Miss C Michael v Computershare Investor Services plc: 1401001/2021
EMPLOYMENT TRIBUNALS
Case No 1401001/2021
Between
Miss C MichaelClaimantComputershare Investor Services plcRespondent
Before
Employment Judge MidgleyIn person for claimantMiss H Coutts (instructed by solicitor) for respondentDate 9 February 2022
JUDGMENT
[1]The claim of unfair dismissal was presented out of time, it was reasonably practicable to present the claim in time, and the Tribunal does not have jurisdiction to hear it. It is dismissed.[2]The claim of age discrimination was presented out of time but it is just and equitable to extend time and the Tribunal has jurisdiction to hear it . ORDERS[1]By 16 February 2022, the claimant must write to the Tribunal and the respondent confirming whether she wishes to withdraw her claim of age discrimination or to pursue it.[2]If the claim is pursued, the claimant must by 16 February 2022 provide further and better particulars of her claim to the Tribunal and the respondent, identifying:a. the legal claim(s) (s.13/19/26/27 EQA 2010) she is making,b. the treatment or conduct she alleges was discriminatory, identifying the alleged discriminator and when the conduct occurred. Case No: 1401001/2021[3]The respondent must by 16 March 2022 file an amended response addressing the claims as particularise in accordance with the Orders above.[4]Further directions in respect of the age discrimination claim will be made at a telephone case management hearing at 12am on 4 May 2022. The parties will be sent separate notice of the hearing. JUDGMENT having been sent to the parties on 11 February 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The preliminary hearing was listed to determine whether the claimant’s claims of unfair dismissal and age discrimination were brought within the statutory time limits and, if not, whether time should be extended so that the Tribunal had jurisdiction to hear the claims. Background The claimant’s redundancy – the subject of her claims
Background
[2]The claimant was employed by the respondent as an HR Business Analyst from 29 February 2016. On 22 June 2020, she was notified that she was at risk of redundancy and a process of consultation meetings occurred between 3 July and 4 August 2020. On 4 August 2020, the claimant’s redundancy was confirmed. The 4 August 2020 was therefore the last potential date for any act of age discrimination.[3]On 21 August 2020, the claimant submitted a subject access request to the respondent. A response to that request was provided on 15 September 2020 and amongst the documents provided was an email from the respondent’s director of HR to a Mr Gillespie, which on its face seems to indicate that the claimant was identified as an employee who would be made redundant in any subsequent redundancy process.[4]On 8 October 2020, the claimant was provided with her personal file.[5]The claimant’s employment came to an end on 30 September 2020 as a consequence of the notice of termination provided on 4 August.[6]The claimant made a further request for information from the respondent on or about 14 October 2020 and was notified on 19 October that the respondent had no further documents to disclose. On or about that date the claimant approached ACAS for the purposes of seeking advice in relation to her potential claims. During those discussions, which occurred in the period 14 October and 15 December 2020, the claimant was told of the time limits that applied to the claims that she was bringing. She did not however, at that stage, think that she had sufficient information to pursue claims at that stage and wanted to ensure in her words that “all the ducks were in a row” and that she had sufficient evidence for the purposes of any claim.[7]However, her primary focus was that the systems and approaches adopted by the respondent were reviewed and corrected for the benefit of all employees, rather than the pursuit of litigation. To that end, on 2 November 2020, she contacted an external company called ‘Protect’ which provides free advice in relation to whistleblowing concerns. Subsequently, on 10 November 2020, she raised concerns with the respondent’s internal representative for whistleblowing.[8]On 27 November 2020, she received from the respondent copies of her redundancy criteria scores.[9]On 11 December 2020, the claimant spoke to Protect about her concerns if she were to whistle blow, and so consequently, on 15 December 2020, the claimant elected to appeal against the decision to make her redundant.[10]On 22 December 2020, the respondent provided the claimant with the criteria scores for those who were at risk of redundancy at the same time as the claimant.[11]On 29 December 2020 the primary statutory time limit in respect of the complaint of unfair dismissal expired. Early conciliation and the presentation of the claims[12]On 8 January 2021, the claimant was told that the time limit for presenting an appeal had passed and that no appeal would be possible. She therefore contacted ACAS again and on 12 January 2021 commenced early conciliation which concluded the following day on 13th.[13]On 14 January 2021, the claimant emailed her claim form as a PDF to the Bristol Employment Tribunal but regrettably it was not until 26 February 2021 that the Tribunal notified the claimant that the form was not in a permissible form and that it would need to be resubmitted. She therefore resubmitted the claim on 2 March 2021 and it was accepted.[14]In addition to those matters that I have set out, the claimant had a number of personal matters that affected her between October 2020 and February 2021. Firstly, the claimant was suffering from ill health and anxiety and that latter condition was exacerbated during the second lockdown in the period November 2020 – January 2021. Secondly, two of the claimant’s close friends sadly passed away; one in November 2020 and one in January 2021. Thirdly, as a consequence of the claimant’s financial position, she elected to downsize and move house: she accepted an offer in September 2020 and moved into her house sometime in February.
