Mr P Mason v GB Land Engineering Ltd: 8000770/2024 Mr P Mason v GB Land Engineering Ltd: 8000770/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000770/2024

Venue Edinburgh by Cloud Video Platform

Hearing 22 January 2025

Between

Mr P MasonClaimant

GB Land Engineering LimitedRespondent

Before

Employment Judge Sangster

Date 27 January 2025

JUDGMENT

The judgment of the Tribunal is that the Tribunal has no jurisdiction to consider the claimant’s complaints of religious discrimination (direct discrimination and indirect discrimination) and victimisation.

REASONS

[1]In his claim form, presented to the Tribunal on 3 June 2024, the claimant sought to advance complaints of religious discrimination, namely direct discrimination and indirect discrimination, as well as victimisation. He was employed by the respondent, from 26 June to 22 December 2023. His complaints of discrimination and/or victimisation relate to the period from August/September 2023 to 15 December 2023. E.T. Z4 (WR)

[2]This hearing was an open preliminary hearing, to determine whether the claimant had presented his claim within three months of the date of the acts to which the claim relates, or such other period as the Tribunal thinks just and equitable, in accordance with 123 of the Equality Act 2010 (EqA).

[3]A joint bundle was lodged, extending to 57 pages. The Tribunal heard evidence from the claimant only. Findings in fact

[4]The Tribunal found the following facts, relevant to the issues to be determined, to be admitted or proven.

[5]The claimant considered, during the course of his employment with the respondent, that he was being subjected to discrimination, but decided to take no action regarding this, as he did not wish to jeopardise his ongoing employment.

[6]The claimant contacted Acas on/after 8 December 2023 to discuss his work circumstances. At that point he had been informed that his contract would not be renewed. He believed that this was due to his religion. By the time his employment terminated, on 22 December 2023, he was aware he could bring a claim to the Employment Tribunal in relation to the way he had been treated by the respondent.

[7]At the time the claimant’s employment terminated, he was experiencing pain in his lower back, hips and legs. He attempted to relieve his symptoms by taking paracetamol, ibuprofen and other painkillers.

[8]On 16 January 2024 the claimant contacted NHS 24 out of hours team, with ‘hip pain’. They advised him to make a routine appointment with his GP. He attended an appointment with his GP, almost 3 weeks later, on 5 February 2024. He explained that he had leg pain, which was worsening. His medical records state ‘Tender to palpation across the quadriceps and hamstring area. No tenderness to lower back or spine or any tenderness in paraspinal muscles. Able to weight bear on each side. No hip issues.’ Blood tests were ordered, but no medication was prescribed.

[9]In March 2024, the claimant contacted Citizens Advice to obtain advice and assistance from them regarding engaging in early conciliation. He met with them on two occasions prior to commencing early conciliation, which he did online. He engaged in early conciliation from 16 April to 28 May 2024.

[10]The claimant next visited his GP on 25 April 2024, nearly 12 weeks after his previous appointment. He felt his pain was becoming worse, and attributed this to reduced mobility. At that time, he reported having tightness across the lower back and hips with pain and tingling down the legs. His medical records state ‘There is tingling affecting different areas of the legs that moves with time, constant and painful. Kneeling and bending makes this worse....Also has some shooting pain down the L leg which. He feels the leg symptoms are now becoming more of an issue than the tightness across the lower back.’ He was prescribed a short course of Naproxen, to take for a two-week period, but it did little to relieve his pain symptoms.

[11]The claimant next visited his GP on 28 May 2024. His medical records state that he reported, at that time, ‘persistent lower back pain radiating into lateral buttock and hip on left side into lateral thigh with paraesthesia reported in left shin…feels well otherwise’. No further medication was prescribed, but the claimant was referred for physiotherapy.

[12]The claimant presented his claim to the Tribunal on 3 June 2024.

