Ms D Morrissey v Barclays Bank UK plc: 1306154/2023
EMPLOYMENT TRIBUNALS
Case No 1306154/2023
Between
Ms D MorrisseyClaimantBarclays Bank UK PLCRespondent
Before
Employment Judge FloodIn person for claimantMs Dobbie (instructed by Counsel) for respondentDate 12 March 2025
REASONS
[1]By a claim form submitted on 26 September 2023 (having completed early conciliation between 20 July and 21 August 2023), the claimant brought complaints of discrimination on the grounds or pregnancy or maternity leave contrary to section 18 of the Equality Act 2010 (“EQA”); and direct sex discrimination contrary to section 13 of the EQA.[2]At a preliminary hearing on 19 September 2024, the complaints were identified and it was recorded that the complaint related to the claimant not being given the opportunity to apply for a permanent Operational Manager role (which she had been seconded into for approximately 18 months prior to taking maternity leave which commenced on January 2021). The respondent contends that this was due to a decision taken as part of a restructure in 2022 that any employee who had been in a seconded role for more than 12 months as at 1 April 2022, would be pooled (where necessary) in their seconded role, and not their substantive role. This led to the individual who had been seconded into the Operational Manager role when the claimant was on maternity leave being appointed permanently/redeployed to that Operational Manager role. The claimant is claiming that the decision not to allow her to be considered for this permanent Operational Manager role was less favourable treatment because of sex (contrary to section 13 EQA) and/or was unfavourable treatment because she was or had been on maternity leave (contrary to section 18 (4) EQA). It is not in dispute that the claimant became aware of this decision on 19 March 2022.[3]The matter was listed for a preliminary hearing in public to determine such of the issues listed before as the Tribunal decided it was able to decide.[4]The respondent confirmed that it no longer advanced arguments about whether any act occurred in the protected period as set out below, acknowledging that section 18 (4) EQA would make such an argument futile in any event.
The Issues
[5]What was the date or dates of the acts of discrimination complained of?[6]Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:(a) Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?(b) If not, was there conduct extending over a period?(c) If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?(d) If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: (i) Why were the complaints not made to the Tribunal in time? (ii) In any event, is it just and equitable in all the circumstances to extend time?[7]Further or alternatively, because of those time limits (and not for any other reason), should any complaint be struck out under rule 37 on the basis that it has no reasonable prospects of success and/or should one or more deposit orders be made under rule 39 on the basis of little reasonable prospects of success?[8]Did the act take place within the protected period (if applicable)?
The relevant law
[9]Section 123 of the EQA, which specifies time limits for bringing employment discrimination claims, provides so far as relevant that: "(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. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[10]The Court of Appeal in Robertson and Bexley Community Centre (trading as Leisure Link) 2003 IRLR 434CA made it clear that there is no presumption that time should be extended to validate an out of time claim unless the Claimant can justify the failure to issue the claim in time. The Tribunal cannot hear a claim unless the Claimant convinces the Tribunal that it is just and equitable to extend time.[11]In British Coal Corporation v Keeble [1997] IRLR 336, it was held that the Tribunal’s power to extend time was as broad under the ‘just and equitable’ formula as under Section 33(3) of the Limitation Act 1980 (power to extend time in personal injury actions) which specified a number of factors that a court is required to consider when balancing the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had co-operated with any requests for information;(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[12]However, it is unnecessary for a tribunal to go through the above list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ (Southwark London Borough v Afolabi [2003] IRLR 220 Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23).).[13]In Abertawe Bro Morgannwg University v Morgan [2018] EWCA Civ 640 the Court of Appeal stated that the "such other period as the employment tribunal thinks just and equitable" extension indicates that Parliament chose to give the tribunal the widest possible discretion. Although there is no prescribed list of factors for the tribunal to consider, "factors which are almost always relevant to consider are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent”. There is no requirement that the tribunal had to be satisfied that there was a good reason for the delay before it could conclude that it was just and equitable to extend time in the claimant's favour.