The Relevant Law
[15]Section 111 ERA 1996 provides as follows:(1) a complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, and employment tribunal shall not consider a complaint under this section unless it is presented to the tribunala. before the end of the period of three months beginning with the effective date of termination, orb. within such further period as the tribunal 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 that period of three months.[16]The provisions of section 207B ERA 1996 apply to claims under section 111 and the other provisions in the paragraph above. Section 207B of the Act provides:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.[17]When a claimant seeks to excuse late presentation of his or her ET1 claim form on the ground that it was not reasonably practicable to present the claim within the time limit, the test to be applied is simply to ask: “had the man just cause or excuse for not presenting his complaint within the prescribed time?" (see Wall’s Meat Co v Khan [1978] IRLR 499 per Lord Denning, quoting himself in Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, CA).[18]Four general rules apply to that test: 18.1. S.111(2) ERA 1996 (and its equivalents in other applicable legislation) should be given a ‘liberal construction in favour of the employee’ (Dedman). 18.2. what is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. An appeal will not be successful unless the tribunal has misdirected itself in law or has reached a conclusion that no reasonable tribunal could have reached. As Lord Justice Shaw put it in Wall’s Meat Co Ltd v Khan [1979] ICR 52, CA: ‘The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the [employment] tribunal, and that their decision should prevail unless it is plainly perverse or oppressive’ 18.3. the Tribunal must have regard to the entire period of the time limit (Wolverhampton University v Elbeltagi [2007] All ER (D) 303 EAT); 18.4. the onus of proving that presentation in time was not reasonably practicable rests on the claimant. ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ — Porter v Bandridge Ltd [1978] ICR 943, CA. Accordingly, if the claimant fails to argue that it was not reasonably practicable to present the claim in time, the tribunal will find that it was reasonably practicable — Sterling v United Learning Trust EAT 0439/14.[19]In Palmer and anor v Southend-on-Sea Borough Council [1984] ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. Lady Smith in Asda Stores Ltd v Kauser EAT0165/07 explained it in the following words: ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.[20]Subsequently in London Underground Ltd v Noel [1999] IRLR 621, Judge LJ stated at paragraph 24 "The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, "in all the circumstances", nor when it is "just and reasonable", nor even where the Tribunal "considers that there is a good reason" for doing so.” As Browne Wilkinson J (as he then was) observed: "The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done" (Bodha v Hampshire Area Health Authority [1982] ICR 200 at p 204).[21]To this end the factors the Tribunal should consider, as identified in Palmer are:(1) the substantial cause of the claimant's failure to comply with the time limit;(2) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;(3) whether, and if so when, the claimant knew of his rights;(4) whether the employer had misrepresented any relevant matter to the employee; and(5) whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[22]The objective consideration requires that tribunals should have regard to all the circumstances of a case, including what the claimant did; what he or she knew, or reasonably ought to have known, about time limits; and why it was that the further delay occurred (see Nolan v Balfour Beatty Engineering Services EAT 0109/11) Ignorance of Rights[23]The question of whether or not it was reasonably practicable for a claimant to present his claim in time, in circumstances where it is argued that they were ignorant of their rights to claim requires the Tribunal to be satisfied, both as to the truth of that assertion and that the ignorance was reasonable on an objective inquiry; see Porter v Bandridge Ltd [1978] ICR 943, CA; Avon County Council v Haywood-Hicks [1978] ICR 646 EAT and Riley v Tesco Stores Limited [1980] ICR 323 . Age discrimination[24]Section 123 of the Equality Act contains the primary time limit for claims brought pursuant to the Equality Act. It provides as follows. (1) Proceedings on a complaint within Section 120 may not be brought after the end of: (a) the period of three months starting with the date of the act to which the proceedings relate, or (b) such other period if the Employment Tribunal thinks just and equitable. (3) for the purposes of this section conduct extending over a period is to be treated as done at the end of the period. Conduct extending over a period[25]Section 123(3)(a) EqA 2010 provides that “conduct extending over a period is to be treated as done at the end of the period.”[26]An ‘act extending over a period’ (also known as a ‘continuing act’) may arise not solely from a policy, rule, scheme, regime or practice but also from ‘an ongoing situation or continuing state of affairs’ (Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96, CA, paras 51-52 per Mummery LJ, approved by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, CA).