Miss Z Jones v Allegis Group Ltd and Astrazeneca UK Ltd: 1401475/2024
EMPLOYMENT TRIBUNALS
Case No 1401475/2024
Between
Miss Z JonesClaimant(1) Allegis Group Limited (2) Astrazeneca UK LimitedRespondent
Before
Employment Judge BeeverIn person for claimantMr Rad Kohanzad (instructed by counsel) for respondentDate 11 November 2025
JUDGMENT
SIGNED BY
REASONS
[1]At an Open Preliminary Hearing on 29 and 30 July 2025, the Tribunal dismissed the claimant’s complaints disability discrimination against the first respondent (R1) and the second respondent (R2). The Tribunal decided that the complaints were out of time and it was not just and equitable to extend time and in consequence the Tribunal did not have jurisdiction to hear them. Oral reasons were given on 30 July 2025.[2]A dismissal judgment was sent to the parties. The claimant requested written reasons within the 14-day time limit provided for in rule 60 of the Employment Tribunal Rules 2024 (the ET Rules).
The Issues to be determined
[3]On 4 March 2025, EJ Goraj listed an Open Preliminary hearing [77/para 4]. The issues to be determined were: 3.1. Whether the claimant’s claims of discrimination because of perceived disability by the First Respondent (“R1”) and /or the Second Respondent (“R2”) were presented within the relevant statutory time limit, and if not whether it is just and equitable to allow them (or any of them) to proceed. 3.2. Any application by the claimant to amend her claim form. 3.3. Whether the claimant’s claims (or any of them) against R1 and /or R2 should, in any event, be struck out and/or a deposit ordered as a condition of proceeding on the grounds respectively, that they have no or little reasonable prospect of success. 3.4. Finalisation of the List of Issues to be determined at the Final Hearing in the light of the outcome of the above. 3.5. Listing of the matter for a Final Hearing and associated case management orders[4]At the hearing, the parties agreed that there was no application to amend before me. The parties also agreed that .4 and .5 fell to be dealt with following the outcome of the substantive issues.[5]The discussion at the outset of the Hearing led to agreement that the Tribunal was required to determine two substantive issues: 5.1. as to “time”, which in turn required the Tribunal to determine whether the claims were in time and if not whether it would be just and equitable to extend time, which is in the discretion of the Tribunal, and 5.2. as to “prospects”, which in summary was: 5.2.1. R1 contended that there were no grounds for R1 to be a party to the claims and instead it should be a claim against R2 only, 5.2.2. R2 contended that there was a “circularity” in the claimant’s claims which made them logically unarguable and 5.2.3. Both R1 and R2 contended that the perceived discrimination “threshold” requirement, the Norfolk v Coffey test, to meet all the elements of the statutory definition of disability were not met in this case.
The Evidence
[6]The Tribunal had a 238-page Preliminary Hearing bundle, referred to herein as [238] where appropriate. The claimant and both R1 and R2 provided helpful written skeleton arguments which have been taken into account and reviewed again in the course of deliberations. R1/R2 provided a chronology, together with oral submissions. The claimant provided an amended chronology and the Tribunal was content to utilise the claimant’s chronology as the nature of this hearing included Rs’ application to strike out on the merits which entailed taking the claimant’s case at its highest.[7]In respect of both the “time” and the “prospects” arguments, it was necessary to identify the acts complained of by the claimant first in order to be able to place this case in its proper framework. The Tribunal has done this by taking the claimant’s case at its highest.[8]The claimant provided oral evidence and was cross examined. Her evidence in chief was taken, without objection, from the relevant section of her skeleton argument which deals with the “time” issue. Cross-examination was in relation to delay and the reasons for delay in connection with the exercise of discretion of just and equitable.