[14]Miller v Ministry of Justice and others EAT 0003/15, emphasised that the discretion to extend time is wide but is the exception rather than the rule. The Tribunal will decide what factors are relevant and how they must be balanced. The general prejudice that the respondent faces of having to deal with an otherwise time barred claim is relevant as is any actual forensic prejudice caused by fading memories, loss of documents and losing touch with witnesses.[15]Mechkarov v Citibank NA [2016] ICR 1121, the EAT stated that when considering whether it is just and equitable to extend time, tribunals must weigh up the relative prejudice that extending time would cause.[16]The authorities on extension of time on just and equitable grounds were reviewed by the EAT in Jones v Secretary of State for Health and Social Care 2024 EAT 2, with HHJ Tayler emphasising the wide discretion of employment tribunals with which appellate courts should be slow to interfere.[17]Perth and Kinross Council v Townsley EATS 0010/10; Holbrook v Cosgrove [2024] IRLR 262. When a claimant is relying upon ignorance of rights, the Tribunal must consider whether such ignorance is reasonable in the same way as under the reasonable practicability test. Once such ignorance has been remedied it is in any event incumbent on a prospective litigant to act timeously and a failure to do so militates against an extension of time.[18]Lupetti v Wrens Old House Ltd [1984] ICR 348 - merit (or lack thereof) of a claim is a relevant feature when exercising the discretion. It is important, however, to conduct the merits assessment with care and in the recognition that not all evidence is available.[19]Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132: “60. If a tribunal is in a position properly to conclude that the merits of a late complaint have no reasonable prospect of success, then plainly it could properly refuse to extend time, as there would be no point in extending time in relation to a complaint that would be bound to be struck out. But what is the correct approach, when considering just and equitable extension at a preliminary hearing, if the tribunal cannot say that the complaint has no reasonable prospect of success? …61. Lupetti does make the point, but it is an obvious basic principle of natural justice, in any event, that it would be wrong for the tribunal to take account of its assessment of the prospective merits if the parties have not had a fair opportunity to make submissions on the point. The authorities also do warn, generally, of the need to take real care when seeking to assess the merits of a prospective claim on an occasion when the tribunal does not have all the evidence, particularly where the proposed claim is of discrimination. As to that general point, the warnings given in the authorities on strike-out of discrimination claims… should be borne firmly in mind. But that does not mean that it is necessarily impossible in every case for the tribunal, at a preliminary hearing, fairly to assess the prospects of success of a potential claim to some degree, and to identify whether it has particular weaknesses or faces particular difficulties.62. Indeed, this is something that employment tribunals may and can do entirely properly, when assessing, for the purposes of the deposit rule, whether a claim that cannot be said to have no reasonable prospect of success nevertheless has little reasonable prospect of success. …63. The tribunal is therefore not necessarily always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform.64. So: the tribunal needs to consider the matter with care, identify if there are readily apparent features that point to potential weakness or obstacles, and consider whether it can safely regard them as having some bearing on the merits. If the tribunal is not in a position to do that, then it should not count an assessment of the merits as weighing against the claimant. But if it is, and even though it may not be a position to say there is no reasonable prospect of success, it may put its assessment of the merits in the scales…”[20]Apelogun-Gabriels v Lambeth London Borough Council and anor 2002 ICR 713, CA, - the fact that a complainant has awaited the outcome of an internal grievance procedure before making a complaint is just one matter to be considered by a tribunal. there is no general principle that it will be just and equitable to extend the time limit where the claimant was seeking redress through the employer’s grievance procedure before embarking on legal proceedings, it is only one factor to be considered in any particular case.[21]Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. ‘48. … She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’. I regard this as a legally more precise way of characterising her case than the use of expressions such as ‘institutionalised racism’, ‘a prevailing way of life’, a ‘generalised policy of discrimination’, or ‘climate’ or ‘culture’ of unlawful discrimination. and … “52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’ . I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a ‘policy’ could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed’.