Employment Judge DaviesIn person for claimantMr Briar (instructed by counsel) for respondentDate 8 November 2021
JUDGMENT
[1]The equal pay claim and the claim for other payments are dismissed on withdrawal by the Claimant. The remaining claims will proceed in accordance with case management orders made today. S-J Davies[3]The Judgment of the Employment Tribunal is that it is not just and equitable to extend time to vest the Tribunal with jurisdiction to consider the claimant’s claims. The tribunal has no jurisdiction to consider the claimant’s claims which stand dismissed accordingly.
REASONS
[1]The claimant presented his complaint to the Employment Tribunal on 18 March 2021. Before doing so, he went through mandatory early conciliation with Acas as required by the Employment Tribunals Act 1996. He commenced early conciliation on 6 August 2020. The conciliation ended on 19 September 2020. The relevant Acas early conciliation certificate is at page 2 of the hearing bundle.[2]The claim form was served upon the respondent on 30 March 2021. Upon the same date, the parties were served with notice of a case management preliminary hearing. This was listed to take place by telephone on 1 June 2021. The respondent presented their notice of appearance on 13 May 2021. 10.5 Reserved judgment with reasons – rule 61 1 March 2017[3]The telephone case management hearing came before Employment Judge Davies. (It was in fact adjourned from 1 June to 6 July 2021).[4]Employment Judge Davies identified the claims being brought by the claimant. Although there was some suggestion within the claim form of an equal pay case, it was ascertained that the complaints were of direct sex and direct race discrimination only brought under the Equality Act 2010. She set out in paragraph 7 of her case management minute the three complaints. It is worth repeating them here:(1) In January 2020 [the claimant] was scored poorly against selection criteria, placed in the bottom 5% of large corporates employees and placed at risk of redundancy. He says this is direct sex and race discrimination. On the information currently available he compares his treatment with that of Kirsten Burnard or a hypothetical comparator.(2) In July 2020 he was rejected for a grade C secondment opportunity. He says this is direct sex and race discrimination. On the information currently available he compares his treatment with that of Miss Edmond-Joseph or a hypothetical comparator.(3) In September 2020 he was not appointed to a grade E vacancy in one of the positions from which he was originally put at risk of redundancy. He says this was direct race discrimination. He compares his treatment with that of the successful candidate, Mr Leigh, who is not white British.[5]Employment Judge Davies then set out the issues for the Tribunal to decide. In summary, she identified there to be time limit issues and then, pending a determination of the time limit issues in the claimant’s favour, a consideration of the merits of the claimant’s complaint and (conditional upon his success with some or all of them) remedy.[6]The purpose of today’s hearing was to determine whether the complaints brought by the claimant were presented to the Tribunal within the time limit provided for by the 2010 Act and if not whether it is just and equitable to extend time to vest the Tribunal with jurisdiction to consider his complaints.[7]Employment Judge Davies then made case management orders. She gave directions for the preparation for today’s hearing. She also then gave directions for preparation for the final hearing which was listed for 24, 25, 26 and 27 January 2022.[8]Employment Judge Davies directed that no later than 20 July 2021 the claimant must send to the respondent a copy of his witness statement setting out all of the evidence relevant to the time limit issue only. The respondent was then directed to prepare and send to the claimant a bundle of documents to be used at the preliminary hearing. Finally, she directed that the bundle be sent to the Tribunal no later than seven days prior to the date fixed for the preliminary hearing. The parties complied with these directions.[9]I now turn to my findings of fact relevant to the time issue. I make no determination, when doing so, upon the merits of the claimant’s complaints set out in paragraph 4. The strength or otherwise of the claim may be a relevant factor when deciding whether to extend time (where the Tribunal is required so to do to vest it with jurisdiction). The view I take upon this issue, 10.5 Reserved judgment with reasons – rule 61 2 March 2017 however, is that I simply do not have sufficient evidence or information upon which to make an assessment of the merits of the claims. I would need much more evidence than I have before me about the redundancy exercise and job application exercises the subject of the claim (both in terms of the claimant’s own scoring and performance and those of his comparators). To entertain detailed evidence about these matters would be to conduct a mini trial. The focus at this stage needs to be upon findings of fact germane to the exercise of discretion. I therefore proceed upon the basis and assumption that the claimant’s complaints are on the face of it meritorious (but without making any such finding).[10]It is not in dispute that the claimant was employed by the respondent between 3 November 2015 and 31 December 2020. The claimant held a grade E relationship manager role within the mid-markets team at the time of a restructure in January 2019. Following the restructure, he became a grade E associate director in the large corporates team.[11]There was then a further restructure which took place in January 2020. What the respondent terms the “grade E population” (which included the claimant) was scored against roles within the new structure. Unfortunately for the claimant, he scored in the lowest fifth percentile out of 85 colleagues. As a result he was placed at risk of redundancy. The January 2020 exercise forms the basis of the first of the claimant’s complaints referred to in paragraph 4.[12]The claimant’s contract was not in fact terminated by reason of his redundancy as he found alternative work as a secondment to cover a period of maternity leave in the corporate and institutional debt team. The secondment lasted from 23 March 2020 until 30 September 2020. During this time the claimant applied for a grade C assistant associate role in large corporates. This application was made in July 2020. The claimant was unsuccessful with his application. This is the basis of his second discrimination complaint. The claimant raised a grievance about this in August 2020. The grievance is at pages 72 to 75. The grievance was not upheld.[13]The claimant then applied for a grade E associate director position in large corporates in August 2020. Unfortunately, he was again unsuccessful. The claimant says, and I accept, that the August 2020 application was for a role very similar to that from which he had been made redundant in January 2020. It is this application which forms the basis of his third discrimination claim.[14]Naturally, the claimant was concerned that the secondment referred to in paragraph 12 was coming to an end. In September 2020 he successfully applied for a short term secondment opportunity in the respondent’s real estate credit team. He was seconded to this role from 1 October 2020 until his employment terminated on 31 December 2020.