Miss J Mitchell v British Broadcasting Corporation: 1600994/2024

EMPLOYMENT TRIBUNALS

Case No 1600994/2024

Between

Miss J MitchellClaimant

British Broadcasting CorporationRespondent

Before

Employment Judge R Brace

In person for claimant

Miss A Greenley (instructed by Counsel) for respondent

Date 5 September 2024

JUDGMENT

The Claimant’s claims of indirect disability discrimination, failure to comply with the duty to make reasonable adjustments and indirect age discrimination are brought in time. The application for strike out of the claims, on the basis that they have no reasonable prospects of success, is refused.

REASONS

[1]The Claimant had issued her ET1 claim form on 11 April 2024, after entering early conciliation on 6 February 2024 that had ended on 19 March 2024. In her ET1 claim form she brought claims of indirect age discrimination, indirect disability discrimination and failure to comply with the duty to make reasonable adjustments.

[2]Issues arising from such complaints had been discussed at the case management preliminary hearing on 3 July 2024 before Judge Hunt and set out in the subsequent case management order. This public preliminary hearing had been listed by Judge Hunt at that preliminary hearing to consider a number of issues as follows:a. Were the Claimant’s claims under the Equality Act 2010 (“EqA 2010”) presented within the three month time limit set out in s.123 EqA 2010 (taking into effect early conciliation)?

b. If not, i. Do the claims form a continuing act (s.123(3) EqA 2010)? ii. Alternatively, would it be just and equitable to extend time (s.123(1)(b) EqA 2010?

c. Should the claim or any part of it be struck out because it has no reasonable prospect of success or a deposit order be made?

d. Whether the Claimant had permission to amend her ET1 in respect of her claim of indirect age discrimination and the age group disadvantaged by the PCP (as detailed in §16 and §17 of 3 July 2024 case management order)?

[3]Regional Judge Davies had granted an interim restricted reporting order under Rule 50 for this preliminary hearing and had indicated that whether any ongoing rule 50 order restrictions should remain in place after the preliminary hearing would be considered at the preliminary hearing.

[4]At the outset of the hearing, it was agreed with the parties on the application of the Claimant (23 August 2024,) that the list of issues set out in that case management order would be amended to:a. remove §1.3(a) from the indirect disability discrimination insofar as this claim, regarding timescales for completing the relevant professional qualifications, related to age only;

b. include ‘Those with the qualifications have better training opportunities’, as an additional issue to both the indirect disability and indirect age discrimination complaints; and

c. include ‘Excluded from applying from Accountant roles in the Group Reporting Team’, as an additional disadvantage under the indirect disability and indirect age discrimination complaints.

[5]This was agreed without prejudice to the Respondent’s position that the Tribunal did not have jurisdiction to consider the claims on time and/or that they should be struck out on the basis that they had no reasonable prospects of success in any event.

[6]In relation to the management of how the preliminary hearing issues were to be determined today, it was discussed and agreed that we would first hear evidence from the Claimant on the jurisdiction/time issue. After hearing submissions from both parties on jurisdiction/time, it was further discussed and agreed that I would also hear submissions from the parties on the amendment application, the strike out application and deposit application before giving a reserved decision. It was also made clear that if I made a decision that was not in the Claimant’s favour in relation to the jurisdiction/time issue, I would then not be required to determine the remaining applications of amendment and/or strike out/deposit order and that I would only make decisions on those issues if the Claimant did persuade me that her claims were in time, or alternatively that it was just and equitable to extend time.

[7]As the Claimant had presented no evidence to support an ongoing rule 50 privacy application, had not been directed to do so and little time was left at the end of the day to consider such an application, I confirmed that if the claims were allowed to proceed, I would give separate case management orders in relation to this issue, and any ongoing restricted reporting or other privacy order would be determined at the outset of the final hearing or, if time permitted and an employment judge considered it proportionate, at a separate preliminary hearing prior to the final hearing.

[8]The Claimant had provided a written witness statement which was taken as her evidence in relation to jurisdiction/time and read in conjunction with a further document submitted by the Claimant: a document entitled ‘Appendix 1 – Chronology of Events to the 24th July 2024’. I also had two agreed bundles before me: one an agreed preliminary hearing bundle of 405 pages (the “Bundle”) and a further bundle of medical documents (22 pages). The Claimant was subject to questioning from the Respondent’s counsel and Tribunal.

