Mrs J Apuhin v Welford Healthcare Ltd and Eastleighcare Home HR Ltd: 1402549/2024
EMPLOYMENT TRIBUNALS
Case No 1402549/2024
Between
Mrs J ApuhinClaimantWelford Healthcare Ltd and Eastleighcare Home HR LtdRespondent
Before
Employment Judge SalterNot represented for claimantMr. T. McArdle (instructed by solicitor) for respondentDate 4 February 2026
JUDGMENT
[1]The Claimant’s claims of:(a) Unfair dismissal;(b) Wrongful dismissal;(c) Detriments on grounds of protected disclosures;(d) unpaid holiday pay; and(e) unlawful deduction from wages were presented out of time in circumstances where it was reasonably practicable to have been presented in time.[2]The Claimant’s complaints of discrimination, harassment and victimization where the protected characteristics are(a) Disability; and/or(b) pregnancy and maternity; and/or(c) marriage or civil partnership were presented out of time and was not presented within such other period as the tribunal considered just and equitable.[3]Accordingly, the Claimant’s claims are dismissed. 10.7 Judgment with reasons – rule 62 1 Case Number: 1402549/2024[1]The complaints(a) of unfair dismissal and automatically unfair constructive dismissal pursuant to sections 98, 100 and 103A of the Employment Rights Act(b) of detriment on the ground of having made a protected disclosure and/or having raised health and safety concerns pursuant to sections 44 and 47B of the Employment Rights Act 1996(c) of unauthorised deductions from wages were presented outside the primary time limit prescribed by section of the Employment Rights Act 1996. The Tribunal is satisfied that it was reasonably practicable for the complaints to have been presented within the prescribed time limit. The Tribunal therefore has no jurisdiction to hear those complaints and they are dismissed.[2]The Complaint in respect of accrued but untaken holiday was presented outside the time limit prescribed by regulation 30 of the Working Time Regulations 1998. The Tribunal is satisfied that it was reasonably practicable for the complaint to have been presented within the prescribed time limit. The Tribunal therefore has no jurisdiction to hear that complaint and it is dismissed.[3]The complaints of discrimination, harassment and victimisation pursuant to the Equality Act 2010 were presented outside the primary time limit prescribed by section 123(1)(a) of the Equality Act 2010. The Tribunal is not satisfied that it would be just and equitable to extend time for the presentation of those complaints. The Tribunal therefore has no jurisdiction to hear those complaints and they are dismissed.
REASONS
[1]These are my reasons given orally at the final hearing on 4th February 2026. In accordance with Rule 60(3) of the Employment Tribunal Procedure Rules 2024 (“the 2024 Rules) written reasons will not be provided unless they are asked for by any party at the hearing or by a written request presented within 14 days of the sending of the written record of the decision. These reasons have been prepared at the request of the Claimant[2]The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.
BACKGROUND
[3]The Claimant was employed by the Second Respondent, Eastleigh Care Home HR Limited, as a Registered Nurse from 21 March 2021 [12]. Her employment ended by resignation, which took effect on or around 4 May 2023 [107]. She commenced new employment with the Royal Devon University Healthcare NHS Foundation Trust on 23 June 2023 [13 §7.2].[4]The Claimant is represented by her husband.[5]The Claimant presented her claim to the Tribunal on 31 October 2024 [9]. Early Conciliation through ACAS had been commenced on 12 September 2024 and the ACAS Early Conciliation Certificate was issued on 24 October 2024 [8]. The claim was presented almost 15 months after the expiry of the primary limitation period applicable to the complaints under the Employment Rights Act 1996, and substantially outside the primary time limit applicable to the complaints under the Equality Act 2010.[6]The Claimant’s claim form includes complaints [14, 21] of unfair constructive dismissal, automatically unfair constructive dismissal for making protected disclosures and/or raising health and safety concerns, detriment for making protected disclosures and/or raising health and safety concerns, unauthorised deductions from wages, accrued but untaken holiday pay, and discrimination on the grounds of disability, pregnancy and marriage under the Equality Act 2010, including claims of harassment and victimisation. Procedural history[7]The Response was accepted on 7 April 2025 and the case was referred to Employment Judge Bax. The case file was accompanied by case management orders requiring, amongst other things, the Claimant to provide a disability impact statement by 2 June 2025 and directing that the previously listed Case Management Hearing be vacated and replaced with a Preliminary Hearing to determine time limit and jurisdictional issues.[8]On 3rd February 2025 a Case Management Hearing was listed for 24th September 2025 [38].