Ms S Winter-Smith v Secretary of State for Justice: 1401438/2024

EMPLOYMENT TRIBUNALS

Case No 1401438/2024

Between

Ms Siobhan Winter-SmithClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Woodhead

In person for claimant

Mr G Probert (instructed by Counsel) for respondent

Date 8 May 2025

JUDGMENT

[1]The complaint of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. If it was not in fact reasonably practicable for the complaints to be brought in time, they were nonetheless not brought within a further reasonable period. The complaint of unfair dismissal is therefore dismissed.

[2]The complaints of age, gender reassignment, sexual orientation and disability discrimination were not presented within the applicable time limit. It is not just and equitable to extend the time limit. Those complaints are therefore dismissed. The claim is therefore dismissed.

REASONS

[4]By a claim presented on 15 June 2024 the Claimant brought complaints of unfair dismissal under the Employment Rights Act 1996 and age, gender reassignment, sexual orientation and disability discrimination under the Equality Act 2010.

[5]The claim was listed for this hearing of three hours to determine whether the Claimant’s claim was presented within the time limit for bringing the complaints. In particular: 1 of 155.1 Whether the complaints were presented within 3 months of the act complained of or the last of those acts, if they formed conduct extending over a period;

5.2 In relation to the complaint under the Employment Rights Act 1996 (unfair dismissal), under section 111 ERA or section 103A and section 47B ERA 1996):5.2.1 Whether it was reasonably practicable to present the claim(s) in time and;

5.2.2 If not, whether the claim(s) were presented within a reasonable period after the time limit expired.

5.3 In relation to the complaints of discrimination under the Equality Act 2010, whether it would be just and equitable to extend the limitation period to permit the claims to be presented within time.

[6]I was therefore to determine these matters pursuant to The Employment Tribunal Procedure Rules 2024 and more particularly under Rule 52 (Scope of preliminary hearings) which provides: 52.—(1) A preliminary hearing is a hearing at which the Tribunal may do one or more of the following— […] (b) determine any preliminary issue; […] (3) “Preliminary issue” means any substantive issue which may determine the complaint or the Tribunal’s jurisdiction (for example, an issue as to whether a complaint is brought in time).

[7]On 16 December 2024 the Claimant was directed by the Tribunal as follows: The Claimant must send to the Respondent the following documents by 13 January 2025: 2.1. A written witness statement limited to 2,500 words addressing the following matters: 2.1.1. When she knew of her right to bring the claims now presented 2.1.2. When she learnt of the time limits which apply to those rights 2.1.3. What steps she took to discover the matters at2.1.1 and

2.1.2 above, including the date on which legal advice was sought or obtained 2.1.4. What the reason for the delay in presenting the claims was (throughout the period commencing with the acts about which the claims are made and ending with the date on which the claims were presented), 2 of 15 identifying any impediment to their health which prevented them from presenting the claims 2.2. Any documents in their possession or control relating to the matters at paragraphs 2.1.1 to 2.1.4 above;

THE HEARING

[8]On the application of the Respondent in its grounds of resistance, at the hearing I amended the identity of the Respondent to the Secretary of State for Justice on the basis that since the creation of the Ministry of Justice in 2007, the Secretary of State for Justice has been responsible for the actions of HM Prison and Probation Service. The Claimant said that she was not in a position to comment on the matter.

[9]At this hearing I was presented with:9.1 A hearing bundle of 111 pages (HB[])

9.2 A witness statement for the Claimant comprising:9.2.1 the following contained in an email from her of 9 April 2025: “As I have explained I did not know I had a right to have what I certainly regard as the unsafe ET2008 outcome reheard, I had no idea time limits applied to trying for conciliation, I have not had legal advice (beyond AI generated letter to John Wiseman,) and none at all relating to the matters referred to 2.1.1 & 2.1.4 and therefore I have no documents nor information to send you in those regards. [HB33]”.

9.2.2 A one page statement [HB103].

9.3 A skeleton argument for the Respondent.

9.4 An extract from Harvey on Industrial Relations and Employment Law.

[10]The Claimant swore her witness statement and did not want to supplement it verbally. She was then cross-examined by counsel for the Respondent and each party then gave short submissions.