[13]During the period from when the claimant was informed of the termination of his employment to when he presented his claim to the Employment Tribunal, the claimant also experienced fluctuating periods of low mood. He did not however consult his doctor about this, or take medication. In this period he also applied, online, for universal credit.

[14]The claimant was prescribed amitriptyline in July 2024, which assisted in relieving his pain symptoms. Submissions

[15]The respondent provided a summary of the applicable legal propositions, as derived from the case law and submitted, in summary, that: 15.1. The claim was not presented in the applicable timescales: it was 83 days late. 15.2. It is not just and equitable to extend time as: 15.2.1. the claimant was aware of the facts giving rise to the asserted treatment, and that it was unlawful treatment, at the time; 15.2.2. the claimant had the means to establish an awareness of time limit. His evidence that he was unaware of the applicable time limits is unreliable; 15.2.3. The claimant has not provided a credible reason for the delay in presenting his claim – he indicated that his pain was becoming worse not better and was able to apply for universal credit and engage in early conciliation; and 15.2.4. There are no exceptional circumstances, and the respondent will suffer prejudice if the claim proceeds.

[16]The claimant referred to the ET case of Dalgleish v McLaren Packaging 4109146/2001 and submitted, in summary, that: 16.1. He brought his claim as soon as he was mentally and physically able to do so; and 16.2. He was entirely unaware of time limits and only became aware of this following the presentation of his claim.

Relevant Law

[17]Section 123(1) EqA states that complaints may not be brought after the end of: 17.1. the period of 3 months, starting with the date of the act to which the complaint relates; or 17.2. such other period as the Tribunal thinks just and equitable.

[18]Section 123(3) EqA states that conduct extending over a period is to be treated as done at the end of the period and failure to do something is to be treated as occurring when the person in question decided on it.

[19]The burden of proof is on the claimant to establish that it is just and equitable to extend time, as explained in Robertson v Bexley Community Centre

[2003] IRLR 434

, in which the Court of Appeal said, at para 25: “When 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.”

[20]This does not however mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The only requirement is that the extension of time should be just and equitable

[21]In British Coal Corporation v Keeble

[1997] IRLR 336

the EAT indicated that task of the Tribunal, when considering whether it is just and equitable to extend time, may be illuminated by considering section 33 Limitation Act 1980. This sets out a check list of potentially relevant factors, which may provide a prompt as to the crucial findings of fact upon which the discretion is exercised.

[22]In London Borough of Southwark v Afolabi

[2003] IRLR 220

the Court of Appeal confirmed that, whilst that checklist provides a useful guide for Tribunals, it does not require to be followed slavishly. In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, the Court of Appeal confirmed this, stating that it was plain from the language used in s123 EqA (‘such other period as the Employment Tribunal thinks just and equitable’) that Parliament chose to give Employment Tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list.

[23]In Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, the Court of Appeal approved the approach set out in Afolabi and Morgan and, at paragraph 37, Underhill LJ confirmed, that ‘rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. 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.’ Discussion & Decision

[24]The Tribunal firstly considered the relevant time limits and whether the claim was brought within that time limit.

[25]The Tribunal noted that, even if all of the asserted acts of discrimination/ victimisation were considered to be one continuing act, the last date on which it occurred was 15 December 2023. The three-month time limit accordingly expired, at the latest, on 14 March 2024. The claimant lodged his claim 82 days later, on 3 June 2024.

[26]Whilst the claimant participated in early conciliation from 16 April to 28 May 2024, as this was done after the expiry of the primary time limit, it did not result in the extension of the primary time limit in respect of any complaints against the respondent.

[27]The Tribunal accordingly determined that the claim was not brought within the period of three months from the act(s) complained of. Just and Equitable Extension

[28]The Tribunal then considered whether the claim was brought within such other period as was just and equitable, noting that the onus was on the claimant to demonstrate this.

[29]As stated above, the claimant’s claim was presented at least 82 days after the expiry of the relevant time limit. The claimant attributed the delay in presenting his claim to two factors, as follows: 29.1. His mental and physical health; and 29.2. Ignorance of the time limits.

