Employment Judge DimbylowIn person for claimantMr T McArdle (instructed by Solicitor) for respondentDate 26 March 2025
JUDGMENT
[1]The claimant’s claim form included a claim for harassment related to race and the claimant provided factual details about 2 of them and confirmed 32 other matters were for background information only in relation to the 2 claims which were the only issues to be adjudicated upon by the tribunal in due course at a final hearing. No amendments to the claim form were required.[2]The claimant’s claim form included a claim for whistleblowing detriments. The claimant provided factual details about the claim. No amendments to the claim form were required to include such a claim.[3]The respondent’s application to strike out the claims was not pursued, and I dismiss that application. Case Number: 1306014/2024[4]Upon the respondent’s application for a deposit order for the claimant’s Public Interest Disclosure claim: the application is adjourned and will be heard on 16 June 2025 commencing at 10.am, with a time estimate of 1 day, via CVP. The hearing should preferably be before me, but if I am unavailable, then any Judge may hear it. I could not make a judgment on the application as no notice of it was given by the tribunal under Rule 53 of the Rules of Procedure 2024, and it was not referred to in the respondent’s notice of application dated 28 February 2025.[5]If the claimant wishes to apply to amend this claim to include a claim for constructive unfair dismissal and any other matters related thereto, he must serve notice of the amendment with full information about them upon the tribunal and the respondent by no later than 4pm on 21 April 2025. Approved by Employment Judge Dimbylow on 24 March 2025 Notes:(1) Reasons for the judgement were given orally at the hearing; and written reasons will also now be provided as a request was made orally by the respondent at the end of the hearing. These will be provided as soon as reasonably possible.(2) All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant and respondent.(3) Recording and transcription. Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:(4) https://www.judiciary.uk/guidance-and-resources/employment-rules-andlegislation-practice-directions/ Judgment sent to Parties on 26 March 2025
REASONS
[1]The claim. This is a claim by Mr Fernando Da Silva (the claimant) against his former employer Costa Ltd (the respondent). The claimant commenced work for the respondent on 4 September 2015. He went to ACAS on 15 April 2024, and the 2nd date on the certificate is 16 May 2024. The claim form was presented on 10 June 2024. The respondent resists the claims. There was a private preliminary hearing before Employment Judge Taylor on 31 January 2025. At that hearing directions were given for today’s hearing to dispose of 3 things:(1) dealing with any amendment application by the claimant which had to be made by 14 February,(2) dealing with a strikeout application, and/or(3) a deposit order application both made by the respondent (which were to be particularised by 28 February 2025). Unfortunately, the claimant was not able to explain his case in detail at the hearing on 31 January and the issues were never defined. Thus, I needed to define the issues with the claimant at the start of the hearing today as I could not proceed to deal with the tasks before me without doing so.[2]The issues. We discussed the claim for racial harassment. The claimant confirmed that his nationality is “Portuguese” although he was born in Brazil and has what he calls “Latin American heritage”. Helpfully, the parties had prepared a list of 34 potential claims. However, when I worked my way through them with the claimant only 2 of them were issues for the tribunal to have to determine and they were at item: (n) by being called “Francesco” by another employee called Diya, and at (o) being called “Pablo” by another employee called Julia, as particularised on page 59 of the bundle. The claimant explained that colleagues deliberately misnamed him to wind him up. The rest of the matters set out in his list were background, rather than issues to be determined by the tribunal.[3]Then I turned my attention to the whistleblowing claim and asked the claimant to explain in more detail what he had said or written when he made the disclosures. There were 3 things that he relied upon:(1) by text message to his Line Manager Grace Audley on 9 September 2023 (p.145 in the bundle).(2) verbally in-store to Bonnie Webb, Acting Store Manager, on 9 September 2023. Both disclosures (1) and (2) related to the store being dirty, no risk assessment undertaken, poor hygiene and cleaning practices, and a hairbrush being kept alongside cutting tables.(3) by text message (although not in the bundle) to Grace Audley on 14 October 2023. This time the claimant drew attention to the store being infested with rats. The claimant told me he believed that his disclosures tended to show that: (1) the respondent had failed, was failing or was likely to fail to comply with any legal obligation, and (2) the health and safety of any individual had been, was being or was likely to be endangered. If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to his employer. The claimant went on to explain the following things which he said amounted to detriments: (1) the same 2 instances of racial harassment over the misuse of his name at (n) and (o). (2) Bonita Webb intimidated or threatened the claimant in her reply on p.146 (of the bundle). This was on the basis that he saw it was a threat because the claimant did not report the matter to her but rather her boss namely Grace Audley. (3) Katie Blabey, a Learner Partner who occupied an office upstairs at the Leamington Spa Parade branch did not threaten the claimant but shamed him by distributing the message at p.147 to other managers in the group. 