[9]The tribunal issued Orders requiring the Claimant to provide a witness statement by 26th May 2025: A witness statement from the Claimant addressing:1.1.1 When she knew of her right to bring the claims now presented1.1.2 When she learnt of the time limits which apply to those rights1.1.3 What steps she took to discover the matters at 1.1.1 and 1.1.2 above, including the date on which legal advice was sought or obtained1.1.4 What the reason for the delay in presenting the claims was (through the period commencing with he acts about which the claims are made and ending with the date on which the claims were presented), identifying any impediment to their health which prevented them from presenting the claims 1.2 Any documents in their possession or control relating to the matters at paragraphs 1.1.1 to[10]On 3rd March 2025 the Respondents’ Grounds of Resistance was signed [68][11]A Notice of Preliminary Hearing was issued on 28 April 2025, listing the matter for hearing by video on 15 July 2025 [71] that hearing was to determine issues of timelimits and clear directions were given: Was any complaint presented outside the time limits in sections 123(1)(a) & (b) of the Equality Act 2010 and if so should it be dismissed on the basis that the Tribunal has no jurisdiction to hear it? Dealing with these issues may involve consideration of subsidiary issues including: whether there was “conduct extending over a period”; whether it would be “just and equitable” for the tribunal to permit proceedings on an otherwise out of time complaint to be brought; when the treatment complained about occurred. 3. Was the unfair and/or wrongful dismissal complaint presented outside the time limits in (as applicable) sections 111(2)(a) & (b) of the Employment Rights Act 1996 and article 7 of The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and if so should it be dismissed on the basis that the Tribunal has no jurisdiction to hear it? Dealing with these issues may involve consideration of subsidiary issues including: whether it was “not reasonably practicable” for a complaint to be presented within the primary time limit; what the effective date of termination was. 4. Was any complaint presented outside the time limits in sections 23(2) to (4) (unlawful deductions from wages) and 48(3)(a) & (b) (detriment for whistleblowing) of the Employment Rights Act 1996 and if so should it be dismissed on the basis that the Tribunal has no jurisdiction to hear it? Dealing with these issues may involve consideration of subsidiary issues including: whether there was a relevant “series”; whether it was “not reasonably practicable” for a complaint to be presented within the primary time limit. 5. Was the complaint in respect of accrued but untaken holiday, presented outside the time limits in reg. 30 of the Working Time Regulations and if so should it be dismissed on the basis that the Tribunal has no jurisdiction to hear it? Dealing with these issues may involve consideration of subsidiary issues including: whether it was “not reasonably practicable” for a complaint to be presented within the primary time limit.[12]These were to be complied with by the 26th May 2025.[13]On 19 May the claimant applied to postpone this hearing [71], the application was opposed by the Respondent [73][14]The Respondents made an application to strike out the claim on 4 June 2025 [77]. They highlighted the Claimant had not complied with any order of the tribunal concerning case progression.[15]On 24th June 2025 Employment Judge Livesy:(a) rejected the application to adjourn and requested the Claimant on the basis the matter had been listed for a number of months and no(b) respond to the respondent’s assertion she had not complied with tribunal orders.[16]The Claimant responded on 25th June 2025 [82], but did not indicate she would be complying with the orders.[17]On the 30 June 2025 [86], drawing the Tribunal’s attention to the Claimant’s complete non-compliance with all case management orders including the provision of a disability impact statement and medical evidence. The Respondent remade tis application for a strike out of the Claimant’s claim [89] it noted: To date the Claimant has failed to comply with ALL case management orders from the Tribunal, including those from Judge Bax for the production of an Impact Statement and medical evidence, as set out in the Response Accepted letter dated 7 th April 2025 (attached), or those within the Tribunal’s Notice of Hearing dated 28 th April 2025. … Similarly, the Claimant has provided none of the information she has been ordered to in the Notice of Hearing, including a witness statement addressing questions as to why her Claim was lodged so far out of time, and accompanying evidence to support her statement, which were due to have been produced by 26 th May 2025.[18]The application noted the Claimant was able to respond to some correspondence from the tribunal.[19]The Respondent prepared for the Preliminary Hearing on 15th July and provided a bundle to the tribunal [95], it noted the total failure of the Claimant to comply with any tribunal Order.[20]On 9 July 2025, Employment Judge Self refused the Claimant’s application to postpone the hearing listed for 15 July 2025, noting the absence of medical evidence in support, and ordered the Respondent’s application to strike out will be considered [97].[21]On 11 July 2025, the Claimant, through her representative, wrote to the Tribunal requesting reconsideration of the refusal to postpone and requesting the provision of a Cebuano interpreter as a reasonable adjustment [98]. Again there was no comment about the failure to address he orders or indicate that they would be complied with.[22]On 14 July 2025, Employment Judge Cadney directed that the hearing be postponed and relisted, on the basis that the Tribunal had been unable to secure the attendance of an interpreter for the hearing on 15 July 2025, not because of the claimant’s ill health.