Ms Haeyun LeeClaimantInverlochy Castle LtdRespondent
Before
Employment Judge W A MeiklejohnMr R Peoples (instructed by Solicitor) for respondentDate 5 February 2024
JUDGMENT
The Judgment of the Employment Tribunal is as follows –(a) The Tribunal does not have jurisdiction to hear the claimant’s complaint of constructive unfair dismissal because, as at the effective date of termination of her employment, she did not have two years’ continuous employment; and that complaint is dismissed.(b) The claimant’s complaint of direct race discrimination is not time-barred and will proceed to a final hearing. ORDERS By virtue of the power to do so under Rule 29 of the Employment Tribunal Rules of Procedure 2013, the Employment Tribunal makes the following Orders - (1) Not later than 25 August 2023 the claimant must either – (a) confirm in writing to the respondent and the Tribunal that she is not bringing a complaint of harassment under section 26 of the Equality Act 2020, or (b) submit to the Tribunal (copied to the respondent) an application to amend her ET1 claim form to include a complaint of harassment. (2) In the event that the claimant does submit such an application, the respondent shall be allowed a period of 14 days from the date upon which such application is notified to them to object to such application. IMPORTANT INFORMATION ABOUT ORDERS (1) You may make an application under Rule 29 for an Order to be varied, suspended or set aside. Your application should set out the reason why you say that the Order should be varied, suspended or set aside. You must confirm when making the application that you have copied it to the other party and notified them that they should provide with any objections to the application as soon as possible. (2) If an Order is not complied with, the Tribunal may make an Order under Rule 76(2) for expenses or preparation time against the party in default. (3) If an Order is not complied with, the Tribunal may strike out the whole or part of the claim or response under Rule 37.
REASONS
[1]This Glasgow case came before me for an open preliminary hearing, conducted remotely by means of the Cloud Video Platform. The claimant appeared in person assisted by a Korean language interpreter, Ms H M Ham. The respondent was represented by Mr Peoples.[2]It was agreed at the start of the hearing that the proceedings would be conducted in English with the claimant seeking a translation from Ms Ham only when she had difficulty in understanding what was being said. The claimant had a good understanding of English and required to seek a translation from Ms Ham on only two or three occasions.
Issues
[3]The issues for determination at the preliminary hearing were set out in a list of issues prepared by Mr Peoples where they were expressed as follows –(a) Did the claimant have a sufficient qualifying period of continuous employment with the respondent in terms of section 108(1) of the Employment Rights Act 1996 (“ERA”) to allow her to bring a claim for unfair dismissal in terms of sections 94 and 111 ERA?(b) (i) Has the claimant’s claim for discrimination because of the protected characteristic of race been brought outwith the timelimit provided by section 123(1)(a) of the Equality Act 2010 (“EqA”) as extended, if at all, by section 140B EqA? (ii) If so, is it just and equitable for the Tribunal to extend time to allow the claim to be brought in terms of section 123(1)(b) EqA? Procedural history[4]A closed preliminary hearing for the purpose of case management took place on 8 April 2023 (before Employment Judge d’Inverno). Within the Orders made following that hearing, the claims brought by the claimant were identified as follows –(a) A complaint of constructive unfair dismissal.(b) A complaint of constructive wrongful dismissal.(c) A complaint of direct discrimination because of the protected characteristic of race in terms of section 13 EqA: (i) the claimant being an Asian woman, (ii) who compares herself with an actual comparator who was a French woman, and (iii) the less favourable treatment complained of being non approval of her requested holiday dates in the month of September 2022.(d) A complaint of unauthorised deduction from wages contrary to the provisions of section 13 ERA in respect of 24 hours worked (3 x 8 hours for each of 5, 6 and 7 August 2022) and being mandatory induction hours.(e) A complaint of breach of contract, said to arise (i) by reason of the respondent’s alleged refusal to withdraw her previously signed exemption to the minimum continuous hours provision of the Working Time Directive, and (ii) by reason of the respondent informing her that she could not continue to reside in the staff accommodation during the period of her notice, as she was unable to work during that period.[5]The said Orders also dealt with the following points –(a) The claimant was not bringing complaints of discrimination where the protected characteristic was sex or disability.(b) The claimant purported to give notice of a complaint of harassment related to her protected characteristic of race within her case management agenda, which complaint was neither confirmed nor departed from during the preliminary hearing.[6]The present hearing was fixed to deal with the preliminary issues as set out at paragraph 3 above, and Orders were made for the exchange of documents and provision by the respondent’s representative of a skeleton argument in advance of the hearing.
