R Sunder v Royal Mail Ltd and others: 1401270/2024 and 2226866/2024
EMPLOYMENT TRIBUNALS
Case No 1401270/2024, 2226866/2024
Between
R SunderClaimantRoyal Mail Ltd and othersRespondent
Before
Employment Judge SalterIn person for claimantDate 15 May 2025
JUDGMENT
[1]The complaints ofa. direct age and race discriminationb. harassment related to age or race are dismissed following a withdrawal by the Claimant.[2]The Claimant was not a disabled person within the meaning of the Equality Act at the relevant time. Accordingly the complaints of a failure to make reasonable adjustments are dismissed.[3]The Claimant’s claims against Mr S Gordon and Mr Windebank have been presented outside the primary limitation period, and it is not just and equitable to extend time
REASONS
References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement. References in round brackets are to the paragraph of these reasons or to provide definitions.
INTRODUCTION
[1]These are my written reasons for the judgment given orally at the Preliminary Hearing on 15th May 2025, and set out above in written form that was sent to the parties on that same date..[2]The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunaldecisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.
BACKGROUND
[3]These reasons have been prepared at the request of Claimant.[4]The hearing took place in person on 15th May 2025. The Claimant requested written reasons on 24th May 2025. It was not until the 21st August 2025 that I was provided with the bundle for the hearing by His Majesty’s Courts and Tribunals Service, this is despite my numerous emails chasing the bundle from the date I was aware of the Claimant’s request. When I did receive the bundle I was on my annual holiday, but happened to be in Southampton for a family related matter. BACKGROUND The Claimant’s case as formulated in his ET1[5]The Claimant’s complaints, as set out in his ETA1’s presented on17th May 2024 and 13th November 2024, are that he was subjected to discrimination on grounds of various protected characteristics, and was victimised. The Respondent’s Response[6]The Respondent denied this and challenged whether the claimants claims had been presented in time and whether the Claimant satisfied the definition of disabled, within the meaning of s6 of the Equality Act 2010 Relevant Procedural History[7]The matter came before Employment Judge Self on 11th December 2024 during which(a) A list of issues was drawn up and agreed(b) Various claims of the claimant’s were dismissed upon withdrawal[63 §9](c) The Preliminary Hearing in May was arranged to determine: (i) Whether the claimant was disabled person within the meaning in of section 6 of the Equality Act 2010 at the material time (ii) Whether any of the discrimination claims have been presented outside of the three-month statutory time limit (iii) Whether claims should be struck out or made subject to a deposit order[8]Subsequent to that hearing the(a) Claimant indicated he wished to withdraw his claims of race and sex discrimination [70 and 74] and harassment [71 and 74](b) Respondent indicated it was not proceeding with its applications to strike out or deposit order THE PRELIMINARY HEARING General[9]The matter came before me on 15th May 2025. The hearing had a one-day time estimate. The Claimant was represented by Mr Hoare a trade union representative. All Respondents were represented by Mr Edwards, a solicitor. Discussions[10]The parties agreed that the relevant period for the purposes of the Equality Act 2010 was the acts of discrimination were alleged to have occurred between 13th October 2023 and 1st July 2024 [70 §3.7 and 4.1] DOCUMENTS AND EVIDENCE Witness Evidence[11]I heard evidence from the Claimant. I did not hear any evidence from the Respondent. The Claimant was cross-examined by Mr. Edwards. The claimant’s impact statement appears to address the situation at the time he drafted it and not at the relevant period, but this is largely not to the point I need to decide. Bundle[12]To assist me in determining the matters I had an agreed bundle consisting of some [197] pages prepared by the Respondent, although other documents were added during the course of the hearing. My attention was taken to a number of these documents as part of me hearing submissions and as discussed with the parties at the outset of the hearing, before commencing their submissions, I have not considered any document or part of a document to which my attention was not drawn. I refer to this bundle by reference to the relevant page number. SUBMISSIONS Claimant[13]The Claimant made oral submissions which I have considered with care but do not rehearse here in full. In essence, in the course of the hearing, it was submitted that the Respondent should have known that the Claimant was disabled. During submissions it was suggested that as a result of the Claimant’s history of mental ill-health in 2008, it was likely it would reoccur. When asked what evidence there was of this argument in the bundle or statement, it was accepted that there was none, but it was, without more, “well known”. Respondent[14]Mr Edwards argued that there was no evidence that the impairment lasted or could well have lasted 12months. Ther was no dispute by the Respondent that there was a substantial adverse impact on the claimant’s day-to-day activities. MATERIAL FACTS General Points[15]From the evidence and submissions, I made the following finding of fact. I make my findings after considering all of the evidence before me, taking into account relevant documents where they exist, the accounts given by Claimant’s evidence, in his impact statement and in oral testimony.