Employment Tribunals

ETZ4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) 5 Case No: 8001047/2024 Preliminary Hearing Held by Cloud Based Video Platform on 30 January 2025 10 Employment Judge Campbell Ms M Ritchie Claimant 15 Represented by: Ms K Law, lay representative Whitbread Group Plc Respondent 20 Represented by: Ms Barchet, solicitor 25 JUDGMENT FOLLOWING PRELIMINARY HEARING The tribunal exercises its power under section 123(1)(b) of the Equality Act 2010 in 30 deeming it just and equitable to extend the period for presenting the claim. WRITTEN REASONS Introduction 1. A hearing took place by video to deal with the issue of time bar in this claim. 35 The claimant attended and was represented by Ms Law. Ms Barchet represented the respondent. 800 1047/2024 Page 2 2. In advance of the hearing Ms Barchet’s firm had helpfully prepared a bundle of documents. At the hearing the claimant gave evidence and both parties briefly summarised their positions by way of closing submissions. Those are not reproduced here, but were noted and considered before this judgment 5 was reached. 3. At the conclusion of the hearing I indicated that I would deliberate and issue a reserved decision. Later that day Ms Law emailed the tribunal to say, in brief, that the claimant had given an inaccurate response in relation to a 10 question regarding when she had sought assistance (from a local Citizens Advice Bureau) and wished to confirm that she had done so in July 2024, and had emails to document this. I directed that any such emails should be sent to the respondent’s solicitor who would then be able to comment. The emails were sent and on 5 February 2025 Mr Barchet replied to say that she 15 did not object to this new information being considered, and that it showed that the claimant had waited a number of months from resigning before seeking advice on her position. She added that the claimant had raised two grievances around the same time and attended a meeting with the respondent, which would have been more demanding than seeking advice. 20 Ms Law sent a further reply to comment that this was a subjective view, and approaching another party with a view to starting a legal process was not an easy thing to do. All of this correspondence was considered before this judgment was reached. 25 4. The claimant makes a complaint of failure to make reasonable adjustments in respect of a disability under sections 20 and 21 of the Equality Act 2010. She relies on the conditions Spina Bifida and Scoliosis. She requires to use a wheelchair in her daily life. The respondent accepts that the claimant meets the definition of disabled under section 6 of that Act. 30 THE CLAIMANT’S EVIDENCE The claimant’s evidence was noted to be as follows. Not every matter raised in evidence is included below, as some matters fell outside the remit of this 800 1047/2024 Page 3 hearing and may more properly have to be decided at a full hearing. The respondent did not have any witnesses at this hearing, who may have challenged the claimant’s evidence or given evidence in their own right. It is important that a future tribunal should not be bound by unnecessary findings 5 at this stage. Therefore, the paragraphs which follow record aspects of the claimant’s case, or in effect what she offers to prove at a full hearing, but are not established as fact at this stage in the claim. 1. The claimant began her period of employment with the respondent in or 10 around May 2022. She was to work as a receptionist. As she is a wheelchair user the reception desk had to be adjusted so she could comfortably and efficiently work at it. Around the same time an assessment was carried out so that an application for funding could be made to the UK government’s ‘Access to Work’ scheme. She says that 15 her first manager, Gary, had agreed to the adjustment before she started in her role. This was around, or from, February 2022. The changes were not made, however, and she would periodically ask Gary what was happening. He said he was waiting to hear how it would be paid for. 20 2. The claimant was absent from work for various periods due to back pain and, as time went on, her poor mental health. She attributes the issues with both to the alleged failure to make the adjustment discussed. A manager named Stephen took over from Gary and seemed to know less about the application for funding for the adjustment. The claimant’s third 25 manager, for the last four or so months of her employment, was Jordan. He tried to move the process forward, but owing to how much time had passed a fresh Access to Work application had to be made, setting the process back and causing further delay. 30 3. In late December 2023 the claimant decided to hand in her resignation which she did by handwritten letter which was contained in the hearing bundle. She says she had decided that the pain in her back and stress had been going on long enough, and she could no longer cope. Her last day of employment was 1 January 2024. She was absent from work 800 1047/2024 Page 4 from late November until her employment ended, on grounds of both back pain and poor mental health according to GP fit notes she says she submitted, but which were not in the hearing bundle. 5 4. The claimant raised a grievance about the matter after resigning, which the respondent considered and dealt with. The claimant attended a grievance meeting around late February 2024. Further investigation took place after the meeting and an outcome was issued in April 2024. The grievance was partly upheld and the grievance hearer, a manager 10 named Clare, agreed that the adjustment ought to have been made at some point before the claimant resigned. The claimant appealed against the part of her grievance that was not upheld, and a male manager dealt with that. There was a virtual Teams meeting on 25 May 2024 and his outcome was issued on 1 August 2024. He upheld a further part of the 15 grievance. 5. The claimant knew about her employer having a duty to make reasonable adjustments for her as a disabled person, but was not aware of the statutory basis for the right, i.e. the Equality Act 2010 itself. She 20 had not asked any employer for a reasonable adjustment before joining the respondent. 6. The claimant did not seek advice or help from anyone about her position in relation to the adjustment whilst in the respondent’s employment. She 25 approached a local Citizens Advice Bureau for assistance in relation to her position in July 2024. They provided some advice about her legal rights but did not have the resources to represent her. They told her about legal claims she could make to an employment tribunal. They did not mention time limits in connection with those claims. The claimant had 30 not previously been aware of the existence of employment tribunals or their function. When she contacted ACAS to begin Early Conciliation, on 15 July 2024, she was told for the first time about time limits for claims and the fact that she may have fallen outside of them. She said that her focus before approaching the CAB had been pursuing her grievance. 