Evidence
[7]I heard evidence from the claimant. I had a bundle of documents prepared by the respondent’s representative (to which I refer below by page number), a supplementary bundle (to which I refer below by page number, prefixed by “S”) and also(a) the skeleton argument for the respondent and(b) the claimant’s response to this. Findings in fact[8]The claimant came to the UK on or around 9 July 2022. She spoke sufficient English to undertake work as a waitress. She secured employment with the respondent after arriving in the UK.[9]The claimant was employed by the respondent as a waitress between 8 August and 29 September 2022. She received her last pay from the respondent on or around 27 October 2022.[10]On or about 14 August 2022 the claimant submitted a holiday request to take time off around the time of her birthday in September 2022. In an exchange of emails with Ms K Watson on 22 August 2022 (17-19), the claimant was advised that her holiday request was refused. She was also told that the staff rota would be arranged so as to allow her time off around her birthday.[11]On or around 22 September 2022 the claimant noticed that a manager’s name did not appear on the staff rota. On or around 27 September 2022 the claimant discovered from a colleague that the manager was on holiday.[12]The claimant had no knowledge of UK employment law prior to the events which led to her present claim. She had no experience of the Employment Tribunal system. She was familiar with the website gov.uk from her visa application, prior to coming to the UK. She was computer literate.[13]On or around 22 September 2022 the claimant contacted ACAS for advice. This was triggered by her being asked to leave the staff accommodation where she had been staying. She gave the respondent one week’s notice of termination of employment on 22 September 2022.[14]On 29 September 2022 the claimant submitted a grievance to the respondent. This was not upheld. On 6 October 2022 the claimant submitted an appeal against the grievance outcome (S1-S3). Within this email she(a) included a link to the ACAS website and quoted extensively from that website, and(b) made reference to making an Employment Tribunal claim. At or around this time the claimant became aware of Early Conciliation (“EC”).[15]On 4 November 2022 the claimant received her grievance appeal outcome in an email from Ms J Watson, Hotel Manager (S4-S5). Her appeal was turned down. She was told that this was the end of the grievance procedure.[16]The claimant understood that she had a period of three months within which to submit a claim. She believed that this ran from 29 September 2022. However, from speaking with ACAS, she became aware that “time stopped” for the duration of EC. In her case EC started on 8 December 2022 and ended on 19 January 2023.[17]The claimant thought that she needed to await the outcome of her appeal before submitting an Employment Tribunal claim. Her explanation for waiting from 4 November 2022 (when she received the appeal outcome) until 8 December 2022 (when she initiated EC) was that she needed to decide whether or not to continue with her case.[18]The claimant submitted a number of emails she received from ACAS. The respondent declined to include these in the joint bundle. I considered that it was appropriate to take account of one of these emails in relation to the time bar issue. This was an email from the ACAS Conciliator to the claimant dated 17 February 2023 which included the following sentence – “As the certificate has been issued on the 19th January you have a months to submit your claim to Tribunal regardless of how settlement discussions are progressing.”[19]This prompted the claimant to submit her ET1 claim form. Her claim was received by the Tribunal on 18 February 2023. Submissions[20]It was agreed that Mr Peoples should go first, by way of oral submissions to supplement his skeleton argument. Mr Peoples dealt firstly with the issue of whether the Tribunal had jurisdiction to hear the claimant’s constructive unfair dismissal claim. He indicated that he had nothing to add to his skeleton argument. His position was that the claimant did not have the necessary period of two years’ continuous employment (in terms of section 108(1) ERA) to bring a complaint of unfair dismissal.[21]Turning to the claimant’s complaint of discrimination, Mr Peoples argued that time ran from 22 August 2022 when the claimant’s holiday request was refused. That meant that the statutory time limit (in terms of section 123(1) EqA) was 21 November 2022. The claimant had not initiated EC until 8 December 2022 and accordingly no extension of the time limit could apply. Her claim had been lodged 2 months and 28 days after the time limit, and it would not be just and equitable to extend time.[22]Mr Peoples referred to Barnes v The Commissioner of the Metropolis and Independent Police Complaints Commission 2005 WL 3635213 where, at paragraph 17, the Employment Appeal Tribunal (“EAT”) quoted from the Judgment in Mensah v Royal College of Midwives 1995 UKEAT 124 (per Mummery J at paragraph 6, referring to the equivalent time limit provision in the Race Relations Act 1996) – “It is not correct to say that the time limit under Section 68(1) only runs from the date when knowledge is acquired, for example, of a comparable person of a different race or colour who has received more favourable treatment…. An act occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory. Knowledge is a factor relevant to the discretion to extend time. It is not a pre-condition of the commission of an act which can be relied on as an act of discrimination.”[23]Mr Peoples also referred to paragraph 19 in Barnes where the EAT said this – “It follows that a Tribunal will be entitled to ask questions about a Claimant’s prior knowledge: when did he first know or suspect that he had a valid claim for race discrimination? Was it reasonable for him not to know or suspect it earlier? If he did know or suspect that he had a valid claim for race discrimination prior to the time he presented his complaint, why did he not present his complaint earlier and was he acting reasonably in delaying? These, of course, are far from being the only questions which the Tribunal may ask in order to decide whether it was just and equitable to consider the complaint. The Tribunal has to consider all the circumstances….”[24]In the present case, Mr Peoples submitted, the claimant knew the facts relating to her race discrimination claim by 22 September 2022 at the latest. This was long before she contacted ACAS to initiate EC. There had been unreasonable delay on her part.[25]Mr Peoples said that it was apparent from her grievance appeal on 6 October 2022 that the claimant was contemplating an Employment Tribunal claim. She was told in Ms Watson’s email of 4 November 2022 that the grievance process was at an end, and yet she did not contact ACAS until 8 December 2022. If she was not familiar with UK employment law, the claimant should have sought professional advice once she believed she had suffered discrimination. She chose not to do so.