[23]The hearing was relisted for 4 February 2026 [102]. An interpreter was secured for that date.[24]On 3rd February the Claimant applied to adjourn the hearing. Employment Judge Bax wrote to the Claimant to tell her the case remained listed, and that some progress would be made and case management orders made.[25]On the afternoon prior to the hearing, the Tribunal notified the Claimant by email that an interpreter had been secured and that the hearing would proceed as listed. The hearing on 4 February 2026[26]By the date of the hearing, no case management order had been complied with by the Claimant.[27]Mr McArdle attended on behalf of both Respondents, together with Mrs Kirstie Barnes, the Operations Director of the Respondent.[28]I was satisfied that the Claimant had been given reasonable notice of the hearing and that all reasonable steps had been taken to notify her, including the provision of the interpreter she had requested.[29]I considered whether it was appropriate to proceed in the Claimant’s absence or to adjourn the hearing. Having regard to the procedural history, the repeated failures to comply with orders and the fact that the hearing had already been postponed once to accommodate the interpreter request, the I determined that it was in the interests of justice to proceed.[30]I did not dismiss the claim under rule 41 of the Employment Tribunals Rules of Procedure 2024 (non-attendance). Rather, I proceeded to determine the substantive preliminary issues concerning the Tribunal’s jurisdiction to hear the claims, having regard to the applicable time limits. SUBMISSIONS[31]The Respondent had advanced the application under rule 38(1)(c) and (a):(a) Under rule 38(1)(a), the claim is out of time. No reasons and no evidence have been put forward that could credibly result in the conclusion that it would be just and equitable to extend time. It has no reasonable prospect of success.(b) Certainly the ERA claims have no prospect of success, and the Respondent submits the same for the Equality Act claims.(c) In terms of rule 38(1)(c), on compliance with orders: there has been a continued failure to comply with any orders and to carry out the claim. The failure to attend today is one further instance of noncompliance and demonstrates a pattern of disregard for the Employment Tribunal.(d) The previous open preliminary hearing was postponed. Applications were made; these were refused, and the Claimant was notified that they were refused and that the hearing was going ahead. In spite of this, no compliance was carried out. Whilst the preliminary hearing was postponed, no attempt at compliance with the Tribunal’s orders was made, despite the matters listed to be determined at the hearing. These are the matters discussed at the April hearing and the orders made in respect of aspects of the case, which were made clear to the Claimant throughout that hearing.(e) The Claimant has been given every reasonable opportunity to comply under these headings, and the Claimant has failed to do so.(f) Today, the decision not to attend was taken in the knowledge that the Claimant’s repeated applications to adjourn — for eight months, to hear an extremely stale case — had been rejected, and there was no correspondence saying that the Claimant was not able to obtain an interpreter.(g) At the time of the decision not to attend, the Claimant had no reasons not to attend, and as it transpires this was the reason — the Claimant would have realised there was an interpreter available. This is a continued pattern with the preparation of the case and the manner in which it is prosecuted.(h) None of the information provided is adequate. Previous Employment Judges have flagged that it is insufficient and that the duty lies with the Claimant to produce it. It is a pattern of behaviour and disregard of the Tribunal.(i) There has been every opportunity for matters to be progressed, and the Respondent therefore invites the Tribunal to strike out the claim under rule 38(1)(a) and (c).(j) Burden on the Claimant to show the statutory test. The Claimant must establish it with evidence.(k) No evidence produced to show not reasonably practicable(l) the question is for the Claimant to show the Employment Tribunal that it is just and equitable to extend time. To address the just and equitable question at length: again, no evidence. There are no reasons advanced beyond “to the best of my knowledge I have presented the claim in time.” Not set out as ordered why it was not possible, why it has taken longer, and in light of the Claimant’s own evidence that she started a new job on 23/6/23 — within a month of resigning(m) The Claimant had opportunities, and since lodging the claim to set out her stall on the time point. It is clear it needs to be addressed. The orders were clear as to what needed to be produced, and the Claimant has not provided the evidence, so fails to meet the burden. The Employment Tribunal can make its decision on the facts. TIME LIMITS: THE LAW Employment Rights Act/Working Time Regulation 1998[32]Section 111(2) of the Employment Rights Act 1996 provides that a complaint of unfair dismissal shall not be considered unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination, or 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 within the primary period. The same test of reasonable practicability applies to complaints under sections 23(2) and 48(3) of the Employment Rights Act 1996 and regulation 30 of the Working Time Regulations 1998.