Facts

[9]At all material times, the Claimant was a disabled person by reason of her cancer diagnosis. In September 2022, she was 55 years’ old. The Claimant has been employed by the Respondent since 2015 and is in the role of Accountant. Her employment is continuing.

[10]In May 2019, the Respondent amended its job description for the role of Accountant to the effect that it was essential for applicants to the role to hold professional accounting qualifications including the Associate Chartered Accountant (“ACA”), Association of Chartered Certified Accountants (“ACCA”) Chartered Institute of management Accountants (“CIMA”) or equivalent qualification.

[11]It is not in dispute that such qualifications take between 3-5 years to obtain and that the Respondent, in order to support individuals who do not hold a professional accounting qualification but want to obtain one, offers financial support as well as study leave.

[12]The Claimant does not hold a professional accounting qualification, but the amendment to the essential criteria for the Accountant role did not impact eligibility of individuals already employed. An Accountant who did not hold the professional qualification could continue in their role or move to another Accountant position. The Claimant says that the first time that she was aware of this was when she read the Grounds of Resistance.

[13]On June 2021, a new role of Senior Accountant was introduced to the Career Path Framework (“CPF”), CPF being a ‘map’ of core jobs in the Respondent organisation giving definition to any job content and setting out a career path for staff [301]. The CPF was made up of job ‘families’ and Accountant sat within the Finance family, as did the newly created post of Senior Accountant. The post of Senior Accountant also required the professional accounting qualifications [91].

[14]In September 2023, the Claimant expressed an interest in applying for a newly advertised Senior Accountant role. It is agreed between the parties that on 11 September 2023, the Claimant was advised that she would not be eligible to apply for the post as she did not hold such a qualification.

[15]On 12 September 2023, the Respondent repeated its position to the Claimant that she was ineligible to apply for the post. She did not apply as a result and the Claimant confirmed that she intended to submit a grievance. The Claimant was then on pre-booked annual leave from 13 September 2023, expected to return to work on 18 September 2023. Unfortunately, the Claimant contracted Covid-19 and did not return to work until 20 September 2023. The Claimant was then away from work, again on pre-booked leave, from 21 September 2023 and did not return to work until 4 October 2023.

[16]On 4 October 2023, the Claimant submitted a written grievance (the “Grievance”) [102].

[17]In the Grievance, the Claimant indicated that the decision to exclude her from applying was unfair, disadvantaged her and resulted in indirect age discrimination. She gave twelve numbered reasons to support her Grievance, which included, but were not limited to, the following: ‘ 1. The criteria of not being fully qualified – I do not consider this to be proportionate manes in pursuing legitimate aim in relation to this role 2. It’s a well understood fact that people who in their 50’s and 60’s are less likely to have gone through further education, and subsequently less likely to have degrees, proof qual, phd’s etc So by introducing this criterion now puts me at a significant disadvantage’

[18]She also spoke of how it had been suggested to her that she could obtain the qualification, but that she did not consider that this would add value or enhance her experience or knowledge and, as it would take her a number of years to complete, she would be ‘pushing 60’. She added that she considered that suggestion insensitive given her cancer diagnosis, that her health put limitation on her being able to undertake such a commitment and was therefore not feasible.

[19]Dates were suggested for a Grievance hearing, which ultimately did not take place until 24 November 2023, the Respondent initially arranging it for dates that the Claimant had already indicated that she would not be available. Following that Grievance hearing and on 27 November 2023, the Claimant sent a detailed email clarifying some issues in relation to any justification for indirect age discrimination [127].

[20]The Respondent asserts that the primary time limit for bringing a complaint in relation to the refusal to permit the Claimant to apply for the September Senior Accountant role expired on 10 December 2023. In response to questions from both the Respondent and the tribunal as to what steps she had taken to ascertain the position on time limits, the Claimant confirmed that she had undertaken her own investigations on the legal position but that she had not undertaken investigation on ACAS or on time limits. She disputed that she could have looked up online and found information on time limits, as she would have had to know about time limits to undertake such research.

[21]She admitted on reflection that not considering time limits for bringing complaints was ‘naïve’ rather than she had purposefully avoided the issue. She gave evidence that at this point it had not crossed her mind to consider time limits but that she had undertaken research on discrimination more generally including looking at the Croner website. She gave evidence that time limits only crossed her mind when she received the Grievance outcome.