FINDINGS OF FACT

[11]Having considered all the evidence, I find the following facts on a balance of probabilities.

[12]The parties will note that not all the matters that they told me about are recorded in my findings of fact. That is because I have limited them to points that are relevant to the legal issues. Employment and 2008 Claim

[13]The Claimant was employed between 3 August 1998 and 12 January 2007 as a probation officer. She was dismissed by the Respondent and she brought a 3 of 15 claim in the Bristol Employment Tribunal. She was initially represented in that claim by Thompsons Solicitors but that firm withdrew from representing the Claimant when she did not agree to a settlement proposal which that firm recommended that she take. The claim proceeded to a hearing at which the Claimant had the benefit of trade union representation. The Tribunal dismissed the Claimant’s claims in or around March 2008 but the parties were not able to provide a copy of that judgment (“the 2008 Claim”).

[14]I do not consider it probable that, as the Claimant sought to assert in evidence, neither Thompsons Solicitors nor her Trade Union representatives advised the Claimant on the claims she could bring or the time limits for doing so. The Claimant conceded that it was a long time ago, that she may have forgotten and that she was mentally unwell at the time. I find that the Claimant did know of the protections afforded to her by statute and that time limits apply to the bringing of Employment Tribunal claims. Intent of this claim

[15]It was put to the Claimant that in bringing this claim she was seeking to relitigate the 2008 Claim. The Claimant said that she was not. In evidence she said, amongst other things, that:15.1 she had not given evidence at the hearing of the 2008 Claim;

15.2 she had felt like a bystander in that claim (because, due to health issues, she did not understand what was going on);

15.3 she thought the decision in the 2008 Claim was bound to be wrong or procedurally because she did not give evidence at the hearing;

15.4 she has had a burning sense of injustice.

[16]I find on the balance of probabilities that the purpose of the Claimant in bringing this claim is to reopen the 2008 Claim. The Claimant in evidence sought to distance herself from numerous comments that she made in documents she prepared [HB33, 40, 46, 103] to seeking a ‘rehearing’ of the 2008 Claim or ‘reopening’ that claim. However, from the documents she has prepared, that is clearly her intent in this claim. Application for a job

[17]In 2009 the Claimant wanted to look for a new job and she approached a former colleague for a reference to support and application for work with an organisation called Sanctuary Personnel. That former colleague produced a reference in November 2009 [59]. The Claimant wanted to get work but was ultimately unable to apply for work.

[18]I consider that, on the balance of probabilities, given that the Claimant was able to contemplate searching for work and sought a reference, she would have been well enough in mid-2009 to bring her claim or appeal the decision in the 2008 Claim. In any event she has not submitted any sufficiently contemporaneous medical evidence suggesting otherwise. 4 of 15 Claimant’s ill health

[19]The only medical evidence submitted by the Claimant in support of her contention that she was too ill to submit a claim or to challenge the Tribunal’s decision in the 2008 Claim was a mental capacity self assessment form from 8 June 2010 [HB62]. This was a self assessment form which suggests that at that time the Claimant nearly every day 1. had little interest or pleasure in doing things 2. felt down depressed or hopeless 3. had trouble falling or staying asleep, or sleeping too much 4. felt tired or had little energy 5. experienced poor appetite or overeating 8. felt bad about herself or that she was a failure or had let herself or her family down 7. had trouble concentrating on things, such as reading the newspaper or watching television 8. moved or spoke so slowly that other people could have noticed or, the opposite, was so fidgety or restless that she moved around a lot more than usual 9. had thoughts that she would be better off dead, or of hurting herself in some way. She assessed that these problems made it extremely difficult for her to do her work, take care of things at home, or get along with other people. This is evidence that the Claimant was in poor mental health but it is not evidence that she could not have brought a claim in the Tribunal.

[20]The Claimant provided a 2010 industrial injuries disablement benefit form which she said she completed with help and signed on 2 July 2010 [HB64-87]. This is a detailed form and the fact that she was able to complete and submit this form in July 2010 suggests that she could also, perhaps with help, have submitted her claim or appeal against the decision in the 2008 Claim by then.

