Employment Judge G. KingIn person for claimantDate 17 April 2025
JUDGMENT
In respect of claims against the First Respondent:[1]The Claimant’s claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 is dismissed by way of withdrawal.[2]The Claimant’s claim in respect of failure to provide itemised pay statements is dismissed by way of withdrawal.[3]The Claimant’s claim in respect of protected disclosure (whistleblowing) detriment was presented out of time and the Tribunal does not have jurisdiction to hear this claim.[4]The Claimant’s claim in respect of failure to allow accompaniment to a relevant meeting was presented out of time and the Tribunal does not have jurisdiction to hear this claim.[5]The Claimant’s claims of direct discrimination in relation to the incidents of 25 July 2023, 5 September 2023 and 6 September 2023; claim of failure to make reasonable adjustments, claim of harassment and claim of victimisation were presented out of time, but it is just and equitable to extend the time limit and allow these claims to proceed. In respect of claims against the Second Respondent:[1]The Claimant’s claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 is dismissed by way of withdrawal.[2]The Claimant’s claim in respect of failure to provide itemised pay statements; claim in relation to holiday pay; claim in respect of wages and claim of wrongful dismissal are dismissed by way of withdrawal.[3]The Claimant’s claim in respect of protected disclosure (whistleblowing) detriment was presented out of time and the Tribunal does not have jurisdiction to hear this claim.[4]The Claimant’s claim in respect of failure to allow accompaniment to a relevant meeting was presented out of time and the Tribunal does not have jurisdiction to hear this claim.[5]The Claimant’s claims of direct discrimination; claim of failure to make reasonable adjustments, claim of harassment and claim of victimisation were presented out of time, and it is not just and equitable to extend the time limit. Tribunal does not have jurisdiction to hear these claims.[6]There are no live claims against the Second Respondent. In respect of claims against the Third Respondent:[1]The Claimant’s claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 is dismissed by way of withdrawal.[2]The Claimant’s claim in respect of failure to provide itemised pay statements; claim in relation to holiday pay; claim in respect of wages and claim of wrongful dismissal are dismissed by way of withdrawal.[3]The Claimant’s claim in respect of protected disclosure (whistleblowing) detriment was presented out of time and the Tribunal does not have jurisdiction to hear this claim.[4]The Claimant’s claim in respect of failure to allow accompaniment to a relevant meeting was presented out of time and the Tribunal does not have jurisdiction to hear this claim.[5]The Claimant’s claims of direct discrimination; claim of failure to make reasonable adjustments, claim of harassment and claim of victimisation were presented out of time, and it is not just and equitable to extend the time limit. Tribunal does not have jurisdiction to hear these claims.[6]There are no live claims against the Third Respondent.
REASONS
[7]The Tribunal had the benefit of two bundles; one labelled “disability bundle” and the other labelled “second bundle”. Where documents from those bundles are referred to in this Judgment, they are done so in [square brackets] with the prefix of DB for disability bundle and SB for second bundle. Evidence and submissions[8]The Tribunal heard oral evidence from the Claimant, with all Respondents given the opportunity to cross examine her.[9]In relation to both “reasonably practicable” test and the “just and equitable” test, the Claimant said she had been subject to a continuing act. She said she linked all the act together. She also said that she was confused at the time, and she genuinely didn’t believe she would be dismissed. She pointed out that she was dealing with extensive paperwork regarding her appeal process and this took up all of her time. She explained that she was waiting the outcome of her Stage 3 appeal before contemplating any claim to the Employment Tribunal.[10]The Claimant also explained that she had received incorrect and conflicting advice from ACAS, and she was waiting for them to call her back in relation to this before she could submit her forms for early conciliation against the second and Third Respondent.[11]She stressed that, while she was technically represented by first one union and then another, her union representative did not provide advice and did not return her calls. She said they did not advise her; just accompanied her to meetings.[12]She also relies on her disability and says the effect that the alleged detrimental treatment and discrimination had on her meant that it was not really practicable for her to present her ET1 within the time limit.[13]The First Respondent made six points. First of all, the First Respondent argued that awaiting the outcome of internal grievance and disciplinary process was not sufficient for a Claimant to argue it was not reasonably practicable for her to present her ET1: Palmer and Saunders v Southendon-Sea Borough Council [1984] IRLR 119, CA.[14]Secondly, the First Respondent said that the Claimant was represented by trade union officials throughout the process, which is confirmed at [SB 191]. Trade union representatives count as skilled advisers (Syed v Ford Motor Co Ltd [1979] IRLR 335) and should be expected to know and advise on applicable time limits. If there was failure to give this advice or the advice was incorrect, the Claimant has a claim against the trade union representative but it is not the case that it was not reasonably practicable for her to submit her claim on time (Dedman v British Building and Engineering [1974] I.C.R. 53).[15]Thirdly, in relation to advice given by ACAS, the First Respondent submitted that Paczkowski v Sieradzka [2017] I.C.R. 62 says that a Tribunal should make detailed findings of fact before finding that the advice made it not reasonably practicable for her to present her ET1 on time. The Respondent further submitted that the Tribunal would be unable to do this as the Claimant had not shown the Tribunal any evidence in relation to the ACAS advice. The burden of proof lies with the Claimant (Consignia Plc v Sealy [2002] ICR 119).