[26]Mr Peoples accepted that it might be relevant if the claimant had received incorrect advice from ACAS and she had acted on the strength of that advice. However, the deadline here passed in November 2022 and so the ACAS advice relied on by the claimant could not assist her.[27]Mr Peoples submitted that the Tribunal should take account of the merits of the claim in exercising its discretion as to whether it would be just and equitable to extend time. He referred to Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 (per Auerbach J at paragraph 69) – “The tribunal is therefore not always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform.”[28]In the present case, Mr Peoples contended, the respondent had exercised its discretion in a way which was consistent with its own policy in relation to holidays. It had accommodated the claimant’s request by rearranging her shift pattern to give her four consecutive days off. This was not indicative of a decision maker having conscious or unconscious bias based on the claimant’s race. Mr Peoples argued that the claim was weak and this was a factor of which the Tribunal should take account.[29]For the sake of completeness, I should record that Mr Peoples also referred to British Coal Corporation v Keeble 1997 IRLR 338, Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 334 and Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23.[30]The claimant submitted that discrimination meant an unfavourable act when compared with another employee. There could not therefore be discrimination in this case until the other employee took her holiday. This was around 22 September 2022.[31]The claimant said that the mail which she received on 6 October 2022 (rejecting her grievance) had indicated that there could be no exception to the holiday rule. The respondent had however made an exception for the other employee. They had refused to explain why the other employee had been allowed to take holidays. The difference in treatment could have been for a discriminatory reason. This supported the argument that the claim was not weak.[32]On the issue of whether she should have sought professional advice, the claimant said that ACAS had not advised her to do this. She had not known she could contact a lawyer and in any event she believed this would have cost a lot of money, which she did not have.[33]Almost one month of the delay in lodging her Tribunal claim, the claimant submitted, had been while she was waiting for the respondent to respond to her grievance appeal.[34]The claimant sad that she had relied on advice from ACAS. She had been told that EC stopped time running, and that she had one month after EC ended to submit her claim.
Applicable law
[35]The right of an employee not to be unfairly dismissed is found in section 94 ERA. Section 108(1) ERA provides as follows – Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.[36]Section 120 EqA gives the Employment Tribunal jurisdiction to determine complaints relating to a contravention of Part V (Work) EqA. Section 140B EqA deals with the extension of time limits to facilitate conciliation before the institution of proceedings. Section 123 EqA deals with time limits and provides, so far as relevant, as follows – (1) Subject to section 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. Discussion and disposal[37]I deal firstly with the claimant’s complaint of constructive unfair dismissal. The claimant said during her evidence that she was not aware of the need to have two years’ continuous employment to bring an unfair dismissal claim. Unfortunately, from her perspective, this is a question of whether the Tribunal has jurisdiction. Subject to a limited number of exceptions, a Tribunal cannot consider an unfair dismissal claim unless the employee has the required two years’ continuous employment.[38]Understandably, given her lack of knowledge of UK employment law, the claimant has not argued that her case falls within one of those exceptions. Notwithstanding this, I did give some thought as to whether one of those exceptions might apply.[39]The exceptions which might be relevant in this case were –(a) Section 101A ERA (Working time cases) – the claimant might argue that she had refused to forego a right conferred on her by the Working Time Regulations 1998 (“WTR”).(b) Section 104 ERA (Assertion of a statutory right) – the claimant might argue that she had been constructively dismissed because she had asserted a right conferred by WTR.[40]According to the claimant’s ET1 claim form(a) she was seeking to reduce her working hours following a diagnosis of Carpal Tunnel Syndrome which she believed to be work related and(b) she was told she could not remain in the accommodation provided by the respondent if she was unable to work. This could potentially foreshadow claims of the type referred to in the preceding paragraph.[41]However, I noted that the nature of the claims brought by the claimant had been considered by EJ d’Inverno with evident care at the preliminary hearing on 8 April 2023. As recorded at paragraphs 4 and 5(a) above, the claims being pursued, and those that were not being pursued, were set out in detail in the Orders following that hearing. The matters of working hours and remaining in staff accommodation were categorised as alleged breaches of contract.[42]I did not consider that it was appropriate to revisit this. Matters had clearly been discussed at the 8 April 2023 hearing and EJ d’Inverno had set out the issues with the benefit of the parties’ input at that hearing. In contrast, the nature of the claims was not a matter within the scope of the present hearing. I did not believe that I should disturb the settled position just because I could see an alternative (but speculative) argument.[43]Accordingly I decided that the claimant did not have the necessary two years’ continuous employment to give the Tribunal jurisdiction to deal with her constructive unfair dismissal claim, and that claim required to be dismissed.[44]Turning to the claimant’s direct race discrimination claim and whether that was time-barred, I reminded myself of section 123(1) EqA. For the purpose of the statutory time limit for a claim under EqA, the starting point is “the date of the act to which the compliant relates”. I was satisfied that the act for this purpose was the refusal by the respondent of the claimant’s request to take holiday at or around the time of her birthday.[45]That was what Mummery J said in Mensah, quoted with approval in Barnes. The fact that the claimant only discovered later that the refusal of her holiday request might be discriminatory did not alter the date of “the act to which the complaint relates”, which was the refusal on 22 August 2022. As Mummery J said in Mensah, “Knowledge is a factor relevant to the discretion to extend time”.