[22]Where a continuing act is alleged, the Court of Appeal made clear in Hendricks that it was not appropriate to strike out the relevant complaints on time grounds at a preliminary stage. The Tribunal was referred however, to Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, the Court of Appeal held that, in order to avoid a strike-out at a preliminary stage, a claimant was required to show a prima facie case, that is, that the complaints were capable of being part of an act extending over a period. It was also referred to Aziz v FDA [2010] EWCA Civ 304, at §36, where the Court of Appeal, referring to Lyfar, stated that another way of formulating the test is that ‘the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’.[23]In Barclays Bank plc v Kapur and others [1992] the distinction between a one off act which has continuing consequences and an act which is itself was continuing was made.[24]The Tribunal was also referred to Parr v MSR Partners LLP (formerly Moore Stephens LLP) [2022] EWCA Civ 24, where the Court of Appeal held that a firm’s decision to exercise a contractual right to de-equitise a partner at 60 years of age, and allow him to continue as an ordinary salaried partner for two years, should be treated as a one-off change to the individual’s status, rather than an ongoing application of a discriminatory rule. It held that the relevant clause of the members’ agreement could only be applied once to any individual. After it was exercised, it was no longer “in action” against that individual. Deequitisation was akin to demotion, which was a one-off act with continuing consequences, rather than conduct extending over a period.[25]Southern Cross Healthcare v Owolabi UKEAT/0056/11 – where claims are based on a series of matters, those individual acts of discrimination can form a continuing act even if they appear to be discrete acts / omissions and even if they occur three months or more apart, but only if they create an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably (per Hendricks),[26]South Western Ambulance Service NHS Foundation Trust v King [2020] IRLR 168) - each individual act alleged to form part of the continuing act must actually be discriminatory. If any of those alleged acts are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act (does not itself constitute discrimination[27]Eke v Commissioners of Customs and Excise 1981 IRLR 334, EAT (and King above) - where a claimant alleges that they have been subject to discrimination and then raises a grievance in relation to the same matter, the ongoing grievance process will only be considered to be part of a continuing act with the act (or acts) of discrimination if the process or outcome is, itself, discriminatory – that is if some act / or omission within the grievance process amounts to discrimination in its own right. A failure to deal adequately with a grievance about alleged discrimination does not itself constitute discrimination
The relevant facts
[28]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 21 April 2023 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it.[29]As set out above the claimant asserts that she was informed on 9 March 2022 that she would have to would have to wait and apply to be considered for a permanent Operational Manager and that this amounts to sex discrimination and pregnancy and maternity discrimination. She points out that the individual (a man) who was subsequently seconded into the role (whilst she was on maternity leave) was given the role on a permanent basis after 12 months in post. She complains that she should have also been given the opportunity to apply for that role and the reason she was not was because of her sex or because she had been on maternity leave. The claimant contends that the act of discrimination was in fact ongoing whilst the successor employee (and comparator) remained in the permanent Operational Manager role which he did until 30 July 2024.[30]On becoming aware of the decision on 9 March 2022, the claimant raised a grievance on 10 March 2022. That grievance (page 115-6) stated that, “I strongly feel I have been discriminated against for being female and/or for taking maternity leave to have child. Had I not been on maternity leave I would have undoubtedly still been in the seconded OM position when the decision to make the role permanent was made.” She sought as an outcome to her grievance a formal investigation and response and to be given a fair opportunity to apply for the role. The Tribunal accepted the claimant’s evidence that she submitted her grievance following advice from the gov.uk website in an attempt to allow the respondent the opportunity to rectify and deal with the issue directly. Although when asked in cross examination whether she looked on the website and saw this advice before or after the grievance was submitted, the claimant said she could not remember the Tribunal finds that the claimant did this before she submitted her grievance.