[16]I have applied balance of probabilities on the matters before me taking into account my assessment of the credibility of the claimant and the consistency of his account with the rest of the evidence including the documentary evidence. In this decision I do not address every episode covered by that evidence, or set out all of the evidence, even where it is disputed. I make no factual findings on the underlying complaints as these are irrelevant to my determination[17]The Claimant is a long serving employee of the First Respondent. In 2008 he suffered stress and depression [112-113].[18]Then in October 2023 he had a conversation with his line manager that resulted in the Claimant’s working hours being questioned. The Claimant states he went home and woke at night not being able to forget this conversation. He attended his doctor on 9th October 2024 [114] the GP records the Claimant has “no previous hx of low mood”.[19]On 26th January a report of the Respondent’s occupational health officer states the claimant: “Feels grumpy, has episodes where he is more irritable, unable to relax” [119][20]On 16th February 2024 the Claimant is reported as having “5 months anxiety depression forgetful, gets ‘irate’ quickly now, waking u (sic) in middle of night thinking about work” [120].[21]On 26th February 2024 the Claimant was prescribed medication for low mood an anxiety [124]. On the same date he obtained a Fit Note that said he was fit to attend work with workplace adaptions for a period of three months [147]. He remained at work[22]On 23rd April 2024 the Claimant reports to his gp that he feels low and anxious, and has done since October [127].[23]In May 2024 the Claimant commenced mediation, that was expected to take 6-8 weeks to show benefits [168]. and on 9th July 2024, that is after the relevant period, the claimant was at work, albeit with amended duties.[24]After the relevant period the Claimant was signed off from work. THE LAW The Equality Act 2010 (“the 2010 Act”)[25]The burden is on the Claimant to prove he/she satisfies the definition of disability under s.6 of the 2010 Act. This section states: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities”. Burden of Proof[26]The burden of proving disability lies with the claimant. The relevant test is ‘on the balance of probabilities’.[27]As noted by Lord Hoffman in Re B (Children) [2008] UKHL 35: “If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.” The Case Law[28]The definition has four constituent elements which the tribunal will be required to consider, although they should not be treated as rigid consecutive stages (Goodwin v Patent Office [1999] ICR 302 at 308A-C; Elliott v Dorset County Council (2021) UKEAT/0197/20/LA(V) at [17]-[18]) These are the:(a) impairment element. Does the Claimant have an impairment which is either mental or physical? See paragraphs XX-XX below;(b) adverse effect element: Does the impairment affect Claimant’s ability to carry out normal day-to-day activities and does it have an adverse effect?(c) substantial element: Is the adverse effect (upon the Claimant’s ability) substantial?(d) long-term element: Is the adverse effect (upon the Claimant’s ability) long-term?[29]The Court of Appeal in Sullivan v Bury Street Capital [2022] IRLR 159, CA summarised the relevant questions that a tribunal must ask when determining disability (at para 38) as:(1) Was there an impairment?(2) What were its adverse effects?(3) Were they more than minor or trivial?(4) Was there a real possibility that they would continue for more than 12 months or that they would recur? Guidance[30]When determining the issue of disability, the Tribunal must take into account the Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability 2011 (‘2011 Guidance’) (s.6(5) 2010 Act; Goodwin at 307F-H). The Equality Act 2010: Constituent Elements[31]The Respondents accepted that the Claimant had an impairment that had a. substantial adverse effect on the Claimant’s normal day to day activities, however they did not accept that three was a real possibility they would continue for more than 12 months. Timing of the Assessment[32]The time at which to assess the disability is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd [2002] ICR 729, EAT). The date of the discriminatory act is also the material time when determining whether the impairment has or is likely to have a long-term effect: All Answers Ltd v W [2021] EWCA Civ 606, CA.[33]The parties agree that the relevant dates are between 13th October and 1st July 2024 [70 §3.7 and 4.1] The “Long-Term” Element[34]Sch 1, para 2 2010 Act defines “long-term” as follows:(a) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[35]So, in summary, there are 3 gateways for establishing a long-term effect: that the impairment has lasted 12 months; that it is likely to do so; or that it has had that effect in the past and is likely to recur.[36]“Likely” means “could well happen” (All Answers Ltd v W [2021] EWCA Civ 606 at [25]).[37]First, the Tribunal must consider whether the long-term condition was satisfied as at the date of the alleged discriminatory act. This is also the time at which to assess whether the Claimant had a disability in general (Tesco Stores Ltd v Tennant (2019) UKEAT/0167/19/OO at [6]). All parties agree it was not. The Claimant’s mental health was not a concern for him until the 4th October 2023, the last of the acts complained of is 1st July 2024 [70 §3.7.3].