Employment Judge P KlimovMr A Miah (instructed by counsel) for respondentDate 23 December 2024
JUDGMENT
[1]The complaints of:a. unfair (constructive) dismissal (ss.94, 95 and 98 of the Employment Rights Act 1996 (“ERA”)),b. unauthorised deduction from wages (s. 13 ERA), andc. failure to provide itemised pay statements (s.8 ERA) were not presented within the applicable time limit. It was reasonably practicable to do so. These complaints are therefore dismissed.[2]The complaints of:a. direct discrimination because of religion (s. 13 of the Equality Act 2010 (“EqA”),b. harassment related to religion (s.26 EqA), andc. harassment related to race (s.26 EqA) Case Number 6008434/2024 were not presented within the applicable time limit. It is not just and equitable to extend the time limit. These complaints are therefore dismissed.[3]It follows, the claimant’s entire claim is dismissed for want of jurisdiction. JUDGMENT with oral reasons having been announced to the parties at the hearing on 23 December 2024, the written Judgment having been sent to the parties on 3 January 2025, and written reasons having been requested by the claimant on 3 January 2025, in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided
REASONS
[1]Having undergone the ACAS early conciliation procedure between 10 July 2024 and 13 August 2024, on 13 August 2024 the claimant presented a claim form, containing the following complaints:a. unfair (constructive) dismissal (ss.94, 95 and 98 of the Employment Rights Act 1996 (“ERA”)),b. unauthorised deduction from wages (s.13 ERA),c. failure to provide itemised pay statements (s.8 ERA),d. direct discrimination because of religion (s.13 of the Equality Act 2010 (“EqA”),e. harassment related to religion (s.26 EqA), andf. harassment related to race (s.26 EqA).[2]The respondent presented a response, contesting all the complaints, including on the ground that the claim had been presented out of time and the Tribunal had no jurisdiction to consider it.[3]The case was listed for a preliminary hearing (in public) on 23 December 2024 to consider whether the Tribunal had jurisdiction to hear the claim despite it being presented outside the primary limitation period.[4]For this hearing, the parties presented in evidence a bundle of documents of 55 pages. The claimant presented a witness statement, upon which content she was cross-examined under oath.
The Facts
[5]The claimant claims that she was employed by the respondent as a personal assistant from 1 November 2011 until 31 July 2023, when she left. The respondent denies that she was the claimant’s employer. To determine whether the claim should proceed further, despite it being presented out of time, I do not need to decide whether the claimant was an employee of the respondent. In this Judgment I make no determination as to the claimant’s employment status.[6]Following her departure from the respondent, the claimant worked at the EU Parliament in Luxembourg from August 2023 until March 2024 as an administrative assistant and proofreader. The claimant did not wish to return to the UK.[7]The claimant claims that in the last year of her working for the respondent and 12 months after her departure she was suffering from mental health problems (anxiety and depression). She, however, did not seek any medical help for that. She was not prescribed and was not taking any medication for her mental health issues.[8]Before and at the time of her departure from the respondent the claimant knew about the possibility of instituting employment tribunal proceedings to seek remedies for the alleged violations of her employment rights. She contemplated doing so at the last year of her work for the respondent but decided against that, because her husband also worked for the respondent’s family, and she feared possible repercussions for him and for herself. Later, in 2024, the claimant tried to resolve the matter via ACAS conciliation, with which process the respondent did not engage.[9]When the claimant worked for the respondent, she knew that another member of staff member (a driver), with whom the claimant was in good friendly relationships, had instituted employment tribunal proceedings against the respondent.[10]The claimant’s ERA complaints are with respect of her departure from the respondent on 31 July 2023, which she says was constructive dismissal. She also claims arrears of pay, going back to June 2020, and complains of the respondent’s failure to provide itemised pay statements.[11]The claimant’s EqA complaints1 are:a. Harassment related to race, which is pleaded as: “In or around April 2023, the Claimant was working for the Respondent on a trip to Kuwait. The Respondent showed her a picture a large black cat, and said to her this one is called Biggie after the rapper Biggie smalls.” However, in her evidence to this Tribunal the claimant said that the incident was much earlier, before the Covid pandemic, and the reference was not to the rapper Biggie, but to her former colleague. andb. Direct discrimination because of religion/harassment related to religion, pleaded as: “21. The Claimant is of Christian faith and attends church for religious services regularly. The Respondent is aware of this.[22]At the end of March 2023, the Claimant was told she must travel abroad and collect a medical report and travel to take it back to Kuwait. The Claimant was given no notice of this requirement. When the Claimant protested that she could not travel at such short notice, the Respondent said to her you have to go you are of Christian faith and it is Ramadan so no one from the family can go.