3. The evidence. I received no oral evidence. The parties relied on the following documents: an agreed bundle which the respondent prepared and which I marked as exhibit R1 (149 pages). They also relied upon their written representations in the bundle, and also made some oral submissions.4.1 The law. The law in relation to the amendment application. Rule 30 of the tribunal Rules 2024 gives a broad discretion to the Employment Tribunal to allow amendments at any stage of the proceedings either on its own initiative or an application by a party. This discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly in Rule 3, which states: “Overriding objective 3. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”4.2 I know from Selkent Bus Co Ltd v Moore [1996] ICR 836, EAT, that when making a determination of an application to amend I am required to carry out a careful balancing exercise of all relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by granting or refusing the amendment. Relevant factors include: the nature of the amendment, the applicability of time limits, and the timing and manner of the application.4.3 A significant feature in this case was that the respondent asserted the application to amend was, on the face of it, made out of time. In considering the exercise of my discretion I would need, in part, to take into account the 3-month time limit applying to the Equality Act 2010 and the provisions for extending time. However, in view of my findings which I expressed about whether an amendment application was actually necessary, there is no need for me to elaborate on this part of the law any further.4.4 The law on striking out a claim and/or ordering a deposit. Rule 38 (1) of the Employment Tribunal Rules 2024 provides that all or any part of a claim or response may be struck out if it has no reasonable prospect of success or there are other specified grounds established. Tribunals always give special consideration to striking out a claim of discrimination. In the case of Anyanwu and another v South Bank Students’ Union and another [2001] ICR 391, the House of Lords highlighted how important it was not to strike out discrimination claims except in the most obvious cases, because they are generally fact sensitive and require a full examination to enable a proper determination of the issues. Such a cautious approach to striking out claims of discrimination has been emphasized in subsequent cases, such as Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330. This has given rise to the proposition that it is unfair to strike out a claim where there are crucial facts in dispute and there has been no opportunity for the evidence in relation to those facts to be considered. It is a draconian measure and one which I would not entertain lightly. My starting point is that I will not strike out a claim. If I were to consider that any specific allegation or argument in a claim had little reasonable prospect of success, I may make an order requiring the claimant to pay a deposit as a condition of continuing to advance that allegation or argument. This power stems from Rule 40 (1). It is important that I arrive at a decision which is just, fair and proportionate, having regard to the overriding objective, as more particularly described in Rule 3 above.[5]Submissions. Having heard from the parties in trying to establish the issues, I then invited further submissions. I heard from Mr McArdle 1st. He relied upon his written submissions in the bundle (105-115) and took me through it in part. He emphasised that there was no reference in the claim form to public interest disclosure or whistleblowing, merely a sentence saying that an issue was raised. The PID box is not ticked on the claim form and in effect there was no reference to the subject until the application to amend dated 14 February 2025. The claimant had not put it on the amended list of issues. He referred me to 2 cases which were not in his submissions: Mechkarov v Citibank UKEAT/0119/17/DM and Parekh v London Borough of Brent UKEAT/0097/2011MAA. I did not have time to read them before I gave my oral judgment and reasons; but I have done so whilst preparing theses written reasons, although they did not lead me to change my mind as to my outcome expressed orally. Further, he submitted, if no amendment was required, the claim was out of time anyway. If it required an amendment then the prospects of success were limited. In any event, the claimant would not establish a detriment arising out of p.146. This is a group chat showing photos of the state outside the premises and could not be construed as threatening or intimidatory. The claimant would have to demonstrate how Ms Blaby knew of the disclosure.[6]In relation to the racial harassment claim, now that the claimant had clarified his case, there was no mention of the 2 items in the claim form. Judge Taylor had recognised that the claims were not pleaded, and the claim form needed to be amended to include them. Because the claimant had made an application to amend, he knew that they were not in the claim form.[7]As to the balance of hardship, this was against the respondent because a number of employees had now left its employ. Particularly so in relation to Diya who left in August 2024 and Julia in March 2024. The interpretation of issues (n) and (o) is that these were misleading in that it was Peter who called the claimant Pablo and Dean (in o) is only confirming what someone else had said.