[15]The claimant said in evidence that the real estate credit team were “very good to me”. The expiry of the limited term contract in that department constituted the claimant’s dismissal from the respondent’s employment. It follows from what the claimant said about his experience in that department that nothing arose within it which constitutes part of his claim.[16]The claimant was informed that he had been unsuccessful with the September 2020 grade E application (referred to in paragraph 13) on or around 7 September 2020. That being the final act of discriminatory conduct 10.5 Reserved judgment with reasons – rule 61 3 March 2017 relied upon by the claimant, it follows that time began to run on or around that date.[17]By section 123 of the 2010 Act, proceedings upon a complaint before the Employment Tribunal of a breach of the 2010 Act may not be brought after the end of the period of three months. The three months’ time limit begins to run from the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. For the purposes of section 123, conduct extending over a period is to be treated as done at the end of the period and so time begins to run then in such a case.[18]Different individuals were involved in the three complaints summarised in paragraph 4 which the claimant brings before the Tribunal. The claimant said that the different individuals involved in the three different complaints were within a close-knit management group within the respondent and operated under the same cultural mores. I do not have sufficient evidence to determine whether the three acts may be considered to be part of a series of acts or part of a continuing act such that time only begins to run against the claimant upon the conclusion of the final act. It may well be that, after hearing the evidence, a Tribunal would determine them to be specific and isolated acts in which case different time limits apply to each act. However, I shall proceed upon the assumption (and shall give the benefit of the doubt to him) that the claimant will be able to establish that the three acts in question were part of a series of acts or a continuing act and that time only began to run on or around 7 September 2020.[19]That being the case, the claimant would have to commence the process prior to 6 December 2020. The claimant did so as he made a referral to Acas as required by the 1996 Act on 6 August 2020. The period spent in Acas conciliation (of 42 days) is therefore added to 6 December 2020 to give a limitation date of 19 January 2021. It was by this date that the claimant had to submit his claim form to the Employment Tribunal. He did not do so until 18 March 2021 and is thus two months outside the time limit provided for by section 123.[20]If the claimant were able to establish a continuing act beyond 7 September 2020 to the date upon which he joined the real estate credit team, (that to being on or around 1 October 2020) then the time within which for him to submit his claim form before the Employment Tribunal was 11 February 2021. (That is, three months from 1 October plus 42 days spent in early conciliation). Again, the claimant submitted his claim around five weeks out of time.[21]It follows therefore that even upon the most generous interpretation in the claimant’s favour (of a continuing act ending only on 30 September 2020) the claimant presented his complaint outside of the relevant time limit. On the face of it therefore the Tribunal has no jurisdiction to entertain his claim. However, the Tribunal does have discretion to extend time to enable the Tribunal to consider his complaints.[22]As was established in the case of Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA, the onus is upon the complainant to convince the Employment Tribunal that it is just and equitable to extend the time limit. Robertson establishes that the exercise of the discretion is not a foregone conclusion. Indeed, to the contrary, there is no presumption that the Employment Tribunal should exercise discretion in the claimant’s favour 10.5 Reserved judgment with reasons – rule 61 4 March 2017 unless he can justify a failure to present the complaint in time. The exercise of the discretion is the exception rather than the rule. However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law simply requires that an extension of time should be just and equitable.[23]Within his witness statement, the claimant advanced several explanations for the timing of the presentation of his claim form. The first of these, as set out in paragraph 3 of his witness statement, was that, “From the time I was placed ‘at risk’ in January 2020 until I left the bank in December 2020 I attempted to secure alternative long term employment at Lloyds. There were limits to how far I could take my claim whilst there was a possibility that a role could have been forthcoming. It would have been foolhardy to submit my ET1 until my employment had been terminated as doing so would certainly have prejudiced my position”.[24]The respondent points to the claimant as having raised two internal grievances as undermining the factual assertion in paragraph 3 of the claimant’s witness statement cited in paragraph 23 of this judgment. The first of these was dated November 2019 and is at pages 68 to 71. It is not necessary to go into any great deal about this grievance. It appears to convey information which formed the basis of the equal pay claim which the claimant sought to bring. I am not convinced that the claimant bringing this grievance undermines what he says at paragraph 3 of his witness statement. After all, the redundancy exercise the subject of the first claim did not take place until January 2020 and there was no evidence that the claimant’s perception of his long term future with the bank was affected by the restructure carried out in January 2019.[25]However, the respondent is on firmer ground upon their submission around the second grievance. This is dated 6 August 2020 and is at pages 72 to 75. While in no way being critical of the claimant, this is expressed in robust terms. The claimant refers in the first page to the pursuit of an unfair dismissal complaint and having already referred the matter to Acas. We know that he did so upon that day. In the concluding paragraph on page 75 he again refers to unfair and constructive dismissal complaints and his willingness to take the matter to an Employment Tribunal.[26]On 6 August 2020 he also informed Damion Harrison of the respondent’s HR department that he had initiated the Acas early conciliation procedure. I refer to page 80 of the bundle. On 19 August 2020 he conveyed the message to Rebecca Amesbury of HR that he had contacted Acas and that he was “preparing this matter for industrial tribunal and have already engaged legal counsel – Acas involvement is to demonstrate reasonableness”. I refer to pages 78 and 79.[27]The claimant was not in fact prejudiced as the respondent (notwithstanding what the claimant was saying upon several occasions in August 2020) offered him a role in a different sector of the bank with effect from 1 October 2020.[28]Further, there is no evidence that the respondent sought to undermine or sabotage the claimant’s job seeking efforts outside the respondent bank. The claimant commenced a new role within the banking centre just 11 working days after the termination of his employment with the respondent. He commenced his new role on or around 17 January 2021. He applied for his 10.5 Reserved judgment with reasons – rule 61 5 March 2017 new role prior to Christmas 2020. The claimant accepted that he made reference to the respondent in the job application for his new employer. This would inevitably be the case upon any well drawn application form.[29]Whatever apprehension the claimant may have had about the respondent potentially retaliating against him either during his employment (by not offering him a long-term role) or after it terminated at the end of 2020 proved unfounded. The claimant knew this to be the case by virtue of him having obtained alternative employment with effect from the middle of January 2021. He knew then that the respondent had not sabotaged his application for employment elsewhere for otherwise he would not have been confirmed in his new role.[30]The claimant said that he did not submit his claim form to the Employment Tribunal until 18 March 2021 for fear that the respondent may prejudice his employment in his new role and lead to the termination of it during the probationary period. This was difficult evidence to understand because it is of course open to an employer to dismiss an employee with less than two years of service without fear of an unfair dismissal complaint (unless the complainant can bring themselves within one of the exceptional circumstances where the two years’ service requirement does not apply). There is, I think, much in Mr Braier’s point that once the claimant had secured his new employment in the same sector there was realistically no danger from the respondent. In my judgment, the claimant’s concerns were overblown for the reasons given earlier (that alternative employment was found for him within a different sector of the bank and the bank had not sought to jeopardise his new employment in any case). The concerns expressed by the claimant in paragraph 3 of his witness statement constitute, in my judgment, an unsatisfactory and unconvincing explanation for delay. They cannot weigh in the balance in the claimant’s favour accordingly.[31]The second matter referred to by the claimant is in paragraph 4 of his witness statement. He says that “Although my claim references three specific instances where I intend to demonstrate that I have been discriminated against, my evidence bundle contains supplementary supporting documentation collected throughout 2020, including proof of a cover up. This was a case of systemic discrimination occurring over a 12 month period.”[32]For the reasons already given, I am prepared to take the claimant’s case at its height and credit the alleged act of discrimination as being a series of act or a continuing act ending either on 7 or 30 September 2020. Thus, this weighs in the balance in the claimant’s favour in that I shall take time as starting to run from 30 September 2020.[33]In the fifth paragraph, the claimant repeats his concern that he had to wait until he had secured an alternative external role as he could not take the risk that his former employer [the respondent] would attempt to sabotage the recruitment process. As I have said, I do not find this to be a satisfactory explanation. At all events, the claimant knew that the respondent had not sabotaged the recruitment process when he commenced his new role on 17 January 2021. At that point, he was still within time to bring his complaint even if time were to run against him from the earlier date of 7 September 2020. 10.5 Reserved judgment with reasons – rule 61 6 March 2017[34]In the same paragraph, the claimant says that he “submitted [his] ET1 on 18 March 2021, being the earliest possible date I could address this issue, but still within three months of my termination date”. It is not clear why the claimant latched on to 18 March 2021 as the earliest date upon which he could attend to matters. Plainly, this is not the case. In evidence, he said he that he had a three months’ probationary period with his new employer. That being the case, the probationary period would have expired on or around 16 April 2021. (As I have already observed, getting past the probationary period would not give the claimant security of employment in any case). Be that as it may, it makes no sense for the claimant to have presented his complaint on 18 March 2021 if he wished to await the expiry of his probationary period.[35]The claimant’s factual assertion that the claim only crystallised once his employment was terminated is in effect a plea of ignorance about the relevant law. To repeat, by section 123 of the 2010 Act, the period of three months starts with the date of the act to which the complaint relates or the end of the period where the complaint relates to conduct extending over a period. It is simply incorrect to say that time only starts to run from the end of employment in a discrimination case. If that were the case, then employers may be visited with stale claims from employees about matters going back years prior to and unconnected with the end of employment.[36]In Bowden v Ministry of Justice [2017] UK EAT/0018/17 it was held that where ignorance of a time limit is relied upon by a complainant, the jurisprudence that has developed around unfair dismissal law is relevant.[37]Where a complainant wishes to bring a complaint of unfair dismissal, such must be presented to the Employment Tribunal within three months of the effective date of termination. As with discrimination claims brought under the 2010 Act, the Employment Rights Act 1996 (which provides the statutory protection against being unfairly dismissed) provides an escape clause. However, whereas under the 2010 Act a Tribunal may extend time where it is just and equitable so to do, under the 1996 Act a stricter test applies. That is to say, time will only be extended to consider an unfair dismissal complaint where the complainant can establish that it was not reasonably practicable to have presented the claim in time and that the claim was presented within a reasonable time.[38]Bowden was in fact a complaint brought under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. That is legislation which provides protection against discrimination upon the grounds of part time worker status. A just and equitable extension of time provision is provided for within the regulations. Bowden is therefore directly analogous to the instant case. Very similar principles operate upon a consideration of an extension of time under the 2000 Regulations as under the 2010 Act.[39]In Bowden, the Employment Appeal Tribunal (HHJ Richardson) set out Brandon LJ’s speech in Wall’s Meat Co Limited v Khan [1978] IRLR 499. In Wall’s Meat, a distinction was drawn between ignorance on the one hand and reasonable ignorance on the other. It was held that in the context of an unfair dismissal complaint a complainant may expect little sympathy where they know of their right not to be unfairly dismissed but make no reasonable enquiries to vindicate those rights. A complainant may expect more sympathy where the ignorance is reasonable (perhaps because they were misled by the 10.5 Reserved judgment with reasons – rule 61 7 March 2017 employer or there was some reasonable and understandable confusion about their rights). It is clear however that ignorance of the time limit in and of itself would rarely be acceptable as a reason for delay. If simple ignorance were to be an adequate excuse, then the time limits may as well not exist.[40]We can see from page 1 of the grounds of claim which accompanied the claimant’s claim form that he has impressive credentials. He has achieved very impressive grades in secondary school culminating in a degree with a very prestigious university. The way in which the claimant presented himself before me demonstrates that he is an extremely intelligent and articulate individual.[41]Furthermore, the claimant said in his claim form that he had representation from Daniel Hibbert of Hibbert Professionals. It was suggested to the claimant by Mr Braier that Daniel Hibbert is in fact a HR and employment law consultant. The claimant maintained that he was not and that he worked for SkyBet.[42]I need not make a determination upon this issue. However, I have seen correspondence between the respondent’s solicitor and Mr Hibbert. From this, it may be readily discerned that Mr Hibbert is very familiar with employment law and practice. His letters were very good and of a standard which one may expect from somebody with a great deal of familiarity in this area.[43]The claimant said that Mr Hibbert did not come on the scene until around the time that he issued the claim form. He says that he knows Mr Hibbert as a personal friend. The claimant said that he had sought advice upon one occasion from a solicitor at around the time that he initiated Acas early conciliation in early August 2020.[44]In my judgment, for the reasons given in paragraph 40, the claimant himself was well able to investigate the position around time limits. He said in evidence given under cross-examination that he was “aware of a three month time limit but I thought it related to the final act of discrimination. I had the final date of employment in my head”. Mr Braier asked him whether the claimant had been advised about time limits by the solicitor to whom he spoke in the summer of last year. The claimant was prepared to answer the question after I had counselled him about the nature of litigation privilege. The claimant replied that his belief that time started to run from the end of employment was based upon his interpretation after discussion with Acas. It follows that the claimant was not seeking to pray in aid that he had been given bad advice by his solicitor, Mr Hibbert or Acas but rather that he had misinterpreted what Acas had said and conflated the ending of employment with the ending of the discriminatory conduct.[45]Mr Braier took me to the case of Inchcape Retail Ltd v Shelton [2019] (UK EAT/0142/19). This may be viewed to some degree as updating the Wall’s Meat case and bringing the jurisprudence into the internet age. The Employment Tribunal recognise that it is not difficult for an educated person to find out the relevant information by using the internet.[46]I am satisfied that the claimant is a very well educated and intelligent individual. He could easily have found out about the time limits had he applied himself. Further, he appears to have a longstanding friendship with 10.5 Reserved judgment with reasons – rule 61 8 March 2017 Mr Hibbert. I accept that factually the claimant did not involve Mr Hibbert until it was too late. Nonetheless the facility of asking Mr Hibbert was always open to the claimant. As Mr Hibbert was a friend of his and the claimant knew of his knowledge of employment law. Further, the claimant has spoken to a solicitor. It appears from his evidence given in cross-examination that he was aware that time ran from the end of the discriminatory act but wrongly interpreted this as being the same thing as the end of employment. That is not reasonable ignorance.[47]Section 123 of the 2010 Act does not set out any list of factors to which a Tribunal is instructed to have regard in exercising the discretion whether to extend time for just and equitable reasons. In Adedeji v The University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 Underhill LJ cited with approval the judgment of Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640. In that case, Leggatt LJ said (in paragraph 19) that, “the factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(1) The length of, and reasons for the delay; and(2) Whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[48]In Abertawe, the Court of Appeal rejected the proposition that in the absence of an explanation from the claimant as to why they did not bring the claim in time and an evidential basis for that explanation, the Tribunal could not properly conclude that it was just and equitable to extend time. The Court of Appeal held that the discretion under section 123 of the 2010 Act for a Tribunal to decide what it thinks to be just and equitable is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the Tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation for the delay from the claimant. The most that can be said is whether there is any explanation or apparent reason for the delay and the nature of any reason are relevant matters to which the Tribunal ought to have regard. However, there is no requirement for a Tribunal to be satisfied that there was a good reason for the delay before it can conclude that it is just and equitable to extend time. However, as Robertson establishes, there needs to be something to convince the Tribunal that it is just and equitable to extend time.[49]A Tribunal will fall into error when considering whether it is just and equitable to extend time if the focus is simply upon whether the claimant ought to have submitted their claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent. Of course, some prejudice will always be caused to the employer if an extension of time is granted given that the case would otherwise be dismissed.[50]In the case of Miller and others v The Ministry of Justice and others (UK EAT/0003/15) (another case concerning the Part Time Workers Regulations) the Employment Appeal Tribunal (Laing J) said (in paragraph 12) that, “there are two types of prejudice which a respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim 10.5 Reserved judgment with reasons – rule 61 9 March 2017 which would otherwise have been defeated by limitation defence and the forensic prejudice which a respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and losing touch with witnesses”.[51]In paragraph 13 she goes on to say that the prejudice to a respondent of losing a limitation defence is “customarily relevant” to the exercise of this discretion. It is obvious that if there is a forensic prejudice to a respondent that may well be “crucially relevant” in the exercise of the discretion, telling against an extension of time. She held that forensic prejudice may well be decisive. However, the converse does not follow. In other words, if there is no loss of ‘crucially relevant’ forensic prejudice to the respondent that is not decisive in favour of an extension. The absence of forensic prejudice may well not be relevant at all. It will very much depend upon the way in which the tribunal sees the facts.[52]In this case, the respondent did not adduce any evidence as such of forensic prejudice. There is no evidence that, for example, key witnesses are unavailable attributable to the delay who otherwise may have been able to be called to give evidence or that important documents have been lost or destroyed which would have been preserved had the claimant brought his claim timeously. That said, I find compelling Mr Braier’s submission that the events with which the Tribunal would be concerned were time to be extended go back (upon the earliest complaints) to January 2020.[53]If time is now to be extended, the respondent would be expected to call evidence dealing with what appears to be a complex redundancy exercise which took place getting on for two years ago. It is inevitable, in my judgment, that in those circumstances the witnesses to be called by the respondent would suffer from memory fade when expected to give evidence about a large scale redundancy exercise involving a significant number of employees. Similar observations may be made about the second and third complaints albeit that they happened more recently. I surmise that a number of candidates applied for each of the positions the subject of the second and third complaints. In fact, this is inevitably the case given that two others were successful whereas the claimant was not. It is probable that there were other candidates as well. To expect busy officials to bring to mind the circumstances of recruitment exercises going back now getting on for 18 months ago in my view inevitably creates a forensic prejudice to the respondent.[54]Upon the facts of Adedeji, the complainant was only three days out of time upon the last of his complaints. However, there were other claims arising from events six and 12 months prior to the presentation of the claim form. In paragraph 32 of the case report Underhill LJ held that, “a Tribunal can properly take into account the fact that, although the formal delay may have been short, the consequence of granting an extension may be to open issues which arose much longer ago.”[55]In this case, of course, the claimant was not only just out of time upon any of his complaints. He was significantly out of time even giving him the benefit of the doubt that time did not start to run until the end of September 2020.[56]The end of the state of affairs giving rise to his most recent claim ended (being generous to the claimant) at the end of September 2020 which was a period getting on for almost six months prior to the date upon which he submitted his 10.5 Reserved judgment with reasons – rule 61 10 March 2017 claim form. That is getting on for double the time limit prescribed by Parliament for dealing with Employment Tribunal claims. Parliament prescribed a short time limit for good reason. It is a safeguard employers being troubled by stale claims upon issues which arose a long time ago.[57]The claimant has not advanced any good explanation for the delay. That is of course not decisive per Abertawe. What can be said however is that the explanations advanced by the claimant are unsatisfactory. It is also erroneous for me to focus simply upon whether the claimant ought to have submitted his claim in time.[58]It is for me to weigh the relative prejudice that extending time would cause to the respondent against the prejudice to the claimant of not extending time. Of course, if I do not extend time then the claimant is significantly prejudiced as that will be the end of the claim. However, that in and of itself cannot be a decisive factor as otherwise time extensions will always be readily granted. It does not follow that because there is no forensic prejudice to the respondent then an extension of time ought to be granted.[59]I am satisfied that there is forensic prejudice here to the respondent. The cogency of the evidence is more than likely affected by the delay. The delay is significant. There is in reality no reason for the delay let alone any good reason for it.[60]The claimant is simply able to point to nothing which may be weighed in the balance in his favour. His ignorance was not reasonable. His apprehension about the respondent’s acts were not reasonable. There was nothing to stop him, whatever his concerns about the respondent, putting his claim form in once he secured new employment. As Mr Braier submitted, the difficulty which the claimant finds himself is of his own making. He has not been misled by the respondent or any advisor upon the issue of time limits. To the contrary, it appears that he was correctly told by a solicitor and/or Acas that time begins to run at the end of the discriminatory conduct which the claimant misinterpreted. To adopt Mr Braier’s expression, the claimant has “nothing in his locker” to persuade the Tribunal to extend time. It is for him to convince me that time ought to be extended. Nothing was advanced to persuade me that it should be.[61]The claimant’s case in reality amounts to no more than this – “I am significantly out of time, I submitted the claim upon a random date with no rhyme or reason for delay and now wish the Tribunal to extend time to enable me to pursue the matter.” There is frankly no logic to the claimant having submitted his claim on 18 March 2021. Given that the onus is upon him to convince the Tribunal that it is just and equitable to extend time and the exercise of discretion is the exception rather than the rule, there is simply nothing to which the claimant can point to convince the Tribunal to exercise discretion in his favour. 10.5 Reserved judgment with reasons – rule 61 11 March 2017[62]In the circumstances, I am driven to the conclusion that as a matter of law it is proper to refuse to extend time in order to vest the Tribunal with jurisdiction to consider the claimant’s complaints. In the circumstances, the Tribunal has no jurisdiction to consider them. The hearing listed for January 2022 shall therefore be vacated.[1]A public preliminary hearing was held in this matter on 21 October 2021. The purpose of the hearing was to decide whether the complaints brought by the claimant were presented to the tribunal within the time limit provided for by section 123 of the Equality Act 2010 and if not whether it is just and equitable to extend time to vest the Tribunal of jurisdiction to consider his complaints.[2]At the conclusion of the hearing, I reserved my judgment. I caused the Reserved Judgment to be promulgated on 12 November 2021. I shall now refer to this as ‘the Judgment’. I ruled that it is not just and equitable to extend time to vest the Tribunal with jurisdiction to consider the claimant’s claims.[3]On 16 November 2021, the tribunal received an application for reconsideration of the Judgment. This was submitted on the claimant’s behalf by Daniel Hibbert who has had some involvement in the case (as set out in paragraphs 41 to 43 of the reasons for the Judgment).[4]Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides an Employment Tribunal with a general power to reconsider any judgment where it is necessary in the interests of justice to do so. This power can be exercised either on the tribunal’s own initiative or on the application of a party. Rules 71 to 73 set out the procedure by which the power is to be exercised.[5]Rule 70 provides for a single ground for reconsideration. That ground is where it is necessary to do so in the interests of justice.[6]This does not mean that in every case where a litigant is unsuccessful, they are automatically entitled to reconsideration. Instead, a tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly and the tribunal should be guided by the common law principles of natural justice and fairness. Tribunals have a broad discretion but that must be exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation.[7]An application for reconsideration must be presented in writing and copied to all other parties within 14 days of the date upon which the written record of the decision the subject of the reconsideration application was sent to the parties. In this case, the Judgment was promulgated on 12 November 2021. The application for reconsideration is therefore plainly in time. The claimant has also complied with the procedural requirement to copy the application to the respondent’s solicitor. Therefore, the tribunal has jurisdiction to consider the reconsideration application made by the claimant.[8]Rule 72 of the 2013 Rules sets out the procedure that an Employment Tribunal must follow upon receipt of an application for reconsideration. Firstly, the application shall be put before the Employment Judge who decided the case (or who chaired the panel hearing the case if the hearing was before a full panel). If the Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application will be refused and the Tribunal will inform the parties accordingly.[9]If the application is not refused, the tribunal will send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the parties’ views on whether the application can be determined without a hearing. That notice may also set out the Judge’s provisional views on the application although it does not have to do so. The matter will then proceed to a hearing unless the Employment Judge considers – having regard to any response to the application – that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing, the parties shall be given a reasonable opportunity to make further written representations. It is clear that the policy intention underlying Rule 72 is that reconsideration applications will be dealt with on the papers wherever possible, thereby saving time, expense and resources.[10]The Employment Appeal Tribunal has recently emphasised the importance of following the Rule 72 procedure in the correct order in T W White & Sons Ltd v White (UK EAT/0022/21). The EAT said that the procedure does not allow for the Employment Judge to decide that a hearing is necessary before he or she takes the decision under Rule 72(1) as to whether there is no reasonable prospect of the original decision being varied or revoked. This aspect of the procedure provides an important protection to the party opposing the application, in that the other party should not be put to the time and expense involved in responding to the application if the Employment Judge does not consider that there are reasonable prospects of the Judgment being varied or revoked. As I have reached the conclusion that there is no reasonable prospect of the Judgment being varied or revoked, it is my judgment that I am able to consider the application upon the papers without the respondent’s input.[11]A number of grounds are raised by the claimant in support of his reconsideration application. I shall deal with each of these in turn.[12]In paragraph 3, the claimant contends that the Judgment “references verbatim the examples provided by the respondent’s counsel Mr Braier which supports the respondent’s side of the argument only. The claimant does not have the luxury of an expensive legal team to provide a counter argument – the claimant assumes that there must be many examples where there have been grounds to extend time.”[13]During the course of the hearing, I explained to the claimant that Mr Braier is bound by the Code of Conduct issued by the Bar Standards Board. The overriding core duty under the Code is that owed to the court or tribunal in the administration of justice. The court or tribunal must be able to rely on information provided to it. Counsel therefore has a duty to take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions. Plainly, this extends to those which are both in favour of and against counsel’s client’s position.[14]I am satisfied that Mr Braier fully discharged this duty. Amongst the authorities cited by him was Abertawe Bro Morgannwg University Local Health Board V Morgan [2018] IRLR 1050. This case is authority for the proposition that there is no justification for reading into the statutory language in section 123 of the 2010 Act any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of any explanation for the delay for the claimant. Plainly, this is an authority in favour of complainants seeking an extension of time where, as here, there is no dispute that the claims have been presented out of time.[15]No further authorities have been cited by or on behalf of the claimant. Nothing further is cited because Mr Braier submitted a comprehensive bundle of authorities upon this issue. The Azeem Rafiq v Yorkshire County Cricket Club case referred to in paragraph 11 of the claimant’s application is of no assistance to him. As is public knowledge, that case was resolved without judicial determination.[16]In paragraph 4, the claimant complains that I acknowledged that in principle, the merits of a complainant’s claim may be a relevant consideration but that “no effort is made to seek to understand the particulars of the claim.” The basis of this assertion is not understood. The case benefited from a telephone case management hearing which came before Employment Judge Davies on 6 July 2021. She identified the claim as being brought by the claimant which I set out in paragraph 4 of the reasons for the Judgment. In any case, as I said in paragraph 9 of the reasons, I proceeded upon the basis and upon the assumption that the claimant’s complaints were meritorious. That being the case, there is simply no reason (upon a consideration of just and equitable extension) to consider the merits of the claimant’s case any further. It is enough to find or to assume (without making a finding) that the claims are meritorious.[17]I now turn to paragraph 5(a). Here, the claimant says that the complaint does not relate to isolated events but rather to a “widespread culture of institutionalised discrimination against white heterosexual males within Lloyds Bank.” He goes on to say that, “although three specific instances of discrimination are referenced, these have been selected to support the overarching claim because the claimant has tangible evidence to prove beyond reasonable doubt that he was discriminated against on these occasions.”[18]It bears repeating that Employment Judge Davies identified the three complaints brought by the claimant (as set out in paragraph 4 of the reasons). In paragraph 18 of the reasons, I said that I was proceeding upon the assumption that the claimant will be able to establish that the three acts in question were part of a series of acts or continuing acts, notwithstanding that different individuals were involved in each of them. The tribunal is only seised of those matters set out in the claim form. Had the claimant sought to pursue a complaint of institutionalised discrimination one would have expected the claim form to have said so. As far as I am aware, there is no challenge by the claimant to the identification of his claims by Employment Judge Davies. Upon the basis of the claim as pleaded, I made assumptions in the claimant’s favour which had the effect of pushing back the date upon which time started to run against him as far as was permissible.[19]I now turn to paragraph 5(b). He says that the claimant raised grievances “which were frustrated and whitewashed by the respondent and also contacted ACAS to seek arbitration with which the respondent did not engage.” He goes on to say that if he had “felt that raising a new claim with ACAS would have been anything other than fruitless then he would have repeated the process upon leaving the employment of the bank. The out of time consideration will not have been necessary and we would not be having this debate.”[20]The latter is a bad point. The issuing of a second early conciliation certificate upon a matter will have no impact upon the primary limitation period. A second early conciliation certificate is a nullity. Authority for this proposition may be found in the case of HMRC v Garau [UK EAT/0348/16]. The outcome following the claimant’s grievance of 6 August 2020 was communicated to him on 24 September 2020. This was long before the expiry of the limitation period upon 19 January 2021 or 11 February 2021 (as set out in paragraphs 19 and 20 of the reasons). There was ample time for the claimant to have then presented his claim form.[21]In paragraph 5(c) the claimant refers to a “culture of fear and intimidation” which he says led to the claim being delayed until his employment had been terminated. This is to effectively repeat a failed submission made by the claimant during the course of the hearing and which was dealt with primarily in paragraph 29 of the reasons. Even if the claimant is correct to say that there was a culture of fear and intimidation which forestalled him taking action during his employment, then there was nothing stop him from instituting proceedings in good time after the employment ended on 31 December 2020.[22]The next issue (at paragraph 5(d) is a reference to the claimant being in his probationary period with his new employer when time was running against him to institute proceedings against the respondent. Again, this is simply to repeat a failed submission made upon the last occasion. There is no evidence that the respondent jeopardised or undermined his job seeking efforts. This is an unmeritorious point which I dealt with in paragraph 30 of my reasons.[23]The next point raised by the claimant is that these events took place during the currency of the pandemic. This is a point raised by him in paragraph 5(c). The claimant says that, “The respondent’s discriminatory practices forced the claimant to seek alternative employment at a time when jobs were incredibly scarce.” He goes on to say that he was working remotely in his new role and, “an inability to forge direct relationships made it even more important that the claimant could not risk provoking incendiary comments from former colleagues.” I have looked back at the claimant’s witness statement and checked my notes of the hearing. I have no record of the claimant praying in aid the impact of the pandemic. This is a new point raised by the claimant which plainly could have been raised by him at the hearing.[24]Reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the Tribunal at the time it made its judgment. The underlying principles to be applied by tribunals in such circumstances are the same as those which apply in civil litigation by virtue of the well-known case of Ladd v Marshall [1954] 3 All ER 745, CA. There, the Court of Appeal established that, in order to justify the reception of fresh evidence, it is necessary to show: That the evidence could not have been obtained with reasonable diligence for use at the original hearing; That the evidence is relevant and would probably have had an important influence on the hearing; and That the evidence is apparently credible.[25]Plainly, the impact of the pandemic upon the claimant was something of which he was aware and evidence upon this could have been obtained with reasonable diligence for use at the hearing. Upon this basis, the claimant fails the Ladd v Marshall test. There is a public interest in the finality of litigation. The interests of justice will not be served if parties are able to effectively have a second bite of the cherry by raising points which occur to them, without good reason, only after the hearing.[26]In any case, even had the claimant adduced evidence to this effect, I would not have been convinced that it aids the claimant in advancing a case that it is just and equitable to extend time. The argument is frankly doomed to fail in the absence of evidence that the respondent acted in any way improperly towards the claimant when the claimant was seeking to forge a career elsewhere. Such evidence as there is points to the contrary as the claimant was able to obtain a role elsewhere and a temporary secondment with the respondent from 1 October 2021. This point appears to be simply another way of putting the same point about an unfounded apprehension about the respondent’s likely conduct after the end of employment which I determined to be unmeritorious.[27]I now turn to the point raised by the claimant in paragraph 6. He makes reference to my comment in paragraph 61 of the reasons that his case in reality amounts to no more than this – “I am significantly out of time, I submitted the claim upon a random date with no rhyme or reason for delay and now wish the Tribunal to extend time to enable me to pursue the matter.” He questions why the date itself should have a particular relevance. This is a difficulty comment to understand. The date upon which the claimant presents the claim to the Tribunal must be the starting point upon any consideration of whether the claim is presented in time or out of time and if out of time the length of the delay. It would be odd indeed upon a consideration of a preliminary issue upon time limits not to make reference to the day upon which the proceedings were presented and to call upon the claimant to explain the rationale for presenting the claim when he did.[28]The explanation proffered by the claimant in the reconsideration application is that he wished to ensure that the claim was submitted “within three months of leaving the environment where the culture of discrimination existed.” He goes on to say that it would have been the claimant’s “preference to wait until the full probation period had been served but this would have been outside the three month window and therefore could give rise to potential challenge.”[29]This is a point which also relates to that raised by the claimant in paragraph 5(b): that ACAS clarified that any claim “must be submitted within three months of the issue on which judgment is requested having occurred.” The claimant suggests that it would “not be unreasonable to assume that this would coincide with the termination of the claimant’s employment.” This in fact is contrary to the evidence which the claimant gave before me at the hearing. As recorded in paragraph 44 of the reasons, the claimant was aware of a three months’ time limit, thought it related to the final act of discrimination but had the final date of employment “in his head.” The claimant effectively misinterpreted what ACAS had said and conflated the ending of employment with the ending of the discriminatory conduct.[30]The reality is that the claimant elected to wait before commencing proceedings in circumstances where he knew of the time limits and of the short limitation period provided for by the 2010 Act. He appears to have had his own reasons for choosing to wait. Those reasons are illogical when set against the respondent having found him an alternative role for the last three months of employment, nothing untoward having occurred during those last three months and the respondent having taken no steps to in any way jeopardise or sabotage the claimant’s job hunting within the same sector.[31]Further, the claimant’s position that he was worried about retaliation from the respondent is difficult to understand in circumstances where he raised a grievance on 6 August 2020, expressing himself in quite trenchant terms. As I observed in paragraph 26, the claimant spoke in terms of preparing the matter for the Employment Tribunal and having engaged legal counsel. The claimant’s grievance pre-dated the respondent appointing the claimant (following an application process) into the retail estate credit team for the last three months of his service with them. The trenchant terms of the claimant’s grievance of 6 August 2020 having done him no harm both in his employment with the respondent and afterwards, it is an illogical position to take to fear the respondent acting against his interests after 31 December 2020 when he had left the employment. Such an illogical position went nowhere towards satisfying the onus upon the claimant to convince me that time ought to be extended in the circumstances.[32]I now turn to paragraph 7. This concerns the involvement of Mr Hibbert. The claimant says in his reconsideration application that Mr Hibbert only became involved after proceedings had been issued. In fact, I said just this in paragraph 43 of the reasons. I made no finding that Mr Hibbert had been involved in the matter prior to the commencement of proceedings. I also made no finding that Mr Hibbert is in business as an employment law consultant.[33]The fact remains however that it was open to me to find that Mr Hibbert was available to help the claimant. He is a long-standing friend of the claimant.[34]The assertion that Mr Hibbert has no understanding of the Tribunal process is difficult to understand in light of the email chain that was sent by the respondent’s solicitor to the Tribunal during the course of the hearing. In an email of 15 September 2021 Mr Hibbert says, “My preference when presenting evidence in such matters is to stick to the issue in question – in this case whether the claimant can justify why the claim was submitted [over] three months after the ACAS form was presented” [emphasis added by me]. This is suggestive of prior experience of dealing with Tribunal matters. The general tenor of the correspondence is of an individual familiar with the process. Mr Hibbert describes himself as “consultant” in the chain of correspondence with the respondent’s solicitor.[35]In paragraphs 41 and 42 of the reasons, I said that I need not make no determination upon Mr Hibbert’s status. The assertion in the reconsideration application (made by Mr Hibbert on the claimant’s behalf) of a lack of familiarity of Employment Tribunal practice and procedure ought not to pass without comment in the circumstances. Whether or not Mr Hibbert is practising as an employment law consultant is a matter which I need not determine. However, I am satisfied from what I have seen from him (both in the email chain forwarded to me by Eversheds and in the reconsideration application) that he does have some familiarity with the process.[36]That he is ready, willing and able to assist the claimant is apparent from the alacrity with which the detailed reconsideration application was submitted. This underscores my finding (in paragraph 46) that the claimant may have availed himself of Mr Hibbert’s knowledge and experience much sooner than he did. In my judgment, the finding that I made during the course of the hearing that the claimant’s ignorance of time limits was not reasonable ignorance in the circumstances is unassailable.[37]I now turn to paragraph 8 of the reconsideration application. Here, the claimant seeks to introduce evidence of difficult family circumstances which beset him from around August 2020. There is of course no reason to disbelieve what the claimant says. The tribunal has every sympathy for him upon the difficult circumstances which presented.[38]However, the claimant faces a formidable difficulty in seeking to introduce this material now. Plainly, this is evidence which could have been obtained with reasonable diligence for use at the hearing on 21 October 2021. The Ladd v Marshall test creates an insuperable difficulty for the claimant. There is no reason why the claimant could not have adduced this evidence at the hearing. It is generally not in the interest of justice that parties in litigation should be given a second bite of the cherry simply because they have failed as a result of oversight or a miscall in their litigation strategy to adduce the evidence available in support of their case.[39]In paragraph 11 of his application, the claimant seeks to challenge the Tribunal’s findings upon the issue of forensic prejudice to the respondent. The difficulty for the claimant with this submission is that the ruling upon the issue of forensic prejudice (and the presumption of such) in Miller and Others v The Ministry of Justice and Others (UK EAT/0003/15) is binding upon the Employment Tribunal as it is a ruling made by the Employment Appeal Tribunal. It was open for me to find that the respondent would suffer forensic prejudice because of the delay. It cannot be as simple, as the claimant alleges, as asserting that because the matters in question were documented there is an absence of forensic prejudice. There is no mandate for determining this issue simply upon the basis of a dichotomy between paperbased and a non-paper based cases. The nature of the claimant’s complaints give rise to an obvious risk of memory fade for the reasons which I give in paragraph 53.[40]Further, even if there is no forensic prejudice to the respondent that is not a decisive factor in favour of an extension. It will still be for the claimant to convince the claimant that time ought to be extended. As I said in my reasons, the claimant advanced nothing to convince me to extend time in circumstances where the case law clearly establishes that an extension of time is the exception rather than the rule.[41]Finally, I turn to paragraph 12 of the claimant’s reconsideration application. He says that he is aware of the significant backlog of cases within the Employment Tribunal system and that this “should not in any way be allowed to prejudice the decisionmaking process and deny access to the justice system.” It is not clear what point the claimant is trying to make here. However, any suggestion that the decision was taken for improper motives is plainly inappropriate and inimical to judicial independence.[42]In summary, therefore, nothing said by the claimant in his reconsideration application is persuasive and in my judgment there is no reasonable prospect of the Judgment being varied or revoked. The reconsideration application therefore stands dismissed.