Miss S Jones v Imperial London Hotels Ltd: 2206133/2023

EMPLOYMENT TRIBUNALS

Case No 2206133/2023

Between

Miss S JonesClaimant

Imperial London Hotels LimitedRespondent

Before

Employment Judge Bradford

Date 18 April 2024

JUDGMENT

The Claimant’s allegations or arguments that the Respondent discriminated the Claimant because of race, or age, or religion (or, in the alternative, that these were acts of harassment related to race, or age, or religion contrary to s. 26 Equality Act 2010) by the following actions:(i) On 24 October 2022, the receptionist sent the claimant back and forth from one side of the building to the other and then told the claimant: “I would call my manager” (protected characteristic relied upon - race and/or age),

(ii) On 31 October 2022, Jan (a work colleague) told the claimant: “work faster, work faster” (protected characteristic relied upon - race and/or age),

(iii) Between 5 -12 November 2022, Monica (assistant manager) said at a training session: "with Simoneay we have to give her forty hours a week, whereas with you we are struggling to find you hours” (protected characteristic relied upon - race and/or age),

(iv) Between 5 -12 November 2022, Monica (assistant manager) said to the claimant “this is just like prison” (protected characteristic relied upon - race),

(v) On 5 November 2022, Daria (supervisor) said to the claimant "your worst nightmare has just started” (protected characteristic relied upon - race and/or age),

(vi) On 6 November 2022, Silvester (assistant manager) said to the claimant: “tell the guests to leave” (protected characteristic relied upon - race),

(vii) On 22 November 2022, Sarag (colleague) told the claimant “Go and wash the cloths in the kitchen” (protected characteristic relied upon - race), Case No: 2206133/2023 2

(viii) On 21 December 2022, Gosia (supervisor) told the claimant: “Simone, take off your gloves, the guests do not like it when you clear the tables with gloves on." (protected characteristic relied upon - race and/or age and/or religion)

(ix) On 11 December 2022, assistant manager said to the claimant “do you want a boyfriend” (protected characteristic relied upon - age and/or race and/or religion)

(x) On 17 or 18 December 2022, Silvester (assistant manager) said to the claimant: “if you want a job you will have to move out of London” (protected characteristic relied upon - race).

(xi) On 28 December 2022, Daria said to the claimant’s colleague: “Don't worry she never bought it, it was a gift from her son, she does not have to spend a lot of money in that house” (protected characteristic relied upon - race and/or age),

(xii) On 28 December 2022, Danial Jacobs (the trainer) said to the claimant: “We won't be able to get rid of sixty people for one person. Think about what can be done to resolve the problem." (protected characteristic relied upon - race),

(xiii) On 7 January 2023, Gerald (departmental manager) said to the claimant: “One hand can't clap, It's either you leave or Gosia.” (protected characteristic relied upon - race and/or age and/or religion) are struck out. Case No: 2206133/2023 3

REASONS

[1]The Claimant was ordered to pay a deposit of £5 for each of these 13 allegations (i.e. 13 x £5 = £65) not later than 21 days from the date the Deposit Order was sent to the parties as a condition of being permitted to continue to advance those allegations.

[2]The Order was sent to the parties on 24 October 2023.

[3]Upon the Claimant’s application the deadline for payment was extended until 5 December 2023.

[4]The Claimant has failed to pay any deposit. The allegations are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. Employment Judge Klimov Date: 15 December 2023

[5]He He had had made the following case management order regarding amendment of the made the following case management order regarding amendment of the claim:claim: If the claimant wishes to amend her claim to replace the claim for notice If the claimant wishes to amend her claim to replace the claim for notice pay with a complaint for holiday pay, she must send her application to pay with a complaint for holiday pay, she must send her application to the the TribunalTribunal and the respondent nand the respondent no later thanlater than 21 21 days before the hearing. She ays before the hearing. She must explain:(i) what she says the must explain: (i) what she says the respondenespondent owes her by way of pay foowes her by way of pay for accraccrued but not taken holiday, (ed but not taken holiday,

(ii) how si) how she calcue calculates the sum ates the sum owed,

(iii) wed, (iii) why swhy she did not bring that compe did not bring that complaaint earlier, and