[8]I then heard briefly for from the claimant. He relied upon what he had set out in his application to amend (pages 57 – 66 in the bundle). It was Julia’s husband that had called him Pablo and Julia replicated the joke again. He emphasised that the whistleblowing claim was not new as it was already in the ET1 form. Reference to “Natasha’s law” is on p.15 in the bundle as is the reference to “rats”. “Everything started from there”, according to the claimant.[9]We agreed that I would adjourn at this point to determine the amendment application and subject thereto return to the respondent’s applications in respect of striking out and/or deposit orders.[10]My conclusions and reasons on the amendment application. The respondent vociferously asserted that the claimant was attempting to bring in entirely new complaints in relation to racial harassment and whistleblowing. I saw it somewhat differently. I concluded the claimant was adding factual details to existing allegations which were only broadly described in the claim form. This was further information or further and better particulars of the claims. Furthermore, the claimant appeared to me to be adding a label to a very loosely pleaded whistleblowing claim. Time-limit issues do not usually arise in respect of relabelling. There appeared to be a causative link on the facts described by the claimant as to his disclosures and the detriments, although at this stage I say nothing about the strengths and weaknesses of the claims. However, a time point seems to have arisen in the way in which the claimant has described the detriments orally, as opposed to those that he set out in his notice to amend.[11]I tried to give the claim form a fair reading. It plainly refers at paragraph 8.2 of the ET1 to “bullying and harassment…including racial slurs”. It also refers to the complaint or broadly, a disclosure in the “Additional information” section at paragraph 15 of the ET 1: “It all started when I asked for transfer… I was allocated first, Leamington Spa Parade…. when I went to the store handover … I found the store not compliant with serious health and safety issues including “Natasha’s law” and rats. Due this situation, I refused to do the handover ....Bonita Webb then start rumours about me leading staff to want to move with her to other store, the whatsapp group to mock me ….instigating staff to undermining me…”[12]This document is not what would be described as a formal pleading in any sense and of course it is not necessary for a party to set out every fact and piece of evidence they want to use in support of their case. At this stage of the proceedings, I was looking at the substance of the complaints and not their form. I concluded I did not need to approach the issues in the technical, narrow legalistic manner, which in effect the respondent was asking me to do. The faults in the claimant’s claim form arise out of the fact that he describes his case in a narrative form, not in legal terms or by applying the correct legal labels. The claimant was self-represented and expressed himself poorly in his claim form. However, I found this was not fatal and the claimant and he has put his house in order by giving a better narrative by way of explanation. I concluded that no amendment was required for either the race discrimination or whistleblowing claims which we clarified today.[13]A fact which emerged in the analysis of the whistleblowing allegation is that the claim may be out of time for the detriments advanced by the claimant today although not necessarily in terms of what he advanced in his notice of 14 February 2025. There might be an argument for a further preliminary hearing on the out of time point, although at this stage it seemed to me that that subject would best be canvassed as part of any final hearing.[14]During the hearing today, the claimant confirmed that he had resigned from his employment with the respondent on notice given on 13 December 2024, and he had last worked on 16 January 2025. He said that he was in touch with ACAS and was contemplating amending these proceedings to include his resignation (a constructive unfair dismissal claim) or issuing further proceedings. I urged him to take legal advice as soon as possible and get on with it one way or the other if that was his intention.[15]I then turned to discuss the striking out/deposit applications. Having considered the matter further Mr McArdle decided that the strike out application would not be pursued. This was a professional, realistic and helpful approach to the issue. However, he asked for a deposit in relation to 2 of the detriments in relation to whistleblowing and both allegations of racial harassment. Stated shortly, Mr McArdle considered these were out of time, and the claimant would not be able to demonstrate knowledge on the part of the alleged perpetrators. He submitted there was little reasonable prospect of success and each allegation should attract a deposit of £100.00, making a total payable of £400.00. The claimant gave me details as to his income, outgoings, assets and liabilities. However, he confirmed that he could pay £400.00 if required. I adjourned to consider the matter.