[38]Secondly, when asking whether substantial adverse effects have “lasted for at least 12 months” one must “look at what is happening at the date of the act of discrimination or harassment which one is addressing, and one has to ask whether, at that date, there has been 12 months of effect” (Tennant at [7] All Answers Ltd v W and another [2021] IRLR 612, CA, para [26] per Lewis LJ).[39]Thirdly, whether a disability is “likely to last for at least 12 months” or is “likely to recur” beyond 12 months, involves a prediction which the Tribunal can only assess on the basis of evidence available at the time of the alleged discrimination – “anything which occurs after that time will not be relevant in assessing this likelihood” (McDougall v Richmond Adult Community College [2008] EWCA Civ 4, [2008] IRLR 227 at [21]-[26] and [30]-[35]; All Answers Ltd at [26]).[40]In Royal Borough of Greenwich v Syed EAT 0244/14 Mr. Justice Wilkie observed: ‘[T]he question which the tribunal has to ask itself is not whether the mental health impairment was likely to last at least 12 months but whether the substantial adverse effect of the impairment was likely to last more than 12 months. That is a different question.’[41]The test is a functional and not a medical test. In Aderemi v London and South Eastern Railway Ltd 2013 ICR 591, the EAT commented on the definition of ‘substantial’ (paragraph 14): “Once he has established that there is an effect, that it is adverse, that it is an Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.” And at paragraph 15: “As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not.”[42]Likely’ means ‘could well happen’ (Boyle v SCA Packaging Ltd [2009] UKHL 37, [2009] IRLR 746, [2009] ICR 1056, per Lord Hope at para 4, and Lord Rodger at para 42, Baroness Hale at paras 70–72 (with whom Lord Neuberger agreed at para 81), Lord Brown at para 77). CONCLUSIONS ON THE ISSUES General[43]Having regard to the findings of relevant fact, applying the appropriate law, and taking into account the submissions of the parties, I have reached the following conclusions on the issues the parties have asked me to determine.[44]On the very limited evidence before me that applied to the relevant time, taking into account the documents I have seen the claimant did not prove that as of 1st July 2024, the effect of the impairment was long term because, it was agreed that it had not lasted for at least 12 months (EqA 2010 Part 1 of Schedule 1 EqA) and the Claimant has not satisfied me that it was likely to last a further four months. I was not pointed to any evidence at the relevant time, from which I could determine if the substantial impact could well last a further four months. That was the basis for my decision issued in my oral judgment at the Preliminary Hearing, and my conclusion that the claimant then did not have the protected characteristic of disability in the relevant period.[45]So far as is relevant the Equality Act 2010 states: 123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 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.(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, 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.[46]Time limits were not just targets, they were 'limits' and were generally enforced strictly. A good reason for an extension generally had to be demonstrated (Robertson v Bexley Community Centre [2003] IRLR 434, CA), albeit that the absence of a reason would not necessarily have been determinative (ABMU v Morgan [2018] IRLR 1050, CA).[47]Tribunals had been encourages to consider the factors listed within s.33 of the Limitation Act 1980 (the British Coal v Keeble factors), although it was not mandatory to do so; the length and reasons for the delay, the extent to which the Claimants had sought professional help and the extent to which information was not known to them until later and the degree to which the Respondents ought to have been blamed for any late disclosure. Consideration also had to be given to whether the Claimants had dragged their feet once they knew of all of the relevant information and, if so, to what extent.[48]It used to be thought that the touchstone was the issue of prejudice and whether and to what extent delay had caused prejudice to either side but, as was made clear in Miller v MoJ UKEAT/0003/15, at paragraph 13 by Laing J, whilst that was another, important factor to take into account, it was not determinative.[49]The Claimants complaints against Mr. Windebank and Mr Roberts concern not contacting him on 1st December 2023. Limitation wuld have expired for these complaints in around March 2024.[50]The claim was not presented until November 2024. I am, therefore in situation where I must consider the discretion contained within s123 of the Equality Act 2010.[51]Whilst Employment Tribunals have a wide discretion to allow an extension of time under S.123, this does not however mean that the extension is automatic. There are also some essential legal considerations that flow from the statutory time limits framework itself, that form part of the general backcloth in every case, in particular, the inherent importance attached to observance of time limits for litigating, and finality in litigation, even where, as here, there is considerable flexibility in the test that the tribunal must apply when deciding whether or not to extend time. It is also established that the onus is on a claimant to persuade a tribunal that there is some good reason why it would be just and equitable to extend time in the given case. The Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA, that: ‘there is no presumption that they should do so unless they can justify 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.’