[21]The Claimant’s mental health may have deteriorated between contemplating applying for work and asking her former colleague for a reference in 2009 and undertaking her mental health assessment in June 2010 but she has not produced that evidence. In any event, I conclude that her health had improved sufficiently by July 2010 for her to submit the industrial injuries disablement benefit form with help and that at that time she was also well enough to submit a claim to the Tribunal.

[22]There is no contemporaneous evidence of the Claimant’s state of health or that she was too unwell to submit her claim after July 2010. The Claimant said she saw a number of therapists but they did not produce written reports and that when she asked her GP for records they said that they could not find anything. She said that she had prolonged stress disorder/complex PTSD and had been signed of repeatedly with severe depression. Being unfit to work does not necessarily equate to being so unwell as to not be able to bring a claim in the Employment Tribunal, in fact many Claimants do in those circumstances. The Claimant has not provided adequate evidence of poor health preventing her from bringing a claim after July 2010. Letter to the Respondent October 2023

[23]In October 2023 the Claimant submitted personal information about her circumstances in her employment with the Respondent into an artificial intelligence tool to generate a letter seeking compensation from the Respondent. She sent that letter to the then CEO of the Respondent on or about 30 October 2023 [HB88]. This was a pre-claim attempt by the Claimant at conciliation which 5 of 15 she was happy to be put before me.

[24]In that letter she said “I am now seeking assistance to rectify this situation and would like to explore the possibility of reopening the case, given the extenuating circumstances. I am prepared to present an employment tribunal claim for discrimination that could result in substantial damages for loss of earnings and injury to feelings.”. This was again an attempt by the Claimant to reopen the 2008 Claim. The Claimant accepted in cross examination that there probably was an onus on her to research whether time limits applied but said that, whether she was capable or knew, she did not think it was reasonable.

[25]The Claimant has not given an adequate explanation (or evidence, medical or otherwise) for her failure to then promptly start early conciliation and bring the claim. 2024 ACAS early conciliation and submission of claim

[26]Six months after her October 2023 letter to the Respondent the Claimant initiated Acas early conciliation (03 May 2024 being Day A). Acas issued their Certificate on 22 May 2024 (Day B), by email. The Claimant’s claim was received by the Tribunal on 15 June 2024.

[27]The Claim was submitted within one month of Day B and the date before which claims may be out of time was therefore 4 February 2024 (being 1 day after 3 months before Day A). This claim was in fact submitted 17 years after the effective date of termination of the Claimant’s employment (12 January 2007). There was no course of conduct extending beyond that effective date of termination which might bring the complaint in time or closer to being within the applicable primary time limits.

THE LAW

[28]At the hearing I raised with the parties that(i) the Equality Act 2010 (EqA) postdates the period of the Claimant’s employment and consolidated earlier discrimination legislation and

(ii) the Employment Rights Act 1996 (ERA) has changed over time. The Respondent’s position was that I should determine the issues on the basis of the legislation (ERA and EqA) as it was when the claim was submitted and that all of the protected characteristics relied on by the Claimant were protected by legislation at least by the time it came to the end of the Claimant’s employment. The Claimant did not object to me proceeding on this basis.

[29]I had the benefit of a detailed skeleton argument from Counsel for the Respondent setting out the law which I accept as accurate and adopt as follows: 8. In relation to claims brought under the Equality Act 2010 (EqA), the limitation provisions are set out in section 123 of the EqA: “(1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— 6 of 15(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) … (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.” The skeleton set out the law in respect of Section 140A and 140B but I do not reproduce it because it is immaterial in this case. Just and equitable extension of time limits 11. Although the Court of Appeal commented in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

[2018] IRLR 1050

[2018] ICR 1194

at [17], Per Leggat LJ, that “Parliament has chosen to give the employment tribunal the widest possible discretion”, the Tribunal will also bear in mind another decision of the Court in Robertson v Bexley Community Centre

[2003] IRLR 434

, where Auld LJ stated at [25] that: “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds 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 discretion is the exception rather than the rule.” (Emphasis added). 12. Commenting on Robertson, Sedley LJ in Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

