Mr C M MacDonald v Glen Moray Distillery Ltd and Starlaw Distillery (Glen Turner Distillery Ltd): 4110830/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4110830/2019
Between
Mr C M MacDonaldClaimantGlen Moray Distillery Ltd and Starlaw Distillery (Glen Turner Distillery Ltd)Respondent
Before
Employment Judge J HendryDate 19 February 2020
JUDGMENT
The claimant’s application for findings that he was unfairly (constructively) dismissed and for harassment on the grounds of sexual orientation under section 26 of the Equality Act 2010 are struck out on the grounds that the Tribunal does not have jurisdiction to hear the claims. E.T. Z4 (WR)
REASONS
[1]The claimant raised proceedings against the respondent company on the 11 September 2019 alleging that he had been forced to resign in April 2015 and had been subject to harassment for many years up until a period of illness beginning in late 2014. His employment had ended in June 2015.[2]The case proceeded to a Preliminary Hearing before Judge Kemp on the 18 November 2019. The claimant represented himself at that hearing as he did in the later hearing before me. After hearing from both parties Judge Kemp ordered that the case should be set down for a Preliminary Hearing on jurisdiction. In his Note he advised the claimant that the issue for the Tribunal in relation to time limits for unfair dismissal was found in section 111 of the Employment Rights Act 1996 and for harassment under Section 123 of the Equality Act 2010.[3]Prior to the hearing parties lodged a Joint Bundle of Documents (JB1-71).[4]At the beginning of the hearing I explained the process that would be adopted to the claimant and reminded him of the two tests mentioned by Judge Kemp. As the claimant was unrepresented and clearly nervous I reassured him that as we went along if there was anything he did not understand he should ask and I would try and explain matters to him. I told him that he should ask for a break if he needed one and not wait until the Tribunal decided to break. It was agreed that the claimant would give evidence and that I would ask him about the circumstances leading to the lodging of the claims and that after that Mr Gorry would ask him questions. I made the following factual findings.
Facts
[5]The claimant lived in Elgin. He began working at Glen Moray Distillery there in around 2001 first of all as a temporary worker. His father was also employed in the distillery. The claimant was employed full time on the 19 May 2004. His employment ended on the 24 June 2015.[6]The Distillery had a small workforce which operated a shift system. There were between 15 and 20 employees, some full time and some part time, at the Distillery at any one time.[7]The claimant joined a Trade Union, the GMB Union in 2013. After about 2 years he did not renew his Trade Union membership.[8]The claimant worked in the warehouse at Glen Moray as a Mash House Operative.[9]The claimant did not have robust mental health. For some years he was in contact with his GP in relation to anxiety and depression.[10]Relations between various employees working at the distillery were poor. The claimant felt picked on and bullied. Comments would be made that he was a ‘poof’ and camp gestures would be made at him.[11]On the 11 February 2013 the claimant was in contact with his GP by telephone. The GP noted in the claimant’s records: “anxiety and depression – wanting mirtazapine or diazepam”.[12]The claimant has regularly attended his GP both before and after his resignation in relation to his mental health and has been on various medications at varying doses for many years. His condition fluctuates in severity.[13]On the 12 February 2013 his GP noted (JBp156): “depressed mood s/ trouble at work – not getting on with Distillery Manager – feels he is being bulled and victimised – all this is alleged problems – poor sleep and feeling low – not had mirtazapine for a while been using street valium at night”. Following this he was restarted on mirtazapine which is an antidepressant medication.[14]The claimant continued to suffer from anxiety and low mood.[15]In about 2014 the claimant’s father raised Employment Tribunal proceedings following his dismissal from the Distillery. The claimant gave a statement (JB356-357) to the solicitors acting for his father.[16]On the 27th of May 2015 his GP recorded: “depressed mood – lots of issues dismissed from work pending Tribunal. In debt – borrowing from family and friends … need to try something to help his “low mood” … feels no emotion about this, poor appetite no interest in things ongoing back pain low thoughts – with some suicidal ideation. Protective mechanisms at present are dog, pending Tribunal, keen to try someone to help his “low mood” which he reports as being significant at this time”.[17]The claimant complained about his treatment to his employers. He sought advice from his Trade Union when facing disciplinary action.