Employment Judge Mr J S BurnsMr H Giani (instructed by Counsel) for claimantMs Davies (instructed by Counsel) for respondentDate 9 June 2025
JUDGMENT
[1]The Claimant’s application to amend her claim to add a claim of automatic unfair dismissal is refused.[2]The Equality Act 2010 harassment claims are out of time and it is not just and equitable to extend time[3]The unfair dismissal and harassment claims are struck out
[13]In her Particulars of claim the Claimant mentions her difficulties with Gary in July 22 and how this generated in her a sense of a lack of safety, and her concerns about cocaine being found in the mens’ washroom, which she contends could have had a “deleterious impacts on the welfare of our colleagues” and that she reported both these matters to HR.[14]The Claimant does not state or suggest in her particulars of claim that(i) there was no H&S representative or safety committee, or(ii) there was such a representative or safety committee but it was not reasonably practicable for her to raise the matter by those means, (as required by section 100); that her complaints about Gary or the cocaine were a complaint about an infringement of a relevant statutory right of hers (as required by section 104); or(iii) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by her and who have not been dismissed by the employer (as required by section 105(1)(b)).[15]When I asked Mr Giani about these details he did not have any instructions on them - for example whether the Claimant would say for purposes of section 100 that there was no health and safety representative or safety committee, or whether she would say that there was such a representative or safety committee but it was not reasonably practicable for her to raise her complaints by those means.[16]Furthermore, the Claimant does not state or even imply in her Particulars of Claim that her complaints about Gary or the cocaine were the cause of her dismissal. When dealing in that document with the cause of her dismissal she made reference to a quite different reason, as follows: “When HS2 stated that they were pulling the contract because of overspending, I raised my concerns, stating that it was because some employees had created fake consultant accounts that we were paying without having the consultants. Unfortunately, my team, which consisted of only three members when it should have been seven was informed it would not be affected by this situation, but this changed, and my role was made redundant…”[17]On a fair reading of the particulars of claim and without the benefit of what the Claimant has sought to add afterwards, principally through her Counsel today, the complaints about Gary and the cocaine are either background or matters which she wishes to complain about as discrimination/harassment of some kind and are certainly not to be understood, even as a matter of substance, as a claim for automatic unfair dismissal.[18]It is clear that the Claimant did not intend in her ET1 to claim (even in litigant-in person terms) that she was automatically unfairly dismissed by reason of health and safety complaints (which complaints even on her case appear to have been made about 15 or 16 months before the dismissal). A reasonable person reading her ET1 and POC would not conclude that she had made such a claim. 2218504 2024 11[19]It is only after the problem of the lack of two years’ service has emerged that an attempt has been made retrospectively to recast the claim as something quite different.[20]I do not regard this as a case of a proposed relabelling exercise only, with no real change in the substance. To recognise or allow an automatic dismissal claim would require a significant amendment, change the substance by introducing a completely new alleged causation and factual matrix, and require the Respondent to consider its defence afresh, once the missing essential averments (which even today are not available even if they have been decided on) have been provided.[21]Any automatic unfair dismissal claim brought now would be significantly out of time. The manner of the application is informal, late and lacking any written form, and not even mentioned until half-way through the Claimant’s submissions today.[22]For these reasons I refuse the amendment, find that the only unfair dismissal claim which the Claimant has brought is an ordinary unfair dismissal claim, and strike that claim out for want of two years’ continuous service. Equality Act 2010 claims[23]The relevant statutory provision is s.123(1) of the Equality Act 2010 which provides for a three-month time period for issuing tribunal proceedings, or starting ACAS early conciliation, or at such other period as the Employment Tribunal thinks just and equitable.[24]The relevant criteria to be applied in terms of whether it would be just and equitable to extend time are those set out in s.33 of the Limitation Act 1980. These criteria should not be followed slavishly but nevertheless represent a useful guide to tribunals in assessing whether an extension of time should apply. Potentially relevant factors include: the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected; the promptness of which the Claimant acted once she knew of the facts giving rise to the cause of action; and the steps taken by the Claimant to obtain appropriate professional advice once she knew of the possibility of taking legal action.[25]The length of, and reasons for the delay, and any prejudice to the Respondent, are “almost always relevant to consider” Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, per Leggatt LJ at [19]).[26]Robertson v Bexley Community Centre 2003 IRLR 434 CA [25] per Auld LJ “An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the applicant convinces it that 2218504 2024 12 it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule”.[27]In so far as the Claimant asserts illness as a reason for delay, that will be a relevant factor to weigh in the balance when considering whether to exercise the discretion to extend time. However, there is no general principle that an individual with health problems (including mental health problems) is entitled to delay as a matter of course in bringing a claim: Department of Constitutional Affairs v Jones, 2007 EWCA Civ 894 per Pill LJ at [58].[28]As to conduct extending over a period (s.123(3)), the focus is on the substance of the complaints, and whether what is being complained of is ““an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed” (Hendricks v Commissioner of the Police of the Metropolis [2003] ICR 530 at [52] per Mummery LJ).[29]For limitation purposes, an omission occurs when the decision maker in question decided on it (s.123(3)(b)). In the absence of evidence to the contrary, the decision maker is to be taken to decide on a failure to do something when either(1) they do something inconsistent with it; or(2) the period in which the decision maker might reasonably have been expected to do it expires (s.123(4)).[30]In Aziz v FDA EWCA 2010 304 it was held that deciding a time limits issue relating to whether conduct extends over a period is permissible at a PH which receives evidence. The issue is whether at the PH a prima facie case is shown that conduct extended over a period. In that case events were grouped in different periods and it was concluded that it was not sensible to say that thee was conduct extended over the periods. The events in the individual periods made sense in themselves.