[52]It would be wrong to think that exceptional circumstances are necessary, all that is required is that it is just and equitable to extend time: Pathan v South London Islamic Centre EAT 0312/13 Factors in General[53]In s123 Parliament chose to give employment tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list, and whilst a useful guide of some factors can be found in s33 of the Limitation Act 1980— British Coal Corporation v Keeble and ors [1997] IRLR 336, EAT: for tribunals, however, this is only a guide to some potentially relevant factors: Southwark London Borough Council v Afolabi [2003] ICR 800, CA and a mechanistic use of the so-called Keeble checklist is to be deprecated, what factors are relevant in the given case is case-sensitive, and so must be identified by the tribunal, case by case. These include:(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 has cooperated 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 advice once he or she knew of the possibility of taking action. Particular factors[54]There is no set list of factors that should be considered; however the following appear relevant to me.[55]As a matter of law, there is no particular feature that must necessarily be present in order for a just and equitable extension to be granted, nor that, if present, is automatically sufficient to warrant such a grant. However, some factors are, as it is put, customarily relevant. In every case the implication of refusing to extend time will be that the claimant will not be able to have a complaint adjudicated on its merits, as they would, had time been extended. Conversely, the effect of granting an extension of time will be that a respondent will be obliged to defend a complaint on its merits, and exposed to the risk of losing, in a way that would not be so, were time not to be extended. The Length of the Delay[56]The delay here was significant. It was not just a matter of days or weeks. It was measure in months from the Claimant becoming aware of the factual matter in March or April 2024 and him presenting a claim in November 2024, almost a year after the actions complained of. Explanation for the delay[57]The Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, CA held that the discretion under S.123 EqA for an employment tribunal to decide what it ‘thinks just and equitable’ is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation for the delay from the claimant.[58]The lack of a reason may, however, be a factor to consider.[59]Here I find the claimant had no reason for the delay in presenting the complaints against Mr. Windebank and Mr. Roberts. Indeed, I find that the claimant must have had some reason not to present a claim against them in April, as he did present a claim against Ms. Phillips in the first claim on the basis of the information he obtained in April 2024 [18], which is the same time and same information as he found out about Mr. Windebank and Mr. Roberts alleged victimization The Claimants' awareness of the relevant facts:[60]Closely aligned with the above is that the Claimant had knowledge of the factual matrix which supported his claims by April 2024. Balance of prejudice[61]Tribunals must weigh up the relative prejudice that extending time would cause to the respondent. Whilst some prejudice will always be caused to the employer if an extension of time is granted given that the case would otherwise be dismissed. However, the prejudice caused needs to amount to more than simply that.[62]What prejudice has been caused here? From the Claimants' point of view, if the complaints were dismissed, they would obviously lose his right to have them determined on their merits. He did not point to any other particular areas of prejudice that he might suffer.[63]Similarly, the Respondents did not identify any particular evidential or other prejudice that they would have suffered if the claims had continued, beyond the obvious additional cost and expense, and inconvenience of calling additional witnesses when having to defend the complaints.[64]I remind myself that the Claimant does still have a victimization claim proceeding about the failure to communicate with him in December 2023. There is, therefore no prejudice to him in that if I were not to permit the claims to proceed he would be totally stopped in having this issue determined: he will do. Further it is unlikely there would be any impact on his remedy if he were to be successful by not having two other managers named as respondents with claims against them[65]I therefore find the balance of prejudice here weighs in favour of rejecting the application to exercise my discretion in these circumstances. Postscript[66]By way of postscript, whilst this was not canvassed by the parties at the hearing, the Employment Appeal Tribunal has recently held that a second claim presented containing facts that could have been contained in an application to amend the first claim, is an abuse of process and offends against the rule in Henderson v Henderson: Szucs v GreenSquareAccord Ltd [2025] EAT 110 These are my reasons for the judgment above.[2]The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to permanently remove judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.