[22]Notes of the Grievance hearing were provided to the Claimant on 11 December 2023 and on 22 December 2023, the Claimant was advised that the Grievance investigation had been completed.

[23]On 18 January 2024, the Claimant was provided with the outcome to her Grievance [128]. She was informed that her Grievance was not upheld and reasons were given in relation to complaints that:a. She had been prohibited from applying for a Senior accountant role which she believed to have amounted to indirect age discrimination;

b. The criteria for the recruitment of the Senior Accountant role was unfair; that she had been told that if you were not qualified, you were not eligible to apply, which the Claimant considered was indirect age discrimination; and

c. A male colleague had been offered the role and was not as experienced or as knowledgeable as the Claimant and that there was a skill gap;

d. That it was not an option for the Claimant to pursue further education to obtain the qualifications and that it was not a reasonable request given the Claimant’s age; and

e. She held concerns about the fairness of the recruitment process and associated policy – she had not been informed of significant changes to the policy which now placed her at a disadvantage due to age

[24]The Claimant did not understand the Grievance outcome and was anxious and upset. At the same time, she was also going back into another cycle of treatment for her breast cancer. She gave evidence that her ‘head was not in the right space’ as a result. It was a challenging time for her and she was anxious. She and a friend reviewed the Grievance outcome and put together her internal appeal, trying to understand why the Respondent had not answered her complaints.

[25]On 24 January 2024, the Claimant had an appointment with her oncologist who initiated a further cycle of treatment for her cancer.

[26]On around 23-24 January 2024, the Claimant made attempts to contact ACAS. She spoke to someone there on 24 January 2024, who indicated that they were unable to provide specific advice but did make the Claimant aware of time limits for submitting early conciliation and an employment tribunal claim and advised that the Claimant could pursue an internal grievance and submit a claim at the same time. The provided her with a telephone number for early conciliation through ACAS.

[27]Whilst the Claimant accepts that time limits are urgent, her response was that there was no comparison to a cancer diagnosis and she had to take a few days to manage her anxiety, her appeal and her health.

[28]She did not seek advice from anyone and did not contact a solicitor due to the costs. The Claimant did not contact Citizen’s Advice Bureau or Speakeasy until after she had issued her ET1.

[29]On 5 February 2024, the Claimant had further blood tests for her treatment, planned to commenced two days later.

[30]On the same date she submitted her appeal to the Grievance outcome (“Grievance Appeal”) [165]. The Grievance Appeal was detailed and, in summary, complained that the Grievance issues raised had either partly or not been addressed, had not been investigated in ‘alignment with the current law, in particular the principles for objective justification and relative measure’ and that case law that she had asked to be considered to support her Grievance had not been reviewed. The Claimant included reference to various legal principles of indirect discrimination, the Claimant referring to case law including Homer v West Yorkshire Constabulary and Games v Kent University in the context of objective justification, and Elias v Secretary of State for Defence in the context of relevant PCPs.

[31]She also indicated that her disability had not been considered appropriately.

[32]On 6 February 2024, the Claimant contacted ACAS and entered into early conciliation (“EC”).

[33]The Claimant was questioned on why she had not contacted ACAS prior to this. She gave evidence that she was trusting that the Respondent would act with integrity on her Grievance and honour the commitments pledged to diversity and inclusion and this was the reason why she had delayed contacting ACAS. She also highlighted that the Grievance Appeal was still in the process of being investigated and that until the Grievance outcome, the Respondent had not provided any explanation or justification for their discriminatory treatment of her or if they intended to make reasonable adjustments for her, enabling her to be considered as a candidate.

[34]Around 7 February 2023, the Claimant attended hospital for her cancer treatment which involved infusion. The Claimant gave evidence, which I accepted, that following such treatment, she experiences and did experience a decline in her anxiety, finding it difficult to concentrate or be focussed and motivated. She also experienced increase in fatigue which impacted on her pace of work.

[35]The Claimant was informed that due to prior commitments her Grievance Appeal hearing would not take place until 11 or 13 March 2024. The Claimant was then on annual leave from 1 March to 11 March 2024. On 13 March 2024, the Claimant attended her Grievance Appeal hearing [140].

[36]On 19 March 2024, ACAS early conciliation ended [1].