[18]On the 29 June 2015 the claimant returned to his GP who recorded that he had ‘‘low back pain – note flare post accident on 30th October at work’’.[19]The claimant had injured his back at work. He instructed solicitors, Messrs Digby Brown, to act on his behalf in around 2015/16 to make a personal injury claim on his behalf.[20]The claimant was signed off as unfit to attend work through illness from the 31 October 2014. He was due to return in April 2015.[21]The claimant was invited to a disciplinary meeting on the 16 April 2015 to discuss various matters including issues arising from an Occupational Health Report prepared on behalf of the respondent.[22]The claimant resigned his employment by letter dated 15 April 2015. He had over a period of time made various allegations of bullying at work to the respondents. In the respondent’s response to the resignation letter they requested that the claimant provide further details regarding the allegations of bullying he had made in particular against Graham Coull who was the claimant’s line manager. Mr. Coull had worked at the distillery for many years and had been the main focus of the claimant’s complaints of bullying. He did not do so as he felt that no action would be taken. He had previously made complaints to his employers against Mr. Coull and his son Duncan Coull who also worked there and he believed that they had not been taken seriously.[23]The way in which the claimant believed he had been treated by Mr. G. Coull and the respondent company’s management weighed on his mind. He felt it was unfair. He was aware that claims could be made to the Employment Tribunal. He did not ask his father for advice or question him about the employment tribunal process he was involved in.[24]The claimant wrote to his GP on the 24 August 2015 in the following terms:- “To whom it may concern, hi, my name is Callum Mark MacDonald 16.02.83 For some time I have been getting bullied at my work which led me into constructive dismissal. I resigned 15th of April. The Union told me to do so, when I did the Union did not represent me in a Tribunal. With no time to find another representative I have missed out on Tribunal. I have spoken to someone that may be able to help and have told me to get a copy off my doctor records. Dating back to 2009-10 till now, anything to do with bullying. If you could please get that for me. I am sorry to say that I don’t have much time for this on timescale as this is why I am requesting this myself. Thanking you for your help.”[25]The claimant’s medical records were copied and he picked them up from the GP surgery shortly after this.[26]The claimant did not raise Employment Tribunal proceedings. Following his resignation his mental health deteriorated and he was homeless for a period. Thereafter, he secured Council accommodation and has at his current address ever since. He has a computer and access to the Internet which he uses periodically.[27]The claimant continued to dwell on the way he had been treated. He had at one point questioned his own sexuality because of the crude comments and gestures referencing homosexuality he had been subjected to.[28]The claimant continued to suffer anxiety and depression and receive medication for this. After his resignation he became socially isolated and would not go out.[29]In early to mid 2016 the claimant was charged with various criminal offences in relation to apparent threats he had made against Mr. Coull. He instructed solicitors in Elgin, Messrs Allan Black & McCaskie to represent him in the proceedings. In order to assist his defence in September 2016 they obtained the claimant’s medical records (JB p152). The charges were ultimately dropped.[30]On the 10th of August 2016 the claimant’s GP noted: ‘‘depressive disorder NEC feels improved – feels mirtazapine helped’’.[31]The claimant continued to attend his GP. He was also referred for tests in relation to urinary difficulties.[32]In mid 2016 the claimant was referred by his GP to the Clinical Psychology Department of Dr Gray’s Hospital in Elgin where he was seen by Community Mental Health Nurses.[33]The claimant was examined by Dr Nair a Clinical Psychologist at Dr Gray’s Hospital in Elgin in September 2016. Dr Nair wrote (JBp303-304): “I have now met twice with Callum to discuss his presenting problems and a plan for treatment. Callum spoke at some length about having suffered appalling treatment, over more than 6 years while working for a local distillery. In addition to being subjected to homophobic bullying unfair treatment Callum seems to have been the victim of a corrupt system that punished him for speaking out about shoddy and dishonest practices. The experience of being disbelieved, fobbed off and even falsely accused of serious criminal charges have left Callum anxious and mistrustful. He has attempted to seek redress with the help of a Trade