[46]I agreed with Mr Peoples’ assessment that the primary time limit for presentation of a direct race discrimination claim here was 21 November 2022. This meant that the “stop the clock” provisions in section 140B ERA were not engaged in this case because the primary time limit had already expired before the period of EC began on 8 December 2022. The direct discrimination claim could only proceed if I decided that it was just and equitable to extend time.[47]The Court of Appeal in Robertson, per Auld LJ at paragraph 25, said this – “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. Where tribunals consider their discretion to consider a claim out of time on just and equitable grounds 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 discretion is the exception rather than the rule.”[48]Following British Coal Corporation v Keeble, Tribunals will often have regard to the factors set out in section 33 of the Limitation Act 1980 when considering where it would be just and equitable to extend time. Those factors are –(a) The length of and reasons for the delay.(b) The extent to which the cogency of the evidence is likely to be affected by the delay.(c) The extent to which the party sued had cooperated with any requests for information.(d) The promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.(e) The steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.[49]In Adedeji the Court of Appeal, per Underhill LJ at paragraph 37, referred to Keeble and said this – “The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is 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.”[50]In deciding whether it would be just and equitable to extend time so as to allow the claimant’s race discrimination claim, I began by considering the length of and reasons for the delay. The length of the delay was 89 days (from 21 November 2022 to 18 February 2023). This was a lengthy period which, at first glance, counted against the claimant. However, I noted that –(a) There had been a period of five weeks from 22 August 2022 to 27 September 2022 during which the claimant could not have been aware that the refusal of her holiday request might have been discriminatory because she did not know that another employee’s holiday request had been granted.(b) There had been a period from 6 October 2022 to 4 November 2022 during which the claimant was awaiting the outcome of her grievance appeal. I accepted her evidence that she thought she had to await the outcome of her appeal before presenting a Tribunal claim.[51]The fact that there was a period of five weeks during which the claimant did not know, and could not have known, that the refusal of her holiday request might have been a discriminatory act counted in her favour when assessing whether it was just and equitable to extend time (or at least mitigated the negative impact of the length of the delay). Given her lack of knowledge about employment law, the claimant’s belief that she had to await the outcome of her grievance appeal was not unreasonable. That also counted in her favour.[52]The claimant took from 6 November 2022 until 9 December 2022 to decide what she should do. This was unfortunate because the primary time limit expired during this period. However, it was not unreasonable for a claimant to take some time to consider whether or not to pursue a Tribunal claim, particularly when unaware of how the time limit operated. I considered that this period of delay should be regarded as neutral in my assessment of whether it was just and equitable to extend time.[53]The claimant was computer literate and this meant that she could undertake internet research. She was familiar with the gov.uk website and developed some familiarity with the ACAS website. She also had direct contact with ACAS prior to and during the period of EC. Her understanding was that, for the purpose of pursuing a Tribunal claim, time started to run from 29 September 2022. 54. 29 September 2022 was the date of termination of the claimant’s employment and was therefore relevant to unfair dismissal and breach of contract claims. That it might not be relevant to a possible discrimination claim was something of which the claimant was unaware. Given her lack of knowledge of UK employment law, that lack of awareness was not unreasonable, and that counted in the claimant’s favour.[55]The claimant was aware of the “stop the clock” aspect of EC. She believed understood that this was the effect of her initiating EC on 8 December 2022. She was told by ACAS on 17 February 2023 that, in effect, 18 February 2023 was the deadline for presenting a Tribunal claim. She acted in accordance with her understanding that this was the date by which her claim had to be submitted. That was reasonable and counted in her favour.[56]As Mr Peoples had asked me to do, I considered the merits of the claimant’s complaint of direct race discrimination insofar as I was able to do so based on the information available to me. There was clearly a difference in race – the claimant was Asian whereas her comparator was European. There was also clearly a difference in treatment – the claimant’s holiday request was refused whereas her comparator’s was granted.[57]Having regard to the decision of the Court of Appeal in Madarassy v Nomura International plc [2007] EWCA Civ 33, was there “something more” than these differences which might have transferred the burden of proof to the respondent in terms of section 136 EqA? I did not consider that I had sufficient information to form a view on this. This was significant because the claimant’s prospects of success would be enhanced if the burden of proving that their treatment of her was not because of her race passed to the respondent.[58]There was some force in Mr Peoples’ argument that the claimant’s direct discrimination case was weak (see paragraph 28 above). However, I interpreted what Auerbach J said in Kumari as stressing the need for caution when assessing the merits of a case before evidence had been heard. The Tribunal might find at the end of the day that the respondent’s refusal of the claimant’s holiday request was unrelated to her race. While I recognised that the respondent had articulated a non-discriminatory reason for the claimant’s treatment and that might well prevail, I did not consider that this was a case where I was able to identify sufficient material to make a confident assessment of the merits.[59]However, I did consider that the respondent had put forward a clear answer to the claimant’s direct race discrimination claim so that, on paper, it might be said that the respondent’s case stood a greater chance of success at a final hearing. This indicated that, when looking at the merits of the case as a factor in the decision whether or not it was just and equitable to extend time, it was a factor which marginally counted against the claimant.[60]I considered the question of prejudice to the respondent if time was extended so as to allow the claimant’s discrimination claim to proceed. This was not a case where the cogency of the evidence was adversely affected by the delay. I believed that the only material prejudice to the respondent was having to face a discrimination claim which was presented out of time. That was inevitably the position where a just and equitable extension of time was in issue. It weighed against the claimant, but again only marginally.