[30]The Tribunal considered each of the reasons advanced, in turn. Mental and Physical Health

[31]The claimant relied on his mental and physical health as a reason for not presenting his claim prior to 3 June 2024. The Tribunal did not however accept that the claimant’s mental or physical health created any impediment to him presenting his claim in the period from 15 December 2023 to 3 June 2024 (the Relevant Period). Whilst the Tribunal accept that the claimant was experiencing pain and low mood in the Relevant Period, it is notable that: 31.1. No medical evidence was produced suggesting that the claimant’s physical or mental health during the Relevant Period inhibited his ability to bring a claim in any way; 31.2. The claimant did not consult his GP until relation to his pain symptoms until 5 February 2024, with his next appointment being on 25 April 2024; 31.3. He did not consult his GP at all regarding his mental health in the Relevant Period; 31.4. He was not, other than a 2-week period from the end of April 2024, prescribed medication for pain symptoms in the Relevant Period; and 31.5. He was able to engage with Citizens Advice, participate in early conciliation and apply for universal credit in the Relevant Period.

[32]The fact that the claimant was able to raise a claim on 3 June 2024 also appeared at odds with his assertion that his medical condition prevented or impeded him from raising his claim prior to then. No evidence was led to indicate that his condition changed in any way, thus altering his circumstances so that he was, by 3 June 2024, in a position to raise a claim. In fact, the claimant’s evidence suggested the opposite, namely that his condition was worsening over time and did not start to improve until he was prescribed amitriptyline in July 2024, after he presented his claim form.

[33]The Tribunal accordingly did not accept that the claimant’s physical or mental health caused or contributed to him not presenting his claim in the period from 15 December 2023 to 3 June 2024. Ignorance of Time Limits

[34]The Tribunal then considered the claimant’s position that he was ignorant of time limits. The claimant knew of the existence of Acas, and had a discussion with them, prior to the termination of his employment. He knew of the facts giving rise to his potential complaints from when they occurred. From the date his employment terminated, he was aware he could bring a claim to the Employment Tribunal in relation to the way he had been treated by the respondent. He contacted Citizens Advice to obtain advice and assistance from them, and met with them on two occasions in late March/early April 2024. He accessed the Acas website in early April 2024, prior to commencing early conciliation.

[35]The Tribunal doubted the claimant’s evidence that, in his encounters with Acas and Citizens Advice, there was no mention whatsoever of time limits, and he did not see the clear reference to this on the Acas website, when he commenced early conciliation. Even if his position that he remained ignorant of time limits were accepted however, the Tribunal concluded that that ignorance was not reasonable. It was not reasonable for the claimant to fail to make any enquiries, or conduct any research in relation to time limits. A simple google search would have disclosed the time limit for bring a claim. He was also in contact with Acas and Citizens Advice. He could, and should, have asked them about time limits, if they did not inform him of this.

[36]In light of these factors, the Tribunal concluded that the delay in raising his claim, as a result of the claimant’s asserted ignorance of time limits to bring a Tribunal claim, was not reasonable.

[37]The Tribunal took these findings, in relation to the length of and reasons for the delay into account, as well as the balance of prejudice between the parties in the claim proceeding at this stage, when determining whether it is just and equitable to extend time. The Tribunal concluded that no satisfactory explanation was advanced for why the complaints were not brought sooner, particularly where it was clear that the claimant suspected he had claims for discrimination at an earlier stage. Whilst the Tribunal is aware that the claimant will be unable to pursue his complaints if discretion is not exercised in his favour, the Tribunal is also mindful that the respondent would be prejudiced if the claims were allowed to proceed at this stage, and is satisfied that the cogency of evidence would be adversely impacted by the delay.

[38]For these reasons the Tribunal concluded that the claim was not brought within the relevant time limit, or such other period as was just and equitable. The Tribunal accordingly does not have jurisdiction to hear the claimant’s complaints under the EqA.