[23]However, the Claimant contrasts this with the time she was told she was required to travel abroad on no notice over the Christmas holidays, when the Claimant was told to go to Germany to take an item personally to Kuwait.” In her evidence to this Tribunal the claimant said that this incident had happened in 2018, when she had been asked to travel to Germany to collect a personal item. 12. All complaints in the claim are significantly out of time (between 5 years and 9.5 months). 1 It appears that in the claimant’s ET1 Rider the cross-referencing in the plea section to the narrative paragraphs above is off by one paragraph. Harassment/direct discrimination related to religion refers to paragraphs 23 and 24 (instead of 22 and 23) and harassment related to race refers to paragraph 25 (instead of 24). I, however, have considered the allegations in paragraph 25 too. The Law 13. Section 11 of the Employment Rights Act 1996 states: 11.— References to employment tribunals .(1) Where an employer does not give a worker a statement as required by section 1, 4 or 8 (either because the employer gives the worker no statement or because the statement the employer gives does not comply with what is required), the worker may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned. […] (4) An employment tribunal shall not consider a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made— (a) before the end of the period of three months beginning with the date on which the employment ceased, 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 application to be made before the end of that period of three months. […]” 14. Section 23 of the Employment Rights Act 1996 states: 23.— Complaints to employment tribunals. (1) A worker may present a complaint to an employment tribunal - (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), 2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or […] (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. […]” 15. Section 111 of the Employment Rights Act 1996 states: “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. […]” 16. Section 123(1) of the Equality Act 2010 states: “123 Time limits (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 equitable.” Application of time limit provisions in ERA 17. The following key principles can be derived from the authorities:a. s.111(2)(b) ERA “should be given a liberal interpretation in favour of the employee” — Marks & Spencer Plc v Williams-Ryan [2005] EWCA Civ 470, [2005] I.C.R. 1293, [2005] 4 WLUK 376.b. what is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. Lord Justice Shaw said in Wall’s Meat Co Ltd v Khan 1979 ICR 52, CA: “The test is empirical and involves no legal concept. Practical common sense is the keynote….”.c. the onus of proving that presentation in time was not reasonably practicable rests on the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint” — Porter v Bandridge Ltd 1978 ICR 943, CA.d. if an employee misses the time limit because he or she is ignorant about the existence of a time limit or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable. When assessing whether ignorance or mistake is reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have made - Lowri Beck Services Ltd v Brophy 2019 EWCA Civ 2490, CAe. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable”. Meaning of ‘reasonably practicable’ 18. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”. 19. In Wall's Meat Co Ltd v Khan Brandon LJ said: “… The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical … or the impediment may be mental, namely, the state of mind of the complainant 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. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries 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.” (Pages 60F-61A) 20. The focus is accordingly on the claimant's state of mind viewed objectively. 21. A claimant’s illness as the reason for not submitting a claim in time will usually only constitute a valid reason for extending the time limit if it is supported by medical evidence, particularly if the claimant was aware of the time limit. Medical evidence must not only support the claimant’s illness but also demonstrate that the illness prevented the claimant from submitting the claim in time (see Midland Bank Plc v Samuels (1992) EAT 672/92). However, the Tribunal may also consider the claimant’s own evidence as to her health condition (see Norbert Dentressangle Logistics Ltd v Hutton EATS 0011/13). 22. A mere stress is unlikely to be sufficient. In Asda Stores v Kauser Lady Smith stated at paragraph 24: “….It cannot be sufficient for a Claimant to elide the statutory time limit that he or she points to having been “stressed” or even “very stressed”. There would need to be more”. Just and equitable extension 23. In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA, the Court of Appeal held that when employment tribunals consider exercising the discretion under S.123(1)(b) EqA: “there is no presumption that they should do so unless they can justify 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.” The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit. However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law simply requires that an extension of time should be just and equitable — Pathan v South London Islamic Centre EAT 0312/13.