[61]Looking at matters in the round, I came to the view that it was just and equitable to extend time in this case. I believed that the factors considered above pointed, on balance, towards granting an extension. The claimant’s ignorance of UK employment law was not unreasonable. Her belief that time ran, for the purpose of presenting her claim, from 29 September 2022 was not unreasonable. The email which the claimant received from ACAS on 17 February 2023 indicated that the deadline was 18 February 2023, and it was not unreasonable for the claimant to have understood that this was correct and to have acted accordingly.[62]I decided that it was just and equitable to extend the period of time within which the claimant’s complaint of direct race discrimination could be brought, and that this period should expire on 18 February 2023. Accordingly, this claim can proceed to a final hearing. Amendment[63]If the claimant wants to bring a claim of harassment, she will need to make an application to amend her ET1 to include this. For the claimant’s benefit as an unrepresented party I will set out, so far as relevant, the applicable statutory provision which is section 26 EqA –(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) ….(3) ….(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are – age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.[64]If the claimant does make an application to amend, she will need to state what she believes the unwanted conduct was, and to explain why it offended her dignity or created an intimidating etc environment for her. She should also explain why this was not included in her ET1 and why she believes she should be allowed to amend to bring in this claim now.[65]If the claimant does make an application to amend, the respondent will have an opportunity to respond, and to object to the application if so advised.[66]If the claimant decides that she does not wish to pursue a harassment claim, she will need to tell the respondent and the Tribunal that this is her position. Either way, she needs to make a decision reasonably quickly, so as to avoid delay.[67]My Orders above reflect what I have said in the preceding paragraphs. EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000068/2023 Held via Cloud Video Platform (CVP) on 27 October 2023 Employment Judge McManus Ms H Lee Claimant Inverlochy Castle Limited Respondent PRELIMINARY HEARING DECISION
Applicable law
[1]The claimant’s application to amend her claim to include a claim of disability discrimination is refused.[2]The claimant’s proposed amendment to provide details of further alleged comparators in her claim of race discrimination under section 13 of the Equality Act 2010 is taken as further particulars of that claim.[3]A Final Hearing is arranged to take place on 5 & 6 February 2024 and a Notice of Hearing will be issued separately.
Background
[1]This Preliminary Hearing (‘PH’) was for the purpose of considering whether or not the claimants’ application to amend the ET1 should be allowed. The respondent’s representative prepared a Bundle for today’s PH, with page numbers from 1 – 110. The page numbers in this decision refer to page numbers in that Bundle.[2]There have been two previous PH in this case. Following the first PH, which was for the purpose of case management, EJ d’Inverno made certain Orders. In those Orders (made on 18 April 2023), EJ d’Inverno identified the nature of the claims which had been set out in the ET1 claim form. He identified the claims as being in respect of:• Constructive unfair dismissal• Constructive wrongful dismissal• Race discrimination under section 13 of the Equality Act 2010, based on the respondent’s treatment of the claimant (being of Asian origin) and an identified comparator (a French woman), with the less favourable treatment complained of being non approval of the claimant’s requested holiday dates in the month of September 2022;• Unauthorised deductions from wages• Breach of contract.[3]EJ d’Inverno made Orders that that ET1 did not bring claims for discrimination based on either the protected characteristic of sex or the protected characteristic of disability.[4]The third Order made by EJ d’Inverno was to record what the claimant sought to rely on in respect of a claim for harassment under section 26 of the Equality Act 2010, in respect of the protected characteristic of race. EJ d’Inverno’s decision was that if the claimant wished to amend her claim to include a claim for harassment under section 26 of the Equality Act 2010, based on the protected characteristic of race, then the claimant would require to make an amendment application to do so.[5]No appeal was lodged in respect of the decision on those Orders.[6]The case proceeded to a PH on time bar. Following that hearing, EJ Meiklejohn decided that the Tribunal did not have jurisdiction to hear the unfair dismissal claim. EJ Meiklejohn decided that that the race discrimination claim was allowed to proceed. The race discrimination claim which was allowed to proceed was the claim of direct discrimination under section 13 of the Equality Act 2010. In his decision EJ Meiklejohn referred to EJ d’Inverno’s previous Order that an application to amend should be made if the claimant sought to include a claim of harassment on the grounds of her race ( a claim under section 26 of the Equality Act 2010). At paragraph 63 of his Judgement, EJ Meiklejohn set out the terms of section 26 of the Equality Act 2010.[7]The claimant made an application to amend her claim. The terms of her proposed amendment are at page 56 of the Bundle for this PH. The substantive terms of the proposed amendment do not relate to a claim of harassment under section 26 of the Equality Act 2010. The proposed amendment has headings of(1) Harassment and(2) Discrimination of the Race’. The paragraphs under the heading of ‘Harassment’ refer to alleged failure by the respondent to make reasonable adjustments, related to the claimant’s Carpel Tunnel Syndrome. These are allegations of disability discrimination ie. Unlawful treatment under the Equality Act 2010, based on the protected characteristic of disability.[8]The paragraphs in the proposed amendment under the heading ‘Discrimination of the Race’ relate to the claimant’s position that she was refused holidays in September 2023 because of her race. In respect of that treatment, the claimant now seeks to rely on additional non-Asian comparators, in addition to the previously identified French comparator.[9]The respondent’s reasons for objecting to the proposed amendments are set out in the document at pages 58 – 60.[10]In order to ensure that the claimant understood what was being said, the proceedings at this PH were translated by the booked Interpreter from English to Korean, and from Korean to English.