Facts
[9]In 2022, the claimant worked as a statistician with a background in data validation and product development in the pharmaceutical sector. The claimant was an agency worker for R1 (a recruitment agency, trading under various names including TEKSystems).[10]In August 2022, R1 arranged for the claimant to be interviewed at R2, a pharmaceutical manufacturing company, and on 16 August 2022, the claimant was interviewed by Mr Phil Teare, an employee of R2. The claimant began an assignment with R2 on 12 September 2022. The project required statistical input and risk assessment in connection with diabetes-related eye examination test results. The claimant worked closely with Mr Teare.[11]The work led to the creation of a Statistical Analysis Plan (“the Plan”). A dispute arose, which is outside the remit of this hearing, as to whether that Plan had the claimant’s name on it, as author/contributor, or whether Mr Teare had uploaded the Plan onto a portal (that the claimant could not access) without her name on it. The assignment was initially intended to be for three months. It came to an end on 20 October 2022 when the claimant told R2 that she had found another contract which “might be a better fit”. Again, the reasons for, or underlying, the termination are outside the remit of this hearing.[12]On 20 October 2022 [186], the claimant expressed a view that she found Mr Teare to be “disrespectful”. This was a reference, in the claimant’s own words, to the “ethical/plagiarism” concern of the claimant regarding the alleged removal of her name as author/contributor to the Plan. The claimant also requested that the assignment should be brought to an end, and this was effected by mutual agreement, as evidenced in an email dated 21 October 2022 [186].[13]On 21 October 2022, the claimant made (or at least enquired of) a Subject Access Request (SAR) of R1 [235] and requested the deletion of all of her personal information. The claimant did not make a similar or any SAR of R2. The claimant received a response to the SAR on 15 November 2022.[14]At about the same time as the SAR request to R1, the claimant also raised a formal written complaint to R2, described by her as an “ethical” complaint. It was a complaint that Mr Teare was unprofessional and unethical in taking credit for the Plan. An Employment Relations (ER) specialist who was employed by R2 investigated and obtained Mr Teare’s version of events. On 29 November 2022, the ER specialist, in a telephone call with Mr Teare, obtained information from Mr Teare. The Grounds of Resistance of R2, at paragraphs 18 – 23, recite that the claimant’s communication style was discussed by Mr Teare and the detail of what Mr Teare is accepted to have said is set out (“the Comments”). Those comments are consistent with the screenshot information provided in the Grounds of Claim. The claimant was unaware at the time of what Mr Teare had said. The ER specialist reached a conclusion on 30 November 2022 that they did not appear there to be “any issue” concerning the claimant’s complaint.
Procedure
[15]The claimant was made aware of the outcome of the investigation on or about 30 November 2022. The claimant told the Tribunal that she was “dissatisfied” with the outcome. She was however “not surprised” given her prior experiences with R2. The claimant told the Tribunal that her immediate response in November 2022 was “not to take it personally”. The claimant also told the Tribunal that, as at November 2022, there had been “no consequences” to her as in fact it had already been her decision to terminate the assignment. The claimant did not take the matter any further and did not make any further factual enquiry of R2.[16]She said that she had “no reason to make a SAR request in relation to it” and that (later on) she “had to wait until a pattern emerged in the later recruitment process”. That is a reference to the claimant engaging in a series of recruitment processes involving R2 in 2023, which were unsuccessful, and which led to a number of written complaints by the claimant including April 2023 and July 2023 and it was not until September 2023 that the “penny dropped” that something may be amiss and the claimant put in a complaint about the recruitment process.[17]The claimant then made a SAR request of R2 in December 2023, now more than over a year after the conclusion of the complaint about Mr Teare. The claimant was cross-examined about the contents of paragraph 4 of her skeleton argument (which, as above, was accepted as part of her oral evidence in chief) which refers to, “the extent of the information I received… made me realise that it was possible to use a SAR to investigate my experience with R2”. The “information” received was a reference to unrelated social services matter in 2023 in which the claimant had made a SAR and obtained detailed information. The Tribunal does not accept that the claimant’s statement was wholly accurate as the claimant was evidently a capable individual who, from the evidence she gave to the Tribunal, had in 2022 and subsequently a sound understanding of SAR and had used it previously.[18]The claimant was also someone who, by her own evidence to the Tribunal, was aware of the Employment Tribunal jurisdiction and the existence and application of time limits. The claimant told the tribunal that in 2022 she had “prior experience of Employment Tribunal proceedings and so I knew about time limits”. The Tribunal takes notice of the fact that Employment Tribunal time limits are well settled and the claimant knew or would have known on reasonable enquiry about the relevant three-month primary time limit.[19]When the “penny dropped” (about recruitment outcomes) in September 2023, the claimant took advice from including legal advice. She told the Tribunal that, at that time, her hypothesis was that another individual at R2 might have been adversely influencing the recruitment process. Nevertheless, it was only at that time that she then decided that she would enquire by way of SAR (in December 2023) about the prior investigation that had concluded in November 2022.[20]The claimant made a SAR in December 2023. On 8 March 2024, R2 disclosed to the claimant the internal records of the ER specialist who had investigated the claimant’s complaint against Mr Teare. The documents included screenshots of the notes of interview with Mr Teare. These are copied into the Grounds of Claim [21] and as stated above largely consistent with the narrative in the Grounds of Resistance. The screenshots identify the Comments relied on by the claimant in this claim.[21]The claimant commenced ACAS EC procedure on 21 May 2024. This was when R1 first found out that there was any issue. R1 had not been involved in any prior complaint or investigation, had not recruited the claimant into any subsequent role, and had not been made aware of any issue prior to ACAS.[22]The claimant presented her claim on 19 June 2024. For present purposes it is sufficient to summarise the claim as follows: the claimant is not a disabled person within the meaning of the Equality Act 2010. Her claim is that she was perceived to be disabled and this is reflected in both(i) the Comments of Mr Teare made on 29 November 2022 and(ii) the “crux” (the claimant’s word) of her complaint, being the decision of R2 not to investigate and instead simply on 30 November 2022 to conclude that there was “no issue”.[23]A Preliminary Hearing took place on 4 March 2025. The claimant did not attend. She wrote on 24 March 2025 that she had not received a link and questioned “did it go ahead?” This was not an accurate statement to make. The claimant had received a link to the hearing. The claimant told the Tribunal that she did have prior notification but that it had not been “immediately before” the Hearing and it was information that was then “lost in the distress of the situation at the time that engulfed her in a personal matter involving the police”. The claimant told the Tribunal that if she had received something nearer to the hearing then she would have contacted the Tribunal. She points to correspondence with R2 in which she let them know that her situation had involved contacting the police and making it clear that she had distressing news about an intensely personal matter.
