Unfair Dismissal and Time Limits: Reasonable Practicability and Equality Act 2010, Study notes of Law

Download Unfair Dismissal and Time Limits: Reasonable Practicability and Equality Act 2010 and more Study notes Law in PDF only on Docsity! Case Number 2501703/18 1 THE EMPLOYMENT TRIBUNALS Claimant Respondent Ms S Slater White House Farm Centre JUDGMENT OF THE EMPLOYMENT TRIBUNAL At a PUBLIC PRELIMINARY HEARING HELD AT NORTH SHIELDS ON 23 JANUARY 2019 EMPLOYMENT JUDGE GARNON (SITTING ALONE) Appearances For Claimant: in person For Respondent: no attendance JUDGMENT 1. The claim of unfair dismissal was presented outside the time limit for doing so in circumstances where it was reasonably practicable for it to be presented within time. The Tribunal cannot consider the claim which is hereby dismissed. 2. The claims under the Equality Act 2010 ( the EqA) were brought more than three months after the date of the last act to which the complaint relates .It is not just and equitable the Tribunal should decide those claims which are hereby dismissed. REASONS ( bold print is my emphasis and italics are quotations) 1 The Issues and Statutory Provisions 1.1. Rule 53 of the Employment Tribunal Rules of Procedure 2013 ( the Rules) empowers me to issue a final judgment even at a preliminary hearing if the issue I decide is determinative of the whole case. In the claim of unfair dismissal the issues are (a) whether the claim was presented before the end of the relevant time limit (b) if not, was it reasonably practicable for it to have been (c) if not, was it presented within a reasonable time after? In the claims under the Equality Act 2010 ( EqA), related to the protected characteristic of disability ( the claimant has Bi-Polar Affective Disorder and claims the types of unlawful conduct defined in sections 13, 15, 19, 20/21, 26 and 27) the issue is whether the claim was presented before the end of 3 months ( as extended by s 140 B) starting with the date of the act to which the complaint relates, or such other period as the tribunal thinks just and equitable. 1.2. Section 97 of the Employment Rights Act 1996 (the ERA) defines the “Effective Date of Termination”. It is agreed to be 9 March 2018. Case Number 2501703/18 2 1.3. Section 111 says the Tribunal shall not consider a complaint under that section unless it is presented to the Tribunal: (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the Tribunal considers reasonable in a case where it is satisfied it was not reasonably practicable for the complaint to be presented before the end of that period of three months. 1.4. If this was the only relevant provision, the claim needed to be presented on or before midnight on 8 June 2018. Section 207B provides for extension of time limits to facilitate conciliation before institution of proceedings thus (2) In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. 1.5. Section 120 EqA confers jurisdiction on Employment Tribunals, and s. 123 says : (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. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Section 140B has the same effect as s207A of the ERA. 2 The Facts 2.1. The claimant contacted ACAS on 1 June 2018 (Day A). ACAS sent the Early Conciliation (EC) Certificate on 1 July 2018 (Day B). Applying the more favourable ss (4), the time for presentation would now be 1 August. It arrived on 5 September. 2.2. The claimant started work for the respondent in August 2014. In a very well worded letter written with the help of solicitors , Jacksons, dated 26 October 2017 Case Number 2501703/18 5 3.6. The Dedman principle has been questioned In Riley v Tesco Stores Ltd 1980 ICR 323, Lord Justice Stephenson said he would hesitate to say that in every case a claimant would be bound by the fault of the adviser as each case depends on its own facts. However the Court of Appeal affirmed the Dedman principle in Marks and Spencer plc v Williams-Ryan 2005 ICR 1293 . Lord Phillips MR said the correct proposition of law derived from Dedman is that where the employee has retained a solicitor to act for her and fails to meet the time limit because of the solicitor's negligence, the solicitor's fault will defeat any attempt to argue it was not reasonably practicable to make a timely complaint to the tribunal. 3.7. The EAT in Northamptonshire County Council v Entwhistle 2010 IRLR 740 , also confirmed the principle but said there could be exceptions such as where the adviser's failure to give the correct advice was itself reasonable for example, where the employee and her solicitor had both been misled by the employer on some factual matter, such as the date of dismissal. Most of the reported cases concern incorrect advice. This is not such a case but an error of omission. Solicitors do sometimes make such mistakes. A solicitor's failure to have a system in place to ensure a claim posted in time is actually received by the tribunal has also been ascribed to the claimant. Capital Foods Retail Ltd v Corrigan 1993 IRLR 430, and Camden and Islington Community Services NHS Trust v Kennedy 1996 IRLR 381 . A fortiori, a solicitor whose internal systems for ensuring a claim is sent in time fail, will fall in the Dedman principle. 