[1]the complaints pre-termination of the claimant’s employment on 21 November 2022 are time-barred;[2]the complaints pre-termination are dismissed for want of jurisdiction; and[3]the Tribunal has jurisdiction to consider the three post-termination complaints. E.T. Z4 (WR)
REASONS
[1]The claimant, Euphemia Vinga, brought a race discrimination claim, comprising complaints of direct discrimination, in terms of s.13 of the Equality Act 2010; harassment in terms of s. 26; and victimisation in terms of s.27. The claim was denied in its entirety by the respondent. Time-bar[2]The respondent’s solicitor took a time bar point and a preliminary hearing was fixed by way of video conference, using the Cloud Video Platform (“CVP”), to consider and determine the issue.
The evidence
[3]I heard evidence from the claimant at the hearing. She spoke to a written statement which had been submitted, An Inventory of documentary productions was also submitted (“P”).
The facts
[4]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact, relevant to the time-bar issue with which I was concerned..[5]Ms Vinga is a black, African, Nurse from Zimbabwe. She was a Nurse Manager in her home country. She came to the UK in December 2020.[6]She started employment with the respondent Company as a Registered Nurse on 12 July 2021. She worked at the respondents Care Home, Moray View House, Stoneyfield, Inverness. Ms Vinga intimated her resignation from her employment with the respondent on 21 October 2022. She gave 4 weeks’ notice. The effective date of termination of her employment was 21 November 2022, which was the final day of her employment.[7]On or about 15 March 2023, the claimant became aware that the respondent had reported her to the Disclosure and Barring Service (“DBS”). She expressed her concern that she might be barred from working as a Nurse to “Fiona”, the Head Nurse at the “Florence” Employment Agency. Ms Vinga had registered with the Agency in September 2022 and had been working some shifts there since her employment with the respondent ended. She described Fiona as her “mentor”.[8]Fiona made contact with Equality 4 Black Nurses. They assessed Ms Vinga’s case and, as I understand it, having taken legal advice their Ms Bennett agreed to represent the claimant.[9]Ms Bennett then engaged in early conciliation on behalf of Ms Vinga. She notified ACAS on 5 May 2023 and an ACAS Certificate was issued on 6 June 2023 (P.2).[10]Ms Bennett completed the ET1 claim form on Ms Vinga’s behalf and it was submitted on 3 July 2023. Claimant’s allegations of discrimination (per Further and Better Particulars of the claim (P.82-102) Pre-termination of employment allegations• Telephone call on 17 October 2022, inviting the claimant to a meeting on 20 October 2022 and not advising the claimant that this was an investigation meeting (P.84, para.16).• The meeting on 20 October 2022 (various allegations of direct discrimination, victimisation and harassment). Post-termination of employment allegations• Refusal of a reference by the respondent on 6 January 2023 (P.89, para.29).• The referral by the respondent to the Nursing & Midwifery Council (“NMC”) on 19 January 2023 (P.90, para.31 ).• The referral by the respondent to the Disclosure and Barring Service (“DBS”) on 15 March 2023 (P.101, paras. 74-78). Discussion and Decision
Relevant law
[12]The general rule is that claims of work-related discrimination, under the Equality Act 2010 (“the 2010 Act”), must be presented to the Employment Tribunal within the period of three months starting with the date of the act complained of (s.123(1)(a)).[13]In the present case, the effective date of termination was 21 November 2022. The ACAS Notification was dated 5 May 2023. The ACAS Certificate was issued on 6 June 2023 (P.2). The claim form was submitted on 3 July 2023. “Continuing acts”[14]I arrived at the view, that the acts complained of were not continuing acts of discrimination extending over a period of time, as the claimant’s representative submitted, but rather a series of distinct, individual acts, as the respondent’s Counsel submitted. Where there is a series of distinct acts, the time limit begins to run when each act is completed, whereas if there is continuing discrimination, time only begins to run when the last act is completed.[15]I was persuaded that Counsel’s submission in this regard was to be preferred. The timing of the allegations was one factor. There were significant gaps in the allegations, in particular, there was a gap of several weeks between the allegation relating to the manner in which the meeting on 20 October 2022 had been conducted and what was said at the meeting, and the failure by the respondent to provide the claimant with a reference, on or about 6 January 2023.[16]Another relevant factor was that different individuals had been involved in the allegations of discrimination (Aziz v. FDA [2010] EWCA Civ 304).[17]This meant that the only complaint which was timeous was the referral of the claimant to the DBS on 15 March 2023. “Just and equitable” extension of the time limit[18]However, the matter does not end there. The three-month time limit for bringing a discrimination claim is not absolute: Employment Tribunals have discretion to extend the time limit for presenting a complaint where they think it “just and equitable” to do so (s.123(1)(b) of the 2010 Act.[19]Tribunals thus have a. broader discretion under discrimination law than they do in unfair dismissal cases, as the Employment Rights Act 1996 provides that the time limit for presenting an unfair dismissal claim can only be extended if the claimant shows that it was “not reasonably practicable" to present the claim in time.[20]Counsel submitted that I should consider the pre-termination allegations relating to the meeting on 20 November 2022, the invitation to the meeting and the meeting itself, separately from the three allegations of posttermination discrimination. I was satisfied that that was the appropriate approach. Pre-termination allegations[21]In determining whether I should exercise my discretion and allow the late submission of the claim in respect of the pre-termination allegations, I found the guidance in British Coal Corporation v. Keeble & Others [1997] IRLR to be helpful. In that case the EAT suggested that Employment Tribunals would be assisted in considering the factors listed in s.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 a number of factors.