[13]In her Particulars of claim the Claimant mentions her difficulties with Gary in July 22 and how this generated in her a sense of a lack of safety, and her concerns about cocaine being found in the mens’ washroom, which she contends could have had a “deleterious impacts on the welfare of our colleagues” and that she reported both these matters to HR.[14]The Claimant does not state or suggest in her particulars of claim that(i) there was no H&S representative or safety committee, or(ii) there was such a representative or safety committee but it was not reasonably practicable for her to raise the matter by those means, (as required by section 100); that her complaints about Gary or the cocaine were a complaint about an infringement of a relevant statutory right of hers (as required by section 104); or(iii) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by her and who have not been dismissed by the employer (as required by section 105(1)(b)).[15]When I asked Mr Giani about these details he did not have any instructions on them - for example whether the Claimant would say for purposes of section 100 that there was no health and safety representative or safety committee, or whether she would say that there was such a representative or safety committee but it was not reasonably practicable for her to raise her complaints by those means.[16]Furthermore, the Claimant does not state or even imply in her Particulars of Claim that her complaints about Gary or the cocaine were the cause of her dismissal. When dealing in that document with the cause of her dismissal she made reference to a quite different reason, as follows: “When HS2 stated that they were pulling the contract because of overspending, I raised my concerns, stating that it was because some employees had created fake consultant accounts that we were paying without having the consultants. Unfortunately, my team, which consisted of only three members when it should have been seven was informed it would not be affected by this situation, but this changed, and my role was made redundant…”[17]On a fair reading of the particulars of claim and without the benefit of what the Claimant has sought to add afterwards, principally through her Counsel today, the complaints about Gary and the cocaine are either background or matters which she wishes to complain about as discrimination/harassment of some kind and are certainly not to be understood, even as a matter of substance, as a claim for automatic unfair dismissal.[18]It is clear that the Claimant did not intend in her ET1 to claim (even in litigant-in person terms) that she was automatically unfairly dismissed by reason of health and safety complaints (which complaints even on her case appear to have been made about 15 or 16 months before the dismissal). A reasonable person reading her ET1 and POC would not conclude that she had made such a claim. 2218504 2024 11[19]It is only after the problem of the lack of two years’ service has emerged that an attempt has been made retrospectively to recast the claim as something quite different.[20]I do not regard this as a case of a proposed relabelling exercise only, with no real change in the substance. To recognise or allow an automatic dismissal claim would require a significant amendment, change the substance by introducing a completely new alleged causation and factual matrix, and require the Respondent to consider its defence afresh, once the missing essential averments (which even today are not available even if they have been decided on) have been provided.[21]Any automatic unfair dismissal claim brought now would be significantly out of time. The manner of the application is informal, late and lacking any written form, and not even mentioned until half-way through the Claimant’s submissions today.[22]For these reasons I refuse the amendment, find that the only unfair dismissal claim which the Claimant has brought is an ordinary unfair dismissal claim, and strike that claim out for want of two years’ continuous service. Equality Act 2010 claims[23]The relevant statutory provision is s.123(1) of the Equality Act 2010 which provides for a three-month time period for issuing tribunal proceedings, or starting ACAS early conciliation, or at such other period as the Employment Tribunal thinks just and equitable.[24]The relevant criteria to be applied in terms of whether it would be just and equitable to extend time are those set out in s.33 of the Limitation Act 1980. These criteria should not be followed slavishly but nevertheless represent a useful guide to tribunals in assessing whether an extension of time should apply. Potentially relevant factors include: the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected; the promptness of which the Claimant acted once she knew of the facts giving rise to the cause of action; and the steps taken by the Claimant to obtain appropriate professional advice once she knew of the possibility of taking legal action.[25]The length of, and reasons for the delay, and any prejudice to the Respondent, are “almost always relevant to consider” Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, per Leggatt LJ at [19]).[26]Robertson v Bexley Community Centre 2003 IRLR 434 CA [25] per Auld LJ “An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the applicant 2218504 2024 12 convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule”.