[16]When I reviewed the paperwork during the adjournment, I noticed the respondent gave notice for a deposit order but only in relation to race discrimination and not public interest disclosure. Rule 53 would make it a material procedural irregularity for me to make an order when the respondent and the tribunal had not given notice of it to the claimant. In the circumstances, I considered that it was just, fair and proportionate to adjourn the application for deposit orders. This could be dealt with in a private preliminary hearing, but because of the prospect of the claimant applying to amend the claim I listed it as a public preliminary hearing, although of course the status of the hearing can be changed later. I gave a direction as to when the claimant would be required to give notice of any amendment application to include further claims. It is open to him to issue a new claim if he wishes or is so advised. Approved by[1]The claim. This is a claim by Mr Fernando Da Silva (the claimant) against his former employer Costa Ltd (the respondent). The claimant commenced work for the respondent on 4 September 2015. He went to ACAS on 15 April 2024, and the 2nd date on the certificate is 16 May 2024. The claim form was presented on 10 June 2024. The respondent resists the claims. There was a private preliminary hearing before Employment Judge Taylor on 31 January 2025. At that hearing directions were given for a public preliminary hearing (PPH) on 24 March 2025 to dispose of 3 things:(1) dealing with any amendment application by the claimant which had to be made by 14 February 2025,(2) dealing with a strikeout application, and/or(3) a deposit order application both made by the respondent (which were to be particularised by 28 February 2025). Unfortunately, the claimant was not able to explain his case in detail at the hearing on 31 January and the issues were never defined. I was the judge at the on 24 March 2025 and gave a judgement and full written reasons, which I do not need to repeat here, but which should be read in conjunction with this set of reasons.[2]The issues. I had to deal with the following:(1) The claimant wanted to bring a claim for constructive unfair dismissal and gave notice of an application to amend his claim to the tribunal and the respondent dated 17 April 2025. It was agreed that I would deal with the amendment application before dealing with(2) the respondent’s application for deposit orders and(3) any general case management that was required, including fixing the date for any further hearings. We agreed a rough timetable for today’s hearing. However, we ran out of time to deal with item 3 and by agreement we adjourned to 10am on 1 July 2025 to take the next steps in the case.[3]The evidence. I received oral evidence on oath from the claimant. The parties relied on the following documents, which I marked as exhibits: C1 claimant’s written submissions R1 an agreed bundle (171 pages) R2 respondent’s written submissions The parties also made some oral submissions.4.1 The law. The law in relation to the amendment application. Rules 30 and 31 of the tribunal Rules 2024 gives a broad discretion to the Employment Tribunal to allow amendments at any stage of the proceedings either on its own initiative or an application by a party. This discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly in Rule 3, which states: “Overriding objective 3. -(1) The overriding objective of these Rules is to enable the Tribunals to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it – (a) Exercises any power given under these Rules, or (b) Interprets any rule or practice direction.(4) The parties and their representatives must – (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.”4.2 I know from Selkent Bus Co Ltd v Moore [1996] ICR 836, EAT, that when making a determination of an application to amend I am required to carry out a careful balancing exercise of all relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by granting or refusing the amendment. Relevant factors include: the nature of the amendment, the applicability of time limits, and the timing and manner of the application.4.3 I had regard to the Employment Tribunals (England & Wales) Presidential Guidance – General Case Management (2018), and in particular Guidance Note 1 which deals with amendments.4.4 A significant feature in this case was that the respondent asserted the application to amend was, on the face of it, made out of time. In considering the exercise of my discretion I would need, in part, to take into account the 3-month time limit applying to the Employment Rights Act 1996 s111 and the provisions for extending time.4.5 The law on ordering a deposit. If I were to consider that any specific allegation or argument in a claim had little reasonable prospect of success, I may make an order requiring the claimant to pay a deposit as a condition of continuing to advance that allegation or argument. This power stems from Rule 40 (1). I can order a deposit up to £1,000 for each allegation or argument. I took into account the claimant’s ability to pay, and I had information about the claimant’s financial circumstances. The claimant indicated the amount was not an issue in the event I made an order.