[37]The Claimant was questioned on her understanding of the impact of early conciliation. She responded that it ‘stopped the clock’ and after the EC certificate was issued ‘you get a month’, which I took to mean that she believed that she had a month after the issue of the ACAS early conciliation certificate to issue her claim. She gave further evidence that she was not aware that if she did not notify ACAS within any primary limitation period, the clock did not stop. She did not know her claim was out of time as she believed it was a continuing act and that she believed EC had ‘stopped the clock’. I accepted that evidence of the Claimant’s own belief of how early conciliation impacted on time limits. I also accepted that the Claimant believed that her claim was not out of time as she believed that her complaints were of a continuing act and not a one off act albeit with continuing consequences.

[38]A copy of the notes of that Grievance Appeal hearing were emailed to the Claimant on 26 March 2024.

[39]On 11 April 2024, the Claimant filed her ET1 with attached particulars [2,14].

[40]In those particulars, the Claimant gave a detailed background regarding an application that she had sought to make for the post of Senior Accountant and that on 11 September 2023, she had been advised that she was ineligible for the role as she was not qualified with ACCA/CIMA, professional qualifications. She referenced her Grievance and the PCP of ‘essential criteria for specific qualifications’ disadvantaged her as she was no longer eligible for Senior Accountant role, or her existing role as Accountant. She spoke in general terms of the length of time that study would take which would impact on further opportunities for Senior Accountant roles. Submissions Time

[41]The Respondent’s counsel relied on a Skeleton Argument which is incorporated by reference to these written reasons. She was permitted to make oral submissions in addition which are referred to in brief:a. The primary position is that whilst a discriminatory state of affairs resulting from a policy can amount to a continuing act, in this case the complaint relates to a specific job vacancy and the Claimant’s eligibility for it which, it is argued, was a one off act with continuing consequences.

b. In turn, she argues that time started running on 11 September 2023, when the Claimant was informed that she was not eligible for the Senior Accountant role, and that the primary time limit therefore expired on 10 December 2023. As the Claimant did not contact ACAS until 6 February 2024 and she did not present her complaint until 11 April 2024, the Claimant is some four months out of time.

c. In the alternative, it was argued that if the claim was about the criteria itself of requiring a professional qualification, that did not work as a claim as there has to be an act or omission and way the PCP applied was when the Claimant was told she was ineligible in September 2023 and that unless there was actually a job that the Claimant wanted to apply for, and/or she applied, she was not suffering disadvantage in theory until the PCP was applied.

[42]Likewise, the Claimant had provided a document entitled ‘Supporting Document for objection to Application for Strike out/Deposit Order’ which is also incorporated by reference. The Claimant argues that her claims have been brought in time as all are continuing acts of discrimination as all PCPs were applied on a continuing and ongoing basis, as were her requests for reasonable adjustments and that she continues to be disadvantaged as if she were to further apply for an internal job, or there was a restructure, she would be ineligible for the role1. In relation to the reasonable adjustment claim, she argues that she has not had notification on why they have not adjusted the role, this was not addressed in her Grievance and is still an ongoing issue as she has not had the Grievance Appeal.

[43]She argues in the alternative that if her claim was submitted out of time, that it is just and equitable to extend time relying on her health and that she has done what she could with the capacity that she had, with the treatment received and consequences of treatment including challenging fatigue and anxiety affects, both of which impact on how long it takes her to manage things. Strike Out: No reasonable prospects of success

[44]Again, both parties had included arguments on strike out in their written documentation and were permitted to supplement with oral submissions. 1 Claimant witness statement §1

[45]Whilst accepted that the criteria of professional qualification was adopted in 2019, the Respondent’s counsel has argued that this has not been applied to the Claimant as she was still in her post as Accountant, she has dispensation and therefore any claim in relation to her existing post therefore must fail. As for Senior Accountant post the Claimant had sought to apply for, it was accepted that the PCP was applied on 11 September.

[46]In relation to the indirect disability discrimination claim, it was submitted that:a. there was no defining characteristic for a cancer diagnosis that can have no, many or different symptoms, to enable the Claimant to demonstrate group disadvantage, that there was no particular factor with cancer that puts those at that group at a disadvantage;

b. in relation to the disadvantages, I was asked to look at the claim in its entirety but if not, the disadvantages as pleaded were misconceived.

