The Claimant presented an ET on 8 June 2015 making various complaints against the 3 Respondents (Mr Hopkins, The Charity Commission and Redsnapper). At a preliminary hearing, the EJ found that the primary time limit for claims against Mr Hopkins had expired on 8 April 2015, that the primary time limit for claims against Redsnapper had expired on 6 June 2015 and, in both cases, that it would not be just and equitable to extend time. The Claimant appealed on the basis that he had named Mr Hopkins in the further and better particulars as the person responsible for 2 of his allegations and the Employment Judge should have decided that the last complaint against Mr Hopkins related to April 2015, which would mean that his claims against Mr Hopkins were presented within the three month primary time limit. The EJ said that the 2 allegations were not relevant to Mr Hopkins as he was not involved in those matters, even on the Claimant's case [the EAT's emphasis]. The Claimant submitted that the EJ was clearly wrong in construing the Claimant's case as he did.

The EAT allowed the appeal on the first ground. The EJ had made an error when he said in effect that the 2 allegations were not made against Mr Hopkins. The EAT remitted the case back to the Employment Tribunal to consider afresh at a further Preliminary Hearing whether the real complaints the Claimant was making against Mr Hopkins were indeed brought outside the primary three month time limit. However, on the assumption that the claim against Mr Hopkins was out of time, there was no error of law in the EJ's consideration of whether it was "just and equitable" for the claims to proceed in relation to both Mr Hopkins and Redsnapper and the appeal in relation to that was dismissed.

_________________

Appeal No. UKEAT/0251/16/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 9 February 2017

Judgment handed down on 2 March 2017

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

ODUKOYA (APPELLANT)

**

(1) HOPKINS (CHARITY COMMISSION)

(2) THE CHARITY COMMISSION

(3) REDSNAPPER RECRUITMENT LTD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MATHEW PURCHASE (of Counsel)
Bar Pro Bono Scheme
and
MR ODUKOYA (The Appellant in Person)

For the First and Second Respondents
MR BRYNMOR ADAMS (of Counsel)
Instructed by:
Government Legal Department
Zone 9:04
Employment Group
One Kemble Street
London
WC2B 4TS

For the Third Respondent
MS MILLIE POLIMAC (of Counsel)
Instructed by:
Viking Law Solicitors
Worth Corner Business Centre
Turners Hill Road
Crawley
RH10 7SL

JURISDICTIONAL POINTS - Claim in time and effective date of termination

JURISDICTIONAL POINTS - Extension of time: just and equitable

The Claimant brought various complaints under the Equality Act 2010 against the Charity Commission, an employee of the Commission (Mr Hopkins) and a recruitment agent (Redsnapper).

The Employment Judge struck out the complaints against Mr Hopkins and Redsnapper on the basis that they were out of time under section 123(1)(a) of the Act and that it was not just and equitable for them to proceed under section 123(1)(b).

On the material presented to the Employment Appeal Tribunal it appeared that the Employment Judge was wrong to say that the claim against Mr Hopkins was out of time and the appeal on that issue would have to be allowed and the matter remitted to a fresh Employment Judge to consider.

However, on the assumption that the claim against Mr Hopkins was out of time under section 123(1)(a), there was no error of law in the Employment Judge's consideration of whether it was "just and equitable" for the claims to proceed in relation to both Mr Hopkins and Redsnapper and the appeal in relation to that was dismissed.

1. This is an appeal against a decision of Employment Judge Glennie sitting in the London Central Employment Tribunal sent out on 18 February 2016 following a Preliminary Hearing on 17 December 2015 whereby he determined that the Tribunal had no jurisdiction to consider the complaints by Mr Odukoya (the Claimant/Appellant) against Mr Hopkins (the First Respondent) and Redsnapper Recruitment Ltd (the Third Respondent) by reason of section 123 of the Equality Act 2010 and struck them out accordingly. That decision left Mr Odukoya's complaints against the Mr Hopkins' employer, the Charity Commission (the Second Respondent), to be resolved; those complaints were all dismissed by Employment Judge Baty and members (Ms Samek and Dr Weerasinghe) following a final hearing between 18 and 22 July 2016, either on the merits (in the case of allegations 12 and 14) or for want of jurisdiction under section 123.

1. In August 2014 the Charity Commission contacted Redsnapper, a recruitment agent, as they had a temporary vacancy for a Monitoring Support Officer. Redsnapper sent them a number of CV's, including one from Mr Odukoya. In due course a second vacancy for a Monitoring Support Officer arose and Mr Odukoya was appointed to fill it on a temporary agency basis with effect from 18 December 2014.