The Law
[24]The relevant principles and authorities were summarised in Thompson v Ark Schools [2019] I.C.R. 292, EAT, at [13] to [21], and in particular that:a. Time limits are exercised strictly;b. The onus is on the claimant to persuade the tribunal to extend time;c. The decision to extend time is case- and fact-sensitive;d. The tribunal’s discretion is wide;e. Prejudice to the respondent is always relevant;f. The factors under s33(3) Limitation Act 1980 (such as the length of and reasons for the delay and the extent to which the Claimant acted promptly once he realised he may have a claim) may be helpful but are not a straitjacket for the tribunal.[25]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 and the EAT’s decision in Bahous v Pizza Express Restaurants Limited UKEAT/0029/11/DA it was held that the absence of an explanation for the delay does not prevent the Tribunal from exercising its discretion and extending the time limit, and the Tribunal is not obliged to infer that there was no acceptable reason for the delay (see para 25 in Abertawe). However, the reason or the absence of a good reason for the delay is a relevant factor (see para 19 in Abertawe).[26]More recently, in Jones v. The Secretary of State for Health and Social Care, 2024 EAT 2 HHJ Tayler having reviewed the relevant authorities, gave further guidance to the employment tribunals, in particular at [30] he said: “It remains a common practice for those who assert that the primary time limit should not be extended to rely on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576, [2003] IRLR 434, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” as if they were principles of law. Where these comments are referred to out of context, this practice should cease. Paragraph 25 must be seen in the context of paragraphs 23 and 24:[27]He then set out the well-known passages from these two paragraphs in full, concluding that read in the context it means that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere, and no more.[28]Later, at [35] he said: “35. Without meaning any disrespect to Auld LJ, there might be much to be said for Employment Tribunals focusing rather less on the comments in Robertson that time limits in the Employment Tribunal are “exercised strictly” and an extension of time is the “exception rather than the rule”; and rather more on some of the other Court of Appeal authorities, such as the concise summary by Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at paragraph 17-19:[29]He then quoted those paragraphs in full, emphasising at [36] what Leggatt LJ said at [25] of Abertawe: “As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard”. Analysis and Conclusion[30]Applying these legal principles to the facts of this case my conclusions are as follows. Was it reasonably practicable to present the claim in time?[31]The claimant says that it was not reasonably practicable for her to submit her claim, because she was suffering from severe depression and anxiety and was not aware of the time limit.[32]The claimant’s self-diagnosis of “severe depression and anxiety” is not supported by any medical evidence. The claimant is not a mental health trained practitioner to diagnose herself as having these conditions.[33]Even if at the relevant time the claimant was suffering from some mental health condition, I do not accept that the effects of that condition on the claimant were such that she was prevented or materially impeded from submitting her claim form in time.[34]The claimant never sought professional medical help for her claimed anxiety and depression. This by itself goes to show that the level of her mental impairment was not so grave that she felt that she needed a medical intervention to help her to get better. Her evidence is that she preferred to treat herself in “a holistic way”. In other words, whatever mental health issues she felt she had, she was capable of dealing with them herself without seeking any medical or other professional help.[35]Secondly, the claimant was able to secure and perform for nine months a role at the EU Parliament, which role (admin assistant and proofreader) would have required of her a certain level of mental strength and cognitive abilities. Possessing such level of mental strength and cognitive abilities would be sufficient to complete and submit a short ET1, or to instruct a specialist adviser, such as Mr Raffell, to do so on the claimant’s behalf.[36]Thirdly, the claimant accepted in cross-examination that she was planning on bringing a tribunal claim during the last year of her employment with the respondent. Her evidence is that at that time she was suffering from anxiety and depression. She chose not to issue a claim, not because of her anxiety and depression, but because of her concerns about possible repercussions against her and her husband. That shows that the claimant was capable of making a conscious and reasoned decision whether or not to pursue her claim, despite any anxiety and depression she claims she had.[37]As far as the claimed ignorance of the time limits is concerned, firstly, I observe that it is not what the claimant put in her witness statement as a reason for missing the deadline. Secondly, as noted above, the claimant accepted in her evidence that she was contemplating bringing a claim during the last year of her employment with the respondent, but decided against that.[38]Her explanation for not making any enquiries to find out how to do that was that she did not have prior experience with litigation. This, however, does not explain why she did not undertake a simple internet search, did not speak with ACAS, did not seek professional advice, and, indeed, did not ask her colleague-friend, who she knew was pursuing his claim against the respondent, to find out what the position on time limits was. I find that it was not reasonable for the claimant not to make such enquiries.