[2010] IRLR 327

, observed at [31-32]: “There is no principle of law which dictates how generously or 7 of 15 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. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing employment tribunal 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 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 and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it. 13. The EAT in Miller v Ministry of Justice

UKEAT/0003/15

(15 March 2016, unreported) considered the effect of Caston and Robertson, rejected a submission that Caston had 'corrected' Robertson and concluded that it remains good law that there is no presumption of an extension and time limits will ordinarily be observed strictly. Laing J stated (at [10](ii)) that the presumption, which may be displaced by evidence, is that time will not be extended. See also the recent EAT decision in Jones v Secretary of State for Health and Social Care

[2024] EAT 2

[2024] IRLR 275

(per HHJ Tayler), where the learned judge cautioned against the use of Robertson out of context. 14. The burden “of persuasion” is on a claimant in relation an extension of time to present claims – Caston; Morgan. In Polystar Plastics Ltd v Liepa

[2023] EAT 100

(19 July 2023, unreported), Eady P held that the tribunal had been in error by placing the burden of persuasion on the respondent to show that the claimant had been unreasonable. Relevant factors when applying the discretion 15. Where the need for the tribunal to exercise its discretion to extend time on just and equitable grounds arises, British Coal Corpn v Keeble

[1997] IRLR 336

will be of assistance. Common factors to be considered are as follows: 15.1. Length of and reason for delay; 15.2. Effect of delay on cogency of evidence; 15.3. Co-operation by respondent with requests for information; 15.4. Promptness of claimant once understood facts; 15.5. Steps taken to obtain legal advice. 16. Other factors will generally include (f) the balance of prejudice, and (g) the Claimant’s medical situation. Not all factors will be relevant in all cases, and there is no requirement to consider each and every item slavishly by way of checklist in every case: London Borough of 8 of 15 Southwark v Afolabi

[2003] IRLR 220

(CA) (para.33). See also more recently, Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA civ 23

. 17. In Adedeji, Underhill LJ clarified (at paragraph 37) that: “Keeble did no more than suggest that a comparison with the requirements of section 33 might help "illuminate" the task of the tribunal by setting out a checklist of potentially relevant factors. The best approach for a tribunal in considering the exercise of the discretion under section 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) "the length of, and the reasons for, the delay". 18. Length and reasons for delay: described as a factor of particular importance (Adedeji). The tribunal’s discretion, as a rule of law, is not hindered however by the absence of a “good” reason for delay (Morgan; also Concentrix CVG Intelligent Contact Ltd v Obi

[2022] EAT 149

[2023] IRLR 35

). 19. In relation to evidence, a tribunal is not entitled to make assumptions in the claimant's favour on contentious factual matters that are relevant to the exercise of the discretion. The burden is on the claimant to show that it would be just and equitable to extend time and where a contentious matter is relied on, there must be some evidential basis for it (British Transport Police v Norman

UKEAT/0348/14

(2 March 2015, unreported), at [39]). 20. Medical position: there is no principle of law that a claimant’s poor mental health is a reason to permit late claims, with each case turning on its own specific facts (Department of Constitutional Affairs v Jones

[2007] EWCA Civ 894

[2008] IRLR 128

, CA, per Pill LJ at [58]). 21. Prejudice: In Morgan (CA), Leggatt LJ at [19] referred to the question of whether the delay has prejudiced the respondent as a factor which would almost always be relevant to the exercise of the just and equitable discretion. However, in Miller, Laing J commented that prejudice is an important but not determinative factor. There are two broad types of prejudice, litigation prejudice and forensic prejudice. In relation to the second, it was said in Miller that where it exists this will be “crucially relevant” in the exercise of the discretion, telling against an extension of time, and it may well be decisive. However, the converse does not follow: if there is no forensic prejudice to the respondent, that is not decisive in favour of an extension and depending on the tribunal's assessment of the facts, may well not be relevant at all; it will depend on the way the tribunal sees the facts (at [13]). 22. Importantly, prejudice is not necessarily directly related to the length of delay in submitting the claim. It will be a question of fact and degree in 9 of 15 relation to the specific allegations (e.g. Concentrix CVG Intelligent Contact Ltd v Obi). 23. Merits: this will depend on a case-by-case basis but may be a permissible factor. Time limitation – Unfair dismissal 24. Time limits for unfair dismissal complaints to the Tribunal are of a jurisdictional nature: Radakovits v Abbey National plc