[5]The submissions. I heard from the claimant first. He relied upon what he had set out in his application to amend (pages 133 to 142 in the bundle) and emphasised certain points. The claimant submitted that he had sick notes until 12 April 2025 although he did not produce any after 2024. Those in the bundle referred to the claimant not being able to work rather than not being able to deal with tribunal proceedings. He submitted that there was no prejudice to the respondent by submitting the application to amend on 17 April 2025 as the respondent knew the factual matrix that he was relying upon. They knew he was going to bring a claim from 13 December 2024 when he gave his notice of resignation (139). The claimant told me that he resigned because of the unfair process. The claimant said that he wanted the merits of the claim discussed. He complained that the respondent only gave him 48 hours’ notice of documents to be used at an internal hearing and he should have been given 3 to 5 days. However, when I asked him to confirm the date of the meeting we were talking about, he was unable to help with that and said he could not find it. The claimant then took me through the grounds for his resignation as set out in his letter of resignation and in the grounds of making his application to amend at 133. He submitted that it was open to the tribunal to extend the time and I should adopt “the jurisprudence” arising out of the case of Abercrombie & Others v Aga Rangemaster Ltd [2013] EWCA Civ 1148. We then discussed the ACAS certificate issued on 19 February 2025. At one stage during today’s hearing the claimant had conceded that the argument advanced by the respondent on any extension of time by virtue of the certificate was correct; but then he moved away from that concession during his submissions. The claimant said that he intended by going to ACAS to resolve the dispute amicably. In the interests of justice, the claimant urged me to grant the application to amend and that he had complied with “Rule 29” of the Rules of Procedure. He rounded off by submitting that there was no prejudice to the respondent because they knew of his claim from 13 December 2024. 6.I then heard from Mr Dempsey. He too spoke to his written submissions and emphasised his point made at paragraph 13. The nature of the amendment was that it was a new claim. I should consider the timing and manner of the application. The last date to present it in time was 12 April 2025. The key question was why the claimant had not brought the application in time. There was a lack of explanation from the claimant. I should conclude that it was reasonably practicable. The claimant had introduced an “idiosyncratic” interpretation of the delay between 24 March 2025 and 12 April 2025 arising out of my order. The claimant had failed to explain why he could not have brought his claim between 13 December 2024 and 24 March 2025. The claimant had been plainly urged to get on with it by me on 24 March 2025 and the order I made could not be interpreted in the way in which the claimant wanted me to do so today. In the absence of any evidence or explanation from the claimant as to why he could not have brought the claim in time, it followed therefore that it was reasonably practicable to have brought it in time. The sick notes produced related 2024 and not 2025. The claimant’s interpretation of the facts was at fault and in particular in relation to the respondent’s letter at page 139 telling the claimant he would have been dismissed in any event. The claimant then used that letter as if it was information gathered before his letter of resignation. There is prejudice to the respondent because of the turnover of staff and difficulty in getting in touch with witnesses some of whom would be ex-employees at this stage. As to the merits of the claim, it was poorly framed. The issue of dismissal was not predetermined as at the point of the claimant’s resignation on 13 December 2024; the respondent was simply setting out a view afterwards. There could be no bias on the part of Ms Williams about using the word “rude” when describing the claimant as she was not a disciplinary officer. The claimant’s case was not strong.[7]My conclusions and reasons on the amendment application. The claimant asked me to consider the Aga case and I have read it during the break and taken it into account when making my decision. The claimant told me that the CAB referred the case to him, although the citation was wrong as it was attributed to 2023. The claimant did not say how this case was specifically relevant to his time issue.[8]I carried out the balancing exercise. The application was not made late in the proceedings because no final hearing date or case management orders in relation to such a hearing had been made. The claimant found it hard to explain the cause of delay in making the application to amend. As he said, he was threatening to make it in his resignation letter of 13 December 2024 but did not do so until 17 April 2025. He said that he was ill; but he could produce no supporting evidence that he could not issue the amendment application until the date that he did because of any illness. The sick notes only show that he was not fit for work and covered an earlier period of time to that under consideration now. I found the claimant to be articulate and intelligent. If there was a serious medical or any other reason preventing him from issuing further proceedings or making the application to amend sooner then he would have told me about them. He was clearly aware of the right to bring proceedings having done so before. He knew of the 3-month time limit.[9]The claimant went to ACAS again in the hope that he might settle proceedings amicably. As to the delay between 12 April and 17 April 2025 the claimant advanced the argument that my order of 24 March 2025 gave him an extension of time to bring the claim. I have read that order as carefully and fairly as possible to see whether I can give it that interpretation; but I do not. I urged him to get on with the case on 24 March.