[31]During cross examination, the claimant was taken to the current gov.uk website providing information titled “Raise a grievance at work”. This gave basic information as follows: “If you’re a worker and you’ve tried solving a problem or concern informally by talking to your manager but you’re not satisfied, you can make a formal grievance complaint in writing. Your employer should have a written grievance procedure that tells you what to do and what happens at each stage of the process. After raising the grievance you’ll have a meeting to discuss the issue. You can appeal if you do not agree with your employer’s decision” In a separate box to the side of this information, there were links to other related content on the gov.uk website, which including the following links: “Handling an employee’s grievance Make a claim to an employment tribunal” The Tribunal accepted the claimant’s evidence that she could not recall whether this was the same information she had seen when she looked on the website in March 2022. It is understandable that the claimant would not recall the detail shown on a web page this long ago. She acknowledged in cross examination that nothing on this website stated that she had to (or was required) to complete the grievance process before taking the matter further but the Tribunal accepted her evidence that she was “under the impression” that this was the case. The Tribunal also finds that the claimant did not as suggested by the respondent then follow the link shown regarding how to make a claim to an employment tribunal. There is no evidence to suggest that this was done and the Tribunal finds that had the claimant done this and seen information regarding time limits, she would have acted upon this information.[32]The claimant also told the Tribunal that shortly after submitting her grievance she looked on the ACAS website and believed she spoke to someone at ACAS by telephone. She stated that the person she spoke to explained to her that she should raise her grievance first, then contact ACAS to see if they could find a solution and if not, then she could bring a claim. She further told the Tribunal that she was told to log her grievance to allow her employer to correct it and that this made sense to her. She said that it was put across to her that this was the process to follow and that is what she did. The claimant told the Tribunal that she was not at this time told anything about time limits for presenting a claim.[33]Ms Dobbie asked the Tribunal to find the claimant’s evidence in this regard not credible as the call with ACAS had only been mentioned in her later statement and that her answers in cross examination were evasive. Ms Dobbie suggests that ACAS would have been duty bound to mention time limits and did in fact do so. The Tribunal find that the claimant’s evidence was honest and credible as she said she could not remember precisely what information was provided but that was left with the impression that she should go through the respondent’s grievance procedure first to try and resolve the problem. The Tribunal also accepted that the claimant at this time was not thinking about bringing a legal complaint but wanted an equal opportunity to apply for the Operational Manager role to further her career and raised her grievance in order to achieve this outcome. We also accepted the evidence of the claimant that as she was expecting her grievance to be addressed within 20 days as per the respondent’s policy.[34]The claimant attended a grievance meeting on 10 May 2022. In August 2022 the claimant commenced a second period of maternity leave. The Tribunal accepted the claimant’s evidence that she was continuously and constantly chasing the respondent for a response to her grievance both before and after her maternity leave started. Her baby was born at the beginning of September 2022.[35]On 1 December 2022 the claimant was informed that her grievance had not been upheld. The outcome letter (pages 117-9) stated that (in summary) because she had returned to her substantive role in January 2022, she was not impacted by the restructure and not in scope to be considered for the permanent Operational Manager role. It stated that the successor male employee had at 1 April 2022 been in a seconded Operational Manager role for more than 12 months he was in scope for the restructure and was ultimately appointed to the Operational Manager role. The claimant did not contact ACAS at this point.[36]On 15 December 2022, the claimant appealed against the grievance outcome (pages 102-6). She complained about the delay to address her grievance and failures to comply with the grievance policy in the way her grievance was handled. She also complained against the substantive decision pointing out what she saw were contradictions in the outcome which supported her original grievance.[37]The claimant was invited on 20 January 2023 to an appeal hearing to take place on 1 February 2023. An outcome to her appeal was provided on 18 July 2023. Her appeal was partially upheld in that the respondent acknowledged that grievance policy timescales had not been adhered to but was not upheld on the substantive point. The appeal outcome confirmed that the decision was final and that the grievance process was concluded.[38]The claimant contacted ACAS within 2 days of receiving the appeal outcome and the Tribunal accepted her evidence that at this point she was informed that there were time limits for bringing Tribunal claims. She commenced early conciliation with ACAS on 20 July 2023 and on 31 August 2023 an ACAS early conciliation certificate was issued. The claimant presented her claim form on 26 September 2023.
