Mrs N A Wright v Ark Housing Association: 4110004/2021

EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4110004/2021
Between
Mrs Natalie Ann WrightClaimantArk Housing AssociationRespondent
Before
Employment Judge McManusMs S MacPhail (instructed by Solicitor) for respondentPRELIMINARY HEARING DECISION for respondentDate 13 June 2022
[1]This Preliminary Hearing (‘PH’) was for the purpose of considering whether or not the claimants’ application to amend the ET1 should be allowed. A Joint 30 Bundle was prepared for today’s PH, with page numbers from 1 - 110. The documents in that Bundle which are mentioned in this decision are referred to by their page number in that Bundle (JB1 – JB110) 4110004/2021[2]A PH for the purposes of case management took place over the phone on 3 September 2021. In the Note issued following that Telephone Case Management Preliminary Hearing (‘TCMPH’), it is recorded that the ET1 initiated claims for discrimination under the Equality Act 2010 relying on the protected characteristics of pregnancy and disability and referred to an incident where there were no suitable arrangements for breast feeding, as well as the respondent’s position in respect of the claimant wearing a face mask at work.[3]It was recorded in the Note issued following the TCMPH in September 2021 that it was clarified at that TCMPH that in respect of the alleged failure to make suitable arrangements for breast feeding, the claimant was not bringing a claim for pregnancy discrimination but for direct sex discrimination under section 13 of the Equality Act 2010. That claim relies on the circumstances relied upon in the ET1 as being pregnancy discrimination. The labelling was changed to sex discrimination because the claimant’s baby was over 26 weeks at the time of the alleged incident. The alleged incident relied upon is failure to provide accommodation for the claimant to express when making arrangements for the claimant’s shift on 9 September 2020 and failure to carry out a risk assessment.[4]That Note records that the claimant relies on having disability status as a result of asthma, anxiety, depression and PTSD. The claimant’s claims in respect of disability discrimination relate to the respondent’s requirement for her to wear a face mask at work.[5]In their ET3, the respondent denies discrimination. It is their position that a claim relying on any failure to provide suitable facilities for expressing on 9 September 2020 is timebarred. It is further denied that the claimant raised with the respondent that there was any issue in respect of facilities due to be provided on that day. The claims in respect of disability discrimination, pregnancy and maternity discrimination or sex discrimination and unlawful deductions are disputed and further specification was called for. It is denied that the Tribunal has jurisdiction to hear a claim in respect of data protection. 4110004/2021[6]At the TCMPH in September 2021, the claimant was directed to provide a disability impact statement. She was also directed to provide further specification of her claims by answering questions set out in the Note issued following the TCMPH. The questions include:-• “Are you making a claim under section 44 of the Employment Rights Act 5 1996?• If so, specify the subsection of the Act under which the claim is brought (that is, section 44 1 (a) – ( e)).[7]The Note records that the claimant would consider whether she would agree to disclosing her medical records. It was noted that a further TCMPH would be arranged and that consideration would be given as to whether it was necessary to have a Preliminary Hearing to determine whether the claimant had disability status. There is no mention in that Note of any potential issue in respect of time bar.[8]The claimant subsequently sought to answer the questions set out in that Note. She provided further information on 17 September 2021 (JB59 – 66). The respondent provided their responses to that information (JB67 – 73) and asked for further specification (JB74-75). The claimant then answered that call for further specification (JB76-88). The respondent’s position was that the claimant’s claim required to be amended if the claimant sought to bring claims of sex discrimination and under section 44 of the Employment Rights Act 1996 (‘ERA’). The claimant then made an application to amend, the terms of which are at JB89 – 90. This PH is to determine whether the ET1 should be allowed to be amended in terms of that application. The terms of the proposed amendment are:- “Sex discrimination. On 8th September 2020, the Claimant received an email from The Respondent’s Ailsa Mitchell which said that it was a management instruction that her shift (for 9th September 2020) had now changed to the office. The Claimant was threatened with disciplinary action if she did not attend the 4110004/2021 meeting at the office. This was to discuss the reasons why the Claimant was not wearing a mask which violated the Claimant’s dignity. It is unreasonable for the Respondent to expect the Claimant not to be able to breastfeed during a 7 hour shift, which was not the mutually agreed upon venue. The Claimant’s child was older than 26 weeks at the time the incident, so therefore comes under Sex discrimination. The Respondent never done a Risk Assessment for the Claimant to