800 1047/2024 Page 5 She thought about pursuing other avenues while her grievance appeal was being dealt with. She agreed that attending the grievance meetings (both at the initial stage, and the appeal) were more stressful than meeting with a CAB advisor. 5 7. The claimant presented her claim on 19 July 2024. She enlisted the help of Ms Law after shortly before this hearing. DISCUSSION AND DECISION 10 8. The starting point is section 123(1) of the Equality Act 2010 which states as follows: 123 Time limits 15 (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 20 the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. 25 9. It was clear that the claimant had not satisfied section 123(1)(a). Her claim was based on a failure to make an adjustment which was said to be ongoing throughout the whole period of her employment. Thus, she said it was outstanding up to 1 January 2024, her last day of service. For her to have made a claim within time, she would have had to begin Early 30 Conciliation with ACAS on or before 29 March 2024 (the last available weekday before the three-month limit expired). She began that process three and a half months later. 800 1047/2024 Page 6 10. An employment tribunal has a wide discretion to extend time under section 123(1)(b). However, as Ms Barchet raised in submissions, the starting point should always be that the primary time limit of three months should be applied. Only if it is just and equitable to extend time 5 should that happen. In that sense an extension should be an exception rather than the default rule. 11. Neither party is subject to a burden of proof in relation to the issue, although a decision to extend time must be based on some relevant 10 material or facts. That need not necessarily be provided by the claimant in such a case, although often this will happen as they are the party seeking the exercise of the discretion. 12. A helpful list of factors to consider was provided in the cases of British 15 Coal Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494, namely: a. The length of and reasons for the delay, b. The extent to which the cogency of the evidence is likely to be 20 affected by the delay, c. The extent to which the respondent had co-operated with any requests for information, d. The promptness with which the claimant acted once they knew of the possibility of taking action, 25 e. The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action. 30 13. However, it has been made clear in subsequent cases that this is not a closed or definitive list to be slavishly followed. Some factors will be more relevant in each claim than others. 800 1047/2024 Page 7 14. A further matter which has been held to be of potential relevance is the apparent merits of the case, although care should be taken when assessing those at a preliminary stage and before all possible evidence has been heard. Some matters disclosed at an early stage in a claim 5 may be agreed or uncontroversial whereas others may be more nuanced, or later squarely contested. If this is a potentially relevant factor, there is no rule that it is more or less important than any others. 15. Considering the evidence and the parties’ submissions the tribunal 10 decided to exercise its discretion within section 123(1)(b) by extending the period of time for the claimant to present her claim to 19 July 2024 on the basis that it was just and equitable in the circumstances to do so. 16. The tribunal considered the factors in this case which supported the 15 exercise of that discretion, and those that suggested it should not be used. 17. The factors in favour of extending time were: 20 a. The claimant was not professionally or expertly represented at any time before presenting her claim to the tribunal; b. She received some advice about potential claims, but not the existence or importance of tribunal time limits, from the Citizens Advice Bureau in early July 2024; 25 c. She had little or no prior knowledge of the details of employment tribunals or how they operate; d. She was focussed on pursuing a grievance and grievance appeal after she resigned, which process ran until 1 August 2024, and it was only because she felt that her position had not been taken 30 seriously after the initial grievance outcome that she sought advice about taking her concerns further; e. Once she did seek advice from the CAB, she acted relatively promptly to contact ACAS in order to begin Early Conciliation, on 15 July 2024; 800 1047/2024 Page 8 f. Only four days later she presented her claim to the tribunal; g. Therefore, although she initiated Early Conciliation some three and a half months too late, the overall delay in presenting her claim would have been less than she would have been permitted 5 had she approached ACAS in, say, late February 2024 and allowed the full Early Conciliation period to run; h. Overall there is nothing to suggest that the difference between the time the claimant took, and the time she could have correctly taken had she complied with the three-month limit, was prejudicial 10 to the respondent’s case; i. The balance of prejudice favoured the claimant – it would have been a more harsh outcome for her to lose the opportunity to pursue a claim altogether than it would be for the respondent to have to defend the claim a few weeks later than it might have 15 done otherwise; j. Related to this, the claim is in its early stages and significant preparation time and cost would not have been incurred; k. The claimant’s case is on the face of it at least potentially meritorious, especially if, as she asserts, the grievance process 20 led to recognition of shortcomings on the respondent’s part; and l. Although she could have taken steps to begin pursuing her claim before her employment ended, her position was that she believed that the adjustment would be made and wished to give her employer a chance to do so. 25 18. The factors going against an extension of time were: a. The starting point in section 123 is that the time limit should be complied with; 30 b. The claim was over three months out of time; c. The claimant said she had experienced issues over a period of around 18 months, but only sought to take action some time after her employment ended; 800 1047/2024 Page 9 d. It is now over one year on from the events which the claim is concerned with; and e. the claimant was able to deal with the intellectual demands and stress which went with pursing her grievance, particularly around 5 attending hearings – suggesting that she should have had capacity to pursue a claim to the tribunal earlier. 19. Weighing up both sets of factors the tribunal concluded that they were greater overall on the side of allowing the claim to proceed to be heard 10 by the extension of the time limit. 20. The claim will therefore be managed in the usual way and parties will be contacted regarding further procedure. 15 20 Date sent to parties ________________________ Employment Judge: B Campbell