Relevant Law
[11]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 -(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.”[12]The duty to deal with cases fairly and justly is a duty of the Tribunal towards all parties before it.[13]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 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.[14]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 proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”[15]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.[16]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.”[17]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: “..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.”[18]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.”[19]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: “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.”[20]The position set out in paragraph 20 of Ladbrokes Racing Ltd v Traynor 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.”[21]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.[22]I took into account the relevant law as set out above and applied the approach set out most recently by the EAT in Vaughan v Modality Partnership 2021 ICR 535). With regard to each section of the proposed amendment, I balanced the injustice and hardship of allowing it against the injustice and hardship of refusing it. I took into account all the relevant circumstances. That included consideration of the timing and nature of the amendment and the applicability of time limits. I took into account the procedural history of the case and the decisions made by EJ d’Inverno and EJ Meiklejohn.[23]In respect of the proposed amendment terms under the heading ‘Harassment’, I accepted the respondent’s representative’s submissions as set out in their objections to the amendment application at page 58 - 69.[24]The proposed terms under the heading ‘Harassment’ do not relate to a claim for harassment under section 26 of the Equality Act 2010. These terms seek to bring a claim under the Equality Act 2010 based on the protected characteristic of disability.[25]EJ d’Inverno had explicitly found that the ET1 claim form did not include a claim based on the protected characteristic of disability. The claimant did not appeal EJ d’Inverno’s decision.[26]In the circumstances of this case, for the reasons relied upon by the respondent in their objections under the heading ‘Harassment’, where the claim for disability discrimination is timebarred, where it had been ordered by EJ d’Inverno that that ET1 claim did not include a claim for discrimination based on the protected characteristic of disability, and where that Order was not appealed it is not just and equitable to now allow the claim to be amended to bring a claim based on the protected characteristic of disability. The claim is not allowed to be amended to include the terms of the section of the proposed amendment under the heading ‘Harassment’.[27]I making this decision, I take into account the claimant’s reliance on her lack of knowledge of applicable law and that she ‘made a mistake’.[28]As stated at the PH, I note that if it is the claimant’s position that her Carpel Tunnel Symptoms were caused by the respondent’s fault then she should take legal advice on a personal injury claim. The Employment Tribuanal does not hear claims in respect of alleged physical injury at work.[29]In respect of the proposed amendment terms under the heading ‘Discrimination of the Race’, I accepted part of the respondent’s representative’s submissions set out in their objections to the amendment application. Some of what is set out in that section of the proposed amendment is statement on how the claimant considers the claim should be assessed, and her comment, rather than allegations which she seeks to rely on.[30]Within the section under the heading ‘Discrimination of the Race’, is what I consider should properly be considered as further particulars of the race discrimination claim under section 13. The respondent’s representative accepted this position. The section 13 claim is in respect of the respondent’s refusal to allow the claimant holidays in September 2022. The claimant now seeks to rely on additional comparators. The relevant part of the proposed amendment is the sentence ‘The respondent approved a week holidays and three weeks holidays for 4 other employees for the same month, whereas rejected my two days holiday.” The terms of the proposed amendment at under the heading ‘Discrimination of the Race’ did not specify who those ‘4 other employees’ were.[31]At this PH, the claimant’s position was that the comparators she wished to rely on were(1) the French woman previously identified(2) 3 members of the Housekeeping team who the claimant believed to be Bulgarian, are not of Asian origin & who were allowed to take holidays in August or September 2022. Her position was that she did not know those individuals names because she hardly ever saw them. They reported to a different Manager. The claimant’s explanation for not having mentioned these individuals previously was that she had forgotten that a colleague had mentioned to her that those individuals had been allowed holidays.[32]I considered the balance of hardship between the parties. I took into account that the part of the proposed amendment relating to the respondent’s refusal of the claimant’s holiday request for 2 days holiday in September 2022 do not bring a new head of claim and are in relation to the same narrow point i.e. the claimant’s claim that she was refused holidays in September 2022 because of her race. The claimant seeks to be allowed to rely on additional allegations of fact in respect of 3 additional comparators in respect of this alleged discrimination.[33]I took into account that a claim based on the respondent’s different treatment of the claimant compared to 4 non-Asian comparators is likely to have greater prospects of success than a claim based on the treatment of the claimant and one non-Asian comparator. I also took into account the claimant’s position being that these individuals were in a different team (Housekeeping) and noted that there may be issues as to whether or not they are true comparators to the claimant.