Mr M A Wilkins v Boots Management Services Ltd: 1303275/2024 and 1311414/2024
EMPLOYMENT TRIBUNALS
Case No 1303275/2024, 1311414/2024
Between
Mr M A WilkinsClaimantBoots Management Services LimitedRespondent
Before
Employment Judge MurdinMs Patel (instructed by Solicitor) for respondentDate 6 May 2025
JUDGMENT
[1]In relation to the Claimant’s application to extend time in respect of the Claimant’s 2nd claim, the conclusion of the Tribunal is as follows:[2]The Claimant’s application for an extension of time in respect of the constructive unfair dismissal and holiday pay claims fails, and those claims are dismissed for a want of jurisdiction.[3]The Claimant’s application for an extension of time in respect of the claims for disability discrimination succeeds, and those claims are to be determined, alongside the claims within the 1st Claim, at the final hearing beginning on 14th July 2025.[4]The Claimant’s claims for whistleblowing and/or public interest disclosures are dismissed upon withdrawal. PHCM Order 1 of 9 September 2023[5]The claim has already been listed, and directions given, for a 10-day final hearing from 14-25 July 2025 to determine liability. That hearing, and those directions, remain unchanged.
REASONS
[6]The claimant was employed by the respondent, a pharmacy retailer, as a driver. He has brought 2 claims, which are being dealt with together.[7]In respect of the 1st Claim, early conciliation started on 9 January 2024 and ended on 20 February 2024. The 1st claim form was presented on 15 March 2024 whilst the claimant was still employed. He brought claims for alleged disability discrimination, including an alleged failure to make reasonable adjustments and alleged victimisation, including in relation to the respondent’s handling of grievance procedures. The respondent denies the allegations.[8]The matter came before EJ Broughton on 16th August 2024, when the claim was fully case-managed and listed for a 10-day final hearing from 14-25 July 2025[9]As anticipated at that hearing, the Claimant resigned on 30th July 2024, and began a second claim. Early conciliation started on 5 November 2024 and ended on 6 November 2024. The claim form was presented on 6 November 2024.[10]That 2nd claim is for public interest disclosure/whistleblowing, alleged disability discrimination including a failure to make reasonable adjustments and harassment, constructive unfair dismissal, and holiday pay.[11]On 12th November 2024, the Claimant made a written application to extend time in respect of that 2nd Claim. This judgment deals with that application.[12]Prior to considering that application, the Claimant withdrew his claims for whistleblowing and/or public interest disclosures, which are recorded as being dismissed upon withdrawal. PHCM Order 2 of 9 September 2023 The parties’ positions[13]Within the application itself, the Claimant submits that:(i) it was not reasonably practicable for the Claimant to have submitted his ET1 prior to 6th November 2024;(ii) it would be just and equitable to extend time due to mitigating circumstances.[14]In short, it is suggested that the Claimant suffers with a number of disabilities, which have left him anxious and depressed, and unable to access the Tribunal process without the assistance of his representative. He became extremely reliant upon that representative.[15]Unfortunately, the Claimant’s representative’s wife developed cancer in March 2024, which spread and required invasive surgeries. Mr Harris had to take time away from work to care for his wife, and his own mental health. Mr Harris submits that it was a combination of those two situations which led to the late filing of the claim, and which should result in this application being granted.[16]The Respondent, by contrast, objects to the application within their Defence. The Respondent will contend that it was reasonably practicable for the claim to have been submitted in time. Notwithstanding the Claimant’s representative’s wife health, it is apparent that he was able to assist the Claimant with preparation for, and advocacy at, the preliminary hearing for the first claim on 16th August 2024. Clearly the Claimant and his representative was conversing in August 2024 and therefore it was entirely possible and reasonably practicable for this claim to have been submitted in time. Further the Respondent contends that for these reasons it would not be just and equitable for the tribunal to extend time to hear the entirety of this claim. PHCM Order 3 of 9 September 2023 Reasonably practicable[17]Within the 2nd claim, Mr Wilkins advances a number of different claims: constructive unfair dismissal, alleged disability discrimination including a failure to make reasonable adjustments and harassment, and holiday pay. The application seeks permission to extend time for all of the claims.[18]However, and in considering the Claimant’s application, different tests apply. In respect of the constructive unfair dismissal claim, a tribunal may consider a complaint presented 'within such further period as it considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months'. This is also the approach to be taken in respect of the claims for holiday pay.