1. On 8 January 2015 the Charity Commission decided that Mr Odukoya would no longer be required and Mr Hopkins informed Redsnapper of the decision; Redsnapper were apparently told that the reason was a combination of concerns about Mr Odukoya's behaviour and a downturn in work. Later in the day Mr Hopkins spoke to Mr Odukoya and confirmed this decision and told him to leave the building by 3pm; Mr Odukoya's case is that he was told only that it was due to a reduction in funding and work.

1. On 8 June 2015 Mr Odukoya presented a claim form to the Employment Tribunal making complaints against Mr Hopkins, the Commission and Redsnapper. It was not at all clear from the form what claims Mr Odukoya intended to make. There was reference to race, age, sex, and disability discrimination and to victimisation and unfair dismissal. In box 8.2 ("details of claim") there were 23 bare allegations with no narrative or clear explanation of what the complaint was. Allegations 1 to 7 were under the heading "Mr Hopkins & Charity Commission"; allegations 8 to 17 (including obviously allegations 12 and 14) were under the heading "Charity Commission" alone; allegations 12 and 14 were described respectively as "Failure to consider me for MO vacancy in April 2015" and "Failure to consider me for Investigative role February/March 2015".

1. There was a Preliminary Hearing on 25 September 2015 following which Employment Judge Stewart decided: (a) to refuse an application to strike out all claims as having no reasonable prospect of success, (b) to strike out the unfair dismissal claim as being out of time, and (c) to list a Preliminary Hearing to consider among other things the question of time limits under the Equality Act 2010. The Employment Judge's reasons expressly recorded that the time issues were to be determined in the light of "the Claim Form, together with the Claimant's Further and Better Particulars document supplied on 24 September 2015, his further clarification to the Respondents at today's PH and further particulars ordered [in relation to the claims against Redsnapper]". So far as allegations 12 and 14 were concerned the 24 September 2015 document named Mr Hopkins at p4 but gave no further indication as to how the case against him was put (save that in relation to allegation 12, which included a complaint of victimisation, it was said that the Claimant had informed Mr Hopkins in January 2015 that he was considering a claim under the Equality Act 2010 relating to his dismissal).

1. The Preliminary Hearing was listed before Employment Judge Glennie on 17 December 2015. Mr Odukoya represented himself. The Judge heard evidence from Mr Odukoya and from a Ms Ros Davies on behalf of Mr Hopkins and the Commission. In his Judgment he found that the primary time limit for claims against Mr Hopkins had expired on 8 April 2015 (see paragraphs 16 and 18.1), that the primary time limit for claims against Redsnapper had expired on 6 June 2015 and, in both cases, that it would not be just and equitable to extend time.

1. The claims against the Commission went to a Full Hearing as described above. Mr Odukoya applied for a stay of the hearing pending the outcome of this appeal but that application was refused by the Tribunal. He also applied (or re-applied) for a witness summons against Mr Hopkins but the Tribunal declined to issue one, having heard Mr Adams' submission that he was not the relevant decision maker. The Tribunal decided allegations 12 and 14 on the merits. In relation to allegation 12 they said that Mr Odukoya did not apply for the role of Monitoring Officer and that that was the (non-discriminatory) reason he was not considered for the role in April 2014. In relation to allegation 14 they found that he had applied for a PB4 investigator role on 11 January 2015 and that his application had been considered by a Ms Butt and Mr Kington; when they did so they did not know the identity of the applicant and, in any event, they had assessed the application properly according to the selection criteria so any claim of discrimination failed.

1. The issues which arise on this appeal are whether Employment Judge Glennie made an error of law:

(1) in relation to the primary time limit for the claims against Mr Hopkins; and

(2) in deciding that it would not be just and equitable to consider the claims against Mr Hopkins and Redsnapper.

1. Mr Odukoya's case on the appeal is quite simply that he named Mr Hopkins in the further and better particulars of 24 September 2015 as being the individual responsible for allegations 12 and 14 and that the Employment Judge ought therefore to have decided that the last complaint against Mr Hopkins related to April 2015, which would mean that his claims against Mr Hopkins (assuming, as the parties appear to have agreed, that all the complaints against him arose from "conduct extending over a period") were presented within the three month primary time limit. All that the Employment Judge said about the point in his Judgment at paragraph 16 was that the recent allegations (clearly a reference to allegations 12 and 14) "… were not relevant to [Mr Hopkins] as he was not involved in those matters, even on the Claimant's case [my emphasis]." Mr Purchase for Mr Odukoya submitted that the Judge was clearly wrong in construing the Claimant's case as he did.

