Dr Nicholas Jones v The Secretary of State for Health and Social Care

“Dear Nicholas

Very many apologies – I believed I had sent feedback on your interview, previously. It did take us quite a while to complete things. It was a very strong bunch of applicants and we felt all of you were appointable (you were our “reserve”). We offered to someone who had broader and more directly relevant experience but I have asked that you are kept on our lists – and I would hope that you would apply for any similar posts in the future. My best guess is that at least one very similar position will arise in about six months’ time. There is a possibility that one – with greater emphasis on marketing – may appear sooner. In terms of feedback, I’ll keep it simple and stress there were no negatives – it was just on the day there was a stronger candidate. Again, many thanks for taking the time to apply. And, again, I am so sorry that this did not get to you, sooner. Do get in touch (use this direct email rather than go through the system) if you want further details. All the best, Darren.”

Can you confirm whether any other candidate(s) representing a minority group was/were considered for this role?

Can you kindly describe the profile characteristics of the successful candidate to include age, gender and ethnic origin?

I would ask that these queries be now considered as part of an official grievance which I am raising today with your office. I would also ask, with the utmost respect, that you provide me with a response ASAP, as I hope make a decision, on the basis of your response, whether or not I shall escalate this to the employment tribunal for consideration as to whether any specific violations occurred here. As a decision was made on May 9th, 2019, I believe I have until August 9th, 2019 to submit a claim. [emphasis added]

The material finding of fact which we made from all of that evidence is that the respondent did not refuse to provide the information in the way that the claimant asserts. Rather, they were following their own procedures to ensure, as they saw it, compliance with the requirements of data protection law. Thus, where there was doubt about what was disclosable Mr Dwyer referred the matter to the Freedom of Information team and followed their guidance about what he could (or could not) disclose. He gave clear evidence that he would follow the guidance he was given. He would not refuse information that he was told by the team was disclosable. It is not relevant to the issues in this case (and the claimant’s Equality Act claims) to decide whether or not the respondent did or did not understand the GDPR correctly. What matters is what caused them to act as they did: to exclude or disadvantage the claimant, or to follow the proper process as they understood it to be. Indeed, at one point the respondent said it would provide the documents if the claimant provided proof of identification. The claimant objected to doing this and so the parties were left at an impasse. At this stage, the factor which prevented the disclosure was not the respondent at all. Rather, it was the claimant’s refusal to follow, what we consider to be a reasonable identification procedure. The respondent had a genuine concern that if they disclosed information about the profiles of the other candidates in such a small pool, it would render them identifiable. Whether this was right or not is certainly an arguable point and discloses the reason why they acted as they did. It shows that there was no conspiracy or desire to deliberately keep the claimant in the dark or cover up wrongdoing by the respondent. [emphasis added]

It is therefore based on the suspiciously and unexplained long period of time that it took to make a decision in this recruitment, and primarily comments made by Darren Clahane in his July 03rd, response on this matter, that I submit this claim of direct and/or indirect discrimination by the PHE in the violations of my civil and statutory rights and protections as a minority candidate on the basis of my race and/or age. I should make clear here that I have sought and requested pertinent information regarding my suspicions and the allegations being made here from the PHE which I intended to include as further evidence to support my allegations. They however have not been cooperative and instead have sought to withhold said information which has served to obstruct the fair pursuit of justice in this regard. I made a complaint to the information Commissioner's Office with regard to their refusal to release the information … [emphasis added]

Further or in the alternative, the Respondent asserts that the claim is misconceived and has no reasonable prospects of success The Claimant has advanced no prima facie case for the claims of race and/or age discrimination in his ET1 and simply says he is 'suspicious that PHE are “hiding something”. The claim is entirely without foundation. It is submitted that the claim should be struck out.