Conclusion
[39]The claimant firstly suggests that the actions of the respondent were continuing as the colleague who was appointed to the permanent role was in that role continuously until 30 July 2024. She further submits that the delay in issuing the claim was caused by the fact that the respondent delayed dealing with her grievance which took 16 months to complete (pointing out that an outcome should have been provided within 20 days under the respondent’s own policies). The claimant pointed out that she commenced maternity leave earlier than planned and before she had an outcome and had to constantly chase the respondent for a response. She submitted that had it not be for the significant delays which were not explained, she would have presented her claim much earlier and within the time limits.[40]The respondent submitted firstly the claimant does not have any reasonable argument for stating that the claim is presented in time because the respondent’s decision is in the nature of a continuing act. The Tribunal was referred to the authorities and in particular Hendricks and suggests that what has taken place does not amount to a continuing state of affairs but was a one off act/decision from early 2022 that had continuing consequences more akin to the Kapur case above. Ms Dobbie points out that the claimant complains about the delay in addressing her grievance but does not assert that anything in relation to the way the grievance was dealt with was discriminatory therefore as per Eke above, this process does not extend the date of the alleged act of discrimination itself. Therefore she submits that delay is only relevant in considering why the claim was not brought sooner.[41]In terms of the factors relevant to the Tribunal’s discretion, Ms Dobbie submits that the claim is (presented after 13 months) significantly out of time. She points that the claimant believed she had been subject to unlawful discrimination from at least 10 March 2022 (as she mentions this in her grievance). She submitted that the claimant’s reasons for the delay in presenting her claim form were inconsistent and the claimant could with reasonable investigation have found out how to enforce the rights she was asserting by commencing early conciliation in time (and it was unreasonable of her not to have done this.) I was referred to the Holbrook and Townsley cases above to support the contention that the Tribunal must consider whether ignorance of rights is reasonable in the same way it would as under the ‘reasonable practicability’ test, with Ms Dobbie also pointing out that once there is awareness of rights a prospective litigant must act timeously. The Tribunal was also asked to consider the merit (or lack thereof) of the claim taking into account the caveat that care must be taken on assessing the merits of a prospective claim without all the evidence (particularly in discrimination claims) and that particular features based on the available material to support its assessment on merit (see Kumari above). It is submitted that the claim is inherently weak and there is a high risk the claimant will not succeed. She further points out relying on Apelogun- Gabriels above that there is no general principle that it will be just and equitable to extend time where an employee was seeking redress though an employer’s grievance procedure, but that this is only one factor.[42]In terms of prejudice to the respondent, Ms Dobbie points out that the respondent faces both types of prejudice identified in the case of Miller above: the prejudice of having to face a stale or otherwise out of time claim and also potentially forensic prejudice caused by fading memories and the unavailability of documents. Whilst no specific evidence of forensic prejudice was available (and it is acknowledged that the grievance and appeal process was also committed to writing), it is submitted that given that the underlying act was several years ago, it is inevitable that memories had faded and possible witnesses may have left.[43]I have considered factors set out above in the relevant case law. A key issue that I consider relevant for me to consider here is the reason for the delay in issuing proceedings. As per Apelogun-Gabriels above, delay as a result of following internal procedures is one matter to be considered although not determinative. The claimant did not present her claim to the Tribunal earlier because she was quite reasonably attempting to resolve the matter through the respondent’s internal grievance procedure (paragraph 30 above). She took this step after reading information on the gov.uk website and although there was no contemporaneous evidence of what was published on that website at the relevant time, the current version of the website before the Tribunal does have a general statement about an employer’s grievance and appeal procedures being the way to solve a problem at work (see paragraph 31). The claimant did not at this time follow links (which may well have been there) about enforcing her rights by making a Tribunal claim. Following a conversation with ACAS, the claimant was left with the impression that she should try and go through the respondent’s grievance procedure to resolve her issues first before any further action. She had an understandable expectation that it would be addressed relatively promptly (as per the policy) and so the Tribunal concludes that the ignorance of the claimant as regards time limits was reasonable in these circumstances. She remained employed, and wanted to continue her career with the respondent and give it the opportunity to resolve her complaint. The Tribunal does not accept the submission of the respondent that the claimant made a decision not to present a claim within the time limits in the hope she would not have to. Given the claimant’s prompt action in raising her grievance as soon as she became aware of the issue, this would not suggest this was a claimant who would have chosen to delay matters deliberately. Rather she was operating under the impression that she was following the correct process (paragraph 31).