Law
[24]As to time limits, the provisions on time limits under the EqA are set out at section 123 EqA: 123 Time limits (1) … 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.[25]The court in British Coal Corporation v Keeble [1997] IRLR 36 provided guidance to tribunals when considering whether to exercise its discretion to extend time on this just and equitable basis. This included consideration of the length of and reasons for the delay, but might include the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once they knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[26]The CoA in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 confirmed that the correct approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. The court advised against using a mechanistic approach and using the examples in Keeble as some sort of checklist. This confirmed the decision in Southwark LBC v Afolabi [2003] ICR 800.[27]In Adedeji, the Court went on to suggest that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent. It emphasised that the factors referred to by the EAT in British Coal Corporation v Keeble 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.[28]In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA, the Court of Appeal pointed to the fact that it was plain from the language used in S.123 EqA (‘such other period as the employment tribunal thinks just and equitable’) that 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.[29]In Jones v The Secretary of State for Health and Social Care [2024] IRLR 275 the EAT reiterated the long-established principle that time limits in an employment law context are relatively short and should be complied with, however the tribunal has a wide discretion to extend time on just and equitable grounds.[30]In Kumari v Greater Manchester Mental Health NHS Foundation Trust 2022 EAT 132, the EAT upheld the decision of the Employment Tribunal which weighed in the balance its view that the merits of the complaints appeared to be weak (although not so weak that they had no reasonable prospect of success). This did not undermine the safeguards of the strike-out provisions since the exercise of the ‘just and equitable’ discretion to extend time involves consideration of a different question and the application of a different test, in different circumstances. The EAT emphasised, however, that the assessment of merits must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing, taking account of the fact that the tribunal does not have all the evidence before it, and is not at the stage conducting the trial.[31]As to perceived discrimination claims, the leading case is Chief Constable of Norfolk Constabulary v Coffey 2020 ICR 145, CA . At para 35: “The starting-point for the issues raised by these grounds is that it was common ground before us that in a claim of perceived disability discrimination the putative discriminator must believe that all the elements in the statutory definition of disability are present – though it is not necessary that he or she should attach the label ‘disability’ to them. As Judge Richardson put it succinctly, at para 51 of his judgment: The answer will not depend on whether the putative discriminator A perceives B to be disabled as a matter of law; in other words, it will not depend on A’s knowledge of disability law. It will depend on whether A perceived B to have an impairment with the features which are set out in the legislation. That distinction between knowing the facts that constitute the disability and knowing that they amount to a disability within the meaning of the Act had already been drawn, albeit in a different context, by Lady Hale in her speech in Malcolm: see para [86] ([2008] IRLR 700 at p 712, [2008] 1 AC 1399 at p 1430F–G). Again, although it was common ground that this was the right approach, I should say that I agree that it is correct. In a case of perception discrimination what is perceived must, as a simple matter of logic, have all the features of the protected characteristic as defined in the statute”[32]The Tribunal accepted Mr Kohanzad’s submission that this suggested an emphasis is placed on the need for the alleged discriminator to have a belief that the claimant suffers from a condition having the features of a disability as statutorily defined. It is not sufficient merely to observe unusual behaviour or characteristics that might be associated with disability.[33]As to strike out in relation to prospects, the case law cautions the Tribunal that strikeout is a tool to be employed only in exceptional cases when involving claims of discrimination. Ezias v North Glamorgan [2007] ICR 726. Disputes of core facts are even more likely to render a strike out unjust. Whilst the existence of material disputes of fact may make a strike-out less likely, it still leaves open a deposit order which can be made following a tribunal’s preliminary assessment of the strength of the facts. See Sivanandan v Police UKEAT/0436/14.