BACKGROUND
[3]This is a judgment on a reconsideration application. It is necessary to set out in short order the procedural history of this matter. I will also have to set out certain aspects in more detail below. Relevant Procedural History[4]The matter came before E.J Self on 11th December 2024 for a Preliminary Hearing for Case Management during which:(a) a list of issues was identified at paragraph 45;(b) Employment Judge Self listed the matter for a Preliminary Hearing to determine a number of matter as set out in paragraph 1 of his Order. This preliminary hearing was to take place on 15th May 2025.(c) Directions were given to the Preliminary Hearing[5]Judge Self’s order also contained a list of issues and the usual paragraph at paragraph 10: The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below. It was not an easy task extracting the information from the Claimant. I am mindful that the Claimant is a litigant in person. If either party thinks the list is wrong or incomplete, they must write to the Tribunal and the other side within 14 days of the date this order is sent out. If you do not, the list will be treated as final save for exceptional circumstances. The Claimant did not appeal the Case Management Order, seek its reconsideration or write to the tribunal within the specified 14 days to say that it was wrong or incomplete.[6]The preliminary Hearing took place on 15th May 2025 by which time the number of matters to be determined had narrowed to: a) Whether the Claimant was a disabled person pursuant to section 6 of the Equality Act 2010 (EqA) at the material time. b) Whether any of the discrimination claims have been lodged outside of the three-month statutory time limit and if so whether they form part of conduct extending over a period and, if any claim is outside of the time limit and not deemed to be part of an act continuing over a period, whether it would be just and equitable for time to be extended. … e) Timetabling and directions for any required final hearing.[7]In an oral judgment given on the day:(a) I determined the claimant was not disabled within the meaning of the Equality Act 2010;(b) I refused to extend the time for presentation of discrimination claims on grounds that the time sought was not just and equitable;(c) I refused an application to amend the Claimant’s claim to include a claim of trade union detriment[8]I listed the final hearing for 2, 3,4, 5 and 6 March 2026.[9]Written reasons were requested, and for reasons set out therein those written reasons were provided on 03 September 2025.[10]The Claimant sought a reconsideration of that decisions and, unbeknownst to me until mid-morning of the reconsideration hearing, had appealed the Preliminary Hearing decision to the Employment Appeal Tribunal. The sealed grounds of appeal were provided and are on a similar basis to the reconsideration application. THE RECONSIDERATION HEARING General The hearing had a three hour time estimate.[12]The Claimant represented himself. The Respondent was represented by Mr Edwards, a solicitor.[13]This was a remote hearing which was not objected to by the parties, being conducted entirely by CVP video platform. The parties agreed to the hearing being conducted in this way. The only technical difficulty was that Mr Edwards’ CVP link froze necessitating him attending the latter part of the hearing by telephone. He was content to do this and, being as the case was submissions only, I did not consider it necessary for him to have a visual feed. THE RECONSIDERATION HEARING’S TIMTETABLE[14]On Thursday, 22 January 2026 I was provided with links to the papers the parties had filed with the tribunal. Unfortunately there was no bundle provided although an index had been filed.[15]The matter was due to commence at 10am. The following is an outline of the how the day progressed:(a) At 0849 I was provided with two emails from the Claimant attaching two documents and an updated skeleton argument;(b) At 0930 I was provided with the 374 page bundle for the Reconsideration hearing. I directed the hearing would therefore start at 1030 to give me time to familiarise myself with the bundle;(c) The hearing commenced at 1030 and: (i) I took the claimant though what I understood of his skeleton argument and the extent of the reconsideration. I explained that I could not find the report of Hill v Lloyds Bank [2022] EqLR 663 authority he relied upon and that whilst I was familiar with Igen v Wong EWCA Civ 142, I was not aware of it being an authority for the use of expert evidence; (ii) The Claimant explained that he had spoken to people who told him of these legal principles. I did not push this point a I was conscious this might be privileged information but asked for: (a) the 2022 Hill authority to be provided as I could not find that; (a) the claimant to identify what paragraphs of Igen he relied upon (a) to be provided along with the 12 other documents the claimant said I should have.(d) An adjournment was therefore taken for the claimant to provide these documents to me. He explained he would need 30 minutes. I said I would need a further 15mintues to consider them. We therefore adjourned from 1100 until 1145;(e) By 1141 these documents had not been provided and so I asked my clerk to chase them.