[47]In relation to the indirect age discrimination claim, it was argued that this too had to fail as the Claimant could not demonstrate the disadvantage claimed as:a. those younger comparators may or may not be flexible and that it cannot be the case that older have less years of working life as the Claimant is talking of ability to study;

b. She did not accept the further disadvantages flowed from the PCPs;

c. Counsel argued that the position in Homer was fundamentally different to the Claimant as here the Claimant was 55 and offered full funding and support, state pension was 67 years of age and the Claimant was not obligated to compulsorily retire. The 12 years’ to retirement gave her time (3-5 years) to obtain the professional qualification and the Claimant would struggle to demonstrated that those in the 52-59 age group were disadvantaged as 52 years of age was 17 years off retirement.

[48]Similar arguments were repeated on the PCPs for the reasonable adjustment claim.

[49]In relation to her indirect age discrimination complaint, the Claimant argued that it was not feasible for her and she would not being able to achieve essential criteria in the time left to normal retirement date of 60 years’ of age; that the PCP would exclude her from further roles, limiting her progression unlike others in younger age group who would have significant time to undertake the study. She indicated that statistics demonstrated that those in her age group were also more likely to have caring responsibilities than any other age group.

[50]In terms of the indirect disability claim she argued that there were issues that arose specifically out of cancer including the intensive chemotherapy, issues with cognitive impairments/psychological impact and peripheral neuropathy that were far-reaching and as a result the same opportunity to study is limited.

[51]In relation to the reasonable adjustments claim, the Claimant spoke of the Respondent’s knowledge of the substantial disadvantage of her ability to study on her cognition and fatigue and that the Respondent should comply with its diversity and inclusion policies which would have mitigated some of the disadvantages Legal issues Jurisdiction/Time limits - s.123 EqA 2010 52. s. 123(1) Equality Act 2010 (“EqA 2010”) provides that a claim must be presented to the tribunal before the end of the period of three months starting with the date of the act to which the complaint relates.

[53]Section 123(3) EqA 2010 makes special provision relating to the date of the act complained of in the following situations:a. conduct extending over a period is to be treated as done at the end of that period (s.123(3)(a) EqA 2010); and

b. failure to do something is to be treated as done when the person in question decided on it (s.123(3)(b) EqA 2010). In the absence of evidence to the contrary, a person is taken to decide on failure to do something either when the person does an act inconsistent with deciding to do something or, if they do no inconsistent act, on the expiry of the period in which they might reasonably have been expected to do it (s.123(4) EqA 2010).

[54]The three-month time limit for bringing a discrimination claim is not absolute: employment tribunals have discretion to extend the time limit for presenting a complaint where they think it ‘just and equitable’ to do so (s.123(1)(b) EqA 2010).

[55]There is a distinction between a continuing act and an act that has continuing consequences. The appropriate test is whether the employer is responsible for an ongoing situation or a continuing state of affairs in which acts of discrimination occurred. Where an employer operates a discriminatory regime, rule, practice or principle, then such a practice will amount to an act extending over a period. Where, however, there is no such regime, rule, practice or principle in operation, an act that affects an employee will not be treated as continuing, even though that act has ramifications which extend over a period of time. Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

followed in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

[56]If the claim is out of time, the burden is on the Claimant to show that it is just and equitable to extend time. In Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA, the Court of Appeal stated that when employment tribunals consider exercising the discretion under s.123(1)(b) EqA 2010, ‘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 claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’ Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

[57]This does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds and the Tribunal has a wide discretion. In exercising their discretion to allow out-of-time claims to proceed, the checklist contained in s.33 of the Limitation Act 1980 is 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. Section 33 Limitation Act 1980, as modified by EAT in British Coal Corporation v Keeble

[1997] IRLR 336

EAT, requires the court to consider the prejudice that each party would suffer as a result of the decision reached and have regard to all the circumstances of the case, in particular, the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Other relevant factors include the Claimant’s medical situation and not all factors will be relevant. The fact that a claimant has awaited the outcome of his or her employer’s internal grievance procedures before making a claim is just one matter to be taken into account by an employment tribunal in considering whether to extend the time limit for making a claim and there is no principle of law that pursuing an internal grievance process will automatically render it just and equitable to extend time (Apelogun-Gabriels v London Borough of Lambeth

[2002] IRLR 116

(CA)).

[58]Where the act complained of it a failure to do something, it is taken as occurring when the respondent made the decision not to act: s. 123(3)(b) EqA 2010. In the absence of evidence to the contrary, an employer is to be taken as deciding not to do something when it does an act inconsistent with doing it (or, if there is no inconsistent act, at the expiry of the period in which it might reasonably have been expected to do it: s. 123(4) EA 2010).