Discussion and Conclusions
[34]The claim as presented to the Tribunal on 19 June 2024 is out of time. The acts complained of occurred on 29 November 2022 and on/about 30 November 2022. The latest time by which the claimant could have contacted ACAS and/or presented an in-time claim was 28 February 2023. By contrast, the claimant commenced the ACAS process on 21 May 2024, a period of 15 months late (or 13.5 months if one allows for an ACAS extension).[35]It is necessary to determine whether it is just and equitable to extend time.[36]It is not necessary for the Tribunal to list all of the Keeble factors although they are sensibly to be used as a guide to the exercise of discretion. From that guide, more recent case law emphasises the two factors that are almost always relevant. First, length and reason for delay: that is not to say the claimant is required to provide a good reason or indeed any reason. Absence of reason is not determinative nor in the same way is the reason that is given. Secondly whether the delay has prejudiced the respondents. The prejudice to any/all parties features in the balancing exercise to be undertaken by the Tribunal. Thirdly, the Kumari case suggests that strength of claim can also be a relevant factor such that merits (or lack of may be relevant to the extent that the Tribunal is able to weigh in the balance in view of the merits of the complaints appearing to be weak (even if not so weak that they have no prospect of success). The Tribunal must all the while account for the fact that it does not have all the evidence and at this stage is not conducting a trial.[37]First, the length of delay is substantial; in excess of 12 months. In the context of the primary time limit of three-months, this is plainly significant. It is also significant that the claimant, on her own evidence, had prior Employment Tribunal experience and was aware of the time limits applicable and alluded in evidence to other Employment Tribunal proceedings in which she was engaged.[38]Next, the reason for the delay; which at first blush appears simple. It was because the claimant did not know that the Comments had been made until March 2024 and did not know that the Comments were liable to be an operative factor on the decision made by the ER specialist on 30 November 2022. These features mean that it might legitimately be said that this is not a case where the claimant is in ignorance of her rights but rather a case in which she was ignorant of the facts that might support her claim.[39]The Tribunal asked itself whether it should leave the matter there. To do so would suggest a persuasive reason for the delay that has occurred, namely, that the claimant did not know that she had claim until the outcome of the SAR in March 2024. However, the Tribunal considers it necessary to understand the extent of the claimant’s knowledge and the steps that she did and did not take for it to be able to reach a considered conclusion on the reasons for delay.[40]At the end of November 2022, the claimant was aware that her complaint about Mr Teare’s unethical conduct had been rejected. The claimant was dissatisfied but not surprised on account of her experiences with R2. The claimant had insight into Tribunal rights and time limits. The claimant did not know on the facts at the time that they engaged discriminatory factors. The claimant did not engage in any factual enquiry including not engaging a SAR although she knew of the SAR avenue. The claimant took no action in November 2022 although dissatisfied because in practical terms the rejection of the complaint had no practical consequence to her. After the claimant underwent a series of recruitment rejections, this appears to have triggered a decision belatedly to make a further enquiry, including seeking expert advice sometime after September 2023, which then resulted in the SAR in December 2023.[41]These circumstances reveal competing factors to take into account in respect of delay. The length of delay was substantial; many times the primary time limit. The claimant had experience of Employment Tribunal and its time limits and knew or could reasonably be expected to know that if she had any reason at all to complain of the outcome of her complaint in November 2022 that she would risk losing that right entirely. Despite that, the claimant chose not to act at the time or for a further 12 months. This is a factor weighing against the claimant, and when she did act it was not because she had learned more about Mr Teare or the events of November 2022 but instead triggered following a different set of events.[42]The Tribunal took into account that as at November 2022 the claimant did not know that potentially discriminatory Comments had been made. Nonetheless the claimant made a choice to let the matter rest whereas the claimant could have made a further factual enquiry including SAR (as she had with R1) and if she had done so there is no reason to think that the relevant information would not have been elicited much sooner. The Tribunal finds that it would have likely resulted in a claim significantly earlier. Even delay that is not the fault of the party should not be ignored necessarily and is part of the overall picture and exercise of discretion. This must be particularly so where the practical consequences of a lengthy delay may result in prejudice and also mean that the Tribunal has to make a determination about potentially even core factual events that have occurred significantly in the past.[43]The Tribunal has therefore taken account of the fact that the claimant did not know about the Comments at the time and only belatedly became aware of the Comments when she sought and obtained further information. A counterweight to that is that, based upon the Tribunal’s assessment, the claimant could have undertaken a further factual enquiry when she would have found out the outcome in November 2022. The claimant was dissatisfied; and the Tribunal’s assessment is that the claimant made a choice to take no action and waited more than 12 months thereafter. It was not reasonable for her to delay. This is to be weighed in the balance and it weighs against the extension of time.[44]Turning to prejudice, it was said that the respondents now need to face an out of time claim. That is not the nature of the prejudice that is in focus as it can fairly be said to be the natural effect of any extension on a just and equitable basis. Other prejudice, if any, needs to be present.