(iv) why she says itint earlier, and (iv) why she says it will will be e in in the interests of justice to allow her to amend he interests of justice to allow her to amend her claim to include ter claim to include that at complaintcomplaint List of issuesList of issues

[6]At thAt the Octobere October hearing, hearing, EJ KlimovEJ Klimov also formulated a list of issues with the parties. also formulated a list of issues with the parties. This comprised 15 allegationsThis comprised 15 allegations of less favourable treatment of the claimant by the of less favourable treatment of the claimant by the respondentrespondent. . Deposit orders Deposit orders

[7]Deposit orders were issued in respect of 13 of those allegations. The claimant Deposit orders were issued in respect of 13 of those allegations. The claimant was was required to pay £5 in respect of each allegation.required to pay £5 in respect of each allegation.

[8]The claimant failed to pay the deposits by the required time including an The claimant failed to pay the deposits by the required time including an extension of that time and the claims were struck out by EJ Klimov on extension of that time and the claims were struck out by EJ Klimov on 1515thth December 2023December 2023. .

[9]At the preliminary hearing on 23At the preliminary hearing on 23rdrd OctoOctober 2023, ber 2023, EJ Klimov encouraged the EJ Klimov encouraged the claimant to seek legal advice and directed her to possible sources of free legal claimant to seek legal advice and directed her to possible sources of free legal advice in employment tribunal cases. advice in employment tribunal cases. Preliminary hearing (open) on 19 Preliminary hearing (open) on 19thth January 2024 January 2024

[10]The Notice of Hearing issued on 12The Notice of Hearing issued on 12thth December 2023 said that today’s hearing December 2023 said that today’s hearing would consider: would consider: 3a. a. the clathe claimant’s applmant’s application to amend (if made)cation to amend (if made) regarding holiday payregarding holiday pay, ,

b. b. any renewed strany renewed strike out applicatke out application by the respondent, on by the respondent,

c. c. whetwhether ter the tre tribunal has bunal has jurisdiction to urisdiction to consider onsider the che claimaimant’snt’s discrdiscriminatmination complaintson complaints under s.123(1) Equalunder s.123(1) Equality Act 2010, andty Act 2010, and

d. d. cacase management and e management and listing of the claim for a fiisting of the claim for a final hearing (as al hearing (as approprappropriate)ate).

[11]In the event, the claimant In the event, the claimant hadhad not manot madde an application to amend and the only e an application to amend and the only application before the Tribunal was the respondent’s application before the Tribunal was the respondent’s renewed renewed application to strike application to strike out out the two remaining complaints on the basis that they were out of time and that the the two remaining complaints on the basis that they were out of time and that the Tribunal therefore had no jurisdiction to considTribunal therefore had no jurisdiction to consider them. er them.

[12]The Tribunal had a bundle of 58 pages. Time was allowed for the claimant to locate The Tribunal had a bundle of 58 pages. Time was allowed for the claimant to locate the bundle and read it. She confirmed that she had received the bundle from the the bundle and read it. She confirmed that she had received the bundle from the Respondent the day before the hearing. She did not immediately have it to hand thiRespondent the day before the hearing. She did not immediately have it to hand this s morning as she did not understand that she would need it at today’s hearing. morning as she did not understand that she would need it at today’s hearing. The The significance of today’s hearing in relation to the continuation of her claim was significance of today’s hearing in relation to the continuation of her claim was explained to herexplained to her at the start of the hearingat the start of the hearing. . She was informed that if the two She was informed that if the two remaining allremaining allegations were struck out that her discrimination claim would be at an egations were struck out that her discrimination claim would be at an end. end.

[13]The respondent drew the claimantThe respondent drew the claimant’s’s and the Tribunal’s attention to the only pages and the Tribunal’s attention to the only pages which had been added to the bundle since its last version for the which had been added to the bundle since its last version for the October October preliminary preliminary hearinghearing. These. These were EJ Klimov’s judgment of 15were EJ Klimov’s judgment of 15thth December 2023 (pp.55December 2023 (pp.55--57) striking 57) striking out the 13 out the 13 discrimination discrimination allegations in respect of which the claimant had failed to pay allegations in respect of which the claimant had failed to pay depositsdeposits by the extended deadline of 5by the extended deadline of 5thth December 2023December 2023. .