[19]There are two limbs to this formula. Firstly, the employee must show that it was not reasonably practicable to present his claim in time. The burden of proving this rests firmly on the applicant (Porter v Bandridge Ltd [1978] IRLR 271, [1978] ICR 943, CA). Second, if he succeeds in doing so, the tribunal must be satisfied that the further time beyond the primary time limit within which the claim was in fact presented was reasonable.[20]In Tesco Stores Ltd v Kayani UKEAT/0128/16 (8 September 2016, unreported) the EAT emphasised the importance of separating out the two stages of whether it was not reasonably practicable to bring the claim within time and, if so, whether the further time within which the claim was presented was reasonable.[21]The Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 at [34] held that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ would be to take a view too favourable to the employee; but to limit their construction to that which is reasonably capable, physically, of being done would be too restrictive. The best approach is to read ‘practicable’ as the equivalent of ‘feasible’ and to ask: ‘was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?’ PHCM Order 4 of 9 September 2023[22]In Walls Meat Co Ltd v Khan [1979] ICR 52 at p.56, Denning LJ held that the following general test should be applied in determining the question of reasonable practicability. ‘Had the man just cause or excuse for not presenting his complaint within the prescribed time limit? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.’[23]In the same case (at p.61), Brandon LJ drew a distinction between a Claimant who is ignorant of the right to claim, and a Claimant who knows of the right to claim but is ignorant of the time limit: ‘While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial Tribunal hat he behaved reasonably in not making such enquiries.’[24]The claims were presented on 6th November 2024, the effective date of termination being the 30th July 2024. Early conciliation started on 5th November 2024 and ended on 6th November 2024. The primary limitation period expired on 29th October 2024. PHCM Order 5 of 9 September 2023[25]In considering whether it was reasonably practicable for Mr Wilkins to present his claims within the primary limitation period, I have read the Claim Form dated 6th November 2024, the Claimant’s application dated 12th November 2024, and the Claimant’s undated witness statement, together with the accompanying medical records. I have also read the Grounds of Resistance dated 17th December 2024.[26]I have also heard evidence from the Claimant, who confirmed the contents of his witness statement, and thereafter gave evidence consistent with the explanations contained therein. I heard and carefully considered submissions from both parties in support of their respective positions.[27]The reasons for the delayed presentation of the claims are largely uncontroversial. It is accepted by the Respondent that the Claimant suffered with long-standing mental health challenges, to such an extent that accessing and communicating with the Tribunal was beyond his capabilities. He had become extremely reliant upon his representative, Mr Harris. It is also accepted that Mr Harris’ wife became poorly, which had a significant effect on his ability to work.[28]The Respondent relies upon Mr Harris’ attendance at the Case Management hearing on 16th August 2024 as evidence of the fact that presentation of the 2nd Claim was reasonably practicable on or around that date. Indeed, given the nature of the test to be applied, it is difficult to overlook that fact.[29]The effective date of termination was the 30th July 2024, and thus by the 16th August 2024, the resignation and all of the acts complained of had already occurred. Mr Harris was familiar with the claim, and despite his wife’s condition, was able to represent Mr Wilkins at the case management hearing of that date. In those circumstances, and given the lack of any evidence to the contrary, I conclude that it was reasonably practicable for the claim to have been filed on that day, and certainly within the primary limitation period. PHCM Order 6 of 9 September 2023[30]Consequently, the Claimant’s application for an extension of time in respect of the constructive unfair dismissal and holiday pay claims fails, the Tribunal concluding that the Claimant has failed to show that it was not reasonably practicable to present his claim in time.[31]Those claims will be dismissed for a want of jurisdiction. Just and Equitable[32]In respect of the discrimination claims, a Tribunal can extend the time if it considers it 'just and equitable' to do so in all the circumstances. This is the formula used in section 123(1)(b) of the Equality Act 2010.