[22]However, I remained mindful of the recent Court of Appeal Judgment in Adedeji v. University Hospital Birmingham NHS Foundation Trust [2021] EWCA Civ23. In that case, the Court reviewed a number of recent cases involving the list of Limitation Act factors cited in British Coal, and said this: “The best approach fora Tribunal in considering the exercise of the discretion under s.123(1)(b) [Equality Act] is to assess all the factors in the particular case which it considers relevant to whether it was just and equitable to extend time, including in particular, ‘the length of, and the reasons for the delay’. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking." Prejudice[23]Were I to decide not to exercise my discretion and extend the time limit in respect of the pre-termination allegations, the claimant will be prejudiced as these aspects of her claim will be dismissed. On the other hand, were I to allow these allegations to proceed then the respondent will be prejudiced having to defend these allegations as additional investigation will be required, the Final Hearing will be lengthier and additional expense will be incurred. The respondent will require to lead additional evidence at the Final Hearing. I have a concern about the cogency of such evidence as by the time the case gets to a Final Hearing the Tribunal will be hearing evidence in respect of matters which occurred at least 18 months previously. Alternative remedy[24]Even if I do not exercise my discretion the claimant will still have an alternative remedy as her claim in relation to the report to the DBS is timeous and will proceed to a Hearing. Conduct of the claimant[25]In my view, this was a significant factor. The claimant said in evidence that she did not know about the three month time limit until March when she learned of the DBS referral and Fiona at the Agency where she worked took advice on her behalf from Equality 4 Black Nurses.[26]The claimant felt that she had been racially discriminated against in October 2022. She said as much as the meeting on 20 October. This is a very serious allegation indeed and yet she took no steps for a number of months after the meeting to investigate how she might be able to take the matter further. At the Tribunal Hearing the claimant presented as articulate and intelligent. She has a laptop and is familiar with the internet. It would have been quite easy for her to do an internet search and had she done so she would have discovered that she could bring an Employment Tribunal claim and that there was a three month time limit. There was no impediment to her doing so. Length of time[27]As I recorded above, were I to exercise my discretion and allow the pretermination allegations to proceed to a final hearing I would be concerned about the cogency of evidence of matters which had occurred at least 18 months before, particularly as there is a clear conflict in the evidence as to what transpired at the meeting on 20 October 2022.[28]While I was mindful that I had a wide discretion to extend the time limit and that the just and equitable “escape clause” is wider than that relating to unfair dismissal claims, I was also mindful of such cases as Robertson v. Bexley Community Centre t/a Leisure Link [2003] IRLR 434, in which the Court of Appeal stated that when Employment Tribunals consider exercising the discretion under s.123(1)(b) of the 2010 Act: “There is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule” (my emphasis).[29]When I assessed all the factors relevant to the time bar issue, I arrived at the view that it would not be just and equitable to exercise my discretion and allow the pre-termination allegations to proceed, although out of time.[30]The Tribunal does not have jurisdiction, therefore, to consider these complaints and they are dismissed. Post-termination allegations[31]S.108 of the Equality Act 2010 includes a specific provision covering discrimination and harassment occurring after the employment relationship has ended.[32]So far as the present case is concerned, the claim of discrimination relating to the respondent referring the claimant to the DBS on 15 March 2023 was timeous and that claim will proceed to a Final Hearing.[33]That left the two remaining complaints of post-termination discrimination, namely the failure by the respondent, on or about 6 January 2023, to provide the claimant with a reference and the NMC referral by the respondent, on or about 19 January 2023.[34]I found the issue of whether I should exercise my discretion and extend the time limit more difficult so far as these complaints were concerned.[35]Albeit with some hesitation, I arrived at the view that it would be just and equitable to extend the time limit for hearing these complaints. Prejudice[36]The issue of prejudice was neutral. On the one hand, were I to allow these complaints to proceed, the respondent will incur extra expense, but not a significant amount. On the other hand, if I did not extend the time limit, the claimant would be left with only one post discrimination complaint. If the claimant is able to establish a prima facie case, the respondent’s motivation in doing what they did can then be examined.[37]Nor was I concerned about the cogency of the evidence. The timescale is much less than the pre-termination complaints and the Tribunal would not have to determine a direct conflict in the evidence as there was about what transpired at the meeting on 20 October 2022. Conduct of the claimant[38]While she could still have found out about Employment Tribunal claims and time limits on the internet, race discrimination was not in the forefront of the claimant’s mind as it had been in October 2022 when she said as much.[39]Perhaps understandably, the catalyst for her bringing an Employment Tribunal claim was when she became aware of the DBS referral and feared that her livelihood as a nurse was under threat. Length of time[40]The delay in bringing these complaints was not significant: only a month or so in respect of the reference before the ACAS notification; and only a matter of weeks so far as the NMC referral was concerned.[41]Although it took a month after the ACAS Certificate was issued to submit the claim form, that was understandable as the claimant’s representative is not legally qualified and she required to take legal advice concerning the drafting of the claim form.[42]While mindful that the exercise of the discretion, “is the exception rather than the rule" (Robertson), when I assessed all the factors relevant to the time bar issue I arrived at the view that it was just and equitable to extend the time limit in respect of the two post-termination complaints which were out of time.[43]Accordingly, the Tribunal has jurisdiction to consider these complaints. The claim will proceed, therefore, but only in respect of the three post-termination complaints.