[27]In Coutts & Co plc v Cure [2005] ICR 1098, EAT, the Employment Appeal Tribunal (HHJ McMullen QC presiding), set out categories into which the factual circumstances of alleged discrimination may fall, found (albeit obiter) that there are two types of situation in which alleged discrimination may constitute an ‘act extending over a period’: 27.1. where there is a discriminatory rule or policy, by reference to which decisions are made from time to time; and 27.2. where there have been a series of discriminatory acts, whether or not set against a background of a discriminatory policy.[28]In the former case, an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice, or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387).[29]In the latter case, the main issue for the Tribunal tends to be whether it is possible to identify some fact or feature linking the series of acts such that they may properly be regarded as amounting to a single continuing state of affairs rather than a series of unconnected or isolated acts (Hendricks). A single person being responsible for discriminatory acts is a relevant factor in deciding whether an act has extended over a period (see Aziz v FDA [2010] EWCA Civ 304, CA)[30]Therefore, whether the acts complained of are linked so as to amount to a “continuing act” is essentially a question of fact for the Tribunal to determine.[31]In cases where the act complained of by the claimant is not the mere existence of a policy but rather the application of that policy to the claimant, the Tribunal must consider the following question in relation to when that policy ceased to be applied to the claimant: “when did the continuing discriminatory state of affairs, to which the policy gave rise, come to an end?” (Fairlead Maritime Ltd v Parsoya UKEAT/0275/15/DA, HHJ Eady QC). The just and equitable discretion[32]While employment tribunals have a wide discretion to allow an extension of time under the ‘just and equitable’ test in S.123, it does not necessarily follow that exercise of the discretion is a foregone conclusion in a discrimination case. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA at para 25, that when considering exercising the discretion under what is now S.123(1)(b) EqA: ‘there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.'[33]The onus is therefore on the claimant to convince the Tribunal that it is just and equitable to extend the time limit.[34]Those comments were endorsed in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA. However, As Sedley LJ stated in Caston at paragraphs 31 and 32: “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. This has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that the limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact sound judgement, to be answered case-by-case by the tribunal of first instance which is empowered to answer it.”[35]Before the Employment Tribunal will extend time under section 123(1)(b) it will expect a claimant to be able to explain firstly why the initial time period was not met and secondly why, after that initial time period expired, the claim was not brought earlier than it was (Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan).[36]However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law does not require exceptional circumstances: it requires that an extension of time should be just and equitable - Pathan v South London Islamic Centre EAT 0312/13.[37]In exercising their discretion to allow out-of-time claims to proceed, tribunals may also have regard to the checklist contained in S.33 of the Limitation Act 1980 (as modified by the EAT in British Coal Corporation v Keeble and ors 1997 IRLR 336, EAT, at para 8). S.33 deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice that each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, 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.[38]In Department of Constitutional Affairs v Jones [2008] IRLR 128, CA, the Court of Appeal emphasised that these factors are a ‘valuable reminder' of what may be taken into account, but their relevance depends on the facts of the individual cases, and tribunals do not need to consider all the factors in each and every case. No one factor is determinative of the question as to how the Tribunal ought to exercise its wide discretion in deciding whether or not to extend time. However, a claimant’s failure to put forward any explanation for delay does not obviate the need to go on to consider the balance of prejudice.[39]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5, CA. the Court of Appeal observed that it was not helpful for the Keeble factors to be taken as the starting point for tribunals’ approach to ‘just and equitable’ extensions, as they regularly are. Rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, including in particular – as Mr Justice Holland noted in Keeble – the length of, and the reasons for, the delay.[40]A tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted his or her claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other: Pathan v South London Islamic Centre EAT 0312/13 and also Szmidt v AC Produce Imports Ltd UKEAT 0291/14.[41]It is always necessary for tribunals, when exercising their discretion, to identify the cause of the claimant's failure to bring the claim in time (Accurist Watches Ltd v Wadher UKEAT/0102/09, [2009] All ER (D) 189 (Apr)). In Wadher Underhill J stated that, whilst it is always good practice, in any case where findings of fact need to be made for the purpose of a discretionary decision, for the parties to adduce evidence in the form of a witness statement, with the possibility of cross-examination where appropriate, it was not an absolute requirement of the rules that evidence should be adduced in this form.[42]A tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including an explanation for the failure to present a claim in time, and such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.