[44]What then followed was an extremely lengthy delay in addressing her grievance and it does not appear to be suggested by the respondent that any of this delay was caused by the claimant herself (paragraphs 30 to 37 above). The claimant was on maternity leave but this does not explain the fact that it took 9 months to provide her with an initial outcome and a further 6 months to deal with her appeal. This is an extremely lengthy timescale to deal with a grievance in particular for an organisation of the size and with the resources of the respondent. There was a suggestion of different managers being involved in the investigation and investigations having to be restarted, but to take such an excessive amount of time to deal with a validly raised grievance must have been a real concern to the claimant who for much of this time was away from the workplace.[45]Once the claimant had been told that there were time limits applicable to her complaints by ACAS when she got in touch with them following the outcome of her appeal on 18 July 2023, she commenced early conciliation promptly (see paragraph 38 above). The Tribunal is satisfied that the claimant had no knowledge of time limits until this point and once these were pointed out to her, she acted promptly and without further delay. I conclude that her ignorance of time limits was again reasonable in these particular circumstances (as per Townsley and Holbrook above) where she did some initial research to find out how to resolve her issues at work and took the steps suggested, coupled with the very lengthy delay in the internal grievance procedure meaning that she then found herself outside the time limits for presenting a claim.[46]In terms of assessment of the merits of the claim, on the very limited information available to me, I am unable to conclude that this is a claim that has no real merit and therefore should not be permitted to continue out of time. The submissions made by Ms Dobbie on whether the claimant has any reasonable prospects of showing that the respondent’s decision of which she complains is a continuing act are accepted and the Tribunal concludes that there are no such prospects. I conclude that what has taken place does not amount to a continuing state of affairs but was a one off act/decision from early 2022 that had continuing consequences more akin to the Kapur case. However on the basis of an extension of time on just and equitable grounds, this point falls away in any event. There is significant evidence still to be heard on the decision making process as regards to the inclusion or non inclusion of the claimant in any restructuring plans and whether to allow the claimant to apply for and be considered for the permanent Operational Manager role in 2022. The precise issues in dispute have not yet been identified. It would be inappropriate in my view to try and make a fair assessment of this fact based matter without having the full evidence before the Tribunal (see Lupetti and Kumari above).[47]I take account of the fact that if I exercise my discretion in favour of allowing the claim to proceed, the respondent would have the general prejudice that comes from having to deal with an otherwise time barred claim. The length of time elapsed is not inconsiderable but this affects both parties. There is no evidence of any increased or specific forensic prejudice because of the delay, even though it is over a year. The respondent in fact had to investigate the complaints made by the claimant as part of its lengthy grievance and appeal process so would appear to have ready access to the relevant documentation in order to support its case. Against that, the claimant would lose the ability to bring her claim entirely and she would be severely prejudiced, if time was not extended. The pursuance of an internal grievance process (which was unreasonably delayed by the respondent) amounts to a sufficient reason to explain the delay in taking action. Although Morgan above makes it clear that there is no requirement that I must be satisfied that there was a good reason for the delay before I can conclude that it is just and equitable to extend time in the claimant's favour, here I am so satisfied in any event.[48]The prejudice against the claimant outweighs that to the respondent in allowing her claim to proceed. It is clear from the case law that it is not a question of the Tribunal being able to exercise jurisdiction just because it would be kind to do so. There must be something raised by the claimant which convinces me that it is just and equitable to do so. Here the unreasonable delay in dealing with the claimant’s grievance which in effect caused the claimant to have presented her claim out of time, when factored and weighed up against the prejudice to both parties mean that in this Tribunal’s judgment it is just and equitable to extend time to allow the claim to proceed. The matter will now be listed for a short preliminary hearing in private for case management to fully identify and record the issues in dispute, list for final hearing and make appropriate case management orders.