1. Mr Adams (who is instructed by both Mr Hopkins and the Commission) makes a number of points in response. First, he says that the particulars cannot change or add to what is set out in paragraph 8.2 of the ET1, which indicates that allegations 12 and 14 are brought only against the Commission, as they fall in a group under the heading "Commission", not under the heading "Mr Hopkins & Commission". In my view that is just an over-technical approach given in particular the terms of the Order of Employment Judge Stewart made on 25 September 2015 and the fact that Mr Odukoya was acting in person.

1. Second, he says that the Judge made an express finding in paragraph 16 of the Judgment that Mr Hopkins was not involved in allegations 12 and 14. The problem with that is that the Judge made clear at paragraph 9 that he was not at that stage making any findings about the "primary facts of the case" and that he says in paragraph 16 that Mr Hopkins was not involved in allegations 12 and 14 "even on the Claimant's case". In his response to Mr Odukoya's application for a reconsideration the Judge says that the point was not argued by reference to the further particulars; however, no evidence has been placed before me as to what Mr Odukoya was in fact saying to the Judge about his case at the hearing.

1. I am therefore left with the particulars which clearly name Mr Hopkins under allegations 12 and 14 and with the Order of Employment Judge Stewart which says that the time issues will be decided in the light, among other things, of those particulars and nothing to indicate that Mr Odukoya said anything to indicate that he did not want to bring those complaints against Mr Hopkins. Although I suspect that his case against Mr Hopkins on allegations 12 and 14 would not have been any clearer at the hearing before Employment Judge Glennie than it was before me, on the material I have I must conclude that he made an error when he said in effect that allegations 12 and 14 were not made against Mr Hopkins.

1. That leaves the conundrum arising from the decision by the Baty Tribunal that allegations 12 and 14 failed on their merits in the way I describe. Mr Adams says that it means that if the claims against Mr Hopkins are now allowed to proceed they will inevitably meet the same end. There are a number of problems with that submission: first, there is still an outstanding appeal against the decision of the Baty Tribunal (if only just: the Court of Appeal is being asked for permission to appeal against a decision of this Tribunal under Rule 3(7ZA)); second, I think Mr Purchase must be right to say there can be no estoppel in favour of Mr Hopkins arising from the decision of the Baty Tribunal; third, neither counsel were able to articulate any other principle which would enable this Tribunal to reject the appeal on this basis.

1. I am therefore driven to the conclusion that Mr Odukoya's appeal on this point must succeed. In the circumstances I must remit the case back to the Employment Tribunal to consider afresh at a further Preliminary Hearing whether the real complaints he is making against Mr Hopkins were indeed brought outside the primary three month time limit. I think it would be best if that issue was not dealt with by either Judge Glennie or Judge Baty. It will be for the Judge who does deal with it to decide what further clarification of Mr Odukoya's case against Mr Hopkins is required and what evidence (if any) to receive at any Preliminary Hearing.

1. Although I allow Mr Odukoya's appeal on issue (1) which relates only to Mr Hopkins I nevertheless need to consider issue (2) in relation to both Redsnapper and Mr Hopkins, in case the Judge confirms the decision that the complaints against Mr Hopkins were brought outside the primary three month time limit.

The Law

1. So far as relevant, section 123 of the Equality Act 2010 provides:

"(1) … Proceedings on a complaint … 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."

Although no fewer than nine authorities were cited to me which were said to be relevant to the operation of section 123(1)(b) I do not believe the law to be controversial.

1. The onus is on a claimant who brings a complaint after the expiry of the initial three month period to persuade the Employment Tribunal that it is nevertheless just and equitable for him to be allowed to bring the complaint. In deciding what is just and equitable the Employment Tribunal must take into account all relevant circumstances, looking at the matter against the background of the clear statutory policy that Equality Act complaints should be brought within a short period of time. Such circumstances are likely to include (i) the length of the delay, (ii) the reasons for the delay, (iii) the prejudice to the respondent in having to face the complaint (in particular "forensic prejudice" caused by the delay), and (iv) the prejudice caused to the claimant by losing the ability to bring a complaint, but there may be more. Assessing the relative prejudice may well involve an assessment (often only a rough assessment) of the strength or weakness of the complaint. I accept Mr Purchase's submission that in making any such assessment a Tribunal must take into account the fact that discrimination claims are fact-sensitive and difficult to prove.