[59]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, the Court of Appeal held that where the employer's breach is a failure to act, time begins to run from the end of the period in which the employer might reasonably have been expected to comply with the relevant duty, and that period should be assessed from the employee's point of view. In Humphries v Chevler Packaging Ltd

UKEAT/0224/06

, the EAT held that time starts to run when an employer makes a decision not to make an adjustment or does an act inconsistent with making an adjustment. Strike out/Deposit Order

[60]Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success..."

[61]In Malik v Birmingham City Council

UKEAT/0027/19

Choudhury J summarised the approach to strike out “30. It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union

[2001] ICR 391

. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A

[2016] ICR 112117

. 31. In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;

(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;

(3) the Claimant's case must ordinarily be taken at its highest;

(4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and

(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. 32. Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen

UKEAT/0024/11

, it was stated that in appropriate cases, claims should be struck out and that "the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail." 33. A similar point was made in the case of ABN Amro Management Services Ltd & Anor v Hogben

UKEAT/0266/09

, where it was stated that, "If a case has indeed no reasonable prospect of success, it ought to be struck out."

[62]The Court of Appeal in Ahir v British Airways

[2017] EWCA Civ 1393

also summarised the position on strike out. Conclusions Time/jurisdiction

Conclusions

[63]In relation to whether the complaints were brought out of time, the Tribunal is not concerned with the merits of the complaint but solely concerned with whether or not the employment tribunal has jurisdiction to entertain the complaints.

[64]In order to consider what the ‘act complained of’ was, I considered the ET1 particulars and, whilst recognising that an agreed list of issues is not the complaint itself, it does reflect what the Claimant informed Judge Hunt in her case management preliminary hearing of 3 July 2023 as to what her claims were.

[65]The ET1 claim form had attached a three-page ‘Word’ document which set out in a narrative format the steps leading up to the Claimant bringing this claim. In particular, under ‘Background’, the Claimant’s narrative related to not just the specific role of Senior Accountant that she had sought to apply for in September 2023, setting out the steps she had taken to resolve her concerns internally through the Respondent’s grievance procedures, but also indicated that the requirement for the professional qualifications also had been applied to her existing role of Accountant. It spoke of disadvantage of future opportunities.

[66]The list of issues also referred to a PCP, in respect of all three claims of ‘holding an accounting qualification being made essential for the Claimant’s role of Accountant and [my emphasis] that of the new role of Senior Accountant.’ Without prejudice to the Respondent’s arguments on jurisdiction/time, that includes being excluded from applying from Accountant roles in the group Reporting Team as an additional disadvantage under indirect age and disability discrimination.

[67]I did not accept therefore, the Respondent’s argument that the substance of the Claimant’s case was the notification on 11 September 2023 that she was not eligible for the advertised role and that this was akin to the circumstances set out in Sougrin v Haringey Health Authority

[1992] IRLR 216

, where the Court of Appeal held that an employer’s refusal to upgrade a black nurse was a once and for all event or that in Pennine Acute Hospitals NHS Trust v Power

UKEAT/0019/11

, again a regrading case.

[68]Whilst I found that the Respondent’s confirmation that the Claimant was ineligible to apply for the Senior Accountant role was undoubtedly a trigger for these claims, the specific application for Senior Accountant role was just one, albeit distinct aspect of her case. The claim, drafted by the Claimant as a litigant in person and read as a whole, was wider than that related to that specific job application. The Claimant essentially complains that as long as she remains in employment without the qualification, she is ineligible to apply for not just Senior Accountant roles, but also Accountant roles in the Group Reporting structure.

[69]I did not accept the Respondent’s counsel’s arguments that the only way the claim could be brought was as an act or omission and that the only way the PCP applied was when the Claimant was told she was ineligible to apply for a specific role. Rather, I found that the PCP applied in the wider sense that the Claimant was claiming discrimination in terms of opportunities for promotion or transfer (s.39(2)(b) EqA 2010).

[70]I concluded that this case was more analogous to the position in Calder v James Finlay Corporation Limited [189] ICR 157, referred to in Sougrin, whereby a scheme had been constituted under the rules of which a female could not obtain the benefit of the mortgage subsidy was discriminating in the way that they had afforded her access to the scheme and as long as the claimant remained in employment there was continuing discrimination.