(f) At 1144 I was provided with notification that the Claimant had appealed the decision of 15th May 2025. This was the first I was aware of the appeal, and the grounds of appeal appeared to be a on similar grounds relied upon for the reconsideration;(g) The hearing restarted at 1148 and I sought the parties’ views as to proceeding with a reconsideration application where it is said I erred in law in circumstances where there is an appeal to the EAT on the same basis. The Claimant wished me to proceed, the Respondent objected, saying that the EAT is the appropriate forum for resolving errors of law I rose from 1200 to 1230 to consider this and await the claimant’s documentations. I conducted some research into the Hill decision the Claimant relied upon. I could not find the 2022 Hill citation, but could find the 2020 citation.(h) The Claimant’s document arrived at 1229. I was provided with numerous PDF’s numbered 1-12 and a word document entitled “Paragraph Supporting Ground 1 and Section 2”. I as not provided with a copy of the Hill decision. The Word document contained the following text: Paragraph Supporting Ground 1 section 2.3 of Skeleton Argument Igen v Wong [2005] EWCA Civ 142, para 61: “Where there is a body of evidence, especially evidence which is unchallenged, the tribunal must give cogent reasons for not accepting it… A finding against credible, uncontradicted evidence requires an explicit explanation.” Paragraph Supporting Ground 1 section 2.5 of Skeleton Argument Hill v Lloyds Bank plc [2020] EAT 0173/19/LA para 43: 'No reason in principle why undertaking not to work with alleged harasser cannot be reasonable adjustment.' Hill v Lloyds Bank plc [2022] EqLR 663 is an Employment Appeal Tribunal (EAT) decision that is frequently used to establish what can amount to a “reasonable adjustment” under the Equality Act 2010—especially for mental health/disability cases. The Key Point from Hill v Lloyds Bank:• A reasonable adjustment may, in appropriate cases, require separating an employee from a manager for mental health-related reasons—for example, by relocating desks or ensuring the employee does not have to interact with a particular individual, especially where the manager’s conduct has contributed to the impairment.• The EAT made clear that a simple managerial “undertaking” (for example, that X does not have to work with Y) can itself be a reasonable adjustment—and a failure or refusal to make such an adjustment may amount to a breach of the duty under the Equality Act. Key Passage to Cite: (para 53–54) Hill v Lloyds Bank plc [2022] EqLR 663, EAT: "The Tribunal considered whether the employer’s proposal that the Claimant and her manager should not be required to interact in the workplace could amount to a reasonable adjustment in the circumstances. We do not accept the Respondent's submission that such an arrangement could 'never in principle' amount to a reasonable adjustment... The duty to make reasonable adjustments is a species of the duty to remove substantial disadvantage, and that may require, in appropriate cases, a separation or change of reporting lines, management or workplace environment." (para 54)(i) I was concerned as this appeared to me to be a document produced by AI. I looked into the Igen quote. Paragraph 61 of Igen actually states: In that case a married woman employee had an affair with a manager of the employer company. When the affair broke down, she was dismissed. She complained to an ET of unfair dismissal and sex discrimination. She succeeded in the former claim but the ET dismissed the latter. The EAT accepted her submission that the irresistible conclusion from the primary facts found by the ET was that the reason for the dismissal was the breakdown of the affair and accepted that but for her sex there would have been no affair. However, the EAT said that the reason for her dismissal was not because she was a woman. It also rejected a suggestion made on her behalf that the ET should have compared her position with that of a heterosexual male employee as a comparator, as the manager would not have had an affair with such a person. The EAT suggested that the appropriate hypothetical comparator would be a male employee with whom the manager had had a homosexual relationship which had broken down. It saw no reason for assuming that the manager would have dealt with any such male comparator differently. Accordingly the EAT dismissed the appeal.