[2009] EWCA Civ 1346

[2010] IRLR 307

, CA. 25. S.111(2) Employment Rights Act 1996 (ERA): “(2) [Subject to the following provisions of this section], an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) 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.” 26. Prior to assessing any relevant “escape clause”, the Tribunal must first make relevant findings in relation to the Effective Date of Termination and the expiry of the primary time limit - Ebay (UK) Ltd v Buzzeo

UKEAT/0159/13

(5 September 2013, unreported), EAT. 27. On the question of reasonably practicability, the Tribunal should adopt these steps: 27.1. The employee must show that it was not reasonably practicable to present his claim in time. The burden of proving this rests on the applicant (Porter v Bandridge Ltd

[1978] IRLR 271

[1978] ICR 943

, CA). 27.2. If they succeed in doing so, the Tribunal must be satisfied that the further time beyond the primary time limit within which the claim was in fact presented was reasonable. 28. In London Underground v Noel

[1999] IRLR 621

, Judge LJ said that the power to disapply the statutory period was “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 good reason” for doing so.”. 29. The burden of proof is on the employee to show a reason or reasons which rendered it not reasonably practicable to meet the limitation period (e.g. Consignia plc v Sealy

[2002] EWCA Civ 878

[2002] IRLR 624

at 10 of 15 [23], CA).

[30]Recent appeals in the EAT include Cygnet Behavioural Health Ltd v Britton

[2022] IRLR 906

and Cross v NHS Somerset Clinical Commissioning Group

[2024] EAT 20

(3 January 2024, unreported), where discussion of application of the “liberal interpretation of “reasonable practicability” was discussed. Both authorities agree that the primary focus for the Tribunal is the wording in s.111(2)(b) ERA itself.

[31]If the reason for the lateness is the Claimant’s ignorance or mistake, the leading case is Wall's Meat Co Ltd v Khan

[1978] IRLR 499

[1979] ICR 52

, CA (per Brandon LJ at {60-61}: “''the impediment [to a timeous claim] may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.”

[32]If the reason for the failure to comply with the primary time limit was, substantially, caused by bad advice from a skilled adviser then, generally, the escape clause will not be available to the applicant – see Dedman v British Building and Engineering Appliances Ltd

[1974] 1 All ER 520

at 526,

[1973] IRLR 379

, CA: 32.1. the adviser must be a professional or skilled adviser (not necessarily a lawyer, but advice from friends or colleagues, for example, will not count); 32.2. the adviser must themselves have been at fault in the advice which they gave; and 32.3. the wrong advice must have been the substantial cause of the missed deadline. (see also per Underhill LJ in Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

, at {12}.

[33]The Dedman principle was authoritatively confirmed in Marks & Spencer plc v Williams-Ryan

[2005] IRLR 562

[2005] ICR 1293

, CA.

[34]In Croydon Health Authority v Jaufurally

[1986] ICR 4

, EAT, advice given by the Free Representation Unit to the claimants was “misguided” rather than “necessarily wrong”. The claimants had placed “complete trust” in the adviser. According to the EAT, none of these factors was relevant and none rendered impracticable that which was otherwise practicable. The advice given in that case—to postpone making an unfair dismissal complaint until after an internal appeal had been heard, which, in the event, took nearly a year to complete—was plainly wrong and the claimants were bound by the fault of the advisers.