[45]R1 was unaware of the claim or any of the relevant circumstances from 2022 and was not involved or contacted until about April 2024, by then some 18 months after the event and now a further period of more than a year has since elapsed. Further, the issues against R1 are not clear at all. In practical terms the Tribunal is satisfied that an extension of time would now require R1 to have to address a claim relating to events three years on which are, as far as R1 is concerned, arguably do not refer to R1 at all, and are thus unparticularised, and probably wholly dependent upon the involvement/evidence of R2. It is hard to avoid the conclusion that R1 has suffered material prejudice in having to deal with this claim, even leaving aside any additional view as to merit.[46]As to R2, the claimant says is that the basis of the claim is documented and no material prejudice arises. On the face of it, that appears to be a fair point to assert because the screen-shots do document the Comments and emails do communicate the decision not to investigate further on the basis that there was “no issue” with the complaint.[47]Nevertheless, Mr Kohanzad was correct to pose the question (albeit not perhaps to the claimant in evidence although it was an opportunity for the claimant to offer an alternative factual viewpoint) of whether the respondent witnesses were at a disadvantage. Mr Teare had been asked to recount events but he would not have been challenged as to the Comments at the time as to why he said them or as to the circumstances evident that might have justified them. These matters are not documented. They require careful analysis and forensic attention if the Tribunal is going to do justice to both the claim and the defence. Context may be everything. Nor has the ER specialist been challenged as to the reason why they said there was “no issue”. It is not evident to the Tribunal that the “reason why” is documented and thus there is no investigation at the time as to why the ER specialist in effect rejected the claimant’s complaint summarily. This prejudice is material and it lies at the “crux” of the claimant’s case.[48]There are likely to be other witnesses who might be expected to explain the relevance of Mr Teare’s Comments in connection with the working environment. Given the lapse of time and the need for the Tribunal to have to enquire into events from 2022, the Tribunal concludes that this is not a case to be determined on the documents or for example a documentary analysis of the relevant IT portal.[49]There is identifiable evidential and forensic prejudice to the respondents. The Tribunal must set that off against the prejudice that the claimant may suffer by being deprived of a claim. The extent of that prejudice however is to be moderated by(i) any view that the Tribunal may come to as to merits, and(ii) the fact that, as the Tribunal found, the claimant clearly made a choice not to pursue the matter, to let it rest (explicitly acknowledging that the claimant did not have insight at the time into the Comments made) although it was disadvantageous, she was dissatisfied and did not explore further the potential for any claim.[50]Turning to merits, the Tribunal reminded itself that this is not a trial. There was no cross examination (and the Tribunal would not have permitted it) on the merits of the claim. This is a hearing at a preliminary stage of the claim. The Tribunal took note of the caution to tread carefully.[51]The pleaded claim does not satisfactorily explain by R1 is a party to the claim. The claimant told the Tribunal that R1 was a party to the claim in order to forestall the potential response of R2 that R1 was a necessary party to the claim because R1 was the claimant’s employer. Yet, that is not R2’s position. R2 pragmatically accepted at the hearing that the claim against R1 might be liable to strike out although as presently set out in the List of Issues it is not definitively clear whether R1 is implicated in some way in the Comments made. The Tribunal did not find that an easy explanation to understand. It may be arguable that the claimant has not as yet definitively identified who may be implicated in respect of the Comments, and there is at least one reference to TEKsystems, for example [23]. On the other hand, the Grounds of Resistance appear to fully acknowledge Mr Teare’s role and Mr Teare is of course employed by R2.[52]This is not fertile ground for a successful claim by the claimant against R1 as an entity separate from R2. The claimant has not made out any material basis for alleging that in some way Mr Teare or the ER specialist employed by R2 were acting as agent for R1 or in some other way in a manner that meant that R1 might be liable for their acts. The Tribunal concludes that the claimant’s claim against R1 is weak on its merits and this is a relevant factor in the exercise of the Tribunal’s discretion as to whether or not to extend. This is a factor that weighs against extension of time. The Tribunal also notes however that there is as yet no definitively determined List of Issues and in this respect it is premature to conclude that there is no reasonable prospect. The application to strike out in this respect is refused.[53]Turning to R2, it is argued by Mr Kohanzad that there is a “circularity” to the claimant’s claim such that the claim is logically unarguable and should be struck out for lack of merit. He argues that an examination of the claimant’s pleaded case reveals that the claimant relies on precisely the same evidence to establish both the perceived disability and the alleged discriminatory treatment. This is set out at paragraph 29 of his skeleton argument. He argues that if this were permitted, the consequence would be to distort discrimination law because it would mean that any observation about someone’s behaviour or characteristic, if relating to disability, would automatically constitute discrimination.