Mrs M Douglas v Halliburton Management Ltd: 8000525/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000525/2023
Between
Mrs M DouglasClaimantHalliburton Management LtdRespondent
Before
Employment Judge N M HosieDate 3 April 2024
JUDGMENT
The Judgment of the Tribunal is that:-(1) the claim is time-barred and is dismissed for want of jurisdiction; and(2) the claim has no reasonable prospect of success and is struck out under Rule 37(1)(a), in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ETZ4(WR)
REASONS
[1]The claimant brought a claim of pregnancy and maternity discrimination, in terms of s.18 of the Equality Act 2010. The claim was denied in its entirety by the respondent. Preliminary Issues[2]This case called before me by way of a Preliminary Hearing to consider two preliminary issues namely, time bar and the prospects of the claim succeeding. The Preliminary Hearing was fixed by Judge Hendry at a Case Management Preliminary Hearing on 18 December 2023. The Note which he issued following that Hearing is referred to for its terms.
The Evidence
[3]I heard evidence from the claimant with regard to the time bar issue. So far as the issue of the prospects of the claim succeeding was concerned, it was not necessary for me to hear any evidence as, for the purposes of this Hearing only, I took the claimant’s averments in her claim form at their highest value, in other words, I accepted that she would be able to prove the facts averred in her claim form. Documentary Productions[4]The parties both submitted a bundle of documentary productions (“C” and “R”). Time Bar
Relevant Law
[5]The general rule is that claims of work-related discrimination under the Equality Act 2010 must be presented to the Employment Tribunal, within the period of 3 months starting with the date of the act complained of (s.123).[6]I first had to determine, therefore, the starting date from which the 3 months time limit period started to run.[7]Mrs Douglas gave her evidence in a measured, consistent and convincing manner and presented as credible and reliable. Having heard her evidence and considered the documentary productions, I was able to make the following findings in fact, relevant to the time bar issue. Mrs Douglas commenced her employment with the respondent “Halliburton” on 23 May 2011. She was employed as a “Contract Specialist/Manager”. Her employment ended when she resigned by letter dated 6 May 2023 (R36). She gave notice and the effective date of termination was 29 May 2023.[8]By and large, the facts were not in dispute. There was a redundancy situation and Mrs Douglas was one of those placed “at risk”. The basis for her claim is that she was advised by the respondent that she would no longer be entitled to trial an alternative job and would no longer have the option of receiving an enhanced redundancy payment should the trial prove to be unsuccessful, but rather that she was required to return to work after maternity leave to a role which the respondent had identified.[9]Mrs Douglas referred to an email exchange which she had with Nicola Cantlay, in the respondent’s HR Department, on 30 January 2023 when Ms Cantlay advised her that she would be entitled to a 30 day trial in a role identified for her, with the option of “reverting back to the redundancy consultation” should the trial prove to be unsatisfactory (C4/5).[10]However, on 29 March 2023 Ms Cantlay advised Mrs Douglas that the trial and the alternative of an enhanced redundancy payment was no longer an option and she would require to return to work after maternity leave to a suitable role which had been found for her. This is referred to in the claim form (R9). In response, Mrs Douglas referred Ms Cantlay to their email exchange on 30 January (C4/5). Ms Cantlay undertook to look into this and get back to her.[11]When Mrs Douglas had not heard back from Ms Cantlay, despite several reminders, she made contact with Lisa Villon who also worked in the respondent’s HR Department to clarify the matter. On 26 April 2023 Ms Villon confirmed to Mrs Douglas that she would not be entitled to trial the new role and that she would not be entitled to an enhanced redundancy payment. She would require to return to work in the new role.[12]When giving evidence, Mrs Douglas also referred to a comment she alleged was made by Scott Greig, one of the respondent’s Vice Presidents, on 26 May 2023, at the end of her notice period, when she returned her laptop to him. She claimed that he said to her, “You have decided to be a stay at home mum have you”, to which she replied, “No that’s not my intention”.[13]Mrs Douglas claimed that this also amounted to pregnancy and maternity discrimination.[14]However, this was a new claim. There was no reference to this in the claim form. It was not part of her pleaded case, despite Mrs Douglas having taken advice from a solicitor and also discussed her claim with ACAS.