[35]The Dedman principle applies to Trade Union advice: in Times 11 of 15 Newspapers Ltd v O'Regan

[1977] IRLR 101

, EAT, and Syed v Ford Motor Co Ltd

[1979] IRLR 335

, trade union officials were held to be skilled advisers engaged by the claimants such that wrong advice given was visited on the claimant (see also Palmer v Southend-on-Sea Borough Council

[1984] IRLR 119

[1984] ICR 372

, CA; and Bodha (Vishnudut) v Hampshire Area Health Authority

[1982] ICR 200

[36]When considering whether the presentation was within some “reasonable time”, the following principles apply: 36.1. The determination is one for the Tribunal assessed objectively, but not to give “cart blanche” to late submissions. Claimants are expected to make their applications quickly, but the length of time will depend on the circumstances (per Lord Denning MR in Wall's Meat Co Ltd); 36.2. When considering the reasonableness of a delay, a proper consideration of all the relevant circumstances includes a continuing need by the tribunal to investigate, throughout the period of the delay, the actual knowledge which the claimant had as to his rights and “what knowledge he should have had if he had acted reasonably in all the circumstances” (Northumberland County Council v Thompson

UKEAT/209/07

[2007] All ER (D) 95

(Sep), per Silber J). Estoppel – finality of litigation

[37][…]. The principles of estoppel and res judicata apply.

[38]Harvey on Industrial Relations and Employment Law (Div PI [1006]): The effect of a judgment of an employment tribunal is that it is binding as between the parties so as to prevent them from litigating the same issues over again in any future legal proceedings; or, to put it more precisely, such a judgment is covered by the doctrine of res judicata. The rationale of this doctrine is that there must be finality of litigation and the avoidance of multiplicity of proceedings on the same issue.

[39]The leading Supreme Court authority is Virgin Atlantic Airways Ltd v Zodiak Seats UK Ltd (formerly Contour Aerospace Ltd)

[2013] UKSC 46

[2014] 1 AC 160

[40]The application of the principles of res judicata to employment tribunals is beyond doubt: see Munir v Jang Publications Ltd

[1989] IRLR 224

[1989] ICR 1

, CA (Harvey at [1008]).

[41]The principle applies not only where there has been a formal determination of the issue by the Tribunal, but also where there has been a formal dismissal or withdrawl of the claim (see Harvey at [1013] and Barber v Staffordshire County Council

[1996] IRLR 209

[1996] ICR 12

of 15 379, CA;). This should be contrasted with where a claimant has withdrawn a claim without a formal dismissal, or where time limitation has been denied at a preliminary stage. […]

[43]Where estoppel applies, it is an absolute bar on the bringing of proceedings – see Arnold v National Westminster Bank plc

[1991] AC 93

at 104, per Lord Keith of Kinkel: “In such a case [ie cause of action estoppel] the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened.”

[44]In addition, the rule in Henderson v Henderson (1843) 3 Hare 100 may apply. A claimant may be barred from raising a different type of claim from that which has been decided, if the subject-matter of the new claim is related to the original proceedings, and is one which could, with reasonable diligence, have been put forward at the original hearing (Harvey at [1030]). ANALYSIS AND CONCLUSIONS Primary time limits 30. As I have explained in my findings of fact, the time limits for bringing a claim started to run from 12 January 2007 when the Claimant’s employment terminated. This claim was in fact submitted 17 years after the effective date of termination. Time limits in respect of the Equality Act complaints Just and equitable extension of time limits 31. I do not consider it just and equitable to extend the time limits applicable to the Claimant discrimination claims for the following reasons (none of which are in themselves necessarily determinative):31.1 The Claimant was able to bring the 2008 Claim in time, had the benefit of legal advice at that time and the 2008 Claim was determined. The Claimant, notwithstanding her poor health, then delayed substantially in bringing this claim. She has not produced adequate medical evidence to explain this very substantial delay in circumstances where I find that she was capable of bringing a claim:31.1.1 in 2009, when she was able to ask for a reference and was considering applying for work; and/or

31.1.2 in July 2010 when, with help, she was able to submit an industrial injuries disablement benefit form; and/or 13 of 15

31.1.3 in October 2023 when she wrote to the Respondent.

31.2 The Claimant then, without adequate reason, delayed a further six months (after writing to the Respondent in October 2023) in starting early conciliation and submitting her claim form. The Claimant knew that she felt an ongoing sense of injustice but, when she was able to, she did not act promptly to submit her claim.