accommodate her breastfeeding needs, despite the Claimant requesting this to be done on 24th June 2020, which provided the Respondent with the information to be able to do this. Section 44 of the Employment Rights Act. The subsection of this act is 44 (1) [F4(1A) (a) + (b). On 8th September 2020, the Claimant received an email from The Respondent’s Ailsa Mitchell which said that it was a management instruction that her shift (for 9th September 2020) had now changed to the office. The Claimant was threatened with disciplinary action if she did not attend the meeting at the office. This was to discuss the reasons why the Claimant was not wearing a mask which violated the Claimant’s dignity. This should have been up to the Claimant whether or not she wanted to discuss her disabilities. It is unreasonable for the Respondent to expect the Claimant not to breastfeed during a 7 hour shift, in a place which was not the mutually agreed upon venue, nor was there a clean, warm private room there. The Claimant is making this claim because she was instructed to change her shift without adequate notice. The Claimant felt she would be placed in a circumstance of danger which she reasonably believed to be serious and imminent and which she could not reasonably have been expected to avert. The Claimant felt that she took appropriate steps to protect herself from the danger by declining the offer. The danger was the ris[9]The following facts relevant to the issue for determination at this PH were found or admitted.[10]The ET1 claim form was submitted to the Employment Tribunal by the claimant on 16 June 2021 (JB4). Prior to starting these proceedings, the claimant contacted ACAS. The ACAS ECC Certificate (JB3) states that the date of receipt by ACAS of the Early Conciliation notification was 15 April 2021 and that the ACAS Early Conciliation Certificate was issued on 27 May 2021.[11]The circumstances relied upon in the ET1 included the respondent’s alleged failure to provide facilities for the claimant, as a breast feeding mother, to express her milk at the work location of her changed shift on 9 September 2020 and reliance on alleged failure of the respondent to carry out a risk assessment. The date of the alleged treatment relied upon is 8 September 2020, being the date when the claimant was directed to attend the meeting on 9 September 2020 (which did not then take place). It is those circumstances which the claimant relies on in her application to amend, both in respect of the claim for sex discrimination and the claim under section 44 of the Employment Rights Act 1996.[12]Shortly after 8 September 2020, the claimant raised a grievance with her employer. The claimant believed that she could not contact ACAS until her employer had dealt with the grievance. The claimant took advice from her trade union advisor at UNITE. She originally spoke to Sandy Smart from UNITE. Graham Turnbull at UNITE accompanied the claimant to subsequent grievance meetings with the respondent. The claimant had difficulty obtaining advice from her Trade Union representative, who the claimant understood was suffering from a close bereavement.[13]There was some delay in the claimant’s grievances raised with the respondent being dealt with. The claimant was advised of the outcome in April 2021. On receiving the outcome, the claimant contacted ACAS and thereafter submitted her ET1 claim form to the Employment Tribunal. The 4110004/2021 claimant believed that she was going through the proper channels by awaiting the outcome of her grievance raised with her employer before submitting a claim to the Employment Tribunal. The claimant had thought that the issues would be resolved through the grievance process.[14]The grievance raised by the claimant in September 2020 was in respect of the respondent’s requirement for her to wear a face mask at work and the way she was spoken to by managers. The claimant raised the issue of her not being provided with a suitable facility for expressing during her shift on 9 September as part of the appeal of that grievance (in November 2020) and also in a grievance raised in December 2020.[15]The claimant had been due to be on maternity leave until October 2020. The claimant was receiving counselling for postnatal depression. The claimant discussed with her counsellor that she would return to work following the end of her counselling sessions. The claimant has a history of mental health issues. It was thought that a return to work may assist her recovery. On 24 June 2020 the claimant wrote to the respondent giving 8 weeks’ notice of her decision to return to work from maternity leave early, on 24 August 2020 (JB102 – 103).[16]The claimant was put on furlough by the respondent following her return to work in August 2021 and advising the respondent of her position in respect of not wearing face masks. The claimant was not certified as unfit for work. For two weeks she carried out administrative work for the respondent from home, using a laptop issued by the respondent. When the laptop was recalled by the respondent, the claimant did not carry out any work for them.[17]Following the laptop being returned to the respondent, the claimant’s mental health deteriorated. She struggled to get out of bed. She avoided leaving the house. She experienced panic attacks. The claimant did not consult her GP about her mental health at that time because she knew that GP resources were tight because of implications from COVID 19 and because she had completed her counselling sessions with Postnatal Depression (‘PND’) Borders Counselling and Support Service and felt that she would be a failure 4110004/2021 if she went back. The claimant had support from her husband, mother and friends. She used coping mechanisms which she had developed to deal with traumatic events in her past.[18]The claimant has a long history of suffering from mental health issues connected with traumatic events in her past. She suffers from panic attacks. Her reactions can be unpredictable and there are many triggers. A trigger for panic attacks was the fear of her breasts becoming engorged and leading to mastitis if unable to breast feed or express.[19]The claimant’s extract GP records (JB110) record discussion with the claimant in October 2020 but do not record any discussion about the claimant’s poor mental health at that time. The claimant had been discharged from Postnatal Depression (‘PND’) Borders Counselling and Support Service in July 2020 (JB104). The GP record for 5 December 2019 notes that the claimant did not wish medication (re mental health) and that she had open access to PND counselling.[20]The claimant sought advice from her Trade Union. The wife of her Trade Union advisor died and he was not able to be contacted to provide her with assistance in lodging her claim with the Employment Tribunal. The claimant knew that there were time limits for claims to be lodged with the Employment Tribunal. She believed that the claim had to be lodged by January 2022. Due to the difficulties she had in contacting her trade union advisor, the claimant drafted and submitted the ET1 claim form herself. Relevant Law[21]Rule 2 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Rules’), which states:- “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable - 4110004/2021(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[22]The duty to deal with cases fairly and justly is a duty of the Tribunal towards all parties before it.[23]The claimant now seeks to bring a claim under section 44 of the Employment Rights Act 1996 (‘ERA’). The proposed amendment refers to subsection “ 44 (1) [F4(1A) (a) + (b).” There is no such subsection.[24]The terms of section 44(1) are:- (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that - 20 ……. (a) Having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) Being a representative of workers on matters of health and safety at work or a member of a safety committee – 4110004/2021 (i) In accordance with arrangements established under or by virtue of any enactment, or (ii) By reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions such as a representative or a member of such committee, [(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise,] (c) Being an employee at a place where – (i) There was no such representative or safety committee, or (ii) There was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful to health or safety, (d) In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) In circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or another person from the danger.” ….”[25]The time limit for raising a claim under section 44 is set out in section 48(3) of that Act and is as follows:- 4110004/2021 ‘An (employment tribunal) shall not consider a complaint under this section unless it is presented –(a) Before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) Within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.’[26]The time limit for raising claims under the Equality Act 2010 is set out in section 123 of that Act, as follows:- ‘(1) 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 15 equitable. (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[27]The key test for considering amendments has its origin in the decision of the National Industrial Relations Court in Cocking v Sandhurst (Stationers) Ltd [1974] ICR650, 657B_C:
“In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those 4110004/2021 proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”
[28]The leading authority in respect of amendment applications is Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661, [1996] ICR 836. There the EAT confirmed that the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, and set out the factors to be considered as including:- (ii) The nature of the amendment, which can be varied, such as correction of typing errors, the addition of factual details to existing allegations, the addition or substitution of other labels for facts already pled, or the making of entirely new factual allegations which change the basis of the existing claim; (iii) The application of time limits, and in particular where a new claim is sought to be added by way of amendment whether that complaint is out of time and if so whether the time limit should be extended under the applicable statutory provisions; (iv) The timing and manner of the application.[29]In Selkent, Mummery J, as he then was, set out at paragraph 26:
“…an application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then, and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he was dismissed and at the time when he presented his originating application.”
