Ms M Aaron v Imperial College of Science, Technology and Medicine and others: 2201955/2024
EMPLOYMENT TRIBUNALS
Case No 2201955/2024
Between
Ms M AaronClaimantImperial College of Science, Technology and Medicine and othersRespondent
Before
Employment Judge P KlimovDate 1 August 2025
REASONS
[1]This Judgment must be read together with my judgment dated 5 September 2024 (“the original Judgment”) and the written Reasons dated 14 October 2024 (“the Reasons”).[2]As recorded at paragraphs 7-9 of the Reasons, at the end of the hearing the respondents applied for reconsideration of my decision to waive (pursuant to Rule 6 of the Employment Tribunals Rules of Procedure 2013 (“the ET Rules”)) the non-compliance with the requirement for the claimant to present Acas early conciliation (“EC”) certificates for individual respondents.[3]The respondents’ application was confirmed in writing on 5 September 2024, as follows: “Reconsideration We write pursuant to the reconsideration application made by the Respondents orally at today’s hearing. As directed, we confirm here the application in writing. We understand that the Tribunal has already determined that this application has reasonable prospects of success. The Claimant has 14 days to respond to this application. The Tribunal rejected the Respondents’ application to strike out the claims of the individual respondents (identified by the Tribunal as the Second to Sixth Respondents) in relation to the Claimant’s failure to undergo Acas early conciliation before bringing her claim against those Respondents. The Respondents seek reconsideration in respect of that order. The reason that reconsideration would be in the interests of justice is that the Claimant was successful on a point that was not argued before the Tribunal. The Respondents therefore did not have an opportunity to address the Tribunal on the point in question. The Respondents understand that the Tribunal held that(a) the Claimant had failed to undergo Acas early conciliation in respect of the Second to Sixth Respondents before bringing her claim against them;(b) however, the Tribunal had the power under r.6 Employment Tribunal Rules 2013 (“Rule 6”) to waive the requirement to do so;(c) it was appropriate to waive this requirement. Rule 6 may not be relied upon to waive the requirement to undergo Acas early conciliation before bringing a claim in respect of a particular respondent. It may in certain circumstances be appropriate where a claimant has failed to comply with a rule of the Employment Tribunal Rules 2013. However, it cannot be relied upon to waive a requirement set down in primary legislation, namely section 18A Employment Tribunals Act 1996. If there were any doubt about this, Cranwell v Cullen [2015] 00/46/14 confirmed that Rule 6 cannot be relied upon where a claimant failed to undergo early conciliation prior to bringing the claim. See paragraphs 11 and 12. Cranwell was confirmed as correctly decided in Clark v Sainsbury’s Supermarkets Ltd [2023] EWCA 386. See paragraph 44, which makes clear that it was rightly decided because it was a strict matter of jurisdiction. The reference to Rule 6 in Clark at paragraph 51 was in very different circumstances, namely that the claimants had undergone early conciliation in accordance with the Employment Tribunals Act 1996, but had not complied with the Tribunal rules about how the early conciliation was declared to the Tribunal.”[4]The claimant submitted her response, which I duly considered.[5]I do not accept that the original Judgment contained an error of law for the following reasons.[6]Firstly, I do not accept that s.18A of the Employment Tribunals Act 1996 (“the ETA”) requires that a claimant undergoes an Acas early conciliation procedure with respect to each respondent.[7]Ss.18A(1) and 18(A)(8) of the ETA state: “(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.” "(8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4)." (my emphasis)[8]In Compass Group UK and Ireland Ltd v Morgan 2017 ICR 73, EAT, the ETA confirmed the broad interpretation of the word “matter”, following the previous case law on this issue (see Science Warehouse Ltd v Mills 2016 ICR 252, EAT, and Drake International Systems Ltd and ors v Blue Arrow Ltd 2016 ICR 445, EAT.[9]The facts of this case is distinguishable from the facts in Cranwell v Cullen, in which the claimant had failed to undergo any EC procedure in relation to the matter, for which she was bringing her claim. See also, Pryce v Baxterstorey Ltd 2022 EAT 61, where the claimant obtained an EC certificate four days after submitting the claim, and the claim was held to be rightly dismissed as not properly instituted.[10]In the present case, however, the claimant had undergone an EC procedure and obtained, on 4 October 2023, an EC certificate with respect to the first respondent. She, therefore, has validly instituted her claim against the first respondent. Therefore, Cranwell v Cullen (approved by the Court of Appeal in Clark v Sainsbury’s) is of no assistance to the respondents.[11]The requirement to have EC certificates against each respondent comes from the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 (“the EC Rules”), and not from the primary legislation.[12]The relevant Rule 4, says: “The prospective claimant may provide the name of more than one prospective respondent on an early conciliation form presented under rule 2 or in a telephone call made under rule 3.”[13]In De Mota v ADR Network and anor 2018 ICR D6, EAT, HHJ Richardson, overturning the Tribunal’s decision to reject the claim for failure to present EC certificates for each of the two respondents (as was required under the previous EC Rules), held at [33]: “33. Section 18A(8) focuses upon the existence of a certificate; the prohibition on presenting relevant proceedings applies only if the prospective claimant does not have a certificate under subsection (4) . It is to my mind clear that Parliament does not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the Employment Tribunal.”[14]In the same judgment, HHJ Richardson said at [44]: “44. I see no reason to imply into the Early Conciliation Rules of Procedure a mandatory requirement relating to the early conciliation certificate which is not found in the Rules, especially where the effect would be to bar access to the legal system for a litigant based on a technicality. It is one thing to impose a requirement for good order; another thing altogether to elevate it to such a height that it bars access to the courts…..”. (bold in the original)[15]Furthermore, in Mist v Derby Community Health Services NHS Trust 2016 ICR 543, EAT, HHJ Eady (as she then was), held that there was no requirement for a claimant who sought to add an additional respondent to an existing claim to go through the EC procedure again in respect of that application. She also said that the decision as to whether to permit such an amendment fell within the tribunal’s general case management powers under Rule 29 of the ET Rules, holding that the approach was consistent with Rule 34, ‘which specifically addresses the addition or substitution of parties in ET proceedings without reference to any further EC requirements’, and with the overriding objective.[16]It would be a curious situation indeed if a claimant were able to add individual respondents to an instituted claim through Rule 34 route, and without having to obtain EC certificates for them first or at all. And in deciding whether to allow individual respondents to be added to the claim, the Tribunal would be required to consider the overriding objective. However, on the other hand, when the claimant names individual respondents in the claim form, but before submitting the claim form fails to obtain EC certificates with respect to each of them (or fails to name them in the obtained certificate), but obtains a valid EC certificate with respect to the matter he/she brings the claim against all the respondents, it would be impermissible for the Tribunal to waive under Rule 6 of the ET Rules the non-compliance with the requirement to have EC certificates for each of the respondents (or have names of all respondents listed in the obtained certificate), even if the Tribunal finds (as I did) that the overriding objective and the interests of justice dictate that the noncompliance must be waived.[17]This, in my judgment, would go against the purpose of the legislation, creating an artificial and nonsensical barrier to access to justice and encouraging satellite litigation in respect of the provisions of early consideration, which the EAT on more than one occasion said was no part of the purpose of the early conciliation provisions.[18]For all these reasons, the original decision is confirmed.
The Facts
[19]The claimant then wrote to the Tribunal on the same day, saying she had the EC certificate. She noted that the respondents may argue that her claim was out of time. The Tribunal advised the claimant to resubmit her claim with a cover letter explaining the situation.[20]On 10 October 2023, the claimant submitted by post an amended claim form together with Particulars of Claim (“the Second Claim”). As the First Claim, the claimant filled in her ET1 by hand, however the enclosed Particulars of Claim were typed up. She did not put her address in the form.[21]Unlike the First Claim, the Second Claim named the first respondent as “Imperial College of Science, Technology & Medicine (Ann Kelly)”. The claimant named the same five individual respondents as in the First Claim. For all six respondents she gave the Acas EC certificate number she had obtained on 4 October 2023, in which IC was named as the prospective respondent.[22]The Particulars of Claim submitted with the form stated: “ET1 Particulars of Claim Ms Maudlyn Aaron (Claimant) -v- The Imperial College of Science, Technology and Medicine (Imperial College) HR Department Respondents: Ann Kelly Respondent 1 Maria Langton Respondent 2 Omaira Fernandez Respondent 3 Magda Titirici Respondent 4 Harbhajan Brar Respondent 5 Hannah Bannister Respondent 6 […]”[23]On 13 November 2023, the Tribunal wrote to the claimant, returning the Second Claim: “… as your ET1 form can not be processed by the Tribunal, as relevant information is missing off the ET1. Such as your date of birth and your full postal address.”[24]The Tribunal asked the claimant to resubmit the form with all relevant information included.[25]The claimant replied on the same day and the following day, saying that she did not want to share her personal details with the respondents due to concerns for personal safety. The Tribunal administrative staff referred the matter to an employment judge.[26]On 20 December 2023, the Tribunal wrote to the claimant stating that Employment Judge Goodman has decided to reject the Second Claim because “…you have not given the following minimum information as required by rule 10(1)(b) of the above Rules, namely:-• your address”[27]On 21 December 2023, the claimant wrote to the Tribunal, saying that she did not accept the EJ Goodman’s decision and that the Tribunal “will hear from [her] in due course.”[28]On 29 December 2023, the claimant requested reconsideration of the EJ Goodman’s decision. She chased her request by an email on 2 January 2024.[29]On 3 January 2024, the claimant hand-delivered her third ET1 together with the same Particulars of Claim (“the Third Claim”). This time the claimant put her address in the ET1. All six respondents were named in the same way as in the Second Claim, with the same Acas EC number of 4 October 2023 given for all of them.[30]It appears that when handing in the Third Claim a member of the London Central Tribunal administrative staff told the claimant that she needed separate Acas EC certificates for each of the respondents.[31]On 5 January 2024, the claimant obtained EC certificates for each of the five individual respondents and one for Ann Kelly.[32]On 8 January 2024, she emailed the EC certificates to the Tribunal. She also asked for her personal address to be redacted and gave an alternative c/o address.[33]On 30 January 2024, the Tribunal emailed the claimant, saying that her Third Claim ET1 only had one Acas EC certificate number where her claim was against six respondents and asking to confirm whether she had obtained certificates for other respondents.[34]On 31 January 2023, the claimant replied, saying that she had sent the EC certificates to the Tribunal on 8 January and complaining about the Tribunal’s service she received.[35]Separately, on the same day, in responding to the claimant’s follow up email of 29 January 2024 (chasing a reply to her email of 8 January 2024) the Tribunal wrote to the claimant, saying that her emails and her request for reconsideration of the EJ Goodman’s decision of 20 December 2023 had been referred to a judge.[36]There were further email exchanges between the claimant and the Tribunal’s administrative staff, in which the claimant complained about the Tribunal staff and services.[37]On 19 February 2024, the Tribunal wrote to the claimant as follows: “Your claim has been referred to Employment Judge Glennie, who is acting as Regional Employment Judge in the temporary absence of REJ Freer. EJ Glennie has decided on his own initiative to further reconsider the rejection of your claim. He has done so because it is apparent that on 3 January 2024 you provided a copy of your claim form with your home address given, as well as rectifying the defect which led to the original rejection of the claim relating to early conciliation certificates. Your claim should therefore have been accepted on 3 January 2024. EJ Glennie has decided to review EJ Goodman’s rejection of your claim dated 6 February 20242 himself as EJ Goodman is currently away from the Tribunal and is not due to return in the immediate future, and as it would not be in the interests of justice for the decision to be delayed. Your claim is therefore accepted on reconsideration, and will be treated as received on 3 January 2024. EJ Glennie has also considered your request for your address to be withheld from the Respondents under rule 50 of the Rules of Procedure. You have said that you fear for your safety if the Respondents are given your address, but have not explained why this is, or (for example) informed the Tribunal of anything that has been done or said that gives rise to such fears. As parties’ addresses are not routinely withheld, you should give further details in support of your request. Your claim will not be sent to the Respondents pending a decision on your request to withhold your address. Please send any further representations by 26 February 2024, following which a judge will make a decision even if you have not replied. If a judge decides not to withhold your address, the claim will not, however, be sent to the Respondents until you have had an opportunity to state whether you wish to continue with or withdraw your claim in the light of that decision.” (my emphasis)[38]On 23 February 2024, the claimant wrote to the Tribunal, arguing that her claim should be treated as having been presented on 29 September 2023 and not on 3 January 2024 and giving further reasons for her request to withhold her address from the respondents.[39]On 19 March 2023, EJ Glennie directed that the claim form should be served on the respondents with the claimant’s address redacted and the c/o addressed used instead.[40]The Third Claim was duly served on the respondents on 22 March 2024 and responses received on 18 April 2024.[41]On 23 April 2024, the Tribunal listed the case for a case management preliminary hearing on 17 July 2024.[42]On 22 May 2024, the claimant wrote to the respondents’ solicitors enclosing her reply to the respondents’ Grounds of Resistance. In her reply she 2 The reference to 6 February 2024 appears to be a mistake and should read 20 December 2023. responded to paragraph 1.3 of the Grounds of Resistance, in which the respondents noted “some uncertainty as to the identity of the First Respondent”, i.e. whether it was IC or Ann Kelly (and reserving its position in that regard), as follows: “The First Respondent is Ann Kelly, Deputy HR Director (Employee Relations)”[43]On 11 June 2024, the respondents applied to convert the preliminary hearing to an open preliminary hearing to determine their application for dismissal/strike out on the basis that the Tribunal had no jurisdiction to hear the claims, because the claimant had not undergone Acas EC at the time of presenting her ET1 form, and because all of the claims were out of time in any event.[44]On 14 July 2024, EJ Snelson directed that the respondents’ request for an open preliminary hearing to be discussed at the case management hearing on 17 July 2024.[45]At the preliminary hearing on 17 July 2024, before EJ Davidson, the issue of the first respondent was discussed. EJ Davidson listed Ann Kelly as the first respondent in her case management orders, sent to the parties on 19 July 2024. The Judge ordered this preliminary hearing to determine issues set out in paragraph 1 above, including “to confirm the identity of the respondents”.[46]On 17 July 2024, the claimant wrote to the Tribunal: “There appears to be some confusion, as to whether Imperial College or Ann Kelly is the first Respondent in my case. I have thought about this matter and would like to state that Imperial College is the First Respondent, and Ann Kelly (now second Respondent) et al renumbered accordingly. This makes sense, as the Respondents all work for Imperial College (the umbrella under which they shelter) and were able to conduct their bad behaviour from that base, on behalf of their employer-Imperial College. Please amend your records accordingly. If I need to take any action in this matter, please let me know.”[47]A few minutes later the respondents’ solicitors wrote to the Tribunal stating that the respondents oppose the claimant’s application and suggesting that the matter should be considered at the preliminary hearing on 5 September 2024.[48]On 22 July 2024, the claimant wrote again asking why IC name had been removed from the correspondence on her case and asking for it to be reinstated.[49]On 24 July 2024, the respondents’ solicitors repeated their opposition to the claimant’s application to add IC as a respondent.[50]On 25 July 2024, EJ Davidson directed that: the “Claimant’s application regarding the identity of the respondents will be considered at the preliminary hearing listed for 5 September 2024”.[51]On 25, 28 July and 7 August 2024, the claimant wrote to the Tribunal again, protesting against IC being removed from the list of respondents and saying that both IC and Ann Kelly should be on the list of respondents.[52]On 14 August 2024, the Tribunal responded as follows: “Employment Judge Davidson has asked me to write to you as follows: At the case management preliminary hearing on 17 July 2024, the claimant was asked to confirm the identity of the first respondent. She replied that this was Ann Kelly. She was asked whether this was instead of Imperial College and she confirmed that it was. Subsequently, she wrote to state that she also wanted to include Imperial College as another respondent. This matter will be considered at the case management preliminary hearing on 5 September 2024 when both parties will have an opportunity to make representations on the issue. In the meantime, the claimant is required to comply with all case management orders.”[53]On 26 August 2024, the claimant sent a somewhat intemperate email to the Tribunal, stating that EJ Davidson’s record of the discussion was wrong and that in fact she had been advised at the hearing to take time to reflect on whether she wanted IC to be a respondent. Analysis and Conclusions[54]I will deal with the issues before me in the following order:(i) The identity of the first respondent (IC or/and Ann Kelly);(ii) The respondents’ application to dismiss/strike out the claim under Rule 27 or Rule 37 of the ET Rules as not being properly instituted.(iii) Whether it is just and equitable to extend time.[55]I will refer to the relevant legal principles in my analysis. The identity of the first respondent[56]Mr Roberts accepts that there was no judicial decision made as to the identity of the first respondent and the fact that EJ Davidson’s case management orders recorded Ann Kelly as the first respondent and not IC was not determinative. Equally, the fact that the Tribunal’s case file records the first respondent as Ann Kelly and does not list IC as one of the respondents shall not be taken as conclusive.[57]He argued, however, that the following factors demonstrate that the correct first respondent was Ann Kelly and not IC:a. The difference in the prompt language in ET1 in box 2.1 (“Give name of your employer or the person or organisation you are claiming against”) and in box 2.5 (“If there are other respondents please tick the box and put their names and addresses here.”) suggests that when completing her ET1, the claimant put IC as her employer, and having misread “or the person… you are claiming against” as “and the person … you are claiming against” named Ann Kelly as that person, i.e. as the first respondent.b. It would be otiose to name Ann Kelly if the claimant wanted to name IC as the first respondent and therefore naming her demonstrates the claimant’s intention to sue Ann Kelly personally, alongside other five individual respondents.c. The claimant in her reply to the respondents’ response (which she volunteered and was not required to submit) confirmed that the first respondent was Ann Kelly. She confirmed that again at the case management preliminary hearing on 17 July, albeit later resiling from that position.[58]The claimant argued that she always intended to sue IC and six individual respondents, including Ann Kelly. Her claim against individual respondents was arising from her employment with IC and their roles as employees/representatives of IC. It is in that context of her employment relationship with IC and the individual respondents’ roles in IC the alleged wrongdoings towards the claimant had been committed by them.[59]The claimant’s subjective intention as to who she wanted to name as respondents in these proceedings cannot be what determines the issue whether it is IC or Ann Kelly or both who she actually named as the first respondent in her claim form. I must construe her claim form using the usual rules of construction of legal documents – to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the [relevant time]” (per Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896).[60]Applying these rules, in my judgment, the inevitable conclusion is that the claimant has named IC as the first respondent in these proceedings, which conclusion arises from the inescapable fact that the IC’s name is recorded in box 2.1 of the ET1 form as the “Respondent”. The fact that Ann Kelly’s name was added in the same box in brackets does not mean that the IC’s name in that box can be ignored and read down as if it were not there.[61]I do not accept Mr Roberts’ submission that details in box 2.1 should be read as the claimant naming IC as her employer and Ann Kelly as a respondent. Box 2.1 is part of section 2 of the ET1 form, which is entitled “Respondent’s details (that is the employer, person or organisation against whom you are making a claim)”.[62]Although the prompt could have been clearer, it does not say (and, in my view, cannot be interpreted as saying) that the name of the claimant’s employer should be stated in box 2.1, regardless of whether the claimant is making a claim against his/her employer or not. There are claims falling within the employment tribunals’ jurisdiction, which employees/workers can bring, using ET1 form, against other persons (e.g. fellow workers) and organisations (e.g. a trade union). Unless the claim is presented against their employer at the same time, there is no need to name the employer in the form.[63]Furthermore, the claimant named IC as the prospective respondent in her Acas EC certificate and added that certificate number in the Second and the Third Claims forms. She also named IC as the first respondent in her First Claim (albeit, also naming Harbhajan Brar Director HR, whom she also named separately as an individual respondent). However, she did not name Ann Kelly as a respondent in her First Claim. This, as the relevant background, goes against Mr Roberts’ suggestion that the claimant had misread the prompt in box 2.1 and added IC simply as her employer and not the intended respondent.[64]I, therefore, find that the correct construction of the Third Claim form is that IC was named as the first respondent, and Ann Kelly’s name, added in brackets, was simply the claimant giving further details of whom in the first respondent’s organisation she was working for. That is not unusual to see in ET1s completed by litigants in person.[65]I accept that in her Particular of Claim, the claimant listed six respondents, naming Ann Kelly as the first respondent (see paragraph 22 above). However, that by itself cannot override what she put in the ET1. Furthermore, in the Particulars of Claim she described her claim as “Ms Maudlyn Aaron (Claimant) -v- The Imperial College of Science, Technology and Medicine (Imperial College) HR Department”.[66]For the same reasons, I find that the fact that in her reply to the respondents’ response she confirmed that the first respondent was Ann Kelly is not determinative of the issue. By that stage the claim against IC had been validly instituted. The claimant did not withdraw it pursuant to Rule 51 of the ET Rules (and I do not consider that her reply could be validly treated as her withdrawing her claim against IC), nor was there any application to remove IC as a party under Rule 34, which was determined by the Tribunal in IC’s favour.[67]Equally, I do not find that what the claimant said at the preliminary hearing on 17 July 2024 is sufficient to remove IC as a party. In any event, as recorded by EJ Davidson in her case management orders, the identity of the respondents remained a live issue to be determined at this hearing.[68]Finally, what the claimant said at that hearing cannot be validly used for the purposes of construing her ET1 form of 3 January 2024, for the same reasons why her subsequent email of 17 July 2023 cannot be used to construe ET1, as including both IC and Ann Kelly as respondents. I do not accept the claimant’s submission that she named both IC and Ann Kelly as respondents in her ET1. The ET1 form (box 2.5) makes it clear that if she wanted to add other respondents, she needed to give their names and addresses separately in the spaces provided, which she in fact did, naming five other individual respondents, but not Ann Kelly.[69]It is not sufficient to have Ann Kelly’s name added in brackets in box 2.1, where the claimant named IC as the first respondent. Equally, it is not sufficient to list Ann Kelly as “Respondent 1” in the Particulars of Claim. The claim must be presented on a prescribed form - Rule 8 of the ET Rules. The prescribed form must be completed and contain certain minimum information, including each respondent’s name and each respondent's address, otherwise it must be rejected by the Tribunal (Rule 10(1)(b) of the ET Rules).[70]The claimant has failed to do that with respect to Ann Kelly. Therefore, she has not validly instituted a claim against Ann Kelly as a respondent in these proceedings.[71]Accordingly, the claimant’s email of 17 July 2024 is in effect an application to add Ann Kelly (and not to add IC, as the respondents contended) as a party to these proceedings. Given how the matter came before me and was argued (i.e. “to confirm the identity of the respondents” and the respondents’ position that it was an application to add IC, which they opposed), I do not consider that it would be appropriate to decide whether Ann Kelly should be added as a respondent to these proceedings, without first giving the parties an opportunity to make submissions on this issue either in writing or at a hearing. I, therefore, make no decision on this issue.[72]However, if I am wrong on the question of construction, and on true construction of the Third Claim’s ET1 IC is not named as the first respondent, I find that it is in the interests of justice to add IC as a respondent to these proceedings under Rule 34 of the ET Rules.[73]Rule 34 says: 34. Addition, substitution and removal of parties The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included.[74]There are clearly issues between the claimant and IC falling within the jurisdiction of the Tribunal. Her claim is essentially one of race discrimination and victimisation arising in the context of her employment by IC. Although the claimant complains that the individual respondents were the alleged perpetrators of the discriminatory conduct, by virtue of s.109 of the Equality Act 2010, if the claim succeeds, IC will be liable for such acts, subject to the statutory defence under s. 109(4) of the Equality Act, which IC is not running.[75]Applying the usual principles in Selkent Bus Company Ltd v Moore 1996 ICR 836, EAT, the balance of hardship and injustice lies in favour of the claimant. If I am wrong on my construction of her ET1, it appears to be no more than a technical mistake by the claimant in not correctly naming IC as the first respondent (by adding Ann Kelly’s name in brackets).[76]Considering the jurisdiction issues the claimant faces against individual respondents (to which I will turn later in the judgment), prejudice to the claimant of not having IC as one of the respondents to her claim is very grave indeed. Essentially, if her claim against individual respondents were to be dismissed/struck out because it had not been properly instituted it (for lack of Acas EC certificates), there would be no claim at all for the claimant to pursue.[77]On the other hand, there is no real prejudice to IC. Certainly, it will lose the opportunity to have the claim dismissed completely, but that would be on a pure technicality, which, in the circumstances, would not be a fair and just outcome. There is no suggestion that IC would not be standing behind individual respondents in defending the claim against them (if allowed to proceed). Therefore, whether named as a respondent or not, it will still be involved in the proceedings one way or the other. IC has the defence on the time limit point and might still see the entire claim dismissed on that ground.[78]I do not accept Mr Roberts’ arguments at para 27(a) of his skeleton that the application to add IC as a respondent should not be allowed because “C cannot amend a claim over which the Tribunal lacks jurisdiction”. That is said to be because the claim against individual respondents must be dismissed/struck out as not being properly instituted.[79]I find that it would be a wrong way round for me to approach the issues before me in that order. Subject to the out of time point, there is no suggestion that the Tribunal lacks jurisdiction with respect to the claim against IC, irrespective of the outcome of the respondents’ application to dismiss/strike out the claim against individual respondents for failure to properly institute it.[80]Therefore, I must first decide whether it is in the interests of justice to add IC as a respondent and only then proceed to deal with the question of whether the claim against other individual respondents should be dismissed/struck out.[81]Doing it the other way round would be tantamount to me not deciding the issue of whether IC should be added as a party at all, and essentially dismissing the entire claim on a technicality.[82]With respect to the argument at para 27b of the skeleton, that is, that the claim is extremely out of time, I find that this issue must be considered as part of a wider consideration, namely whether it is just and equitable to extend time, and not separately or before deciding on just and equitable extension. While I accept that time limit is a relevant factor for the purposes of the Selkent balancing exercise, on the facts of this case it cannot be divorced from the broader consideration of just and equitable extension.[83]Therefore, if I am wrong on the Third Claim’s ET1 construction, in the alternative, I find that it is in the interests of justice to add IC as a party to these proceedings. Should the claim against the individual respondents be dismissed under Rule 27 or struck out under Rule 37?[84]Dealing with procedural issues first. Rule 27 of the ET Rules says: 27.— Dismissal of claim (or part)(1) If the Employment Judge considers either that the Tribunal has no jurisdiction to consider the claim, or part of it, or that the claim, or part of it, has no reasonable prospect of success, the Tribunal shall send a notice to the parties— (a) setting out the Judge's view and the reasons for it; and (b) ordering that the claim, or the part in question, shall be dismissed on such date as is specified in the notice unless before that date the claimant has presented written representations to the Tribunal explaining why the claim (or part) should not be dismissed.(2) If no such representations are received, the claim shall be dismissed from the date specified without further order (although the Tribunal shall write to the parties to confirm what has occurred).(3) If representations are received within the specified time they shall be considered by an Employment Judge, who shall either permit the claim (or part) to proceed or fix a hearing for the purpose of deciding whether it should be permitted to do so. The respondent may, but need not, attend and participate in the hearing.(4) If any part of the claim is permitted to proceed the Judge shall make a case management order.[85]Mr Roberts accepts that no formal notice under Rule 27(1) was sent to the parties. He, however, relies on EJ Davidson’s case management orders and the notice of this hearing as fulfilling the necessary procedural requirements under Rule 27. Mr Roberts argued that the intent behind the rule was to give the claimant a proper opportunity to respond to the application and she was given such an opportunity.[86]Whilst I accept that the claimant was given an opportunity to respond to the application, I do not accept that I can ignore the mandatory requirements of Rule 27, namely that “… the Tribunal shall send a notice to the parties—(a) setting out the Judge's view and the reasons for it; and(b) ordering that the claim, or the part in question, shall be dismissed on such date as is specified in the notice unless before that date the claimant has presented written representations to the Tribunal explaining why the claim (or part) should not be dismissed….”[87]I do not read EJ Davidson’s orders, nor the Notice of this hearing as fulfilling these notice requirements.[88]I, therefore, find that I am not at liberty to ignore these mandatory requirements and proceed to consider the respondents’ application to dismiss the claim under Rule 27, whatever the merits of the application might be.[89]Rule 37 of the ET Rules says: 37.— Striking out(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; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[90]In contrast to the procedural requirements under Rule 27(1), I find that the necessary procedural requirements under Rule 37(2) have been complied with. EJ Davidson’s orders clearly stated that the respondents’ strike out application will be considered at this hearing. The claimant was given a reasonable opportunity to make representations, both in writing and orally at this hearing, which she did. I, therefore, can proceed and decide the strike out application on the merits.[91]Mr Roberts submits that the claim should be struck out, on the ground that it has no reasonable prospect of success against the individual respondents, because the claim against them had not been properly instituted, and therefore the Tribunal lacks jurisdiction to consider it. He referred me to the relevant statutory provisions on obtaining Acas EC certificates, set out in s.18A of the Employment Tribunals Act 1996, and drew my attention to the Court of Appeal decision in Clark v Sainsbury’s [2023] ICR 1169 at [44]: “In Cranwell v Cullen (unreported) 20 March 2015, the claimant had not provided the prescribed information to Acas before bringing her ET claim, and was not exempt from providing such information. Langstaff (President), though expressing sympathy for the claimant, upheld the decision of an ET striking out the claim. I consider that he was right to do so. Since section 18A of the Employment Tribunals Act 1996 lays down that (unless an exemption applies) the claimant must provide the information before the claim is brought, the tribunal in Ms Cranwell’s case had no jurisdiction.”[92]I accept that. However, I consider the following statement by Lord Justice Bean in the same judgment is of relevance too. At [51] he said: “I return to Mr Milford’s submissions about giving effect to the legislative purpose. The legislative purpose of s 18A of the 1996 Act was to require claimants to go to ACAS and to have an EC certificate from ACAS (unless exempt from doing so) before presenting a claim to an ET in order to be able to prove, if the issue arises, that they have done so. I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start. If the claim is rejected in its earliest stages under Rule 10 or 12 then the claimant may seek rectification or reconsideration. If it is not, then the time for rejection of the claim has passed. The respondent may instead apply to have the claim dismissed under rule 27 or struck out under rule 37, with the tribunal having the power to waive errors such as the one relied on in the present case under Rule 6.”[93]In the present case EJ Glennie accepted the Third Claim with effect from 3 January 2024, despite the claimant not having Acas EC certificates for individual respondents. Therefore, applying the principle, established in Clarke v Sainsbury’s, I cannot go back and decide that the Third Claim should have been rejected under Rule 12 and strike it out as “wrongly accepted”.[94]I do, however, have the power to strike it out under Rule 37(1)(a), as having no reasonable prospect of success, for lack of jurisdiction arising from the non-compliance with the requirements on obtaining Acas early conciliation, subject to my powers to waive the non-compliance pursuant to Rule 6 of the ET Rules.[95]In Clark v Sainsbury’s at [43] Lord Justice Bean explained that Rule 6 applies to errors made under Rule 10. “It would be most peculiar if an error about the EC certificate number leading to rejection under Rule 10 or Rule 12 were somehow impliedly excluded from the waiver provisions of Rule 6, even though Rule 6 contains no express exclusion of such errors. To say that any such error goes to jurisdiction is to beg the question.”[96]Furthermore, the Court of Appeal held that the previous cases where it was decided that no discretion existed to waive the mandatory requirements under Rules 10 and 12 were wrongly decided (see [47], [48])[97]Rule 6 of the ET Rules says: 6. Irregularities and non-compliance A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following—(a) waiving or varying the requirement;(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;(c) barring or restricting a party's participation in the proceedings;(d) awarding costs in accordance with rules 74 to 84.[98]In deciding whether to waive the non-compliance I must have regard to the overriding objective under Rule 2, which states: 2. Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense.[99]I find that it will be in the interests of justice and in accordance with the overriding objective to waive the non-compliance and allow the claim against the individual respondents to proceed despite the claimant not obtaining EC certificates with respect to them before presenting the Third Claim. I say that for the following reasons.[100]When her First Claim was rejected, she was not told that she needed Acas EC certificates with respect to each of the respondents, despite the claim form named all of them (except Ann Kelly). The rejection email suggested that only one certificate was required (see more on this at paragraph 124 below).[101]She promptly obtained the EC certificate with respect to IC and resubmitted the claim form on 10 October 2024.[102]When her Second Claim form was rejected, it was not for lack of EC certificates for individual respondents, but for failure to provide her address (and wrongly - for failure to put her date of birth).[103]When EJ Goodman rejected her claim on 20 December 2023, it was again for failure to provide the address and not for lack of EC certificates with respect to individual respondents.[104]It was not until the claimant presented her Third Claim form, rectifying the non-compliance concerning the address, that she was told that she needed to obtain EC certificates for all individual respondents.[105]She did so promptly and sent them to the Tribunal two days later, on 5 January 2024.[106]Importantly, other than losing the opportunity to knock out the claim on a technical point, I see no real prejudice to the respondents arising from the claim being instituted without all EC certificates obtained by the claimant first. The claimant had already obtained the EC certificate with respect to the first respondent (IC). She did not wish to conciliate her dispute with IC or any individual respondents. The respondents were not aware of the claim until it was served on them by the Tribunal on 22 March 2024. Therefore, it cannot be said that individual respondents had lost an opportunity to resolve this dispute via Acas conciliation as a result of that.[107]For all these reasons, I find that it is in the interests of justice to waive the non-compliance with the requirement to obtain EC certificates for individual respondents and allow the claims against individual respondents to proceed, subject to the time limit issue, to which I shall turn next. Just and Equitable extension[108]I accept that the claimant’s claim, accepted on 3 January 2024, is out of time by some 3 months, when measured against the primary limitation period of 3 months from the act complained of (s.123(1) of the Equality Act 2010). The question is whether it is was presented within such other period of time as I consider “just and equitable”, or to put it differently, whether it is just and equitable to extend time.[109]I accept Mr Roberts’ submissions on the points of law, set out in his skeleton argument at paragraphs 67 - 72, which I do not need to repeat here. I, however, find it is appropriate to supplement them by the following well know principles.[110]In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA, the Court of Appeal held that when employment tribunals consider exercising the discretion under S.123(1)(b) EqA: “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.” The onus is, therefore, on the claimant to convince the tribunal that it is just and equitable to extend the time limit. 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 — Pathan v South London Islamic Centre EAT 0312/13.[111]The relevant principles and authorities were summarised in Thompson v Ark Schools [2019] I.C.R. 292, EAT, at [13] to [21], and in particular that:a. Time limits are exercised strictly;b. The onus is on the claimant to persuade the tribunal to extend time;c. The decision to extend time is case- and fact-sensitive;d. The tribunal’s discretion is wide;e. Prejudice to the respondent is always relevant;f. The factors under s33(3) Limitation Act 1980 (such as the length of and reasons for the delay and the extent to which the Claimant acted promptly once he realised he may have a claim) may be helpful but are not a straitjacket for the tribunal.[112]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 and in the EAT’s decision in Bahous v Pizza Express Restaurants Limited UKEAT/0029/11/DA it was held that the absence of an explanation for the delay does not prevent the Tribunal from exercising its discretion and extending the time limit, and the Tribunal is not obliged to infer that there was no acceptable reason for the delay (see para 25 in Abertawe). However, the reason or the absence of a good reason for the delay is a relevant factor (see para 19 in Abertawe).[113]More recently, in Jones v. The Secretary of State for Health and Social Care, 2024 EAT 2 HHJ Tayler, having reviewed the relevant authorities, gave further guidance to employment tribunals, in particular at [30] he said: “It remains a common practice for those who assert that the primary time limit should not be extended to rely on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576, [2003] IRLR 434, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” as if they were principles of law. Where these comments are referred to out of context, this practice should cease. Paragraph 25 must be seen in the context of paragraphs 23 and 24:[114]He then set out the well-known passages from these two paragraphs in full, concluding that read in the context it means that Employment Tribunals have a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere with their decisions, and no more.[115]Later, at [35] he said: “35. Without meaning any disrespect to Auld LJ, there might be much to be said for Employment Tribunals focusing rather less on the comments in Robertson that time limits in the Employment Tribunal are “exercised strictly” and an extension of time is the “exception rather than the rule”; and rather more on some of the other Court of Appeal authorities, such as the concise summary by Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at paragraph 17-19:[116]He then quoted those paragraphs in full, emphasising at [36] what Leggatt LJ said at [25] of Abertawe, namely: “As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks 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 of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard”.[117]Although the claimant chose not to give evidence as to the reason for the late submission of her claim, the reasons are apparent from the contemporaneous documents.[118]Put simply, the claimant waited until the last moment (and I do not know why) and then submitted her application without taking trouble to check the necessary requirements she needed to observe before submitting the claim form. Although the claimant is a litigant in person, the rules are the rules. They are written for all litigants and not just those represented by lawyers.[119]Secondly, the claimant is an experienced HR professional and judging by her Particulars of Claim was involved in various matters involving disputes with employees.[120]Thirdly, all this information is readily available on the internet, and I have no explanations from her as to why she chose not to research the issue on the internet or make appropriate enquiries elsewhere.[121]Fourthly, the ET1 claim form itself contains a clear warning that nearly all claimants require EC certificates and gives limited grounds when the form is not required.[122]The claimant did not tick any of the boxes and instead decided that the certificate was not required because she “Informed officer that [she] was not interested in EC and was not given a number.” It is not clear on what basis the claimant then decided that she was at liberty to ignore the warning that she needed EC certificate or provide one of the four possible reasons why she did not need one.[123]In short, I find that the claimant’s failure to institute the proceedings properly on 29 September 2023 was the product of her own making and she has only herself to blame for having her claim duly rejected by the Tribunal.[124]The claimant, however, then acted promptly and obtained the EC certificate with respect to IC. When her claim was rejected by the Tribunal on 29 September 2023, the claimant was not told that she needed EC certificates for each of the respondents. In fact, the Tribunal’s email suggested that she needed just one EC certificate: “…no Acas reference or reason for not providing one …. The Tribunal requires a reference or reason for not having one…. To submit an Employment Tribunal claim you must have a Acas number or tick one of the valid reasons for not having one.” (my emphasis).[125]I note that the claimant persisted with her non-compliance with the rules by failing to provide her address and that what led to the rejection of her Second Claim form. However, she did provide an explanation for that, and it appears ultimately her request was accommodated by the Tribunal. The Third Claim form was accepted by EJ Glennie, and her address redacted before it was served on the respondents.[126]I have already gone through the history on what happened with other certificates and why I think it is in the interests of justice to waive the noncompliance with that requirement (see paragraphs 99-106 above). These factors are equally relevant in the exercise of my discretion on the issue of just and equitable extension. I do not need to repeat them, but I do take them into consideration.[127]Turning to the question of the relative prejudice. I accept that if I were to extend time, the respondents would lose their statutory limitation protection. However, if I were to refuse to extend time, the claimant would lose her right to have her complaints determined on the merits. These two factors cannot be decisive one way or the other, as they are almost invariably present when the issue of time limit arises. I, however, note that there are no parallel proceedings in civil courts, and the claimant is very unlikely to be able to seek legal redress for the matters she complains about in a different forum.[128]Considering forensic prejudice to the respondents, I do not accept that the three months’ delay in properly instituting these proceedings can be sensibly said to have created any material forensic prejudice to the respondents. Although some allegations go back to spring 2022, I do not find that the 3-month delay is of such a magnitude or impact on the respondents that they would not be able to present a proper factual case to meet these allegations.[129]The fact that the respondent had deleted the claimant’s email box (as Mr Roberts submitted on instructions) is a factor, but I do not consider that it trumps all other considerations.[130]Equally, the fact that the claimant brings her claim against six respondents does not mean that an extension should be refused because, as Mr Roberts submits, it will be more costly to defend it and because this will significantly increase the inconvenience to the respondents. There is no suggestion that IC will not stand by the individual respondents. I am not persuaded that the number of respondents per se creates an additional burden or prejudice to IC or any of the individual respondents, which would not have been there if the claimant had brought her claim three months earlier.[131]Whether the complaints are weak or not is not something I can decide at this hearing. It would be inappropriate for me to conduct a minitrial on the merits of the claim, and I decline to do so. I observe, however, that the claimant’s claim is poorly pleaded and will require further clarifications. This, however, cannot be a strong factor in refusing an extension.[132]Equally, I do not accept that the extensive nature of the claim is a strong factor for refusing an extension. The opposite could be argued in favour of granting an extension, as not allowing the claim to proceed will mean that the claimant would be denied justice for many alleged wrongs she was subjected to by the respondents. I, of course, make no determination whether any of the allegations advanced by the claimant are meritorious or not.[133]Finally, having to incur costs in defending claims is unfortunately an inevitable consequence of being sued in an employment tribunal. However, this, by and of itself, cannot be a good reason to refuse to extend time. There are possible ways of recouping legal costs under the rules if, as the respondents suggest, the claim is without merits.[134]Now, stepping back and looking at all these factors in the round, I find it is just and equitable to extend time. Therefore, the claim against all respondents (except Ann Kelly, subject to the outcome of the application to add her as a party) will proceed further.
The Facts
[1]The claim in relation to the comment by Professor Tyrer is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.[2]The claim against the fourth respondent (Professor Magda Titirici) is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.[3]The claim against the sixth respondent (Hannah Bannister) is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.[4]The claims set out at paragraphs 2.1.2, 2.1.12, 2.1.13 and 2.1.15 of the draft List of Issues are struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospects of success. The respondents’ strike out application relating to the remaining alleged detriments is refused.[5]The claimant’s application to strike out the respondents’ Grounds of Resistance to the extent that they refer to her probationary period or her performance is refused. Reasons were given at the hearing but the claimant has requested written reasons in respect of the strike out decisions, in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2024. The following reasons are provided.[6]The claimant first attempted to file her claim on 28 September 2023. The claim was defective in that she it did not contain the minimum information required by Rule 12 and it did not have an early conciliation number. After correspondence with the tribunal, the claimant submitted a claim form on 3 January 2024 which was accepted.[7]On 17 July 2024, at a case management hearing before me, a public preliminary hearing was listed to deal with limitation, among other matters. That hearing took place on 5 September 2024 before EJ Klimov. EJ Klimov waived the requirement for early conciliation for the named respondents. EJ Klimov found that the failure to present the claim in time was of the claimant’s own making but he refused teg respondents’ application to strike out the claim. He allowed the late presentation of the claim on the basis that it would be just and equitable to do so on the balance of prejudice.[8]I have considered whether it is open to me to revisit the time point in the light of EJ Klimov’s decision to allow the claim to proceed. I find that the preliminary hearing on 5 September 2025 dealt with the limitation point following the respondents’ application to strike out the claim as a whole as being out of time. As that application failed, the claim was allowed to proceed but that does not preclude the argument being raised subsequently (Caterham School Ltd v Rose UKEAT/0149/19). EJ Klimov did not reach a finding in relation to each allegation or whether there was continuing conduct and he did not consider evidence, make findings of fact or reach a definitive outcome on every time point. . I therefore consider that it is open to me at this hearing to consider the limitation points in relation to specific allegations. Respondents’ application[9]The respondents made an application dated 7 March 2025 for parts of the claimant’s claim to be struck out on the basis that those parts of the claim had no reasonable prospects of success. The basis of the argument comprised four categories:9.1 an allegation against an individual (Professor Tyrer) not employed by the first respondent;9.2 allegations which do not relate to the treatment of the claimant;9.3 allegations which are so trivial as to fail to meet the definition of detriment or harassment;9.4 two of the claims against individual respondents (fourth respondent and sixth respondent) are stand-alone claims which are out of time and there is no reasonable prospect of these claims being part of a course of conduct and no reasonable prospect of time being extended on a just and equitable test. Claimant’s application[10]The claimant made an application on 2 June 2025 to strike out the parts of the respondents’ grounds of resistance which refer to her probationary period or her performance as these were not raised with her during her employment.
Relevant law
[11]Rule 38(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2024 (Employment Tribunals Rules) provides that a Tribunal may strike out all or part of a claim or response on the grounds that it has no reasonable prospect of success.[12]The threshold for striking out a claim for having no reasonable prospect of success is high. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, the Court of Appeal held that it would only be in very exceptional cases that, where there are facts in dispute, the claim should be struck out without the evidence being tested. It is only if the claim discloses no arguable case in law that it should be struck out. 13. ‘No reasonable prospect of success’ does not mean the claim is likely to fail. It is a high test and there must be no reasonable prospect of success.[14]The claimant’s case must ordinarily be taken at its highest and only in the clearest case should a discrimination case be struck out.[15]A single incident of unfair treatment is treated as an isolated act. Where there is a pattern or course of conduct, the acts are treated as a continuing course of conduct. If there is to be a continuing act, there must be something in the conduct that involves continuing discrimination (Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40.[16]In determining whether it would be just and equitable to extend the primary time limit, the tribunal must consider the prejudice to each party in allowing or refusing the extension of time. In making that assessment, it can take into account anything it considers to be relevant. Discussion Professor Tyrer comment
Discussion
[17]The claimant complains about a racial slur made by Professor Tyrer when he attended a PhD viva conducted by the first respondent and asked a question of the candidate. The claimant was not in attendance and did not witness the comment. She became aware of it because a complaint was made to the HR department, where the claimant worked. Professor Tyrer is not employed by the first respondent. The claimant alleges that this is an act of direct discrimination against her.[18]I find that there is no reasonable prospect of the claimant showing that the first respondent is liable for Professor Tyrer’s comment or that she has been treated less favourably under section 13 of the Equality Act 2010 or subjected to a detriment under section 39 of the Equality Act 2010. This part of the claimant’s claim is struck out.[19]For the avoidance of doubt, to the extent that the complaint refers to the way the matter was handled by the member of the HR team, those claims remain valid. Claim against the fourth respondent[20]The claimant claims that the fourth respondent sent an email critical of her on 20 February 2023. The fourth respondent was subject to a disciplinary hearing which the claimant attended. Following the meeting, the fourth respondent criticised the claimant’s behaviour in the meeting. She alleges race discrimination because she was the only black person present and she was the only person who was criticised. This was the only involvement the fourth respondent had with the claimant and this is the only allegation against her. It was presented nine months out of time.[21]I find that the claimant has no reasonable prospect of establishing that the alleged discriminatory act of the fourth respondent was part of a course of conduct. The fourth respondent had no other involvement in the matters complained of by the claimant.[22]In addition, I find that the claimant has no reasonable prospect of establishing that it would be just and equitable to extend the time limit for this complaint. In weighing up the balance of prejudice, I find that the prejudice to the fourth respondent in having to be a party to a claim with a ten day listing, potentially requiring her to attend for the whole period, and to answer an allegation which refers to a single comment in an email sent over two years ago is far greater than the prejudice to the claimant in not being able to pursue an allegation relating to a single comment when she has the bulk of her claim which remains in place. I reach this conclusion without taking into account the potential merits of the claim. Claim against the sixth respondent[23]The claimant claims that the fourth respondent commented that the claimant had ‘almost got overly excited and enthusiastic’ in her approach at a meeting, in a note dated 7 September 2022. This was the only involvement the sixth respondent had with the claimant and this is the only allegation against her. It was presented 15 months out of time.[24]I find that the claimant has no reasonable prospect of establishing that the alleged discriminatory act of the sixth respondent was part of a course of conduct. The sixth respondent had no other involvement in the matters complained of by the claimant.[25]In addition, I find that the claimant has no reasonable prospect of establishing that it would be just and equitable to extend the time limit for this complaint. In weighing up the balance of prejudice, I find that the prejudice to the sixth respondent in having to be a party to a claim with a ten day listing, potentially requiring her to attend for the whole period, and to answer an allegation which refers to a single comment in an note sent nearly three years ago is far greater than the prejudice to the claimant in not being able to pursue an allegation relating to a single comment when she has the bulk of her claim which remains in place. I reach this conclusion without taking into account the potential merits of the claim. Claim not amounting to detriments or harassment[26]The respondents have identified eight detriments identified in the List of Issues which they consider do not meet the threshold of being a detriment or an act of harassment under the Equality Act 2010. Dealing with these in turn, I find as follows:26.1 Detriment 2 relates to the seventh respondent requiring the claimant to apply for a role which the claimant thought should have been given to her automatically. This is struck out as the claimant conceded that she did not believe the treatment of her was motivated by race.26.2 Detriments 4 and 10 relate to the way that a data subject access request was dealt with within the HR department. These claims remain valid as they can only be determined by hearing the relevant evidence.26.3 Detriment 7 relates to the fact that the seventh respondent recorded what the claimant said to her in writing. This remains valid as it can only be determined by hearing the relevant evidence.26.4 Detriment 12 relates to the way a disciplinary hearing was held by the HR department and whether witnesses should be called. The claimant (as part of the HR team) was instructed to allow witnesses to be called to the disciplinary hearing even though they had not been called during the investigation, which she had queried. I find that there is no prospect of the claimant showing that this is an actionable claim or that the conduct amounts to a detriment or harassment. It is therefore struck out. This does not prevent the claimant from referring to the matter in her witness statement as background information.26.5 Detriment 13 relates to the second respondent organising a leaving card and collection when the claimant left the first respondent’s employment, despite the claimant indicating that this was not welcome. I find that there is no prospect of the claimant showing that this amounts to less favourable treatment. (The claim is not brought as part of the harassment claim.) It is therefore struck out. This does not prevent the claimant from referring to the matter in her witness statement as background information.26.6 Detriment 14 relates to the third respondent starting a team meeting without waiting for the claimant to arrive. This claim remains valid as it can only be determined by hearing the relevant evidence.26.7 Detriment 15 relates to the way the claimant’s annual leave was marked on the team calendar. The claimant had inserted her approved half day of annual leave on the team calendar in such a way as it blocked the third respondent’s own diary. The third respondent removed the entry from her diary and made a note of the annual leave. I find that there is no prospect of the claimant showing that this amounts to less favourable treatment or harassment. It is therefore struck out. This does not prevent the claimant from referring to the matter in her witness statement as background information.[27]The claimant’s application to strike out the respondents’ grounds of resistance insofar as they refer to her probation or her performance is refused. I find that the respondents are entitled to defend the claim brought against them. I cannot conclude without hearing evidence that the response has no reasonable prospect of succeeding. If the claimant’s performance is relevant to their defence, they should not be barred from relying on it. To the extent that the claimant’s challenges the use of this part of the respondents’ defence, the appropriate way to do that is in cross-examination, not by striking out the grounds of resistance.
Discussion
[1]There is no reasonable prospect of the original decision being varied or revoked, for the reasons set out below.[2]The tribunal did not assess the merits and credibility of Professor Tyrer’s comment and considered the issue as a jurisdictional point only, concluding that there was no reasonable prospect of the first respondent being liable for any comments made by Professor Tyrer to a third party. The claimant’s complaint about the way the matter was dealt with by the HR team remains part of her claim. She can refer to the incident as part of the background to the issues in her claim.[3]The claimant suggests that the claims against the fourth and sixth respondents involve a single day hearing. This is not correct. If the fourth and sixth respondents are named as respondents in the claim, they would potentially need to attend each day of the ten day listing. The tribunal took into account the delay in the claimant presenting her claim and concluded that there was no reasonable prospect of the claimant establishing that it would be just and equitable to extend time to include the claims against the fourth and sixth respondents. The tribunal took into account that these two individuals are not included in any other allegations. The claimant is not prevented from referring to these matters as background to her claims. Case Number: 2201955/2024[4]The claimant told the tribunal that she did not believe that the alleged recruitment manipulation was motivated by race. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL11, the House of Lords held that a worker suffers a detriment if a reasonable worker would or might take the view that they had been disadvantaged. This means that the individual’s belief that they have been disadvantaged has to be objectively reasonable in all the circumstances. If the claimant does not hold the belief that race was the reason for the treatment, there is no reasonable prospect of the claimant succeeding in a claim of race discrimination in respect of that treatment.[5]There are matters which are raised by the claimant in respect of which, for the reasons set out in the original decision, she has no reasonable prospect of showing they amount to less favourable treatment or detriments. She is not prevented from referring to these matters as part of the background to her claims.[6]Detriment 13 was brought as a direct discrimination claim, not a harassment claim. There is no reasonable prospect of the claimant showing that organising a leaving card for her was less favourable treatment than the treatment a comparator received since all employees were treated the same in this respect.[7]The respondents are entitled to defend the claim against them. If the claimant wishes to challenge the veracity of their defence, this should be done by way of cross examination of witnesses, not by strike out of the grounds of defence.