[14]I heard submissions from tI heard submissions from the respondent and allowed a 20he respondent and allowed a 20--minute break for the minute break for the claimant to consider her submissions. claimant to consider her submissions. Mr.Mr. Raizon, to assist the claimant, couched his Raizon, to assist the claimant, couched his submission in terms of general legal principles which he sought to express in submission in terms of general legal principles which he sought to express in laypersons’ language. laypersons’ language. The claimant was directed by the The claimant was directed by the TTribunal to focus her ribunal to focus her submission on the reasons for late submission of the claims submission on the reasons for late submission of the claims on three occasions. on three occasions. These were These were before the 20before the 20--minute adjournment, at the beginning of her submissions minute adjournment, at the beginning of her submissions and again before the conclusion of her sand again before the conclusion of her submissions.ubmissions.

[15]The claimant The claimant was keen was keen however however to focus on the allegations which had been struck to focus on the allegations which had been struck out by EJ Klimovout by EJ Klimov and to raise wider issues relating to the Human Rights Act. and to raise wider issues relating to the Human Rights Act. The The Tribunal explained the purpose of the preliminary hearing and the impact on Tribunal explained the purpose of the preliminary hearing and the impact on her her discrimination claim in the event of the Tribunal being persuaded by the respondent discrimination claim in the event of the Tribunal being persuaded by the respondent that it should strike out the remaining discrimination allegationsthat it should strike out the remaining discrimination allegations and that she should and that she should therefore concentrate on the reasons for her delay in bringing her Tribunal claimtherefore concentrate on the reasons for her delay in bringing her Tribunal claim..

[16]The claimant did not furnish a witness statement but gave an account of The claimant did not furnish a witness statement but gave an account of the the sequence of events leading to the late submission of her claim.sequence of events leading to the late submission of her claim. The law The law Time liTime limits in relatiits in relation to the discriminatin to the discrimination claim n claim

The law

[17]Section 123 Equality Act Section 123 Equality Act 2010 state2010 states: : 4 123 Time limits 123 Time limits (1) (1) SubjectSubject to sections 140140AA and 140B,140B, ProceedingsProceedings onon a a complaint withcomplaint within section 120 may not be brought aftern section 120 may not be brought after the end ofthe end of— (a) (a) thethe period of 3 months starting with the date of the act to which to which the complaint relates, or the complaint relates, or (b) such other (b) such other period as the employment tribunal thinks period as the employment tribunal thinks just ust and and equitableequitable. . . . . . . . (3) For (3) For the purpohe purposes of this sectiones of this section—— (a) (a) conduconductt extendingextending ooverer a period is to be ttreatedeated asas donedone at theat the end of the end of the period.period.

[18]As noted by EJ Klimov onAs noted by EJ Klimov on 2323rdrd October 2023,October 2023, the claim form did not contain any in the claim form did not contain any in time allegations and therefore the Tribunal did not need to consider any time allegations and therefore the Tribunal did not need to consider any continuing acts under s.123(3) of the Equality Act 2010. continuing acts under s.123(3) of the Equality Act 2010.

[19]The Tribunal reminded itself of the Court of Appeal judgment in The Tribunal reminded itself of the Court of Appeal judgment in RobertRobertson on v Bexley CoBexley Community mmunity Centreentre

[2003] EWCA Civ 576

((para 25para 25)):: “ “It is It is … … of importance to note that the time limits are exercised strictly in employment of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and time on just and equitable grounds there is no presumption that they should do so equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal 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 cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend timextend time. So, the exercise of discretion is the exception rather than the rulee. So, the exercise of discretion is the exception rather than the rule.”.”

[20]There is therefore no presumption that the Tribunal should exercise its discretion There is therefore no presumption that the Tribunal should exercise its discretion in favour of the claimant. in favour of the claimant. Rather tRather the onus is on the claimant to persuade the he onus is on the claimant to persuade the Tribunal that it is just and equitable to extend time. Tribunal that it is just and equitable to extend time.