[33]The burden of proving that it was not reasonably practicable to present a complaint in time rests on the claimant. For these purposes reasonably practicable means reasonably feasible. Equality Act[34]So far as is relevant the Equality Act 2010 states: 123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (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.[35]Time limits were not just targets, they were 'limits' and were generally enforced strictly. A good reason for an extension generally had to be demonstrated (Robertson v Bexley Community Centre [2003] IRLR 434, CA), albeit that the absence of a reason would not necessarily have been determinative (ABMU v Morgan [2018] IRLR 1050, CA).[36]In Jones v SoS for Health & Social Care the Employment Appeal Tribunal cautioned the tribunal to consider the wider context fo the comments in Roberston[37]Tribunals had been encourages to consider the factors listed within s.33 of the Limitation Act 1980 (the British Coal v Keeble factors), although it was not mandatory to do so; the length and reasons for the delay, the extent to which the Claimants had sought professional help and the extent to which information was not known to them until later and the degree to which the Respondents ought to have been blamed for any late disclosure. Consideration also had to be given to whether the Claimants had dragged their feet once they knew of all of the relevant information and, if so, to what extent.[38]It used to be thought that the touchstone was the issue of prejudice and whether and to what extent delay had caused prejudice to either side but, as was made clear in Miller v MoJ UKEAT/0003/15, at paragraph 13 by Laing J, whilst that was another, important factor to take into account, it was not determinative. FINDINGS AND CONCLUSIONS ON TIME[39]The Claimant’s employment ended in May 2023. Taking the latest possible date, the primary limitation period for the complaints under the Employment Rights Act 1996 expired in August 2023. Early Conciliation was not commenced until 12 September 2024, more than 13 months after the expiry of the primary limitation period. The claim was not presented until 31 October 2024, approximately 15 months out of time. Employment Rights Act 1996/Working Time Regulations 1998[40]The burden rested on the Claimant to establish that it was not reasonably practicable to present the complaints in time. No evidence or reasons were advanced to discharge that burden. On the contrary, the Claimant’s own claim form confirms that she commenced new employment on 23 June 2023, within approximately one month of her resignation. The Claimant was seemingly well enough to work and so, I presume, in a position, from an early stage, to have taken steps to pursue her claims.[41]The Claimant had been given over a year since lodging her claim to set out her case on the time point. The orders directing her to do so were clear. She had every reasonable opportunity to produce the evidence required. She failed to do so. Despite having had ample opportunity to do so, the Claimant produced no evidence whatsoever in support of any contention that it was not reasonably practicable for the complaints to have been presented within time. The case management orders made required the Claimant to serve evidence addressing this very issue. The Claimant complied with none of those orders.[42]In those circumstances, the Tribunal is satisfied that it was reasonably practicable for the complaints under the Employment Rights Act 1996 and the Working Time Regulations 1998 to have been presented within the primary time limit. The Tribunal has no jurisdiction to hear those complaints. Equality Act 2010[43]Turning to the complaints under the Equality Act 2010, the question is whether I should permit the Claimant to present her claim within the period she had as that was just and equitable.[44]No reasons of any kind were advanced as to why the claims were presented so significantly out of time. No evidence was produced to support an extension. The Claimant was ordered to address this issue and did not do so. The delay is substantial: approximately 15 months beyond the primary limitation period. No explanation for that delay has been offered.[45]It is clear the Claimant was aware of the complaints she had, and I have not been directed to any fault on the Respondent for any delay. Consideration also had to be given to whether the Claimants had dragged their feet once they knew of all of the relevant information and, if so, to what extent.[46]Whilst there is no need for an explanation for the delay, I consider the total failure to address the issue and provide the witness evidence to be a relevant factor.[47]I therefore conclude that on the balance of probabilities the Claimant has not satisfied my that the claim was presented within such other period as I though just and equitable.[48]All claims are accordingly dismissed. STRIKE OUT[49]If I had been required to consider striking out the Claimants claims for breach of tribunal orders. I would have granted it. The Claimant’s failure had led to the Respondent being unable to having the timelimits issue determined within a reasonable time allotted for it.[50]Without hearing any evidence on the point I could not have determined if I would have struck out the claimant;s claims for any other basis sought by the Respondent.