[15]I was also not persuaded that even if this additional claim were to be allowed by way of amendment and established, in evidence, this would amount to “conduct extending over a period”, thereby bringing all the claims within the ordinary 3 month time limit. The reason for this is that this was an unconnected act, in a different factual setting, quite different from the basis for the claim, as expressed in the claim form.[16]I arrived at the view, therefore, that the date of the act complained of, from which the 3 months time limit would start to run, was 26 April 2023 when Mrs Douglas was advised by Ms Villon that she would not be afforded a trial period and she would not have the option of receiving an enhanced redundancy payment. Early Conciliation[17]S.140B of the 2010 Act extends the ordinary time limit under section 123(a) to take account of any participation in ACAS early conciliation, provided the early conciliation commences before the ordinary limitation period has expired (Pearce v Bank of America Merrill Lynch and ors EAT0067/19, to which I was referred by the respondent’s solicitor-).[18]However, Mrs Douglas only notified ACAS on 17 August 2023 which was outwith the 3 months’ time limit, starting from 26 April 2023.[19]The issue for me, therefore, was whether, in all the circumstances, I should exercise my discretion to extend the time limit, on the basis that it was “just and equitable” to do so (s.123(1)(b)).[20]The respondent’s solicitor made “Outline Submissions” in writing, which are referred to for their terms. I take no issue with his analysis of the relevant law to which he refers.[21]In British Coal Corporation v Keeble and ors [1997] IRLR 336, the EAT suggested that Employment Tribunals would be assisted by considering the factors listed in s.33 of the Limitation Act 1980. That section deals with the exercise of discretion in civil courts in personal injury cases. However, in the recent case Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the Court reviewed a number of recent cases involving the list of limitation factors cited in British Coal Corporation and said this:- “The best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) of the Equality Act 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. (Note: 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)”[22]Mrs Douglas presented as articulate and intelligent and had access to the internet. Also, as I recorded above, she had the benefit of advice from a solicitor and ACAS.[23]The only explanation she gave for not contacting ACAS, within the primary 3 month time limit, was that she believed she could rely on the alleged comment by Mr Greig on 26 May 2023. However, I did not find that explanation convincing. It seemed to me that this was something of an afterthought. In my view, here was no impediment to Mrs Douglas submitting her claim in time.[24]While I was mindful that I have a wide discretion to extend the time limit and that the just and equitable “escape clause” is much wider than that relating to unfair dismissal claims which require a claimant who has submitted a claim form out of time to show that it was “not reasonably practicable” to comply with the normal time limit, I was also mindful of such cases as Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, to which I was also referred. The Court of Appeal stated in that case, that when Employment Tribunals consider exercising the discretion under s.123(1)(b) of the 2010 Act: “There is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule” (my emphasis)[25]While I was mindful that Mrs Douglas had completed the claim form herself and submitted it. online and that she was unrepresented at the Preliminary Hearing, nevertheless, she did have the benefit of advice, and she was well able to submit the claim in time. I was not persuaded, therefore, in all the circumstances, that it would be just and equitable to exercise my discretion and extend the time limit. Mrs Douglas failed to discharge the onus on her in this regard. Accordingly, the Tribunal does not have jurisdiction to consider her claim as it is time barred. The claim is dismissed, therefore, for want of jurisdiction. Prospects[26]For the sake of completeness, I also wish to record my view on this issue, with which I was also concerned. io[27]A claim or response can be struck out on the basis that it has “no reasonable prospect of success” - Rule 37(1)(a) of the Tribunal Rules of Procedure. Burden of Proof[28]A discrimination claim requires a claimant first to establish facts which amount to a prima facie case: the claimant has the initial burden of proving, on the balance of probabilities, facts from which the discrimination claim can be presumed. The statutory basis for this so called “shifting the burden of proof rule” is to be found in s.136 of the 2010 Act which applies to all discrimination and victimisation claims. S.136(2) provides that if there are facts from which the Court or Tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the 2010 Act, the Court must hold that a contravention occurred; and s.136(3) provides that s.136(2) does not apply if A shows that he or she did not contravene the relevant provision.