[21]In the same case, the Court of Appeal noted that In the same case, the Court of Appeal noted that the question of whether or not the question of whether or not it is just and equitable to extend time to bring a discrimination complaint it is just and equitable to extend time to bring a discrimination complaint is is a a question of fact and judgment for the Tribunal to determinequestion of fact and judgment for the Tribunal to determine ((paragraph 23paragraph 23) and ) and thatthat the the Tribunal’s discretion is Tribunal’s discretion is a a widewide oneone (paragraph (paragraph 24). 24). Nonetheless, time Nonetheless, time limits limits are to be strictly observed in Employment Tribunals; are to be strictly observed in Employment Tribunals; Miller and others v Miller and others v Ministry of Justice and others EATMinistry of Justice and others EAT 00030003/15. /15.

[22]The Tribunal took note of The Tribunal took note of the the five five factors under factors under s. 33 of the Limitation Acts. 33 of the Limitation Act 1980 1980 which are characterized in the Employment Tribunal setting aswhich are characterized in the Employment Tribunal setting as the the KeebleKeeble factors based on the decision in factors based on the decision in British British Coal Coal Corporation Corporation v Keeblev Keeble [1997]

[1997] IRLR 336

IRLR 336. In summary those five . In summary those five factors are the length and reason for delay, factors are the length and reason for delay, the extent to which the cogency (or power) of the the extent to which the cogency (or power) of the evidence is likely to be harmed evidence is likely to be harmed by delayby delay, the extent to which the respondent co, the extent to which the respondent co--operated with any request for operated with any request for information, the promptness with which the claimantinformation, the promptness with which the claimant acted once aware of acted once aware of the the facts giving rise to the possibility of taking a claim in the Employment Tribunalfacts giving rise to the possibility of taking a claim in the Employment Tribunal, , the steps taken by the claimant to take advice once she knew of the possibility of the steps taken by the claimant to take advice once she knew of the possibility of taking a claimtaking a claim..

[23]In considering the In considering the Keeble Keeble factors, the Tribunal reminded itself factors, the Tribunal reminded itself of of Lord Justice Lord Justice Underhill’s guidance in Underhill’s guidance in Adedeji v University of Birmingham NHS TrustAdedeji v University of Birmingham NHS Trust [2021]

[2021] EWCA Civ 23

EWCA Civ 23 that the above factors are not to be applied by the Tribunal in a that the above factors are not to be applied by the Tribunal in a mechanistic manner. Insteadmechanistic manner. Instead, the best approach f, the best approach for a Tribunal or a Tribunal is tois to:: 5 ““assess all the factors in the particular case which it considers relevant assess all the factors in the particular case which it considers relevant as to whether it is as to whether it is just and equitable to extend time, including in particular the just and equitable to extend time, including in particular the “length of and reasons for “length of and reasons for delay”, If it checks thdelay”, If it checks those factors against the list in Keeble, well and good; but I would not ose factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinkinrecommend taking it as the framework for its thinkingg.”.”

[24]LJ Underhill reLJ Underhill reiterated the importance of the iterated the importance of the reminder given byreminder given by Lord Justice Lord Justice Legatt in Legatt in Abertawe Bro Morgannwg University Local Health Board v MorganAbertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

that:that: “factors which are almost always relevant to consider when exercising any discretion “factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for the delay and whether to extend time are: (a) the length of, and reasons for the delay and

(b) whether (b) whether the delaythe delay has prejudiced the respondent (for examplehas prejudiced the respondent (for example, by preventing or inhibiting , by preventing or inhibiting it from it from investigating the claim while the matters were still freshinvestigating the claim while the matters were still fresh””

[25]As confirmed by Mrs Justice Laing As confirmed by Mrs Justice Laing ((as she then wasas she then was)) in in Miller and others vs Miller and others vs Ministry of Justice and others EAT 003/15Ministry of Justice and others EAT 003/15, a respondent may suffer two types , a respondent may suffer two types of prejudice if time is of prejudice if time is extendedextended-- first, first, the forensic prejudice which will result the forensic prejudice which will result where where the primary limitation period is extended by months and years the primary limitation period is extended by months and years thus thus requiring requiring the respondent to investigate historic matters andthe respondent to investigate historic matters and, in the second place, , in the second place, the obvious prejudice of the obvious prejudice of having to defendhaving to defend a claim which would otherwise have a claim which would otherwise have been eliminated by a limitation defence. been eliminated by a limitation defence.

[26]The TribunalThe Tribunal was directed by was directed by Mr.Mr. RRaizon to consider the aizon to consider the more more recent authority of recent authority of the Employment Appeal Tribunal in the Employment Appeal Tribunal in Thompson v Ark Schools Thompson v Ark Schools

UKEAT/0244/17

/DMUKEAT/0244/17/DM.. In that case HHJ Eady (as she then was)In that case HHJ Eady (as she then was) not only renot only reststated ated the principles described above butthe principles described above but indicatedindicated thatthat failure by a Tribunal to have failure by a Tribunal to have regard to those factors that are significant regard to those factors that are significant in the particular case before it may in the particular case before it may amount to an error of law (paragraph 18). amount to an error of law (paragraph 18).

[27]Finally, the Tribunal must Finally, the Tribunal must take account of the merits of take account of the merits of the case when the case when considering the balance of prejudiceconsidering the balance of prejudice as failure to do so will be an error of lawas failure to do so will be an error of law; ; Bahous v Pizza Express Restaurant [Ltd] UKEAT/Bahous v Pizza Express Restaurant [Ltd]

UKEAT/0029/11

/DA0029/11/DA. . The relevance The relevance of the potential merits of the case of the potential merits of the case when considering whether iwhen considering whether it is just and is just and equitable to extend timeequitable to extend time were addressed by the EAT more recently were addressed by the EAT more recently in in KumaKumari i v v GreaterGreater ManchesteManchester MentalMental Healthealth NHSNHS Foundationoundation TrustTrust [20222022]] EAEAT 132132 “… “…the tribunal needs to consider the matter with care, identify if the tribunal needs to consider the matter with care, identify if there there are are readily readily apparentapparent featuresfeatures that point to potential weakness or obstacles, and consider that point to potential weakness or obstacles, and consider whether it can safely regard them as having some bearing on the merits. If the tribunal whether it can safely regard them as having some bearing on the merits. If the tribunal is not in a position to is not in a position to do thatdo that, then it should not count an assessment of the merits as , then it should not count an assessment of the merits as weighing weighing against theagainst the claimant. claimant. But if But if it isit is, and even though it may not be a , and even though it may not be a position to say there is no reasonable prospect of success, it may put its assessment position to say there is no reasonable prospect of success, it may put its assessment of the merits in the scales. In such a case the of the merits in the scales. In such a case the appellate courtappellate court will not interfere unlewill not interfere unless ss the tribunal’s approach to assessing the tribunal’s approach to assessing the the merits, ormerits, or to the weight attached to them, to the weight attached to them, is, in the legal sense, perverse.” is, in the legal sense, perverse.” Findings of fact

Findings of fact

[28]The claimant should have brought her The claimant should have brought her claimclaim regarding the alleged comments regarding the alleged comments made by Monicmade by Monica on 30a on 30thth October 2022 by 1October 2022 by 1stst January 2023. January 2023. Early conciliation Early conciliation began on began on 1717thth March 2023. March 2023. TheThe ACAS early conciliation certificate was issued ACAS early conciliation certificate was issued on on 2020thth March 2023 and theMarch 2023 and the claim was lodged onclaim was lodged on 2121stst April April 2023. This complaint 2023. This complaint was therefore was therefore 3.5 months outside the prescribed time limit. 3.5 months outside the prescribed time limit. 6

[29]The second The second allegationallegation regarding regarding the alleged comments by Adrian between 6the alleged comments by Adrian between 6thth and 22and 22ndnd November 2022November 2022 were brought 2.5 months after thewere brought 2.5 months after the threethree--monthmonth time time limitlimit as they should have been presented by early February 2023 at the earliest as they should have been presented by early February 2023 at the earliest and and towards the end of that month at the latesttowards the end of that month at the latest. .

[30]Early conciliation did not preserve the time limit as it began after the primary Early conciliation did not preserve the time limit as it began after the primary time limit had expired. time limit had expired.

[31]The claimant The claimant contacted ACAS on 20contacted ACAS on 20thth January 2023. January 2023. SubmissionsSubmissions

[32]For the respondent, For the respondent, Mr.Mr. Raizon submitted that the claims were out of time and that Raizon submitted that the claims were out of time and that it was not just and equitable to extend time. He argued that time limits should be it was not just and equitable to extend time. He argued that time limits should be exercised strictly, thexercised strictly, that the onus was on the claimant to persuade the Tribunal that at the onus was on the claimant to persuade the Tribunal that time should be extended, that the decision to extend time was fact sensitive and time should be extended, that the decision to extend time was fact sensitive and while the Tribunal’s discretion was wide, the balance of prejudice weighed against while the Tribunal’s discretion was wide, the balance of prejudice weighed against the claimant being able to runthe claimant being able to run hopeless allegations. hopeless allegations.

[33]The claimant’sThe claimant’s primary concern was with the complexity of the three previous primary concern was with the complexity of the three previous preliminary hearings and with the most recent preliminary hearing which had led preliminary hearings and with the most recent preliminary hearing which had led to to EJ Klimov’s EJ Klimov’s striking out of 13 discrimination allegations for failure to pay the striking out of 13 discrimination allegations for failure to pay the deposit orders. deposit orders. She asked theShe asked the Tribunal to look into aspects of the previous Tribunal to look into aspects of the previous hearings. She was reminded hearings. She was reminded on several occasionson several occasions by the Tribunal that today’s by the Tribunal that today’s hearing hearing was concerned was concerned only only with the lateneswith the latenesss of her claims. of her claims.

[34]The reasons given by the claimant for lateness were The reasons given by the claimant for lateness were threefoldthreefold. . Firstly,Firstly, that shethat she was was having meetings with her employer and assumed that as she wahaving meetings with her employer and assumed that as she was “having s “having meetings within that time frame that meetings within that time frame that ((sheshe)) was not aware that this would be an was not aware that this would be an issue issue for the Tribunal case”. for the Tribunal case”.

[35]Second, she said that she Second, she said that she was waiting to hear from was waiting to hear from her employer. her employer.

[36]Finally, she said that she was waiting for a response from Finally, she said that she was waiting for a response from ACAS ACAS in orderin order to to have a conciliation officer allocated to her casehave a conciliation officer allocated to her case and in fact she is still waiting to and in fact she is still waiting to have one assigned. have one assigned.

[37]She also told the Tribunal that She also told the Tribunal that the two remaining allegations were “of no the two remaining allegations were “of no particular relevance or importance to my case.” particular relevance or importance to my case.”

[38]She did not advance any reasons for delay due to personal circumstances such She did not advance any reasons for delay due to personal circumstances such as illness, disability or personal crises. as illness, disability or personal crises.

[39]In reply, In reply, Mr.Mr. Raizon submitted that the claimant had sat on her hands and Raizon submitted that the claimant had sat on her hands and assumed that matters should be resolved in her favour. He said that assumed that matters should be resolved in her favour. He said that justice and justice and equity do not favour a passive litigant. The claimant’s lack of knowledge about equity do not favour a passive litigant. The claimant’s lack of knowledge about time limits was not reasonabletime limits was not reasonable and and that she could have made use of online that she could have made use of online resources which would have drawn her attention to the resources which would have drawn her attention to the Tribunal’s time limit. Tribunal’s time limit. He He observed that the two allegations before the Tribunal did not form part of the observed that the two allegations before the Tribunal did not form part of the claimant’s claimant’s original claim and had been added at the third original claim and had been added at the third preliminary hearing. preliminary hearing. Finally, the balance of prejudice wFinally, the balance of prejudice was weighted against the claimant’s wish to as weighted against the claimant’s wish to bring bring frivolous frivolous claims claims Discussion and conclusion Discussion and conclusion 7

[40]The factors which the Tribunal considered to be relevant are as follows: The factors which the Tribunal considered to be relevant are as follows: Reason for delay Reason for delay

[41]The claimant The claimant was aware of her right to pursue a complaint to the Employment was aware of her right to pursue a complaint to the Employment TribunalTribunal to the extent that she understood the need to contact ACAS. She is to the extent that she understood the need to contact ACAS. She is intelligent and articulate as shown by her detailed intelligent and articulate as shown by her detailed 77--pagepage email email to to the the respondent’s HR department which sherespondent’s HR department which she sent on sent on 2525thth January 2023.January 2023. She is She is resourcefulresourceful having clearly researched legislahaving clearly researched legislation including the Human Rights Acttion including the Human Rights Act. . The The Tribunal fTribunal foundound that it was open to her to have carried out internet searchesthat it was open to her to have carried out internet searches confirming the timeconfirming the time limits for Tribunallimits for Tribunal..

[42]Her oral evidence showed Her oral evidence showed her her awareness of the time limits to invoke a grievance awareness of the time limits to invoke a grievance and a and a grievance appealgrievance appeal with her former employerwith her former employer. This demonstrated to the . This demonstrated to the Tribunal that she Tribunal that she should have understood that time limits were even more likely to should have understood that time limits were even more likely to apply to formal Tribunal proceedings. apply to formal Tribunal proceedings.

[43]In the circumstances the Tribunal found that it was not reasonable for the claimant In the circumstances the Tribunal found that it was not reasonable for the claimant to to rely on her rely on her ignoranignorancece of the of the threethree--monthmonth primary time limit.primary time limit.

[44]The Tribunal The Tribunal also also finds that it was not reasonable for the claimant to have delayedfinds that it was not reasonable for the claimant to have delayed bringing proceedings whbringing proceedings while pursuing a grievance and then an appeal against the ile pursuing a grievance and then an appeal against the outcome of her grievance. outcome of her grievance. It noted that delay due to awaiting completion of an It noted that delay due to awaiting completion of an internal processinternal process is only one factor to be considered; is only one factor to be considered; Robinson v Post Office Robinson v Post Office

[2000] IRLR 804

, EAT.

[2000] IRLR 804

, EAT. Length of delay Length of delay

[45]The Tribunal concluded that The Tribunal concluded that the the delay while shorter than some of the delays in delay while shorter than some of the delays in the authorities cited was the authorities cited was potentially potentially significant in the context of an industry significant in the context of an industry with with high turnovers of staff.high turnovers of staff. This was a factor weighing in favour of the respondent’s This was a factor weighing in favour of the respondent’s strike out application.strike out application. Impact on cogency of evidence Impact on cogency of evidence

[46]The Tribunal considered that the The Tribunal considered that the delay was likely however to have limited impact delay was likely however to have limited impact on the cogency of the evidence. on the cogency of the evidence. The claimant’s employment was of short The claimant’s employment was of short duration. duration. Performance issues had been formally raised fairly early on in her Performance issues had been formally raised fairly early on in her employment and it was likely therefore that employment and it was likely therefore that there wthere was as some some ssupporting upporting documendocumentationtation on the background to the claimson the background to the claims.. For example, the grounds of For example, the grounds of resistance record that the respondent’s resistance record that the respondent’s Training Manager noted on 18Training Manager noted on 18thth November 2022 that the claimant “needed close management”.November 2022 that the claimant “needed close management”. Formal Formal performance management meetings were held on 27performance management meetings were held on 27thth December 2022 and 15December 2022 and 15thth January 2023. January 2023.

[47]Additionally, tAdditionally, the claimant had been involved in grievance he claimant had been involved in grievance and grievance appeal and grievance appeal proceedings proceedings until until 1515thth March March 2023.2023. TThe respondent was likely to have preserved he respondent was likely to have preserved records and to have records and to have some some contemporaneous statements on the matters raised by contemporaneous statements on the matters raised by the claimant’s grievance. Accordingly, the Tribunal placed lthe claimant’s grievance. Accordingly, the Tribunal placed lessess weight on this weight on this factor. factor.

[48]The absence of forensic prejudiThe absence of forensic prejudice is not ce is not however however decisive in favour of an extension decisive in favour of an extension as as observed by Mrs Justice Laing in observed by Mrs Justice Laing in MillerMiller.. 8 Promptness with which acted Promptness with which acted/steps taken to secure advice /steps taken to secure advice

[49]The claimant The claimant said that she decided to submit her claim once she realised that said that she decided to submit her claim once she realised that ACAS would not be contacting her. The ACAS would not be contacting her. The TribunalTribunal found her evidence contradictory found her evidence contradictory on this point as she also said at the hearing that she still expected ACAS to be in on this point as she also said at the hearing that she still expected ACAS to be in touch. touch. IIn relation to her dn relation to her delay associated with the elay associated with the internalinternal proceedings, iproceedings, it noted that t noted that she did not she did not issue her issue her claim form until claim form until over over two two monthmonthss after the refusal of her after the refusal of her grievance and grievance and more than one monthmore than one month afterafter the refusal of her the refusal of her grievancegrievance appeal. appeal. The The Tribunal does notTribunal does not consconsiderder thatthat thethe claimclaim was brought within a furthewas brought within a further reasonable reasonable period. period. Merits Merits

[50]Within the necessary limitations of the preliminary hearing, tWithin the necessary limitations of the preliminary hearing, the he Tribunal considered Tribunal considered the claims to be weakthe claims to be weak. It noted . It noted in particular that the allegation concerning Adrian the in particular that the allegation concerning Adrian the kitchen chef appeared to amount to background only. kitchen chef appeared to amount to background only. Of significance Of significance alsoalso was the was the importance which the claimant attached to these allegations. importance which the claimant attached to these allegations. The Tribunal did notThe Tribunal did not howeverhowever go so far as to characterise go so far as to characterise her allegations as frivolous as Mr Raizon had. her allegations as frivolous as Mr Raizon had. Balance of prejudice Balance of prejudice

[51]The Tribunal The Tribunal put in balance the prejudice which would result to the respondent were put in balance the prejudice which would result to the respondent were it required to defend the allegations as against the it required to defend the allegations as against the prejudice prejudice which would result to the which would result to the claimant claimant were she barred from pursuing her claim. The respondent relied upon the were she barred from pursuing her claim. The respondent relied upon the fact that it hafact that it had expended legal fees in a number of preliminary hearings.d expended legal fees in a number of preliminary hearings. Mr.Mr. Raizon Raizon described the claimant’s allegations as frivolous and hopeless. described the claimant’s allegations as frivolous and hopeless.

[52]As against this, the claimant told the Tribunal that she As against this, the claimant told the Tribunal that she did not regard the two did not regard the two remaining allegations as either important or significant to her claim. Her primary remaining allegations as either important or significant to her claim. Her primary concerns concerns remained remained with the allegations dismissed by EJ Klimov. with the allegations dismissed by EJ Klimov. She She clearly clearly regarded the regarded the two remaining allegations as peripheraltwo remaining allegations as peripheral and barely addressed tand barely addressed them hem during the hearing. during the hearing.

[53]Taking all the above factors into consideration,Taking all the above factors into consideration, the Tribunal found that tthe Tribunal found that the he relevant relevant factors factors weighed in favour of refusing an extension of weighed in favour of refusing an extension of the claims on just and equitable the claims on just and equitable grounds.grounds. While there was little forensic prejudice, While there was little forensic prejudice, the respondent would be the respondent would be prejudiced by having to defend claims which were not brought within the primary time prejudiced by having to defend claims which were not brought within the primary time limit. limit. The balance of prejudice was with the respondent who would be forced to The balance of prejudice was with the respondent who would be forced to defend allegations defend allegations which which were not only out of were not only out of timetime..

[54]The Tribunal did not have jurisdiction to hear the claimant’s discrimination claims The Tribunal did not have jurisdiction to hear the claimant’s discrimination claims and they would be struck out. and they would be struck out.

[55]The claim for notice pay will be listed for hearing. The claim for notice pay will be listed for hearing. Employment Jud