[71]I reminded myself that in Hendricks Mummery LJ said that the concept of policy, rule, practice, scheme or regime should not be treated as a complete and constricting statement of what is an act extending over a period. The focus should be on whether there was an ongoing situation or a continuing state of affairs in which those affected were treated less favourably.

[72]By amending the eligibility criteria, the Claimant claims there was an ongoing disadvantage as it prevented her from applying for the post of Senior Accountant in September and for future Accountant and Senior Accountant roles, essentially that the Respondent was discriminating in the way that they were affording her access to promotional and transfer opportunities.

[73]I found that whilst this criteria exists, as long as the Claimant remained in employment without that professional qualification, the complaints regarding the inability to apply for the September Senior Accountant role and future roles are therefore prima facie relating to a continuing state of affairs in time and amounted to a continuing act under s.123(3) EqA 2010 and that this applied to both the indirect discrimination complaints and failure to make reasonable adjustments complaints.

[74]If I am wrong on that point, and the claims are limited to the refusal to allow the Claimant to apply for the one specific role in September 2023, that this was an distinct act with continuing consequences as opposed to a continuing act and thereby out of time, in the alternative I consider that it would be just and equitable to exercise my discretion and extend time on the following basis:a. The Claimant was entitled to make an internal complaint of discrimination to the Respondent which she did so with little to no delay which failed to provide a prompt response to her grievances. Indeed, a response was not obtained until 18 January 2024, some two months after the primary limitation period asserted by the Respondent which, on the face of it, did not address the Claimant’s concerns regarding her health, specifically the impact of her disability. This was a factor in exercising my discretion over that primary limitation period.

b. I consider that it was sensible for the Claimant to try to redress her grievance before embarking on legal proceedings. I did not consider that this was a case that the Claimant having had the outcome of her internal process then delayed. This issue had still not been resolved internally for the Claimant when she received her Grievance outcome. She has still not received an outcome to her Grievance Appeal despite submitting that in February 2024 and having a Grievance Appeal hearing on 13 March 2024.

c. The Claimant sought information from ACAS and was advised of the time limits in January 2024, shortly after receiving the outcome to her Grievance. Whilst the Claimant erroneously has applied the rules regarding extension of time for early conciliation, I do take into account that from this point the Claimant was not only having to manage her internal Grievance Appeal and the time limits arising from an employment tribunal claim, but much more significantly had commenced a course of treatment for her cancer, her disability. Whilst I accept that she had been able to attend her Grievance Appeal meeting in March, I also accepted her evidence that her treatment fatigued her and that she found it difficult to concentrated and remain focused as well as experienced an exacerbation of her anxiety. Again, this in my view would have justified exercising my discretion to extend time. Strike out application

[75]In a separate case management order I confirm with reasons that the Claimant is permitted to amend her indirect age discrimination claims to include an age group of 52-59 in stead of 56-60 as referenced in her ET1 and deal with the application to strike out on the basis of the amended claim.

[76]In relation to the application for a strike-out order on the discrimination claims:a. In relation to the indirect disability discrimination claim and failure to comply with the duty to make a reasonable adjustment claim, I do not accept that this was a clear case that the Claimant will not be able to prove disadvantage. That the Claimant may have difficulties in demonstrating the group disadvantage from cancer specifically would not and did not lead me to such a conclusion. This will be dependent on evidence and cannot be determined without that. I decline to strike out both the indirect disability discrimination claim;

b. For the same reasons, I decline to strike out the reasonable adjustments claim;

c. In relation to the indirect age discrimination claim, whilst I accept that the Claimant’s position can be distinguished from the claimant in Homer, in that the Claimant was 55 at the time that she was notified that she was not eligible for the Senior Accountant role and there is no compulsory retirement age of 60, I am not satisfied that it can be said that the Claimant has no reasonable prospects of success. That the disadvantage is not as Mr Homer’s, it does not follow that the Claimant will not be able to provide evidence to demonstrate group disadvantage in her age claims. The Claimant has already indicated that there is some evidence to support her claim that those in the disadvantaged age group have greater caring responsibilities and in turn less time to commit to obtaining the qualification, in addition to the length of time that it would take to qualify leading to a period of potential retirement, even if not compulsory. That the disadvantages do not flow from the PCP cannot be determined at this stage and I do not consider that it can be said that they are misconceived. I decline to strike out the indirect age discrimination claim.

[77]Such matters can only be determined at a full hearing and considering the evidence.