[30]The approach taken in Selkent was followed by the EAT in Vaughan v Modality Partnership 2021 ICR 535, where in a claim for unfair dismissal and alleged detriment as a result of making protected disclosures, the ET had refused to allow amendment to add two further disclosures. The EAT held 4110004/2021 “..in deciding whether to exercise the discretion to allow an amendment, the employment tribunal had to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it; that, in doing so, it should take into account all the relevant circumstances, and, while it was impossible and undesirable to list all the relevant circumstances, they included consideration of the nature of the amendment, the applicability of time limits and the timing and manner of the application; that, however, the real practical consequences of allowing or refusing an amendment should underlie the entire balancing exercise; and that the employment judge had directed herself as to the relevant law, applied it on the basis of the submissions made to her and reached a permissible conclusion when deciding to refuse the amendment.”[31]Lady Smith summarised the relevant law in respect of amendment applications (at paragraphs 20 – 26) in Margarot Forrest Case Management V Miss FS Kennedy UKEATS/0023/10/BI. That decision was made with reference to the 2004 Tribunal Procedure Rules, but remains relevant, as follows:- “20. An Employment Tribunal has power to grant leave to amend a claim at a hearing (see: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Rules 10(2)(q) and 27(7)). Thus, if a claimant’s representative seeks permission to alter, add to or subtract from what is written in the claimant’s form ET1, the Tribunal may, in its discretion, allow the representative to do so. The Tribunal does not have power itself to amend a claim.”[32]In Ladbrokes Racing Ltd v Traynor UKEATS/0067/06MT, the EAT helpfully set out the normal procedure which should be followed by a Tribunal when considering an amendment to an ET1. That case made reference to Ali v Office of National Statistics [2005] IRLR 201, where LJ Waller commented on the importance of giving fair notice to an employer in the form ET1 of the case that the claimant alleges against him. He stated: 4110004/2021 “39… …a general claim cries out for particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states.”[33]The position set out in paragraph 20 of Ladbrokes Racing Ltd v Traynor 5 UKEATS/0067/06MT, is relevant to the issues in this PH:- “20. When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a respondent in a position where evidence relevant to the new issue is no longer available or is of a lesser quality than it would have been earlier. These principles are discussed in the well known case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661.”[34]In British Coal Corporation v Keeble 1997 IRLR 336, the Court of Appeal set out the factors to be taken into consideration when considering whether it would be just and equitable to extend the three month time limit, being in particular:- - The length of and reasons for the delay; - The extent to which the cogency of the evidence is likely to be affected by 30 the delay; 4110004/2021 - The extent to which the party sued has co-operated with any requests for information; - The promptness with which the Claimant acted once he or she knew of the facts giving rise to the cause of action; - The steps taken by the Claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[35]In E v X, L & Z UKEAT/0079/20/RN(V) & UKEAT/0080/20/RN(V), the EAT gave a useful summary of relevant case law and then set out the principles to be applied when dealing with issues of time bar, amendment and strike out. The key principles were set out from para 50, as follows:- “50. With the qualification to which I have referred at paragraph 47 above, from the above authorities the following principles may be derived:[1]In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin;[2]It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson;[3]Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar;[4]It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, 4110004/2021 because no prima facie case can be demonstrated, or(2) substantively to determine the limitation issue: Caterham;[5]When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar;[6]An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar;[7]The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz;[8]In an appropriate case, a strike-out application in respect of some part of a claim can been approached, assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required — the matter will be decided on the claimant’s pleading: Caterham (as qualified at paragraph 47 above);[9]A tribunal hearing a strike-out application should view the claimant’s case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson and paragraph 47 above;[10]If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham; 11) Thus, if a tribunal considers (properly) at a preliminary hearing 4110004/2021 that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham;[12]Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham;[13]If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively,, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham. 36. The leading authority on the position where a claim has been submitted outwith the time limit as a result of a claimant following the advice of an adviser is Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA. In that case the adviser was a solicitor. The general principle in Dedman is that where a claimant puts their case in the hands of a solicitor, that solicitor’s failure to present the claim within the relevant time period will 4110004/2021 not lead to a finding that it was not reasonably practicable for the claim to be lodged in time. It is not every case where a claimant is bound by the fault of the adviser, as each case depends on its own facts and circumstances (Riley v Tesco Stores Ltd and anor [1980] ICR 323, CA). The relevant circumstances may include whether the advisor was a solicitor or other 5 advisor (London International College Ltd v Sen [1993] IRLR 333, CA). Lord Phillips’ view following his review of the Dedman principle in the Court of Appeal in Marks and Spencer plc v Williams-Ryan [2005] ICR 1293, CA, was that the correct proposition of law derived from Dedman is that where the employee has retained a solicitor to act for them and that solicitor fails to meet the time limit because of the solicitor’s negligence, the solicitor’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to the tribunal (the test in respect of making a claim to the Employment Tribunal for unfair dismissal out with the statutory 3 month time limit) . That principle was confirmed in Northamptonshire County Council v Entwhistle [2010] IRLR 740, EAT, by Mr Justice Underhill, then President of the EAT. Underhill P accepted that there could be exceptions to the Dedman principle, such as where the adviser’s failure to give the correct advice was itself reasonable. In a case where a claimant has consulted skilled a