[16]The First Respondent further argued that the Claimant’s disability did not prevent her from writing lengthy letters citing lots of case law during her grievance and delivery process. The Respondent said the Claimant is clearly articulate and able to research the law as it applies to her case. There is no reason why she could not have researched time limits and could not have reasonably been aware of them, and so it was feasible that she could have presented her ET1 within the time limit.[17]The Third Respondent also said that the Claimant argument regarding a continuing act is wrong. All the allegations (aside from her dismissal) are out of time.[18]Finally, in relation to the Equality Act claims, the Respondent submitted that missing a primary time limit because there is an ongoing internal process will not normally be a good reason “of itself and without more” to exercise the just and equitable discretion to extend time (Robinson v The Post Office [2000] IRLR 804 and Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116). Deliberation[19]In Palmer, it was held that the words “not reasonably practicable” had to be applied firmly. They meant “not reasonably feasible”. It was going too far to say that they meant “physically impossible”, but to interpret them as no more than “reasonable” was too lax.[20]The Tribunal therefore had to consider if it was reasonably feasible if the Claimant could have presented her claim in time. There is no discretion to allow what is fair or just or equitable in respect of the non-discrimination claims.[21]The Tribunal was satisfied that the Claimant did have trade union representation and the time of her grievances and disciplinary procedure, and it was reasonable feasible for her trade union representative to have made her aware of time limits. [SB 191] confirmed that GMB union were instructed and were to handle correspondence.[22]The Tribunal was further satisfied that information on time limit would be something that the Claimant was aware of or should reasonably have been aware of. She was very capable of researching the law and presenting legal arguments during this time. It was feasible that she could have drafted and presented her ET1 within the time limit.[23]The Tribunal did not accept that the Claimant’s disability made it not really practicable for her not to submit her ET1 in time. As noted above, she was clearly able to draft letters citing case law and containing legal arguments. She was fully aware that she had grievances with the Respondent, and even if she did not know the exact legal way to present her claim, it was feasible that she could have presented a claim to the Employment Tribunal explaining her case in lay terms.[24]The Tribunal therefore concludes that it was reasonably feasible, and therefore reasonably practicable, for the Claimant to have brought her claim within time. She did not do so. It therefore follows that the Tribunal has no jurisdiction to hear the non-discrimination elements of the Claimant’s claims.[25]In respect of the discrimination claims against the First Respondent, the test for the Tribunal is whether it is just and equitable to extend the time limit.[26]The ‘Dedman Principle’ applies to those having to meet the much more stringent ‘not reasonably practicable’ test, but does not apply in ‘just and equitable’ cases. Instead, the relevant case law is that of Chohan v Derby Law Centre [2004] IRLR 685 UKEAT, which held that a Claimant should not be disadvantaged because of the fault of his advisers.[27]The allegations of discrimination raised by the Claimant are serious ones. The Tribunal considered it would be just and equitable for her claims to be tested in a Tribunal. The Tribunal finds that the delay causes minimal prejudice to the Respondent and has limited effect on the cogency of the evidence.[28]The Tribunal found that the Claimant acted reasonably promptly to begin the process of Early Conciliation with the First Respondent once she received notification of the outcome of the Stage 3 appeal process. The Tribunal also satisfied that she was trying to avoid litigation by exhorting the internal process. Whilst this is not a reason of itself to extend time limits, when taken with her vulnerability due to the disability and the lack of or incorrect advice she received, this is persuasive that it is just inequitable to extend the time limit in relation to the claim against the First Respondent, taking in to account Apelogun-Gabriels v Lambeth London Borough Council [2002] ICR 713 EWCA. Section 123(1) allows the Tribunal a wide discretion to do so.[29]The matter is different in respect of the Second and Third Respondents. Early Conciliation was entered into over one month later in respect of both, and the explanation for this delay was that the Claimant was awaiting a call back from ACAS and needed extra time to complete the forms. This is not a good or convincing reason for the delay. The Tribunal also looked at the merits of the claims when assessing the overall principle of it being just and equitable to extend the time limit. The Second Respondent is not a legal entity. The claims against it are unlikely to be able to proceed as a matter of law. Therefore, any claims against Second Respondent are likely to fail. It is not just and equitable to extend the time limit in respect of claims that have no prospect of success. The Tribunal does not exercise its discretion to extend the time limit in respect of claims against the Second Respondent and therefore has no jurisdiction to hear those claims.[30]The Third Respondent did not employ the Claimant and was only involved in the stage 3 appeal process. There has been no claim of discrimination in relation to the stage 3 appeal. All the allegations of discrimination relate to conduct by the First Respondent. Any claim of discrimination against the Third Respondent would be likely to fail. Again, it is not just and equitable to extend time limit in respect of claims that have no prospect of success. The Tribunal does not exercise its discretion to extend the time limit in respect of claims against the Third Respondent and therefore has no jurisdiction to hear those claims. Approved by