[54]The Tribunal did not find the argument compelling for the purposes of the just and equitable test or for the purposes of a preliminary assessment of prospects in the strike out application. This is so for 2 key reasons: 54.1. Substantively, the Tribunal is not satisfied that the claim is unarguable. It may well transpire that a Tribunal dealing with a final Hearing may form a view that perception is no more than that which is less favourable treatment. However, this cannot sensibly be said with any degree of security at the preliminary stage not least because the claimant relies on a series of comments some of which may separately betray a relevant perception and some of which on proper examination at trial might well indicate the wider stereotypical assumptions relied on by the claimant as informing the comments made. It is entirely premature to reach any firm view on the “reason why” the comments were made 54.2. The “circularity” aspect of the claim only goes so far. As Mr Kohanzad acknowledged, the argument does not impact on the “crux” of the claimant’s case which is the decision of R2 not to investigate (further) the claimant’s ethical concerns because of a belief that the claimant had a mental disability.[55]The Tribunal’s conclusion is that this was not a relevant factor in determining just and equitable test. The application to strike out on grounds of no reasonable prospect is refused.[56]Turning to the further aspect of merits, both R1 and R2 argue that this is a perceived discrimination claim, and the dicta in the Coffey case is applicable, and as a result it can be said that in order to succeed in a perceived discrimination claim, the Tribunal at the final hearing would need to be satisfied that all the essential elements of the statutory definition of disability were present (which is essentially a factual not a legal enquiry). This must be with a focus on what the alleged discriminator believed about the claimant’s condition and its effects.[57]The Tribunal reviewed the Comments. The respondents’ submissions are necessarily based on the Comments and the potential inferences and findings of fact available to the Tribunal. Comments included “not in the same room” and “bizarre/paranoid” but at the same time also included “not a barrier to her role” and “didn’t at the time think it was a mental health issue – it was more neurodiversity and not really communicating”, and “it was a quirk of her personality”.[58]This is not a trial, as cautioned above. These comments, taken at face value, allude to the claimant’s workplace interaction. They are not made in any medical context nor reference any medical information or opinion. They are not redolent of any expression of a medical condition that indicates a mental impairment that has a substantial impact on the claimant’s day to day activities, including for example that there was “not a barrier to her role”. Equally, at this provisional stage, the Tribunal cannot rule out or exclude and possibility of reference to a mental health condition. The Tribunal concludes that this argument is not lacking in any reasonable prospects. It would not be appropriate to strike out the claim. However, the claim lacks sufficient merit that the Tribunal considers that it is appropriate to weigh in the balance that both R1 and R2 would now be faced with dealing with a claim with poor merits. This is a factor weighing against the extension of time.[59]The task of the Tribunal is to exercise its discretion by weighing up these factors in the balance and to apply weight in a manner that the Tribunal considers just and appropriate. No factor is determinative.[60]The claimant is plainly a highly intelligent and articulate individual. In November 2022, the claimant was plainly capable of understanding and bringing Employment tribunal proceedings. The claimant fully understood the significance of time limits. The Tribunal took into account that the claimant did not in fact actually know the facts (the Comments) supporting her claim in November 2022 and did not know the Comments until March 2024. Notwithstanding, the Tribunal finds that the delay, in the context of this application to extend time, was not a reasonable delay and it arose in effect following the claimant’s considered decision not to act on the outcome of R2’s investigation in November 2022 and instead to let it rest and then wait a period in excess of a year before taking any step towards any enquiry or further action.[61]The consequence of that delay is of material prejudice to R1 and R2. Each respondent now has to deal with a claim that is relevantly lacking in real merit (albeit not such as to justify a strike out) in relation to the perception threshold test required by Norfolk v Coffey. R1 has to deal with a claim in circumstances where it remains entirely unclear why R1 is a party to the claim at all (and is liable to be entirely dependent on the evidence that R2 might or might not elect to bring). Both respondents face material evidential prejudice in responding to the claimant’s challenge to events in November 2022 and in particular R2 in addressing the workplace context that may or may not be able to explain or contextualise the Comments and R1 in seemingly having to be entirely dependent on R2 for its defence of the claims.[62]There is a public interest in reinforcement of time limits and the need to achieve finality in litigation, a principle described as “unexceptionable” in Adedeji.[63]The Tribunal’s conclusion in balancing these factors weighs against the granting of an extension of time. The Tribunal’s conclusion therefore is that there is no basis to grant an extension of time on a just and equitable basis. As a result, the Tribunal has no jurisdiction to consider the claimant’s discrimination claim. The claim is dismissed.[64]Had the Tribunal not dismissed the claim on grounds of time/jurisdiction, the Tribunal would have refused the respondents’ application to strike out the claims on grounds of no reasonable prospects of success. The Tribunal would have granted a deposit order in respect of that part of the claim that required the claimant to establish that the Norfolk v Coffey threshold had been met. In other respects, the application for a deposit order would have been refused. EMPLOYMENT JUDGE BEEVER
Discussion and Conclusions