Union by going to the Distillery Managers but nothing to date has been successful. Callum reported constant rumination about events, unsettled waking sleeping patterns, significant weight loss (he wears multiple layers of clothing to conceal this). Additionally Callum has been suffering from 2 physical complaints of back injury and a bladder complaint. Both of these problems add to Callum’s distress and are aggravated by it in turn. Callum’s back injury and associated mobility problems are made worse by tension and difficulty relaxing. The bladder complaint leads Callum to worry that he has been incontinent and that people around him are speaking about the smell. This has led to him isolating himself further and becoming caught in a positive feedback loop of paranoia. Callum has tried repeatedly to move on with his life and forget about everything that has happened, but has been unable to do so without returning to rumination over the events that have caused him this distress. He has been painfully aware that he, along with his father and many others have loved working for the Distillery, and has been hurt deeply to see what has happened there … Callum’s experience of being bullied, lied to and constantly contradicted has left him paranoid and suspicious with little confidence in his own judgment leading him to isolate himself and suffer continual anxiety. Between his physical complaints and his perception that he has been singled out for mistreatment it is clear that Callum has suffered a horrendous ordeal over several years.”[34]The claimant was referred to Psychology Services in Elgin in around 2016. He continues to receive treatment there.[35]The claimant was examined by Miss Aileen Anne Ross, Community Mental Health Nurse on 25th May 2016. She prepared her report (JB312-314). She wrote: “Callum’s speech was normal rate and tone becoming slightly raised at times when talking about the persons responsible for bullying him. He believes he is depressed and rates his mood at 2/10, he admits to having thoughts of harming himself but would not act on these … Callum admits to constantly ruminating over the effect that 5 years of bullying has had on his life and has fantasies of harming those responsible but denies any intent to act on this. No thought disorder or psychotic phenomena evident. Callum has orientated in manner, short/long term memory intact however admits to poor concentration … Callum finds it difficult to enjoy life at present and is pushing his friends away, his life is consumed with thoughts relating to the bullying and the effect this has had on his life.”[36]Digby Brown Solicitors wrote to the claimant’s GP on the 27th of May 2015 requesting his medical records (JBp325).[37]A report was prepared by Dr Ruth Davidson, Consultant Psychiatrist in relation to the claimant and was sent to his GP on the 13th of May 2016 (JBp182-184). He wrote: “I met up with Callum again on the 1st of May 2019 for review. As it had been some time since I had seen him we reflected on his general impression of the treatment he is receiving. He feels that medication reduces the worst of his anxiety symptoms and has led him to “think through things more clearly” … “Callum’s overall presentation has also improved, physically he is looking healthier and for the first 5 to 10 minutes of her consultation was able to give a good account of himself, thereafter words however he went into a long account of his difficulties which he has shared with me and colleagues previously and rapidly returned to themes of injustice from both the police and his previous employers at Glen Moray Distillery and although he is no longer expressing homicidal thoughts towards people he feels that unless this justice is resolved he will never be able to move forward in his life. During his account he became noticeably agitated, depressed and tearful at times. He described himself as depressed with chronic sleep problems but his appetite has improved though his concentration remains very poor … There certainly seems to be less risk associated with Callum at the current time but he continues to be significantly distressed in his thoughts particularly of injustice. I think it is fair to say that Mental Health Services have helped him organise his thoughts on this and allow him a sounding board for them but there is no evidence more significant change. I do not believe he is clearly psychotic or depressed at the current time and I do not think that medication change would help.”[38]The claimant continued to engage with mental health services. They assisted him in understanding his thoughts. He was able to seek advice from the local Citizen’s Advice Bureau and from a voluntary advocacy group and through these contacts he was assisted in completing his Employment Tribunal application in September 2019.[39]At the date of hearing the claimant was still in receipt of a number of medications for anxiety and depression including quetiapine which is an antipsychotic medication.[40]Since the claimant’s resignation in 2015 a number of employees mentioned by his as witnesses in his ET1 have left the respondents employment including Mr. Graham Coull. The claimant understands that he was dismissed. Submissions[41]Mr. Gorry began by confirming that to his knowledge a number of those mentioned by the claimant in his ET1 had left the respondent’s employment such as the general manager, G. Coull, and the then acting HR Adviser Hazel Mathews. Mr. MacDonald had not kept in touch with goings on in the distillery but suspected that some staff had left. He was aware that Mr. Coull senior had left.[42]The respondent’s solicitor then reviewed the two different tests that the Tribunal had to consider namely the ‘reasonably practicable test’ and the ‘just and equitable test’ and their statutory underpinning. Bearing in mind that the claimant had accepted under cross examination that the last possible incident of harassment when he was at work must have been July 2014 the claims were time barred long before his resignation in the following year.[43]In relation to the ‘reasonably practicable’ the Tribunal not only had to consider the first part of the test namely whether it was reasonably practicable to have lodged the claim but the second limb namely was it then lodged within a reasonable period once the impediment or difficulty was overcome. On both limbs he submitted that the claimant must fail.[44]In evidence the Tribunal considered the first initial period after the claimant’s termination and it was clear that he had at points been well enough to take Trade Union advice and instruct lawyers about a personal injury claim and later to instruct lawyers to maintain his defence to criminal charges and at some point received advice from the local CAB. The letter in August to his GP strongly suggests that he was considering proceedings and conscious of some time limits. The issues around his employment remained in his mind for some years and it was apparent that he had decided to leave raising Tribunal proceedings to concentrate on getting his health back. One of the documents he lodged appears to be notes from a therapist with a plan of action (JBp382) when it appears he had an appointment with the CAB in October 2016. Even when he finally contacted ACAS on the 20 June there was a further delay in then raising the proceedings to the 11 September. The solicitor in passing indicated that if allowed to proceed the claimant was not in a form that could be readily responded to as the claimant had not set out what his legal claims were.[45]Turning more particularly to the ‘just and equitable’ it had to be borne in mind that some of the incidents referred to in the ET1 went back to 2001. The respondents would have considerable difficulty defending these proceedings after such a length of time given the transitory nature of the events, the passage of time and the fact that many witnesses had left their employment. It was not in these circumstances just and equitable to allow the claims late.[46]Mr MacDonald was invited to respond to the points made and to make any submissions he wanted to but declined relying on his evidence to allow the claims to go ahead at this stage. Discussion and Decision[47]The material parts of the Section 111 of the Employment Rights Act 1996 which govern complaints to an employment tribunal are as follows: ‘‘111 Complaints to employment tribunal.(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, 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. ’’[48]This involves a two- stage test. In the present case the claim is some years out of time. It involves asking firstly whether it was not reasonably practicable to present the claim in time and, only if it was not, to proceed to consider whether it was presented in a reasonable time thereafter. The two questions should not be conflated. The Tribunal has no general power to extend time limits and the burden of proof rests on the claimant to establish that both parts of the test are satisfied.[49]The expression “reasonably practicable” does not mean that the employee can simply say that his/her actions were reasonable and escape the time limit. On the other hand, an employee does not have to do everything possible to bring their claim. In Palmer and Saunders v Southend-On-Sea Borough Council [1984] IRLR 119 it was said that reasonably practical should be treated as meaning “reasonably feasible”. The case of Schultz v Esso Petroleum Ltd [1999] IRLR 488 is authority for the proposition that whenever a question arises as to whether a particular step or action was reasonably practicable (or feasible), the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances.[50]One recurring issue in many cases as in this one is the issue of the claimant’s lack of knowledge of employment tribunal time limits or as the law puts whether there is ‘‘reasonable ignorance”. The question of whether it is open to an employee ignorant of their rights to rely on that ignorance as a reason why it was not reasonably practicable to present a claim in time has been the subject of a number of decisions of the higher courts. In Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 Scarman LJ posed the following question: “Does the fact that a complainant knows he has rights under the Act inevitably mean that it is practicable for him in the circumstances to present his complaint within the time limit? Clearly no: he may be prevented by illness or absence, or by some physical obstacle, or by some untoward and unexpected turn of events. Contrariwise, does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion, no. It would be necessary to pay regard to his circumstances and the course of events. What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would not be appropriate to disregard it, relying on the maxim “ignorance of the law is no excuse.” The word “practicable” is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance. But what, if, as here, a complainant knows he has rights, but does not know that there is a time limit? Ordinarily, I would not expect him to be able to rely on such ignorance as making it impracticable to present his complaint in time. Unless he can show a specific and acceptable explanation for not acting within four weeks, he will be out of court.”[51]In the case of Wall's Meat Co Ltd v Khan [1978] IRLR 499 Brandon LJ dealt with the issue of ignorance of rights in the following way: “The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.”[52]In these and in subsequent cases it has been held that the question of whether bringing proceedings in time was not reasonably practical turns, not on what was known to the employee, but upon what the employee ought to have known (Porter v Bandridge Ltd [1978] ICR 943, Avon County Council v Haywood-Hicks [1978] IRLR 118). It is also apparent that where someone is aware that a right exists, rather than being wholly unaware of any such right, then it will be much harder for them to show that they ought not have taken steps to find out what the time limits were.[53]The issue of bad advice is often another factor that commonly presents itself. In Dedman Lord Denning stated (at 381): ''If a man engages skilled advisers to act for him — and they mistake the time limit and present [the complaint] too late — he is out. His remedy is against them.'' Lord Denning repeated the principle in Wall's Meat Co (at 502, 56, respectively), where he said: ''I would venture to take the simple test given by the majority in [Dedman]. It is simply to ask this question: had the man just cause or excuse for not presenting his claim within the prescribed time? Ignorance of his rights — or ignorance of the time limits — is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.'' And in the same case Brandon LJ observed (at 502, 60) that whilst ignorance of, or a mistaken belief regarding, the time limit could mean that it was not reasonably practicable to present the claim in time, provided the ignorance or mistaken belief was itself reasonable, neither state of mind will be reasonable: '' … if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.''[54]Where an employee has sought some advice, it will not make any difference that she has not entrusted the whole of her case to the advisor (T Mobile (UK) Ltd v Singleton UKEAT/0410/10). That said the circumstances in which the advice was given may be a material factor (Remploy Ltd v Brain UKEAT/0465/10/CEA).[55]In Marks & Spencer plc v Williams-Ryan [2005] IRLR 562 Lord Phillips MR stated (at para 32): ''I would hesitate to say that an employee can never pray in aid the fact that he was misled by advice from someone at a CAB. It seems to me that this may well depend on who it was who gave the advice and in what circumstances. Certainly, the mere fact of seeking advice from a CAB cannot, as a matter of law, rule out the possibility of demonstrating that it was not reasonably practicable to make a timely application to an employment tribunal.''[56]More recently in Paczkowski v Sieradzka [2017] ICR 62 the question of whether advice from a CAB was to be equated with that of a “skilled adviser” was considered to be a question of fact depending on the nature and circumstances of the advice given.[57]In Palmer following a review of the earlier authorities including Dedman and Wall’s Meat, May LJ concluded that the question of whether a step was or was not reasonably practicable would include the advice given, or available, but that was a material consideration which would have to be taken into account along with all of the other circumstances. In London International College v Sen [1992] IRLR 292 Knox J said that it was necessary to make findings of fact as to what had been the substantial cause of the delay and accepted that the fact that there had been erroneous advice by an adviser at some stage did not mean that it necessarily followed that it was not reasonably practicable to bring a claim in time. That reasoning was upheld in the Court of Appeal.