[43]A delay caused by a claimant invoking an internal grievance or disciplinary appeal procedure prior to commencing proceedings is just one factor to be taken into account by a tribunal when considering whether to extend time: Robinson v Post Office [2000] IRLR 804, EAT, approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2002] ICR 713. As the EAT said in Robinson (para. 25, per Lindsay P): “as the law stands an employee who awaits the outcome of an internal appeal and delays the launching of an [ET1] must realise that he is running a real danger.” Discussion and Conclusions Unfair dismissal claim[44]I turn then to the five criteria in Palmer in relation to the unfair dismissal case. Firstly, I deal with the substantial cause of the claimant’s failure to present the claim. I have concluded, having heard from Mrs Michaels and considered her evidence, that the substantial clause was largely twofold. Firstly, her desire to ensure that the respondent’s processes and staff which she believed were unfair or discriminatory and so gave cause for concern were addressed so as they would not affect other employees in the way that she perceived they had affected her. In order to pursue and resolve those matters she elected to raise concerns through the respondent’s whistleblowing procedure in November 2020 and also to raise the same concerns and explore possible options with Protect, a process that she began on 2 November.[45]Secondly, in so far as she was concerned with her own right to bring a claim, she wanted to ensure that she had “put it all her ducks in a row” by which she meant that she had sufficient evidence to demonstrate that there was merit in her claim. Consequently, she made the subject access request in August 2020. She received confirmation that there was nothing further to be disclosed in respect of that request on the 19 October.[46]Those were the predominant reasons why the claimant presented the claim when she did. It was only when she understood that there was nothing further that could be done through either of those processes that she looked to conclude the internal process by requesting another appeal on 15 December and, having been informed on 8 January that no further appeal would be offered, she approached ACAS and presented the claim in its first (incorrect) form on 14 January. However, I have to treat the 2 March as the date of presentation for the purpose of the claim. There is no dispute therefore, that the claim was submitted out of time, the statutory time limit having expired on 29 December 2020.[47]Secondly, I consider whether there was any physical impediment preventing the claimant’s compliance with the time limit. The conditions that affected the claimant were anxiety which was exacerbated both by the stress of a lockdown and the loss of two dear friends in the period November 2020 – January 2021. Whilst those matters had a profound affect upon the claimant, as was evident from the effect upon her whilst giving evidence about it, the claimant did not suggest that either prevented her from completing the claim online or from presenting it by email or otherwise. That is evident from the fact that in the same period the claimant was pursuing matters in relation to her subject access request and corresponding with various bodies in relation to whistleblowing and her appeal. It is to her credit that she does not suggest that it it was impossible to submit her claim in consequence, although I understand her argument to be that it made it much more difficult; and, of course, the claimant was moving house at the same time which further complicated matters.[48]Thirdly, whether or if so when Miss Michael knew of her rights. The effect of her evidence was that she was aware on a general sense of the right to bring a claim of unfair dismissal and age discrimination at or around the time that she was put at risk of redundancy, but she had not considered whether her claims had merit until it was apparent that she had been dismissed. Insofar as she did not discover the deadlines or time limits that applied to those rights until midOctober 2020, I have to find that ignorance was unreasonable because she knew in a general sense of the right to bring the claim and could have been discovered the time limit which applied simply by searching online.[49]Lastly, I consider whether the claimant was advised by anyone in relation to the time limits. The claimant received advice on or about the 14 October or shortly thereafter from ACAS.[50]Taking all of those matters into account, I have to assess whether it was reasonably practicable for the claimant to have presented a claim for unfair dismissal on 29 December 2020. I remind myself of the expression of the test in Asda Stores: whether on the facts of the case as I found them, it was reasonable to expect Miss Michael to do that which was possible and to present the claim by 29 December. In my judgment it was reasonably practicable for the claim for unfair dismissal to be presented by 29 December. The predominant reason that it was not, was not because it was not reasonably feasible but rather because Miss Michael wanted to investigate the facts that would support such a claim and/or to investigate avenues that might make the need for the claim less likely or less important, such as the whistleblowing process, to resolve what she perceived to be the internal errors and difficulties with the respondent’s system.