[1]Following the dismissal of the claimant’s claims after a Preliminary Hearing on 29 and 30 July 2025, and a written dismissal judgment and reasons sent to the parties on 15 August 2025, the second respondent applied by email on 12 September 2025 for an order that the claimant pay the second respondent’s costs arising from the claimant’s failure to attend a Preliminary Hearing on 4 March 2025 and in respect of failures in connection with her explanation for her absence. The application is contained in a 9-page document. The second respondent says that the claimant has acted unreasonably. The second respondent argues for a summary assessment of costs amounting to £2,405.70.[2]The claimant provided her response by email on 4 October 2025, and attached an 8-page witness statement. The claimant objects to any costs order.[3]The Tribunal noted on 22 October 2025 that neither party had requested a hearing to deal with the application. The Tribunal informed the parties that it considered that it was in accordance with the overriding objective to proceed to determine the application without a hearing. Page 1 of 7 The second respondent’s application[4]The application erroneously referred to rule 38(1)(a) which deals with strike out. The tribunal proceeds on the basis that the application is in substance an application under rule 74(2)(a) which provides that a tribunal may make a costs order where a party has acted unreasonably etc.[5]The application is limited to consideration of matters relating to an earlier Telephone Preliminary Hearing which was listed for 4 March 2025 to determine jurisdictional and case management issues. The parties had been sent a Notice of Hearing on 4 September 2024. The claimant failed to attend the Hearing on 4 March 2025, and the Tribunal in its Case Management Order recorded that the claimant did not attend the hearing and that the tribunal office attempted to contact the claimant by telephone but the Claimant did not answer. The claimant had not notified that she would not be able to attend.[6]The second respondent says that the consequences of the claimant’s nonattendance were immediate and substantial and that all of its costs of instructing counsel and preparing for the hearing were wasted. Notwithstanding, the second respondent says that the Judge went ahead in the claimant’s absence.[7]The claimant complied with the direction to provide an explanation for her absence. The second respondent complains that the claimant had on 24 March 2025 asked the tribunal, “I didn’t receive a link to the hearing. Did it go ahead?” which the second respondent says is demonstrably false as the parties had been made aware of the hearing taking place and on 27 March 2025 the second respondent asserted that a link had been provided in the Notice of Hearing dated 4 September 2024 and within the PH bundle dated 25 February 2025.[8]The second respondent asserts that the claimant then raised new matters, on 27 March 2025, claiming she was overseas and not always in receipt of email and subsequently that she had been “dealing with a personal matter that I will share with the tribunal in confidence”. Further details were provided by the claimant about the personal matter; the second respondent asserts that the final version of the explanation was the “culmination of a month-long process of developing increasingly elaborate justifications for her absence”.[9]The second respondent has incurred counsels brief fee of £1,800 incl VAT which it says was entirely wasted, which cost was valueless when the claimant failed to attend and would not have been undertaken if the claimant had notified that she would not be attending. The time costs of the solicitors relate to preparing for the hearing and also dealing with the claimant’s explanations for not attending and also refers to further time required to address other non-compliance by the Page 2 of 7 claimant in respect of dealing with agreeing a bundle, witness statements and chronology. The time cost relied on by the second respondent solicitors amounts to £605.70. The second respondent states that the gravity of providing a false explanation to the Tribunal cannot be overstated. The claimant’s response[10]The claimant states that her non-attendance was the result of a genuine and unforeseen personal emergency and that in any event the second respondent has not suffered any meaningful detriment or incurred additional costs as a result.[11]The claimant describes a background of childhood experiences she suffered and a medical diagnosis of a mental health condition. She describes a SAR process throughout 2024 including a complaint made to IOPC. She describes a personally distressing event on 3 March 2025 relating to her father’s own dealings on related matters with Social Services. She also describes a settlement agreement being reached with the wrongdoer on 4 March 2025. She contends that as a direct result of these matters she was, “not in a mental or emotional state to attend the tribunal hearing or to remember that it was scheduled” or in a fit state to participate in a hearing on that date. She does not deny but does not recall any contact from the tribunal on the day of the Hearing.[12]The claimant describes that once she had regained stability she notified the Tribunal of her circumstances. She says that she was at the time temporarily in Barbados (the dates of which she does not disclose) and says that it made communication more difficult.[13]The claimant asserts that there was no material detriment because all the preparatory work for the Hearing was required in any event. The hearing went ahead regardless and the claimant considers that the outcome reflects what she would have requested had she attended the Hearing. The Rules and Relevant Law[14]The Employment Tribunal Procedure Rules 2024 is as follows, noting in particular rules 74 -75: When a costs order or a preparation time order may or must be made 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. Page 3 of 7 2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply had no reasonable prospect of success, or (c)a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. (4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a)the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b)the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. Procedure 75.—(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order). The Tribunal had regard to relevant case law:[16]Costs orders in the Employment Tribunal are the exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA at [7]). Matters of causation may be relevant, per Yerrakalva at [41]: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. Page 4 of 7[17]In Radia v Jefferies International Limited UKEAT/0007/18/JOJ, in particular paragraphs. Paragraph 61 … “It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with r 78. Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.”.[18]The guidance in Radia v Jefferies International Limited UKEAT/0007/18/JOJ sets a two-stage process when determining a costs application: first, to consider whether the threshold is made out, and then secondly, even if so, it does not automatically follow that a costs order will be made. This is an exercise of the Tribunal’s discretion.[19]Next, the fact that a party is unrepresented can also be a relevant consideration in deciding whether to award costs. See AQ Ltd v Holden 2012 IRLR 648, EAT. The threshold tests governing the award of costs or a preparation time order are the same whether a litigant is or is not professionally represented, but that the application of those tests should take this factor into account. Furthermore, the EAT observed, even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order, which will be exercised having regard to all the circumstances. Equally, the fact that a party is unrepresented is no barrier to an award of costs being awarded against him or her, if appropriate to do so. In Holden, the EAT said ‘This is [not] to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.’ See Vaughan v London Borough of Lewisham and ors 2013 IRLR 713 EAT. Discussion and Conclusion Dealing with the application on paper[20]The Tribunal is satisfied that both parties have had a reasonable opportunity to make representations in writing in respect of the costs application. The amount of the costs at issue is modest. The Tribunal is satisfied that dealing with the matter on paper in the light of those submissions would be proportionate and in accordance with the overriding objective. Neither party had requested that the Page 5 of 7 matter should be dealt with at a hearing and the Tribunal concludes that it would be in the interests of justice to deal with it otherwise than at a hearing. Stage 1: Conduct engaging the threshold, rule 74(2)(a)[21]The Tribunal must first consider whether the second respondent has shown that this case meets the threshold set by rule 74, here that the claimant had conducted a part of the proceedings unreasonably etc within the meaning of rule 74(12(a).[22]The claimant has provided her explanation - in her witness statement - of events that had a personally distressing impact on her at the time of the Preliminary Hearing. She asserts that she was not in a state of mind to participate or to remember the scheduling of the Hearing. The subsequent information provided by the claimant might not entirely sit squarely with that explanation, for example when she described being abroad, and even now taking into account her unhelpfully incomplete details about the visit to Barbados, but it is insufficient for the Tribunal to conclude that the claimant is seeking to mislead the Tribunal about her personal situation or the circumstances that she faced on 4 March 2025.[23]The claimant has repeatedly sought to explain to the Tribunal and to the respondents that she had experienced distressing personal circumstances. The Tribunal accepts that they have had a significant personal impact on her. The extent to which it may have prevented her from participating at the Hearing on 4 March 2025 is unclear. However, nothing that the claimant subsequently disclosed in her communications with the Tribunal and the respondents in March and April 2025 causes the Tribunal to reject her explanation of the difficulties that she faced on or about 4 March 2025 and which had an impact on her ability to participate in the proceedings on that day.[24]The claimant’s subsequent explanations might well be subject to forensic scrutiny by the second respondent. The Tribunal does not consider that the claimant is seeking to mislead or to portray materially false explanations. Even if there is room for criticism, this does not amount to unreasonable conduct either in nonattendance at the Hearing or in the manner of her explanatory communications subsequently.[25]The respondent has failed to establish the necessary threshold of unreasonable conduct under rule 74(1)(a). The application for costs on the basis of rule 74(1)(a) fails. Stage 2: Discretion[26]The Tribunal went on in any event to consider its discretion to award costs. Page 6 of 7[27]Despite the claimant’s non-attendance at the Hearing on 4 March 2025, the hearing went ahead. The Hearing was a case management hearing and it listed a substantive Open Preliminary Hearing to deal with time and strike out arguments. The Hearing was to all intents and purposes effective in dealing with the matters that were in front of it. The claimant herself says that the Hearing made the orders that she would have requested (and by implication would have agreed to) had she been there. The second respondent’s depiction of costs wasted in these circumstances is erroneous.[28]The costs claimed by the application relate entirely to the preparation and attendance at hearing for counsel’s costs, and for the majority for solicitors costs. These costs were likely to have been incurred in any event, for example, if the hearing had been relisted to accommodate the claimant notifying of her anticipated absence.[29]No further breakdown of the £605.70 as it relates to costs incurred after the hearing is contained in the application document. It was unfortunate perhaps that further time was spent on the matter of the claimant’s explanation when in fact the parties had (despite the claimant’s non-attendance) obtained from the Tribunal at the Hearing on 4 March 2025 a clear set of directions to take the matter forwards. The application recites further time spent on other matters relating to bundles and witness statements, which fall outside the scope of this current application.[30]In the light of these circumstances, the Tribunal would not in any event have exercised its discretion to award the costs sought by the second respondent under rule 74(2)(a) even if the threshold of unreasonable conduct had been met.
Conclusion
[31]The second respondent’s application for costs is dismissed. EMPLOYMENT JUDGE BEEVER SIGNED BY