[33]It has been held that ‘Parliament has chosen to give the employment tribunal the widest possible discretion' (per Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] IRLR 1050, [2018] ICR 1194 at [17]). However, I remind myself that, notwithstanding the breadth of the discretion, it is clear that 'the time limits are exercised strictly in employment … cases', and that there is no presumption that a tribunal should exercise its discretion to extend time on the 'just and equitable' ground unless it can think of a reason not to extend: in that sense, 'the exercise of discretion is the exception rather than the rule' (Robertson v Bexley Community Centre [2003] EWCA Civ 576, [2003] IRLR 434, at [25], per Auld LJ).[34]Furthermore, it is clear, as the Court of Appeal in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 327 (at [26] per Wall LJ) held that 'the burden of persuading the ET to exercise its discretion to extend time is on the claimant (she, after all, is seeking the exercise of the discretion in her favour)'.[35]In exercising my discretion, I remind myself of the guidance given in Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23, [2021] ICR D5, in which the Court of Appeal repeated a caution against tribunals relying on the checklist of factors found in s 33 of the Limitation Act 1980 (a checklist PHCM Order 7 of 9 September 2023 which applies to extensions of time for late personal injury claims in the civil courts). The Court of Appeal described that 'The best approach for a tribunal in considering the exercise of the discretion under s 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 (as Holland J notes) “the length of, and the reasons for, the delay”'. Underhill LJ considered in Adedeji that whilst the Section 33 list contained factors which might well be relevant to the exercise of the just and equitable discretion, too often it was being used as a framework by tribunals which he described as 'not healthy' as an approach.[36]Although there is no fixed checklist of factors that should be considered when a tribunal is asked to exercise its just and equitable discretion, certain issues will commonly be relevant to that decision. These factors include:(1) the length of and reasons for the delay;(2) the prejudice which each party would suffer as a result of granting, or refusing to grant, an extension; and(3) the potential merits of the claim.[37]In determining whether or not it is just and equitable to extend time to allow the Claimant to bring his claims for disability discrimination within the 2nd Claim, I note that the delay in bringing the claims within the primary limitation period was short – less than 1 week. Furthermore, there are, to my mind, good reasons which explain the delay.[38]Mr Harris, in the application itself, uses the phrase ‘the perfect storm’ which I find to be a good description of the circumstances in which the Claimant and his representative found themselves.[39]I accept, and take into account, the Claimant’s ill-health, which is clear from his medical records and his factual evidence. Furthermore, I accept, and take into account, the ill-health of Mr Harris’ wife. When taken together, it is not surprising that they led to a delay in presenting the claim. PHCM Order 8 of 9 September 2023[40]In considering the prejudice to the parties, it is clear that the Claimant would suffer significant prejudice by being deprived of potentially valid claims, were his applications to be refused. On the other hand, that prejudice would be less for the Respondent, who already have to face a trial arising from similar allegations. I also note that the Respondent is a large company, more able to withstand any prejudice when contrasted with the Claimant, who is an individual.[41]Furthermore, and whilst it would be inappropriate to conduct a mini-trial in relation to the allegations of discrimination, it is clear that the allegations are not fanciful, that they are logically advanced, and legally rational.[42]In all of the circumstances, and in respect of the claims for disability discrimination brought within the 2nd claim, I conclude that it would be just and equitable to extend time to allow those additional claims to be brought. They will join the claims brought within the 1st claim and be determined at the final hearing beginning on 14th July 2025.
Conclusion
[43]In this instance, the Claimant’s application for an extension of time in respect of the constructive unfair dismissal and holiday pay claims fails, and those claims are dismissed for a want of jurisdiction.[44]The Claimant’s application for an extension of time in respect of the claims for disability discrimination succeeds, and those claims are to be determined, alongside the claims within the 1st Claim, at the final hearing beginning on 14th July 2025. EJ Murdin 6th May 2025 PHCM Order 9 of 9 September 2023
Conclusion
[1]The claimant’s claims under sections 13, 19 and 44 Equality Act 2010 are dismissed on withdrawal, as are any claims said to rely on the disabilities of arthritis or an underactive thyroid.[2]The respondent has confirmed that they are not relying on a statutory defence and accept full liability for any acts or omissions of the other named respondents. In those circumstances, the claims against the second, third and fourth respondent are also dismissed on withdrawal.