[51]The Tribunal therefore has no jurisdiction to hear the claim of unfair dismissal and it is dismissed. Age discrimination[52]The claimant clarified that the last act about which she complained was the confirmation of her redundancy on 4 August 2020. It follows, therefore, that any claim in respect of those matters should have been submitted by 3 November 2020. The claim was submitted in March 2021 and is therefore out of time.[53]I have to determine whether it is just and equitable to permit the claim to be presented in March 2021, four months out of time.[54]The overarching test is that of the balance of prejudice. The Tribunal must weigh up the relative prejudice that extending time caused the respondent on the one hand and to the claimant on the other. I consider the relevant factors below.[55]Firstly, the length of and reasons for the delay. The length of delay is four months. I bear in mind that the claimant tried to present the claim on 14 January and it was only the form in which it was presented that prevented its acceptance. The respondent does not seek to argue that the claimant did not endevour to present the claim at that stage. Insofar as there was a delay between November and either January or March the reasons for it were as I have already expressed.[56]I turn to consider the extent to which the cogency of the evidence is likely to be affected by the delay. I bear in mind the respondent’s submission that the claimant had some difficulty in recalling events during this hearing and it was suggested therefore that there was prejudice to the respondent either in the claimant’s ability to recall or, by implication, that it could be inferred from the claimant’s difficulties of recall that the respondent’s witness would suffer similar challenges. That is what we often term ‘forensic prejudice.’ In this case, however, the respondent relies upon the potential fair reason of redundancy and says that it followed a fair process. It will rely no doubt rely upon its selection criteria and the scores that were applied to the claimant and others in them to demonstrate the reason and the fairness of the process. Those matters are recorded in documents which were provided to the claimant in December 2020. The witnesses for the respondent will be able to refresh their memory (insofar as they need to) using those documents.[57]I do not accept therefore that there is significant forensic prejudice to the respondent in terms of its witnesses’ ability to recall matters that they will rely upon to explain the reason for the dismissal.[58]I turn then to the third element: the extent to which the parties cooperated with any request for information. This is not a case where there is any suggestion that information was withheld; I recognise that Miss Michael said that she believes there must be further information in the form of Teams conversations, but in any event the respondent has complied with the subject access request and provided relevant documents. One of those documents is an email which contains an intimation in August that the claimant will be made redundant at a later stage. The claimant relies upon that document to give rise to an influence that her dismissal was predetermined and that the reason for that was her age.[59]Fourthly, the promptness with which the claimant acted once she knew of the rights giving rise to the cause of action. The claimant received the information that may have put in question the legitimate basis for her selection in the subject access request that was received on 15 September. However she delayed between 15 September 2020 and January 2021 when the claim was put in. The reasons for the delay I have addressed previously, but I also take into account the claimant’s health at the time and that she was seeking to conclude matters through internal processes (whistleblowing and an appeal). The claimant was told she was not able to pursue an appeal on 8 January 2021. She therefore presented the claim on 14 January.[60]Ultimately, I have to assess the respective prejudice suffered by either party if I exercise discretion to permit the claim. The prejudice to the respondent is that it will have to defend a claim (but in circumstances where its witnesses will be more than able to recall their reasons for the claimant’ selection). The prejudiced to the claimant if the claim is rejected is that she will lose her right to challenge the respondent in relation to the process undertaken and in effect will have no rights or remedies in respect of her dismissal since I dismissed the unfair dismissal claim already.17. In my judgment, weighing those two respective prejudices each against the other, that the balance of prejudice favours extending time to enable the claim to be submitted. The length of the extension is four months, in circumstances where the claimant sought to present the claim on 14 January and through no fault of her own it took over a month for the Tribunal to notify the claimant she had used an incorrect form, and she remedied the error quickly thereafter.18. Therefore, I extend time to enable the claim of age discrimination to be presented.19. The claim of age discrimination can proceed if the claimant wishes, but she will need to comply with the order to identify the basis of the claim for age discrimination by 16 February 2022. By that date the claimant must identify which type of claim the claimant is making (i.e. direct discrimination, indirect discrimination, harassment or victimisation), what the conduct or treatment was that she says was discriminatory, when it occurred and whom she alleges was responsible.20. If, following further reflection, the claimant does not wish to pursue the claim, as she indicated, she must simply write to the Respondent and the Tribunal notifying them of her desire to withdraw it, and it will be dismissed