[29]Guidance on the application of these provisions was given by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205, These guidelines were explicitly endorsed by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. Although these cases concerned the application of s.63A of the Sex Discrimination Act 1976, the guidelines are equally applicable to discrimination claims and the application of s.136 of the 2010 Act. Further, and this was of significance to the present case in view of Mrs Douglas’s allegations about the unreasonable way she had been treated, in Bahl v The Law Society and ors [2004] IRLR 799, the Court of Appeal upheld the reasoning of the EAT and emphasised that unreasonable treatment of a claimant cannot in itself lead to an inference of discrimination, even if there is nothing else to explain it. Although that case proceeded under legislation prior to changes made to the burden of proof, the principle is still valid. In other words, unreasonable treatment is not sufficient in itself to raise a prima facie case requiring an answer.[30]As the EAT said in Bahl at para 89, merely to identify detrimental conduct tells us nothing at all about whether it has resulted from discriminatory conduct”.[31]Also, as the respondents solicitor submitted, with reference to Nagarajan v London Regional Transport [1999] IRLR 572, “The claimant must show that her being on maternity leave was the “reason why” she was treated unfavourably”.[32]In my view, the position in the present case is that Mrs Douglas has set out no more than an allegation of unfavourable treatment. She does not explain why she was treated that way because she was pregnant and on maternity leave. All that is alleged is the fact that she was on maternity leave and pregnant and she resigned because of the way she was treated. There are no alleged facts which, if proved, would establish that these 2 facts were linked. The guidelines in Barton and other cases clearly require the claimant to establish more than simply the possibility of discrimination having occurred before the burden will shift to the employer.[33]That point was further emphasised by LJ Mummery giving the Judgment of the Court of Appeal in Madarassy v Nomura International PLC [2007] IRLR 246: “For a prima facie case to be established it will not be enough for a claimant simply to prove facts from which the Tribunal could conclude that the respondent could have committed an act of discrimination. Such facts would only indicate a possibility of discrimination, nothing more. So the bare facts of a difference in a status and a difference in treatment - for example, in a direct discrimination claim the evidence that a female claimant had been treated less favourably than a male comparator - would not be sufficient material from which a Tribunal could conclude that, on the balance of probabilities, discrimination had occurred. In order to get to that stage, the claimant would also have to adduce evidence of the reason for the treatment complained of’[34]As I explained, for the purposes of the Preliminary Hearing I took the averments in the claim form at their highest value. In other words, for the purposes of the exercise with which I was concerned, I proceeded on the basis that the claimant would be able to prove all the facts she avers. However, she is required to "set out with the utmost clarity the primary facts on which an inference of discrimination is drawn”; and: “it is the act complained of and no other that the Tribunal must consider and rule upon” (Bahl).[35]In my view, Mrs Douglas has failed to set out such primary facts which would enable an inference of discrimination to be drawn; even if she were able to prove all she alleges in her claim form she would still not be able to establish a prima facie case; she would not be able to discharge this onus; the burden of proof would not shift to the respondent; and her claim would fail.[36]I arrived at the view, therefore, that her claim of pregnancy and maternity discrimination has no reasonable prospect of success and that it should be struck out in terms of Rule 37(1)(a).[37]I might add, that in arriving at this view I was mindful not only that the claimant was unrepresented at the Preliminary Hearing, albeit that she had the benefit of legal advice before she submitted her claim form, but also what Lord Steyn said in Anyanwu v Southbank Students Union & ors [2001] UKHL14 ICR 391 that as discrimination cases tend to be "fact sensitive” strike out should only be ordered: “In the most obvious and clearest cases”. In my view, the present case falls into that category.[38]The submissions by the respondent’s solicitor in this regard are well founded: Mrs Douglas failed in her claim form to set out a prima facie case and thereby shift the burden of proof on to the respondent.[39]Accordingly the claim is struck out.