1. There is, however, no need for a Tribunal to go through a "checklist" of potentially relevant factors as long as they sufficiently explain the reason for their decision. It may, for example, be sufficient simply to say that the delay has been "x" days/weeks/months and no satisfactory reason has been supplied for it so that, regardless of any other factors, it would not be just and equitable to allow the complaint to proceed (although I stress that in giving that particular example I am not intending to suggest that it is never just and equitable to allow a complaint to proceed where no satisfactory reason for the delay is put forward). An appeal against a decision on section 123(1)(b) will only succeed if the Employment Appeal Tribunal is convinced that the Tribunal's decision is perverse or that the Tribunal has made an error of law by taking into account an irrelevant factor (which would include a factor unsupported by any evidence) or failing to take into account a relevant factor.

The Decisions in this Case

1. The Judge's reasons for concluding that it would not be just and equitable to allow the claims against Mr Hopkins to proceed are set out at paragraph 18 of the Judgment. He correctly identified that the claims (excluding complaints 12 and 14 for these purposes) were brought two months after the expiry of the initial three month period. He expressly found that Mr Odukoya's depression had not prevented him from presenting his complaints in time and that the primary reason for presenting them when he did was his incorrect belief that he had three months from what he described as "his date of knowledge". He recorded that the Charity Commission accepted that they were also responsible for any action by Mr Hopkins, so that if the claims against him were not allowed to proceed there would still be the possibility of a claim against the Commission. There cannot in my view be any argument with the relevance of any of those factors, which all point away from allowing the claims against Mr Hopkins to proceed.

1. The Judge also stated at the end of paragraph 18.2 that "… there would be prejudice to [Mr Hopkins] in allowing a claim that was presented out of time to proceed against him personally" and then stated at the beginning of paragraph 18.3: "This is especially so when, as in the present case, the claim is a weak one". Mr Purchase criticises the Judge for failing to consider the extent of any forensic prejudice to Mr Hopkins and for his assessment that the case was a weak one at this stage in the proceedings. I do not think either of these criticisms undermine the Judge's decision. The Judge recorded that the delay was two months and that the Charity Commission, a governmental body, was in effect standing behind Mr Hopkins; in such circumstances it would be obvious I think that Mr Hopkins would not be exposed to any substantial forensic prejudice unless it was expressly drawn to the Tribunal's attention. As to the Judge's assessment, clearly relevant to the balance of prejudice, that the claim was a weak one, I consider it to have been entirely reasonable in the circumstances of this case. The Judge had the ET1 and the particulars to which I have referred in front of him, was able to see their inadequacies and was able to ask Mr Odukoya face-to-face how he was going to prove his claims. In my view it was open to him on this material to conclude that the claim was weak.

1. The Judge's reasons for concluding that it would not be just and equitable to allow the complaints against Redsnapper to proceed are set out in paragraph 20 of the Judgment. They are brief and they are not perfect but in my judgment they are adequate and the decision is certainly not perverse and the Judge plainly had the relevant factors in mind. He recorded that the claims against Redsnapper were brought two days out of time. He did not expressly refer to the reasons for the claim being late but he had already found in paragraph 18.5 in the context of the claims against Mr Hopkins that although he was suffering from depression there was nothing to suggest it rendered him incapable of action in the period March to June 2015. He referred to relative prejudice at paragraph 20.3 and again assessed the claims as being weak expressly on the same basis as he had in relation to those against Mr Hopkins. For the same reasons as I have already given in relation to Mr Hopkins that was a conclusion he was entitled to reach which was clearly a substantial factor pointing away from allowing Mr Odukoya to bring proceedings against Redsnapper.

1. For those reasons I dismiss the appeal on issue (2) in relation to both Mr Hopkins and Redsnapper.

1. The appeal against the finding that the three month primary time limit in relation to the claim brought against Mr Hopkins expired on 8 April 2015 is allowed and the question is remitted to a fresh Tribunal (neither Employment Judge Glennie nor Employment Judge Baty) to resolve.

1. The appeal against Employment Judge Glennie's decision that it would not be just and equitable to allow the claim against Redsnapper to proceed is dismissed, as is the same appeal in relation to the claim against Mr Hopkins (assuming for these purposes that Employment Judge Glennie was right about when the primary time limit in relation to Mr Hopkins expired).