3.8. MEL have represented in cases I have handled before and I have found them perfectly competent but I do not believe them to be practicing solicitors . In my view that makes no difference Incorrect advice from an adviser employed by a Citizens Advice Bureau (CAB) was treated as the fault of the claimant in Riley A similar conclusion was reached in Hammond v Haigh Castle and Co Ltd 1973 ICR 148, in relation to an employee's professional association, and in Croydon Health Authority v Jaufurally and anor 1986 ICR 4, in relation to the Free Representation Unit. 3.9. Advice given by employment consultants who are not qualified solicitors was considered in Ashcroft v Haberdashers' Aske's Boys' School 2008 ICR 613, which held negligence or delay by such an adviser in presenting a tribunal claim is to be ascribed to the claimant. Mr Justice Burton said , ‘there is a positive plethora of employment consultants who are not solicitors' but who are, or hold themselves out to be, skilled advisers in this field”. As the adviser fell within that category, no extension of time was granted where he had failed to issue proceedings in time. 3.10 In the claim of unfair dismissal I cannot find that it was not reasonably practicable for the claim to be presented in time. That means I have no further discretion to exercise, so the claim must be dismissed. 3.11. Under the EqA , I rarely favour determining just and equitable extensions at preliminary hearings normally preferring to leave it to the full hearing though there is clear authority in Hutchinson v Westwood Television it can be done at a preliminary hearing. In this case it was wise of Employment Judge Buchanan to set it down for a preliminary hearing. Had I thought it was too fine a decision to take without hearing all the evidence, I would have reserved it to a full hearing. Case Number 2501703/18 6 3.12 . Often cited by respondents is Robertson-v- Bexley Community Centre which held three months is the primary time limit and there must be exceptional reasons for extending time . I do not believe this is still good law. The wording of the time limit provisions from the earliest anti-discrimination statutes in 1975 right up to the coming into force of EqA was notably different. I do not believe Parliament would have changed wording that had been in place for 35 years had it not meant to achieve some relaxation of the rigidity suggested in Robertson. Even if I am wrong about this, it makes no difference to my decision in this case. 3.13. Among the differences between EqA and ERA claims are (a) burden and standard of proof (b) uncapped compensation (c) availability to the claimant of an injury to feelings award (d) availability to the respondent of the “statutory defence” . 3.14. Section 109 of the EqA includes : (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. (3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. (4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description. Subsection 4 is commonly called “ the statutory defence” 3.15. Section 136 includes (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 3.15. This “reversal of the burden of proof” is explained in Igen-v- Wong (elaborated upon in Madarassy –v- Nomura International ) and London Borough of Islington-v- Ladele 2009 IRLR 157 .It is for the claimant to prove on balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, the respondent has committed an unlawful act under the EqA . If she does prove such facts an inference they constitute one or other of the statutory torts set out is often easy to draw. In essence this means that without the cooperation of Mr L to provide an explanation, this respondent would be in real difficulties. 3.16. Guidelines on exercising the just and equitable discretion, under the law as it then was, were given in British Coal Corporation v Keeble [1997] IRLR 336. The length of and reasons for the delay, whether the claimant was being advised at the time and if so by whom, the extent of the respondent’s co-operation with requests for Case Number 2501703/18 7 information, the speed with which the claimant acted when she became aware of her right to claim and the extent to which the quality of the evidence is impaired by the passage of time are all relevant considerations. Unlike the Dedman principle, fault of an advisor is not of itself fatal (see Chohan v Derby Law Centre) . 3.17. Keeble was decided before the reversal of the burden of proof. Short time limits in discrimination cases are there for a good reason. Discrimination cases are extremely fact sensitive. It is necessary for the witnesses to be able to remember not only what was said but the context in which it was said. The sooner an employer is made aware a discrimination complaint may be made the sooner enquiries can be made of witnesses and the results recorded in writing, whilst events are still as fresh as possible in their memory. Of the tests in Keeble, I view as the most important under the present law the extent to which the memories of witnesses, whether they are for or against the claimant, are impaired by the passage of time. On the other aspects of the test the claimant cannot be criticised. 3.18. Once an employer is alerted to the possibility of a discrimination claim about the conduct of a manager , good HR practice is to investigate it with an open mind . It may be the employee making the complaint has a good point. If so, an employer with a sound equal opportunities policy has the option of not “backing the manager”. The problem in this case,as the claimant accepts, is that neither Mr L nor any other manager at the time took her seriously. Because of the departure of Mr L and Ms T and apparent failure to take contemporaneous statements there has been irreparable damage caused to the reliability of the evidence. Some people may have left , and the memories of those who have not will have faded . 3.19. I have on many occasions allowed claims to proceed where the gap of time is greater, but only when there was a good reason for the delay. The prejudice to the respondent of extending time far outweighs the prejudice to the claimant of refusing it. She has a negligence claim to fall back on. I conclude it is not just and equitable to consider the EqA claims outside the primary time limit. T M Garnon EMPLOYMENT JUDGE JUDGMENT SIGNED BY EMPLOYMENT JUDGE ON 23rd JANUARY 2019