The Respondent has previously refused to release information pertaining to the profile characteristics of the shortlisted candidates which were requested by the Claimant as early as July 24th, 2019 and again as late as October 08th, 2019 by email communication. As noted in the ET1, the Claimant has even raised a complaint with the Information Commissioner concerning a Freedom of Information request to access this information which the Respondent continued to refuse to release despite direction from the IC to do so by a specified date. The Respondent eventually responded to a SAR out of time.

Yet, the Respondent disingenuously claims that the Claimant has no evidential basis to make his claim because they are conscious of the fact that they have deliberately withheld this information from the Claimant. Notwithstanding, the Respondent has now confirmed for the first time at point 16 of the ET3 that the other two unsuccessful candidates were white British. Yet, there is nowhere in the ET3 where the Respondent has thought it appropriate, even at this stage of litigation, to acknowledge the ethnicity of the successful candidate, information which is directly pertinent to this case. At this point of escalation therefore, as the Respondent continues to withhold evidence even as they attempt to make their case, the Claimant will go ahead and assume that the successful candidate is also white British (based on a non-denial of this fact by the Respondent).

If we are to conclude therefore that the successful candidate is white British, then this does substantiate the fact that the Claimant was treated differently, as the Respondent thought it appropriate to inform the white British applicant who allegedly scored the highest at the interview, but thought not to inform the Black Caribbean applicant who similar to the successful candidate, likewise made a genuine application to the PHE, scored second highest, but whose application, for no apparent reason, was processed differently. Inasmuch as it is significant that there was one minority candidate in a field of four who was highly qualified and experienced and assumed ‘appointable’ as the Respondent acknowledges, but he was not offered the position, the focus must therefore turn to the difference in treatment between the two top scoring candidates, one a minority candidate and the other a majority candidate, and how that impacted and affected the ultimate decision, in order to understand the violation and the discrimination. [emphasis added]

The Employment Tribunal Hearing

The question would therefore have been whether it is just and equitable to extend the time limit. We would have to look at the balance of prejudice between the parties. We find, based on the facts that we have cited above and the oral evidence the claimant gave us, that the claimant was aware in August that he had the raw material to make a claim. Looking at the documents, even on 24 July he mentions having until 9 August to present a claim. There was clearly an awareness on his part of time limits for presentation of a claim. If the claimant had been thinking of expiry of a time limit in August it is not at all clear why he did not then present his claim until the end of the following October. We conclude, in fact, that he put this off because he was on an information gathering exercise. He was looking for the evidence to bolster his claim. However, there was no good reason why he had to await the outcome of this process before putting the claim to the Tribunal. He had sufficient information and knowledge about the basis of the claim when he was informed on 3 July that he had not got the job. He was already suspicious (even on his own account) by that point in time. We do not consider that the information gathering exercise was a good enough explanation for the delay in presenting the Tribunal claim.

Considering the balance of prejudice, it is also important to look at the cogency of the evidence. We think there was a disadvantage to the respondent in terms of the impact of the delay upon the cogency of the evidence. An earlier claim would have resulted in earlier disclosure and a greater preservation of documents. It would also, importantly, mean that the witnesses who were giving evidence about oral answers given at an interview would be doing so much closer in time to the events that they had to recall and with a better recollection of the detail of what was said by the claimant and the other candidates.

As things are, the respondent has had to do its best to respond to these elements of the claim. Despite the claimant’s criticisms, the respondent did in fact provide him with information and an explanation of its actions quite early on in the chronology. It gave him enough information to know that there was a claim for him to make if he wanted to present it to the Tribunal. The respondent certainly did not hamper or prevent the presentation of the claim in a timely manner after 3 July. On balance we would have concluded that it was not just and equitable to exercise our discretion to hear the claim outside the primary time limit.

The Appeal

The Time Limit Ground of Appeal

The ET’s refusal to extend time was perverse.

The act of discrimination was the appointment of candidate B on 2 April 2019 (as the ET held at [J99]).

In this case the Claimant was only notified of the outcome of the recruitment exercise on 3 July 2019. Indeed, he was not notified of the date of the decision, and therefore the date of the discriminatory act, until a year later on 19 June 2020 (2 days before the first PH) (The ET3 being silent on this.) the Claimant was not at that stage told anything about the successful candidate’s race. As the ET observed [J67] he sought to gather information about the process (the ET gives details of this at [J31] to [J32]). That was entirely reasonable. It was the refusal and failure of PHE to answer basic questions relating to the process that caused him to consider that race may have been a factor. Indeed this refusal continued up the first PH when the Respondent applied for a deposit order despite withholding from the Claimant the fact that the successful candidate was white (again this fact was not mentioned in the ET3).

The Law

123 Time limits

Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—

the period of 3 months starting with the date of the act to which the complaint relates, or

such other period as the employment tribunal thinks just and equitable.

I turn now to the second issue. The decision by the employment tribunal not to exercise its discretion to consider the claim on just and equitable grounds. There are a number of basic propositions of law to which Miss Outhwaite has referred us which govern the way in which this exercise has to be undertaken. If the claim is out of time, there is no jurisdiction to consider it unless the tribunal considers that it is just and equitable in the circumstances to do so. That is essentially a question of fact and judgment for the tribunal to determine, as it did here, having reconvened for the purpose of hearing argument on it.

The tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision. If authority is needed for that proposition, it is to be found in Daniel v Homerton Hospital Trust (unreported, 9 July 1999, CA) in the judgment of Gibson LJ at p.3, where he said:

It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. 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. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.

Mr Rose placed much reliance on paragraph 25 of Auld LJ's judgment …

This paragraph has, in turn, been latched onto by commentators as offering 'guidance' as to how the judgment under the “just and equitable” provisions of the Race Relations Act and DDA fall to be exercised. In my judgment, however, it is, in essence, an elegant repetition of well established principles relating to the exercise of a judicial discretion. What the case does, in my judgment, is to emphasise the wide discretion which the ET has – see the dictum of Gibson LJ cited above – and articulate the limited basis upon which the EAT and the court can interfere. [emphasis added]

I agree with Mr Justice Underhill and Lord Justice Wall that the EJ's decision, while it could have been (and, had it been reserved, no doubt would have been) a great deal better expressed, was not vitiated by any error of law.

In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them.[emphasis added]

I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still.

The board’s other grounds of appeal all seek to challenge the decisions of the employment tribunal that it was just and equitable to extend the time for bringing (a) the claim based on a failure to make adjustments and (b) the claim alleging harassment by Ms Keighan. Before turning to those grounds, the following points may be noted about the power of a tribunal to allow proceedings to be brought within such period as it thinks just and equitable pursuant to section 123 of the Equality Act 2010.

First, it is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act 2010 does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corpn v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2009] 1 WLR 728, paras 30–32, 43, 48 and Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72, para 75.

That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).

As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.

20 The second point to note is that, because of the width of the discretion given to the employment tribunal to proceed in accordance with what it thinks just and equitable, there is very limited scope for challenging the tribunal’s exercise of its discretion on an appeal. It is axiomatic that an appellate court or tribunal should not substitute its own view of what is just and equitable for that of the tribunal charged with the decision. It should only disturb the tribunal’s decision if the tribunal has erred in principle—for example, by failing to have regard to a factor which is plainly relevant and significant or by giving significant weight to a factor which is plainly irrelevant—or if the tribunal’s conclusion is outside the very wide ambit within which different views may reasonably be taken about what is just and equitable: see Robertson v Bexley Community Centre (trading as Leisure Link) [2003] IRLR 434, para 24.

In Mr Barnes' case, there was no doubt that the acts complained of were more than three months before proceedings had commenced. His case was concerned with the second stage: s 68(6). Knowledge of the existence of a comparator at that stage may be relevant to the discretion to extend time. In Clarke v Hampshire Electroplating [1991] UKEAT 605/89/2409, the Appeal Tribunal said:

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. We single out these questions because this appeal turns on the tribunal's finding about Mr Barnes' state of mind.

Analysis