[10]There is a serious lack of explanation from the claimant as to why he did not issue a new claim or apply to amend sooner in 2025. I agree with the respondent that the information given to the claimant in page 139 could not have been a driver for the decision to resign on 13 December 2024. There may be some prejudice to the respondent in having to chase up witnesses but no specifics were given to me, although that may not be a surprise as we do not have all the detail of the claim for constructive unfair dismissal. When asked about the delay between the end of ACAS conciliation on 19 February 2025 and the preliminary hearing on 24 March 2025 the claimant could not give any explanation. An argument the claimant repeated was that my order extended the time limit but I cannot conclude a reasonable interpretation to my order was that I extended the time. The claimant knew his rights, he knew the time limits, there was no adviser that appeared to be at fault. The claimant failed to demonstrate he was ill. He did not establish that he was disabled in a way that may have adversely affected his understanding of the process. There were no proceedings pending which might have held up the process other than the 1st claim, and that in itself did not hold up any further action by the claimant. There was no postal delay or technical issue with the amendment. I do not blame the claimant for going to ACAS in trying to promote a settlement but the clock was still ticking.[11]The claimant’s application is not minor; it is a new claim. If I granted it there is prejudice to the respondent because it has to defend a claim that would have been dismissed as out of time if it had been brought separately. The claimant asked me to consider the merits of the constructive unfair dismissal claim. Little information has been put before me, and the respondent has yet to plead to it. However, I would make the observation that it is a risky strategy to resign in the face of disciplinary proceedings where the outcome has not been decided and then claim constructive unfair dismissal. Plainly the prejudice to the claimant if I do not allow the amendment is that he will not be able to pursue a claim for constructive unfair dismissal. Of course, the claimant can still proceed with his existing claims.[12]When I balance the prejudice against each side, I come to the conclusion that when interpreting section 111 ERA 1996 the claimant has not brought a complaint before the end of the period of 3 months beginning with the effective date of termination of his contract on 13 January 2025. He made an application to amend on 17 April 2025 which was 5 days after the limitation period expired. The claimant has to satisfy me that it was not reasonably practicable for the complaint or the amendment to be presented before the end of the period of 3 months and he has failed to do so. Therefore, I do not have to go on to consider whether it was reasonable to extend the time for another 5 days. The application to amend therefore is refused. I concluded that this outcome was just, fair and proportionate, having regard to the overriding objective.[13]I tried to give the claim form a fair reading, and looked to see if there were sufficient facts in it to construe a claim for constructive unfair dismissal. However, I concluded it was not there.[14]In relation to the 2nd ACAS certificate issued in 2025 I concluded that this did not extend the time to present the claim. There is a considerable amount of case law on the subject. The Commissioners for HM Revenue & Customs v Garau UKEAT/0348/16/LA is a leading authority. I agree with the analysis of the respondent. In effect, the claimant was trying to get the benefit of the early conciliation certificate extension twice. A 2nd certificate would not generate a 2nd extension of time. The HMRC case was approved in the case of Smith v The Restaurant Group UK Ltd [2024] EAT.[15]I then turned to the deposit order applications. Having considered the matter further Mr Dempsey decided that the application for deposits over the harassment claims would not be pursued. However, he asked for a deposit in relation to 3 detriments in relation to whistleblowing. Stated shortly, Mr Dempsey considered these were out of time, the matters complained of would not amount to detriments, and the claimant would not be able to demonstrate knowledge on the part of the alleged perpetrators. He submitted there was little reasonable prospect of success and each allegation should attract a deposit of £100.00, making a total payable of £300.00. The claimant gave me details as to his income, outgoings, assets and liabilities in the previous hearing, and he confirmed his circumstances were the same today. The claimant resisted the applications. He was not entirely sure of some of the dates of acts complained about; and did say there were some continuous acts. He confirmed that he could pay £300.00 if required. I adjourned to consider the matter.[16]In relation to the 3 detriments that I identified in the reasons for my judgement given on 24 March 2025 I did not conclude that detriment 1 had little reasonable prospect of success, and therefore I made no order for a deposit. However, I concluded on the information before me that at the final hearing detriments 2 and 3 both had little reasonable prospect of success as they were likely to be held to be out of time, and time is not likely to be extended. I also concluded that in relation to the same 2 detriments the claimant had little reasonable prospect of demonstrating that the actions complained of by the respondent actually amounted to detriments. I made an order that the claimant paid a £100 deposit to be able to proceed with each of the detriments 2 and 3. This was just, fair and proportionate. I made a separate deposit order which has already been sent to the parties. Approved by