(j) At 1230 the hearing recommenced. (i) When I asked the Claimant about these authorities he confirmed that they were correct and ones he was relying upon. I read out paragraph 61 of Igen to him, as he did not have a copy of it with him. He confirmed he was not relying on this, but could not point me to the parts he was relying on; (ii) In answer to my questions on a couple of occasions the Claimant said he had been “told” certain information and given guidance about Igen. I asked him to confirm that he had been told this. He told me he had. (iii) I then asked him if the document he provided had been created by AI. He said that “part of it had”. When I asked if that part was the Igen quote, he said it was. he did not volunteer this information until I had to push him. He confirmed also that the Hill decision reference had been generated by AI;(k) Lunch was taken from 1245 until 1345. Over lunch I conducted further research on Hill v Lloyds bank and could not find on Westlaw or Lexis any reference to a decision of the Employment Appeal Tribunal in 2022. I could also not find any reference to the EqLR’s after 2014. I did find the 2020 EAT decision in Hill. The Claimant relies on paragraph 43 of that report. The copy on the Employment Appeal Tribunal’s website only went to 32 paragraphs, and clearly ends there;(l) At 1335 the Claimant emailed to the tribunal the copy of Hill he relied upon. It was the 2020 decision and so did not contain a paragraph 43;(m) The hearing recommenced at 1345. The Claimant was unable to explain his reliance on paragraph 43 of Hill, and when I raised with him that this decision did not contain a paragraph 43, he appeared surprised by this, and I conclude had not therefore looked at the decision;(n) Both parties said they would be short in their submissions (10 minutes). The claimant made submissions from 1350 until 1437, and the Respondent from 1437 until 1444;(o) I indicated I would reserve my decision as there was a lot of material to cover, but that I would have written reasons produced by Monday, 26th January 2026. At this point I was notified that there were two other matters that needed to be determined: (i) An application to adjourn the Final Heering (ii) An application for disclosure I had seen neither, although in writing these reasons I see the application to adjourn was referred to in the email attaching the Notice of Appeal and sealed grounds and is set out at page 366 of the bundle.(p) A further Case Management hearing was therefore listed for 4th February 2026 to address these and consider any necessary relisting of the Final Hearing DOCUMENTS[16]To assist me in determining the matter I have before me:(a) The original bundle from the hearing on 15th May 2025;(b) The Reconsideration bundle [374 pages];(c) The Claimant’s skeleton argument [8 pages 7.3 numbered paragraphs];(d) The documents provided by the Claimant outlined above;(e) Copies of Igen and the 2020 Hill decision;(f) The Ground of Appeal to the EAT and Sealed Notice of Appeal My attention was taken to a number of these documents as part of me hearing submissions. I refer to this bundle by reference to the relevant page number.[17]For the avoidance of any doubt: the Respondent did not provide a skeleton argument. SUBMISSIONS Claimant[18]The Claimant made oral submissions which I have considered with care but do not rehearse here as they repeated his skeleton argument and I will address them below when considering each of the grounds. I make the following points in passing(a) When addressing Ground 1: namely my assessment of whether the Claimant was a disabled person, the Claimant contended the burden of prrof was on the Respondent to show that he was not on the basis of Igen. I explained the reverser burden of proof and its application to determine whether discrimination had occurred, and that for the purpose of determining whether a claimant was disabled or not, the burden of proof was on the claimant on the balance of probabilities;(b) In submissions the claimant sought to admit for the first time additional protected acts in May 2024;(c) The Claimant maintained his reliance on the points AI had identified for him in Igen and Hill;(d) The claimant relied upon two authorities Green v DB Group Services (UK) [2006] IRLR 764 and Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123, both of which are claims under the Protection from Harassment Act 1996, and its definition of a course of conduct, which he said was relevant as his victimization claim was, he said, a claim of a course of conduct. This is not borne out by Employment Judge Self’s order that clearly identifies the victimization claim is one singular act Respondent[19]Mr Edwards’ brief submissions states:(a) Ground 1: I had heard cross examination of the Claimant and both parties made submissions, there were proper findings of fact that the claimant was not disabled and correct legal test was applied, and the law applied by the Claimant is irrelevant, there was no error of law;(b) Ground 2: procedural irregularities, no application to adjourn, no formal application was made on the day and the Claimant could have brought documents forward the documents he says were missing. The Claimant had the assistance of TU rep, who could have raised issues, there is nothing there that effect outcome(c) Ground 3: failure to adjudicate the properly pleading claim, wholly misconceived there was not failure to adjudicate, the harassment claims and UDW will be heard at FH(d) Ground 4: Mischaracterization claims: the Case Management Order of E.J. Self order expressly says if the list of issues is incorrect then the parties should write in, that hearing was now 12 months ago in December 2024, the Claimant had time to raise issues with the List of Issue and could take advice of union, no reconsideration