[34]I took into account that this part of the proposed amendment terms do not relate to an entirely new factual basis. The section 13 claim remains based on a narrow point, being the respondent’s refusal to allow the claimant to take 2 days holiday in September 2022. Information on the comparators relied upon could have been requested in an Order for Further Particulars, or could have been identified only at a case management PH.[35]I considered the balance of prejudice to each party should the amendments be allowed. It was not suggested that the length of the hearing would be significantly extended.[36]In all the circumstances, I considered that it is in the interests of justice for the Tribunal to hear evidence on the allegations set out by the claimant in the proposed amendment in respect of details of the additional comparators now sought to be relied upon by the claimant in her section 13 claim of race discrimination based on the respondent’s refusal to allow her holidays in September 2022. The sentence ‘The respondent approved a week holidays and three weeks holidays for 4 other employees for the same month, whereas rejected my two days holiday.” is further particulars of the claimant’s claim under section 13 of the Equality Act, alleging race discrimination. In making this decision I have particularly taken into account that details of comparators are often given through case management, without requiring amendment.[37]The claim proceeds as a claim of race discrimination under section 13 of the Equality Act 2010. There is no claim under section 26 of the Equality Act (harassment) and no claim of disability discrimination, Case Management[38]A Final Hearing (‘FH’) is now scheduled to take place on 4 & 5 February 2024. This will take place in person at the Glasgow Tribunal Centre.[39]Standard Case Management Orders will be issued in respect of that FH.[40]If any further case management orders are considered by a party to be required, that party will make an application to the Employment Tribunal setting out the terms of the requested case management order and why it is considered to be necessary.[41]By 17 November 2023 the respondent’s representative will provide the claimant with their proposed List of Issues, identifying the issues which are to be determined by the Tribunal at the FH.[42]Within 21 days of her receipt of the respondent’s proposed List of Issues the claimant will inform the respondent’s representative of any suggested changes to that List.[43]At the start of the FH, the Tribunal will confirm the issues which will be determined at the FH.[44]At that FH, evidence will be heard from the claimant. For the respondent, evidence will be heard from Kerry Watson & Eleanor Goater. Evidence will only be heard on matters relevant to the issues which are for the Tribunal’s determination. The Tribunal will make its’ findings in Fact, based on the evidence heard and its decisions on credibility and reliability of witnesses. The relevant law will then be applied to those facts.[45]The claimant’s position is that she sent an email to the owner of the business (Kerry) asking for holidays and that she received a reply refusing her request. Her position is that at the end of September, she found out that the French woman she relies on as her comparator had been allowed to take holidays. The claimant’s position is that she emailed Kerry in respect of that and that in that email she alleged that she had been discriminated against because of her race. The claimant will provide the respondent’s representative with a copy of the email correspondence she seeks to rely on in her claim. Her position is that she raised a grievance but that was in relation to allegations of disability discrimination, which are not before the Tribunal.
Background
[1]Following a Preliminary Hearing on 27 October 2023, in terms of the decision promulgated by the Employment Tribunal on 6 November 2023:• The claimant’s application to amend her claim to include a complaint of disability discrimination was refused.• The claimant’s application to amend her claim to provide further particulars of her race discrimination complaint was allowed.• On 7 November 2023 parties were issued the Notice of the Final Hearing of the complaints of race discrimination and for unlawful deductions from wages, scheduled to take place in Glasgow on 5 & 6 February 2024.[2]On 1 December 2023, the claimant applied for a postponement of that Final Hearing (‘FH’). That application was made on the basis that the claimant had appealed the decision of 6 November 2023, and that the claimant would be in Korea on the arranged dates. The claimant subsequently provided proof of her travel arrangements and confirmed that her travel arrangements had been made before requesting a postponement of the FH. No explanation was provided by the claimant as to why she had made arrangements to be out of the country on the scheduled FH dates.[3]On 16 December 2023 the claimant’s appeal of the PH decision of 6 November 2023 was received. On 24 January 2024, an application was made by the respondent’s representative for the decision re that appeal to be expedited, given the scheduled dates for the FH. The application was referred to the Honourable Mrs Justice Eady DBE (President) in accordance with Rule 3(7) of the Employment Appeal Tribunal Rules 1993 (as amended). Parties were notified by decision issued on 26 January 2024 that no further action would be taken on the Notice of Appeal. The decision was that the Notice of Appeal discloses no reasonable grounds for bringing the appeal. Parties’ attention was drawn to Rule 3(10) of the Employment Appeal Tribunal Rules.[4]On 30 January 2024, the claimant again sought postponement of the FH. Correspondence was sent to parties by the Employment Tribunal in the following substantive terms: “EJ McManus has considered the emails from the claimant of 30 January, and the respondent’s representative’s response. Refusal of Postponement Application It is noted that the claimant was informed of the decision of the EAT on 29 January 2024. Although an appeal may be made of this decision, it is understood that no appeal has been made as yet. In circumstances where this Final Hearing (’FH’) has been scheduled for 5 & 6 February, and that date has been known to parties for some time, that FH will not be postponed only on the basis that it is within the period when an appeal of the EAT’s decision may be made. The FH remains scheduled to take place in person at the Glasgow Tribunal Centre on 5 & 6 February 2024. Any further request for a postponement of that hearing must clearly set out the grounds on which that postponement application is made. Strike Out Warning The claimant has also been issued with a warning that her claim may be struck out on either / both of the following grounds:• that the manner in which the proceedings have been conducted by the claimant has been unreasonable in terms of rule 37(1)(b) of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.