[58]The question of whether an employee has presented their claim within a reasonable time of the original time limit is a question to be determined objectively by the employment tribunal taking into account all material matters (Westward Circuits Ltd v Read [1973] ICR 301, NIRC). On one of the changes that modern technology has brought is that an interested person now has access to a vast volume of information, of varying quality and relevance, from the Internet and indeed applications to an employment tribunal are generally made on- line. A simple search under unfair dismissal and time limits would lead to results that would include reliable purveyors of information such as government and ACAS websites. In the recent case of Perth and Kinross Council v Townsley EATS 0010/10 a traveller sought to excuse her late presentation of her claim (some 19 months) though ignorance of employment tribunals. The claim was allowed to proceed by an Employment Judge. That decision was overturned on appeal One of the grounds was that finding her ignorance was genuine, as the Tribual had done. was not enough they had to address the issue of whether the ignorance was excusable.[59]In the present case while I have considerable personal sympathy with the health difficulties that the claimant has suffered and for such a protracted period he has not demonstrated that it was not reasonable practicable for him to have lodged the claim in time. At the point he resigned he sought some advice from his Trade Union and I am sure if he had asked them they would have told him about the time limits and the process for claiming even if they were not going to represent him. He could have spoked to his father who had raised such proceedings against the company or carried out some research on the Internet himself. He clearly had some though of taking proceedings. There is no other interpretation one can put on the hand written letter to his Doctor requesting his records. Indeed, it seems as if they might be being obtained to explain why the proceedings were late even at that stage. Added to this the claimant saw at least two other law firms about matters related in some way to his employment and also appears to have an appointment with the CAB noted for the 13 October 2015.[60]I accept that the claimant appears to have been seeing his GP for a depressive/anxiety illness for some years I remain unconvinced that he was too unwell to raise proceedings in 2015 or 2016 or at some later point when his condition stabilised. The claimant appears to be able to keep in contact with his GP and various therapists during this protracted period and been entitled to benefits and all of this requires some interaction with authorities, response to requests and so forth and in relation to benefits to time limits.[61]The statutory basis for an extension if found in Section 123 of the Equality Act 2010: 123 Time limits (1) Subject to sections 140A and 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 equitable.[62]A Tribunal has a very wide discretion to extend time for a complaint of discrimination and is entitled to consider anything that it considers relevant. I had regards to well-known cases of Robertson v Bexley Community Centre 2003 IRLR 434 and to British Coal Corporation v Keeble and others 1997 IRLR 336 and to the various factors discussed in those authorities. The granting of the extension is by no means automatic and is the exception rather than the rule. The Tribunal has to carry out a balancing exercise between the interests of the parties. While I accept that his mental illness may have, for periods, militated against him taking action until he felt well enough to do so the effect on any extension must be considered also from the respondents’ point of view. There is considerable force in Mr. Gorry’s submission that because many witnesses, including the alleged principal perpetrator, have left the respondent’s employment that there would be real difficulties in expecting their full cooperation in any proceedings. In addition, the passage of time (the antiquity of the incidents being relied upon) will be likely to mean that witnesses will be unlikely to have a good recollection of such events.[63]In all these circumstances the application for an extension of time is refused. Both claims will be dismissed. I can only hope that the claimant will finally now be able to move on with his life knowing that he tried his best to raise the matters, that have weighed on him for such a long time, but been unsuccessful because of the legal time limits involved.