or appeal. This was how he has put his case on time limit issues this was how put his case to E.J. Self and was not decided by you at the hearing in May;(e) Ground 5: at hearing the Claimant did not put forward any explanation for why claims brought late and nothing today, so not incorrectly rejected;(f) Ground 6: new evidence point, SAR reveled new information refer to 9/2/ and 8/2/24 any access request ay time in 2024, its information he could have obtained in advance of 2025 hearing, it was evidence that he has chosen to get late. The R objects to the reconsideration application THE RECONSIDERATION Ground 1: Error of law – disability discrimination (Equality Act 2010 s.6)[20]Putting to one side that the authority relied upon by the Claimant (Igen) does not contain the proposition he contends, I am satisfied that I approached this question correctly, I:(a) relied upon the evidence that was identified to me and put before me through evidence I heard, and make express reference to those in the judgment;(b) placed myself at the date of the last act complained of in the relevant period and made my assessment based on that evidence available then[21]I therefore reject the claimant’s application to reconsider this as it is not in the interests of justice for that decision to be reconsidered.[22]If I understand the Claimants skeleton argument the reliance on Hill v Lloyds Bank, only arises if I had found he was disabled. It is therefore does not appear relevant to my decision. I should say, that it appears to be an attempt to amend the complaints as identified by Employment Judge Self. It was not raised at the hearing before me in May 2025. Ground 2: Procedural irregularities resulting in unfair hearing[23]There was no application to adjourn the hearing in May, and the claimant was able to participate in the hearing. he had representation at that hearing.[24]When asked the Claimant could not identify how an incomplete box 8.2 of the original impacted the decision of his status as a disabled person, he said it did not.
THE LAW
[25]The incomplete box 8.2 did not affect my decision on the determination of timelimits, and indeed I cannot see how it could. The issues I was to determine, was whether I was to extend time for a period that was just and equitable when all the relevant details were set out by Employment Judge Self and I heard the Claimant’s evidence and submissions on this point.[26]I reject this ground for reconsideration as it is not in the interests of justice. Ground 3: Failure to adjudicate properly pleaded claims[27]The Claimant was unable to explain this ground to me with any clarity. I suspect this was generated by AI. In his submission[28]Who or whatever produced the grounds, it is misconceived. At the May hearing I was not determining or adjudicating any of these claims, I was determining two discreet matters referred to me by Employment Judge Self and case managing the matter to Final Hearing. Such claims as rea not dependent on the claimant being disabled and which had been presented in time proceed to a Final hearing for adjudication: these matters were not before me.[29]If this grounds relates to an application to amend the claim, then I did hear the Claimant’s application, and it was put solely on the basis of a claim for Trade Union detriment. For reasons given at the time I rejected the application. Grounds 4–6: Victimisation errors and unjustified removal of respondents[30]The Claimant’s submissions are an attempt to reargue the point discussed in May. I am satisfied that when considering the discretion under s123 of the Equality Act 2010, I balanced the relevant prejudices and considered the claimant’s lack of reason not presenting his claim in April when he was aware of the named respondent’s involvement.[31]Indeed I was not pointed to any matter I had overlooked or ignored.[32]With the tribunal having no jurisdiction to hear the claims against the named respondents, there was no basis for them to continue as respondents: their removal as respondents was inevitable. New evidence – “interests of justice” exception (Rule 70)[33]As far as the new evidence point is concerned I do not accept that this material would have changed my assessments in May 2025. Indeed, the Claimant told me he believed he had this material before him at the time of the May hearing.
CONCLUSION
[34]Having heard the parties’ submissions and having carefully considered the material to which I was referred, I am not satisfied that the threshold for reconsideration is met. Reconsideration is not a mechanism by which a party may seek to re-argue the case, advance points that were available at the original hearing, or express disagreement with the Tribunal’s conclusions.[35]The matters relied upon by the Claimant (individually or collectively) do not disclose any material error, procedural irregularity, or other circumstance that would render it in the interests of justice to revisit the judgment. In substance, the application amounts to an attempt to reopen issues that were fully argued and determined, and it does not identify any point of significance that could realistically have led to a different outcome.