31.3 I accept as unsurprising that the Respondent now has no documents relating to the Claimant’s employment. The Claimant has herself referred to difficulties with memory and I consider that more than 18 years having since passed, there is likely to be a significant impact on the cogency of the evidence such that it is unlikely that there could be a fair hearing of the claim. The matters complained of are likely to be more vivid in the Claimant’s mind but, particularly in the absence of any contemporaneous documents, the prejudice to the Respondent in terms of the ability of its witnesses to recall events is likely to be substantial if I were to exercise my broad discretion to extend the time limits. I do not consider that it would be just and equitable to do so.

31.4 The prejudice to the Respondent would also be significant in that it is clear that the Claimant is seeking to reopen matters which have already been the subject of litigation in the 2008 Claim and so are caught by:31.4.1 Res judicata– the judgment of the employment tribunal in the 2008 claim is binding as between the parties so as to prevent them from litigating the same issues over again. The Respondent would have had an entirely reasonable expectation that, 17 years having passed, there was no prospect of an appeal or further litigation of the matters raised in the 2008 Claim.

31.4.2 Issue estoppel – this is an absolute bar to further litigation of points decided in the 2008 Claim and there is no suggestion of fraud or collusion having impacted the decision in the 2008 Claim or that there has been the discovery of any new factual matter which could not have been found out by reasonable diligence at the time of the 2008 Claim.

31.4.3 the rule in Henderson v Henderson – the Claimant had the benefit of legal advice in 2008 and therefore it is reasonable to expect her to have exercised reasonable diligence in including in her 2008 Claim any matters which were not in fact included and which she now seeks to include in this claim. Time limits in respect of the Employment Rights Act complaint Reasonably practicable? 32. It was reasonably practicable for the Claimant to bring a claim in time under the Employment Rights Act as she did so with the 2008 Claim. Brought within further period as Tribunal considers reasonable? 33. If I am wrong and it was not reasonably practicable for the Claim to be brought in 14 of 15 time under the Employment Rights Act, I nonetheless do not consider that the Claimant brought her claim within a reasonable further period. 34. The Claimant was able to bring the 2008 Claim in time, had the benefit of legal advice at that time and the 2008 Claim was determined. The Claimant, notwithstanding her poor health, then delayed substantially in bringing this claim. She has not produced adequate medical evidence to explain this very substantial delay in circumstances where I find that she was capable of bringing a claim:

34.1 in 2009, when she was able to ask for a reference and was considering applying for work; and/or

34.2 in July 2010 when, with help, she was able to submit an industrial injuries disablement benefit form; and/or

34.3 in October 2023 when she wrote to the Respondent (and after which she delayed for an unreasonable period before submitting her claim).

[1]The claimant’s application for reconsideration of the judgment given orally on 8 May 2025 with written reasons sent on 26 June 2025, is refused. The application was set out in documents dated 16 May 2025 and 8 July 2025.

[2]I have undertaken preliminary consideration of the claimant's application.

THE LAW

[3]Rules 68 to 71 of The Employment Tribunal Procedure Rules 2024 (the “Rules”) provide: Reconsideration of judgments Principles 68.—(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 1 of 4 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or

(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. Reconsideration by the Tribunal on its own initiative 71. Where the Tribunal proposes to reconsider a judgment on its own initiative, it must inform the parties of the reasons why the decision is being reconsidered and the judgment must be reconsidered (as if an application had been made and not refused) in accordance with rule 70(3) to (5) (process for reconsideration).

[4]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (Rule 68). 2 of 4

[5]Rule 70(2) empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[6]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[7]Similarly in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[8]In common with all powers under the Rules, preliminary consideration under Rule 70 (2) must be conducted in accordance with the overriding objective which appears in Rule 3. The Application

[9]As I note above, preliminary assessment of an application for reconsideration must be carried out in accordance with Rule 3 (which requires that cases are dealt with fairly and justly). This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.

[10]I have given full and proper consideration to the grounds set out by the Claimant but conclude that they are either:10.1 points which were argued at the hearing and which, if there was an error of law, should be corrected on appeal; or

10.2 attempts to re-open issues of fact on which the Tribunal heard evidence and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have 3 of 4 a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in her favour.

Conclusion

[11]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused.