Employment Judge BuckleyMr Sambow (instructed by lay representative) for claimantMr Smith (instructed by Counsel) for respondentDate 22 October 2019
JUDGMENT
[1]All of the claimant’s claims were brought outside the relevant time limit and it is not just and equitable to extend the time limit.[2]Al the claimant’s claims are therefore dismissed. JUDGMENT having been sent to the parties on 23 October 2019 and written reasons having been requested in accordance with rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The time limit for submitting a discrimination claim to the employment tribunal in the armed forces is 6 months starting with the date of the act to which the proceedings relate: s 123(2)(a) Equality Act 2010 (EA). Before submitting a claim the claimant must have made and not withdrawn a service complaint: s 121 EA. The extended time limit of 6 months is intended to take account of this requirement, but the claimant is not required to complete the service complaint process before issuing a claim. Indeed there is a risk that the claim will be out of time and potentially significantly so if if a claimant chooses to wait until the service complaint process is completed.[2]This preliminary hearing was listed on the basis that last act complained of took place on 19 September 2017. The previous preliminary hearing proceeded on basis that all the alleged acts of discrimination were out of time and that this preliminary hearing was to considering a just and equitable extension of time only.[3]At the end of Mr Sambow’s submissions after evidence had been heard and after the Respondent had made its submissions, Mr Sambow raised for the first time the issue of an indirect discrimination complaint made in the particulars of claim which is in time. The paragraph in question had not been considered as a separate claim by Employment Judge Eeley, nor was it something highlighted by the claimant at that hearing, although he was representing himself.[4]I have looked at the way this purported claim of indirect discrimination is described in the particulars. Although it is headed ‘indirect discrimination’, it is put on the basis that the way the respondent’s procedure is operated puts people who make complaints under the Equality Act at a disadvantage. 5. ‘Making a complaint under the Equality Act’ is not a protected characteristic. In my view the claimant is not bringing an indirect discrimination complaint, because that would entail an allegation that there is a provision, criterion or practice which is discriminatory in relation to a protected characteristic. Here no protected characteristic is relied upon. Mr Smith made this point and the claimant’s representative was given the chance to respond. He did not deny that no protected characteristic was relied upon, nor make any positive assertion as to what, if any, protected characteristic was relied upon.[6]Mr Smith asked me to consider striking out this part of the claim on the basis that it has no reasonable prospects of success. I agree that it has no reasonable prospects of success, indeed no prospects of success, due to the absence of a protected characteristic. However, there is in my view no need to strike out the claim because no claim of indirect discrimination as defined in the Equality Act 2010 has been brought and therefore there is nothing the strike out.[7]I disagree with Mr Smith that the claimant would have been better to put this complaint as a victimisation complaint: the victimisation provisions do not cover provisions, criteria or practices that are applied to everyone but which put those who have brought complaints under the Equality Act at a disadvantage. In any event a victimisation claim has not been brought and I would have refused any application to amend the claim form to bring one at this late stage under the Selkent principles.[8]Turning to the issue which was set down to be determined today, the events complained of took place between February 2017 and September 2017 and specifically the last act complained of took place on 19 September 2017.[9]The claimant submitted a joint service complaint with LCpl Dads on 17 September 2017 complaining of less favourable treatment on the grounds of race and/or religion. The claimant was informed on 20 September 2017 that he had to submit an individual complaint, which he did on 10 October 2017. An initial interview took place on 16 October 2017 after which one aspect of the complaint was declared inadmissible on 7 November 2017. The claimant referred the inadmissibility decision to the ombudsman on 22 November 2017 who issued its decision on 4 January 2018.[10]The respondent notified the claimant on 12 April 2018 that an investigator had been assigned to conduct the investigation and to arrange an initial interview. The claimant attended an interview with the investigator on 20 April 2018. A HIO was appointed in May 2018 and produced a report in July 2018 which was sent to the claimant for comment. Comments were returned in September 2018, and a conclusion was sent to the claimant on 5 November 2018. The claimant appealed by letter dated 6 December 2018. The claimant went through the ACAS early conciliation process and then finally submitted the claim on 21 February 2019.[11]The claimant raised for the first time today after cross-examination and in response to my questions that he had been told by his assisting officer Captain Clark that he had to wait until the internal procedure was concluded before he submitted his complaint. This is not something that he put in his witness statement, it was not in the ET1 or in the further particulars of claim. It was not raised in additional evidence in chief and it was not raised until right at the end of the claimant’s evidence.[12]I cannot accept that something so significant would have not have been raised at an earlier point, when the issue of time limits has been highlighted since an early stage in proceedings. Further I note that the claimant’s evidence contained other inconsistencies. For example he initially stated that he had never been provided with a copy of JSP 831, but later agreed that he had been sent it and had read it. Taking these factors into account, I do not accept that the claimant was told that by Captain Clark.[13]In any event, even if had been told by Captain Clark that he had to wait till the process was concluded, the claimant accepted that by January 2018 the claimant had been sent and had read JSP 831. This document makes abundantly clear in straightforward language that the time limit for issuing an ET claim does not run from the end of the service complaint procedure but runs from the date of the act complained of. The claimant did accept in evidence that he had read this document, but even if that is not true (as was later submitted by his representative) simply choosing not to read a document that he had been sent would not have been reasonable. He had the clear information before him as to time limits, so even if I had accepted his evidence as to what the assisting officer told him, it should have been clear to him that that advice was wrong. It is clearly contradicted by the official documentation and it would not have been reasonable to blindly follow that advice.[14]There was a significant delay in issuing this claim. The claimant had the information before him in January 2018 that the claim had to be issued within 6 months of the final act (i.e. by 18 March 2017 with a possible extra month due to ACAS conciliation) but did not issue a claim until nearly 12 months later because he was waiting until the service complaint was concluded. It is not reasonable once a claimant knows that the clock is ticking to simply wait until his service complaint is concluded however long that takes. The statute has already allowed an extension of 3 months to take account of the requirement to make a service complaint, but it does not provide that the time began to run on completion of the service complaint process.[15]Even in the absence of evidence from the respondent as to specific prejudice caused by the delay, I accept the respondent’s submissions that there must be some prejudice in this case as a result of the effect of the passage of time on witness recollection and the availability of witnesses. I give this factor less weight than if I had had before me specific evidence from the respondent to this effect. I accept that the claimant will suffer prejudice in not being able to continue with his claim, which I assume for the purposes of today has reasonable prospects of success.[16]Taking into account all the above, and looking at all the relevant factors, including the prejudice to both parties and the length of and reasons for the delay, I conclude that it is not just and equitable to extend time and therefore all the claims are dismissed. JUDGMENT having been delivered orally on 8 July 2022 and written reasons having been requested at the hearing the following reasons are provided:[1]I find that it is necessary in the interests of justice to reconsider my decision of 22 October 2019. New evidence became available subsequent to my decision which satisfied the test in Ladd v Marshall.[2]It is not disputed that the evidence satisfies the test in Ladd v Marshall, but in any event I conclude that the evidence could not have been obtained with reasonable diligence for use at the tribunal, it is such that it would probably have had an important influence on the result of the case, as is apparent from my reasons below, and that it is apparently credible. Even taking account of the importance of finality of justice, I find that it is necessary in the interests of justice to reconsider my decision in the light of that new evidence.[3]Having considered the new evidence I conclude that it is appropriate to revoke and remake my decision. I heard submissions on what any fresh decision should be at the same time as the submissions on reconsideration. I have concluded that it is is just and equitable to extend time, taking into account the new evidence that was not available to me at the original hearing. The reasoning for those decisions is set out below.[4]I have not heard new evidence from Mr. Bayo. I adopt the findings of fact that I made on the previous occasion. I also confirm the determinations set out at para 1-7 of my judgment of 22 October 2019 on matters such as the scope of the complaint/strike out etc. These were not subject to the application for reconsideration.[5]Whilst not all the evidence that I heard on the previous occasion is set out in my judgment of 22 October, I included all the matters that I considered relevant in my reasons and findings of fact. Accordingly it is not necessary for me to take account of any additional evidence that was given at the hearing but was not recorded in the judgment or did not lead to a finding of fact contained in that judgment. For that reason I have not gone back to look at my notes of the evidence given on the previous occasion.[6]Unhelpfully I did not set out my findings of fact separately to my conclusions in my previous judgment, but I think it is clear, and should be clear to the parties who are legally represented, what was a finding of fact and what was a conclusion based on those facts. Additional findings of fact[7]The respondent sent the service complaint appeal outcome to the claimant by letter dated 22 October 2019 - the day after the previous preliminary hearing.[8]That appeal was decided on the balance of probabilities There is no suggestion in the appeal outcome that the evidence on behalf of the respondent considered by the appeal body had been impaired by the passage of time, either by the unavailability of witnesses or that recollections had been impaired. The appeal body was able to reach reasonably detailed conclusions on balance of probabilities as to what had and what had not happened.[9]There is a substantial overlap between what is complained of in the service complaint and what is complained of in the ET1.[10]The appeal outcome letter sets out the following relevant conclusions: 10.1. Mocking of prayer attire – The appeal body found that the claimant’s account and that of his witness was credible. It found on the balance of probabilities that the claimant was subjected to inappropriate comments due to his prayer attire and that this amounted to religious discrimination. 10.2. Other derogatory comments because of race and relegation – The appeal body accepted that these were made on the balance of probabilities but found that they were not directed at the claimant. 10.3. Singled out for ID checks – This was not upheld on the balance of probabilities. The appeal body concluded there was no difference in treatment. 10.4. Catering during Ramadan – The appeal body accepted that there was a failure to cater properly but found this was due to indifference rather than malice or religion based discrimination. 10.5. Leave to attend mosque – Although this was only partly upheld, the appeal body found that it was unlikely that there was a serious operational imperative to justify denying the claimant’s rights to attend the mosque but found that this was not due to discrimination. 10.6. Finally, the appeal body made the finding that there was a regrettable anti-Islamic bias both conscious and unconscious within the unit.
The relevant law
[11]The relevant law is set out in the skeleton argument of Mr. Roberts and was not disputed by Mr. Smith. Length of delay[12]All the alleged acts of discrimination occurred before 19 September 2017. The preliminary hearing in October 2019 was originally listed and determined on the basis that the last act complained of took place on 19 September 2017.[13]I accept that some of the acts are earlier and I accept that if they did not form part of a continuing act, the claim would be even further out of time. The length of the delay is already significant, and even more significant if the earlier acts are not part of the continuing act.[14]For the reasons set out below, even if I assume that those earlier acts are not part of a continuing act, I conclude that it remains just and equitable to extend time for all the alleged acts, despite the fact that the longer delay weighs heavier in the balance in the respondent’s favour. Reason for delay[15]The reason for delay was that the claimant was waiting for the service complaint to be concluded. I take account of the fact that the claimant knew, at an early stage, that he had the basis for a claim in the employment tribunal and that he knew that the clock was ticking in terms of time limits. In those circumstances I conclude that the fact that the internal proceedings were ongoing was not a good reason for a delay of this extent. However, there is an explanation, which is better than no explanation for the delay. Promptness of acting[16]The claimant knew he had to right to bring a claim in the tribunal at an early stage. He did not act promptly to issue his claim. I accept that he acted promptly within internal proceedings, and acted promptly once those internal proceedings were concluded, but I find that he could and should have issued his claim in the tribunal sooner given his state of knowledge.[17]I do not accept that the respondent’s delays are relevant – the claimant did not need to await the outcome of the service complaint before issuing his claim.[18]Overall, I find that the length of delay, the lack of a good explanation for the delay and the claimant’s failure to act promptly weighs fairly heavily against it being just and equitable to grant an extension of time. This is particularly so in relation to the earlier acts, where the delay would be significantly longer, assuming for today’s purposes that they are not part of a continuing act. Cogency of evidence[19]There has been no evidence adduced by the respondent in relation to any prejudice in terms of, for example, the effect on availability of witnesses or any difficulties with recollection. With a delay of this extent, I would generally be prepared to assume that there would be some effect on availability of witnesses and recollection, given this passage of time. The weight that could be attached to that supposition would be lower than if evidence had been produced by the respondent.[20]In this case the new evidence which was not before me on the previous occasion leads me not to make that supposition. The appeal outcome decision letter is clear evidence that the relevant witness evidence is still available and that detailed factual evidence is still available, meaning that it was possible for the appeal body to reach reasonably detailed findings on balance of probability.[21]No problems are identified in that document in relation to witness availability, availability of other evidence or problems of recollection.[22]I conclude on this basis, in the absence of an evidence to the contrary from the respondent, that the respondent is still in a position to defend the claim and that any impact on the cogency of evidence caused by the passage of time is limited. The effect of a stay[23]Mr Roberts submitted that the claim would have been stayed until the service complaint had concluded in any event, and therefore any prejudice is not caused by the delay in issuing the claim. I cannot conclude that the claim would have been stayed if issued in time. I do not know what the relevant judge would have decided. I accept that there is at least a possibility that it might have been stayed. given the appellate authorities indicating that this is the usual course of action. Given that I have concluded that there is only a limited impact on the cogency of evidence in any event, this has not affected my judgment. Merits[24]Ordinarily I would proceed on the basis that a claim has reasonable prospects of success. In this claim there is clear evidence in the appeal outcome letter that the prospects are good in relation to at least part of the claim. The relevant part is that relating to the mocking of prayer attire. I also take account of the findings of the appeal body of anti-Islamic bias, both conscious and unconscious, within the unit which in my view, increases the claimant’s prospects of persuading a tribunal to infer a discriminatory reason for any less favourable treatment.[25]In relation to most other parts of claim, the appeal board, save for the matter of ID checks, found that the matters occurred but did not infer that the reason for the treatment was religion. This does not, in my view, suggest that those parts of the tribunal claim do not have at least reasonable prospects of success in the tribunal, which has the benefit of hearing oral evidence from all parties.[26]I accept that the appeal outcome letter concluded that the claimant was treated the same as others in relation to ID checks, which suggests that the claimant may have some difficulty in relation to that aspect of the claim.[27]Looked at overall, I consider that the appeal outcome letter suggests that the claimant’s claim has, in general, good rather than reasonable prospects of success. Conclusions and the balance of prejudice[28]I take into account the fact that the claimant would be deprived of a claim that has, in general, good prospects of success. Not allowing the claim to proceed would cause extremely significant prejudice. I do not accept that the fact that the claimant’s service complaint appeal was upheld means that he suffers no or reduced prejudice in being deprived of the opportunity to have an oral public hearing and a finding of discrimination by an employment tribunal, with the opportunity of being awarded compensation and having recommendations made. That is a substantially different remedy.[29]On the other side, I find that there is limited prejudice to the respondent in allowing the claim to proceed. There will always be some prejudice caused by delay, and I accept that the respondent will have to deal with a case that would better have been dealt with earlier. However I have found that there is likely to be only limited impact on the quality of the evidence that the respondent can call. In those circumstances I find that the prejudice to the respondent is significantly less than that to the claimant.[30]Taking account of all the factors set out above, including those matters which weigh heavily against extending the time limit, and bearing in mind the balance of prejudice, I find, looked at in the round, that it is just and equitable to allow the claim to proceed.