• the claimant’s noncompliance with Case Management Orders issued by Tribunal, in terms of rule 37(1)(c) of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.• The basis for the strike out warning are the circumstances referred to in the respondent’s representative’s email of 30 January 2024. In summary:• The FH was scheduled at the Preliminary Hearing (‘PH’) on 27 October 2023.• At that PH proceedings were translated to the claimant’s first language.• The FH dates were arranged in discussion with the parties re their availability.• Notice of Hearing in respect of that FH on 5 & 6 February was issued on 7 November 2023.• On 1 December 2023, the claimant requested a postponement of the FH, on the basis that: o An appeal to the EAT had been made in respect of the decision from the PH on 27 October 2023 o the claimant would not be in the UK for February and the beginning of March 2024.• On 11 December 2023, the claimant confirmed to the Tribunal that she had booked the flights to Korea on 30 November 2023, and made the postponement request on 1 December 2023.• The claimant has provided no explanation why she made arrangements to be out of the country on the dates for the scheduled FH.• At the PH the claimant’s position was that she did not intend to call any witnesses at the FH.• On 1 December 2023, the claimant stated that she did intend to call witnesses but they would require to give their evidence remotely via video as they would not be in the UK.• The claimant has been asked to state the names of her intended witnesses and why their evidence is necessary and relevant to the issues to be determined by the Tribunal at the FH (with reference to the respondent’s representative’s proposed List of Issues sent to the claimant on 12 December 2023).• To date, the claimant has not given the names of her intended witness, or why their evidence is necessary and relevant to the issues to be determined at the Final Hearing.• The claimant has provided no evidence in respect of her mother’s ill health (in respect of that being a reason why the claimant, prior to seeking a postponement of the FH, made arrangements to be out of the country in February and March 2024).• The claimant has provided no evidence of her own ill health in respect of its relevance to matters on which the strike out warning is made.• The claimant has not complied with Case Management Orders issued on 16 January 2024.• The claimant has not provided confirmation that she has obtained the relevant authority allowing evidence to be taken from a country other than the UK or set out any steps she has taken to obtain such authorities. The claimant has been given the opportunity to provide representations on why the claim should not be struck out. If the claimant wishes to provide any further written representations, these should be received by the Tribunal and the respondent’s representative by 9am GMT on 5 February 2024. Consideration on whether the claim should be struck out will be made as a preliminary matter at the FH on 5 February 2024. It is the claimant’s responsibility to obtain the relevant authorities in respect of any country outwith the UK. Appropriate contact details in the countries ought to be able to obtained from an internet search.”[5]On 4 February an email was sent by the claimant to the Tribunal office and the respondent’s representative. In this email, the claimant set out her objections to the claim being struck out. No further postponement application was made. No explanation was given as to why the claimant had booked travel to Korea while this FH was scheduled.
Relevant Law
[6]Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, (the Procedure Rules) provides that if a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[7]This case was dealt with throughout seeking to pursue the overriding objective of the Employment Tribunal, as set out at Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Procedure Rules’).As set out in the PH decision promulgated on 6 November 2023, the duty to deal with cases fairly and justly is a duty of the Tribunal towards all parties before it. Rule 2 of the Procedure Rules 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 -(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.”[8]Consideration was given to the circumstances referred to in the correspondence from the Tribunal to parties on 31 January (as set out above) and the content of the claimant’s emailed reply of 4 February.[9]In her reply, the claimant did not make a further application for postponement of the FH scheduled for 5 & 6 February.[10]The claimant still has not provided an explanation why she made arrangements to be out of the country on the dates for the scheduled FH.[11]The claimant has still provided no evidence in respect of her mother’s ill health (in respect of that being a reason why the claimant, prior to seeking a postponement of the FH, made arrangements to be out of the country in February and March 2024).[12]The claimant has given no explanation for her non-compliance with Case Management Orders issued on 16 January 2024.[13]The claimant has not set out any steps she has taken to obtain authority from any country other than the UK from which she seeks that evidence be heard remotely in respect of her claim.[14]Contact was made by the Employment Tribunal office to the EAT seeking the position in respect of whether the EAT had received notification of a Rule 3(10) appeal following Mrs Justice Eady’s decision on the sift. No properly submitted appeal had been made as at the scheduled start of the FH on 5 February.[15]In all these circumstances, on application of Rule 47 of the Procedure Rules, the claim is dismissed because the claimant did not appear at the scheduled hearing on 5 February 2024. C McManus