry out day--toto--day activities are clearly more than trivial.day activities are clearly more than trivial.[101]The The TribunalTribunal was satisfied that even with her conditiwas satisfied that even with her condition controlled by on controlled by 25 medication, the claimant suffered fatigue and difficulty concentrating. It was medication, the claimant suffered fatigue and difficulty concentrating. It was prepared to speculate, on the basis that the claimant’s condition was prepared to speculate, on the basis that the claimant’s condition was controlled by medication, that she would have experienced these effects more controlled by medication, that she would have experienced these effects more significantlsignificantly had she not been taking medication. y had she not been taking medication.[102]Even with her condition controlled by medication, the Even with her condition controlled by medication, the TribunalTribunal considered that considered that 4100253/2021 (V) Page 23 the claimant’s lack of ability to concentrate being affected to the extent that the claimant’s lack of ability to concentrate being affected to the extent that she she struggled tostruggled to conduct her personal conduct her personal businessbusiness affairs, such as dealing with affairs, such as dealing with her mortgage, and her mortgage, and often often felt overwhelmed by these, was in effect which was felt overwhelmed by these, was in effect which was more than trivial, and was a substantial effect. The effect of not being able to more than trivial, and was a substantial effect. The effect of not being able to deal with personal deal with personal businessbusiness matters matters is likely to have negative and not is likely to have negative and not 5 insignificant consequences.insignificant consequences.[103]The The TribunalTribunal was also satisfied that the effect was longwas also satisfied that the effect was long--term, in that the term, in that the claimant’s impairment of hypothyroclaimant’s impairment of hypothyroidism had been controlled by medication idism had been controlled by medication for a period of more than 12 months prior to the date of dismissal.for a period of more than 12 months prior to the date of dismissal.[104]The The TribunalTribunal therefore concluded that the claimant was disabled in terms of therefore concluded that the claimant was disabled in terms of 10 section 6 osection 6 of the EQA.f the EQA. Knowledge of Disability Knowledge of Disability Section 15 provides;(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence 15 of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[105]Ms Hatch referred to Gallop v Newport City Council (2013)EWCA Civ Ms Hatch referred to Gallop v Newport City Council (2013)EWCA Civ 1358(2014) IRLR 211: 1358(2014) IRLR 211: ''For that purpose the required knowledge, whether actual or constructive, ''For that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in section is of the facts constituting the employee's disability as identified in section 1(1) of the DDA. Those facts can be regarded as having three elemen1(1) of the DDA. Those facts can be regarded as having three elements to ts to 25 them, namely(a) a physical or mental impairment, which has(b) a them, namely (a) a physical or mental impairment, which has (b) a substantial and longsubstantial and long--term adverse effect on(c) his ability to carry out term adverse effect on (c) his ability to carry out normal daynormal day--toto--day duties; and whether those elements are satisfied in any day duties; and whether those elements are satisfied in any 4100253/2021 (V) Page 24 case depends also on the clarificatio case depends also on the clarification as to their sense provided by n as to their sense provided by Schedule 1. Counsel were further agreed that, provided the employer has Schedule 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a “disabled person” the consequence of such facts is that the employee is a “disabled person” 5 as defined in section 1(2)'.'as defined in section 1(2)'.'[106]For the reasons given above, under Note on Evidence, the For the reasons given above, under Note on Evidence, the TribunalTribunal did notdid not find the claimant’s evidence as to the information she said she imparted to find the claimant’s evidence as to the information she said she imparted to the first respondent, or the employees of the second respondent, in relation the first respondent, or the employees of the second respondent, in relation to her disability to be credible or reliable, and it was not satisfied first or to her disability to be credible or reliable, and it was not satisfied first or 10 second respondent hsecond respondent had actual, or constructive knowledge the claimant’s ad actual, or constructive knowledge the claimant’s disability. The disability. The TribunalTribunal was not persuawas not persuaded that the claimant made any ded that the claimant made any statements either during her employment, or that any statements were made statements either during her employment, or that any statements were made by her, or on her behalf on 3 September, which would have given rise to actual by her, or on her behalf on 3 September, which would have given rise to actual or constructive knowledge of disability.or constructive knowledge of disability.[107]The Tribunal did not conclude thaThe Tribunal did not conclude thatt the text exchange between the claimant the text exchange between the claimant and the first respondentsand the first respondents during the Lockdown periodduring the Lockdown period, in which she advised , in which she advised him she had not had a drink for him she had not had a drink for 4 days4 days, was sufficient to put the respondents , was sufficient to put the respondents on notice of the claimant’s disabilityon notice of the claimant’s disability..