[39]For completeness, I do not accept Mr Raffell’s submission that the fact that the claimant had left the UK and based herself in Luxembourg is a valid reason for not to submit her claim in time.[40]In sum, I do not accept that it was not reasonably practicable for the claimant to present her claim before the expiry of the primary limitation period.[41]It follows, that the complaints of unfair dismissal, unauthorised deduction from wages, and for failure to provide itemised pay statements were not presented within the applicable time limit, and it was reasonably practicable for the claimant to do so. Accordingly, the Tribunal does not have jurisdiction to consider them.[42]These complaints are therefore dismissed for want of jurisdiction. Is it just and equitable to extend time?[43]In deciding whether I should exercise my discretion and extend time I must have regard to all the circumstances of this case.[44]What I have said above about why I find that it was reasonably practicable for the claimant to bring the claim within the primary limitation period is a relevant factor in this exercise too. In short, I find that the claimant did not have a good reason for not bringing the claim within the primary limitation period. This, however, is not the end of the matter. I must consider all other factors before deciding whether to exercise my discretion and extend the time limit under the just and equitable jurisdiction.[45]I accept that refusing to extend the time limit would mean that the claimant’s entire claim would stand to be dismissed for want of jurisdiction. I equally accept that there is a strong public policy interest in discrimination complaints being tried on their merits. These considerations, however, cannot trump all other factors.[46]Conversely, extending the time limit means that the respondent would be losing her statutory time limit defence, and would have to answer historic complaints, which ordinarily should be time-barred.[47]Furthermore, looking at the claimant’s EqA complaints in these proceedings, and without wishing to conduct a mini-trial, I find that not only they are stale, but, taken at their highest, are very weak.[48]The claimant’s complaint of harassment/direct discrimination on the ground of religion is about a single event in 2018 (some six years ago). It is not clear from the pleaded complaint how the respondent’s request for the claimant to travel to Germany over the Christmas period to collect a personal item could be said to be related to her religion. Just because the claimant is of Christian faith and celebrates Christmas does not automatically follow that the request to travel to Germany was related to her Christian faith.[49]Her complaint about the name of the black cat, on any sensible view, could not be said to be related to her religion. Insofar as it is meant to be a complaint of harassment related to race, it is hard to see how that incident by itself could be said to be violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The claimant’s evidence is that it was a single incident that happened in 2019, that is more than five years ago.[50]As far as the complaint in paragraph 25 of the ET1 Rider is concerned (to the extent that it is meant to be pleaded as a complaint of harassment related to race), on the face of it, it is hard to see how it could be said to be related to race, whether the claimant’s or anyone else. The relevant paragraph reads: “25. In July 2023, the Claimant was contacted by a friend of the family and was asked for personal information about the Respondent. The Claimant refused to divulge the information due to confidentiality of her employer. On 16 July 2023, the Claimant received an admonishing message from the Claimant’s employer reproaching her that she is mistreating her best friend by not divulging her private appointment details.”[51]In short, all these complaints appear to me highly speculative.[52]However, leaving all that to one side, as I have said earlier, all the EqA complaints are stale, meaning they go back into the distant past. Furthermore, they are about two single and unconnected events, a year apart from each other. One of them is about what was said or not said on a particular occasion in 2019.[53]I find that the respondent would face a very significant forensic prejudice if the complaints were allowed to proceed. Memories fade. These episodes by themselves are not of such a remarkable character that they would be expected to be stuck in the respondent’s memory. Therefore, the respondent would be highly prejudiced if she were called to defend these ancient allegations.[54]Furthermore, it appears that what is pleaded in the claimant’s claim form is not what the claimant said in her evidence to this Tribunal her factual case on these allegations was, with no proper explanation provided for the factual discrepancies. Therefore, there is a further prejudice to the respondent of having to defend a different factual complaint to the one the claimant has set out in her ET1.[55]Stepping back and looking at these factors and all other circumstances of the case, I find that it will not be just and equitable to extend time.[56]It follows that the claimant’s remaining complaints under the Equality Act were not presented within the applicable time limits under s123(a) or (b) of the EqA.[57]These complaints are therefore dismissed for want of jurisdiction.[58]It follows that the claimant’s entire claim stands to be dismissed for want of jurisdiction.