[27]In so far as the Claimant asserts illness as a reason for delay, that will be a relevant factor to weigh in the balance when considering whether to exercise the discretion to extend time. However, there is no general principle that an individual with health problems (including mental health problems) is entitled to delay as a matter of course in bringing a claim: Department of Constitutional Affairs v Jones, 2007 EWCA Civ 894 per Pill LJ at [58].[28]As to conduct extending over a period (s.123(3)), the focus is on the substance of the complaints, and whether what is being complained of is ““an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed” (Hendricks v Commissioner of the Police of the Metropolis [2003] ICR 530 at [52] per Mummery LJ).[29]For limitation purposes, an omission occurs when the decision maker in question decided on it (s.123(3)(b)). In the absence of evidence to the contrary, the decision maker is to be taken to decide on a failure to do something when either(1) they do something inconsistent with it; or(2) the period in which the decision maker might reasonably have been expected to do it expires (s.123(4)).[30]In Aziz v FDA EWCA 2010 304 it was held that deciding a time limits issue relating to whether conduct extends over a period is permissible at a PH which receives evidence. The issue is whether at the PH a prima facie case is shown that conduct extended over a period. In that case events were grouped in different periods and it was concluded that it was not sensible to say that thee was conduct extended over the periods. The events in the individual periods made sense in themselves. Consideration[31]I have set out in the Schedule to these reasons a chronology of events and allegations. This is based on the Equality Act 2010 harassment allegations as set out in paragraphs 45 and 46 of the Case Summary dated 6/2/25 (which the Claimant through her Counsel today agreed was a correct and exhaustive list of such claims) and other events the dates of which are not in dispute.[32]The CMPH case summary includes as an allegation of sex-harassment “instances of gaslighting (to be particularised) including attempts to undermine the Claimants safety concerns”. The Claimant was directed by 17/3/25 to provide “if she is pursuing the relevant part of her claim, clarification of who attempted to gaslight her, setting out dates, times, location and manner in which this happened” 2218504 2024 13[33]In response the Claimant provided the following on 17/3/2025: “9.3 Management's Gaslighting and Lack of Support Following my initial report, Gary Stevens repeatedly attempted to contact me outside the agreed-upon parameters via Microsoft Teams and in person. Management informed me that if I refused to communicate with him, he would leave, placing undue pressure on me to engage despite the circumstances. Requests for safer working conditions were dismissed as "problematic," further exacerbating an already hostile work environment. Senior management demonstrated an apathetic and indifferent attitude, fostering a culture in which inappropriate behaviour was normalised. This included instances of gaslighting, such as referencing a separate incident where Gary Stevens had intimidated another female colleague by shouting and belittling the claimant in the middle of the office—yet dismissing my concerns by noting that she had not requested safety measures. The defendant also referred me for counselling through a third-party provider, only for me to be informed that my concerns were classified as an HR matter, leaving me without meaningful support. Additionally, I was subjected to workplace evaluations, including a 360- degree evaluation and a Facet 5 assessment, despite both confirming my professional competence. These evaluations appeared to serve no legitimate purpose other than to subject me to additional scrutiny. As the only Black female reporting line manager during the latter months of my employment on the HS2 project, it became evident that professional grace and social standing were not equally extended to me. Workplace norms that afforded others leniency and acceptance were systematically denied in my case. Furthermore, Juan Ares, the Project Director, was visibly upset upon learning that I had successfully passed my probation. His reaction was not based on my performance but rather on personal bias. He openly chastised my line manager for allowing my progression, signalling that my presence in this role was unwelcome due to factors beyond merit.”[34]Thus the Claimant did not comply with the direction to set out the dates and times of her “gaslighting” allegations and these were not provided today either.[35]However what is not in dispute is that the Claimant was away from work on long-term sick leave from 24/4/23 onwards and that she never returned to work thereafter and was dismissed the day before the primary limitation deadline expired. What she has written suggests that the matters complained of as “gaslighting” all occurred before her sick leave, and Mr Giani did not suggest otherwise in submissions. The Claimant has failed, notwithstanding a clear direction, to particularise any “gaslighting” after her sick-leave commenced and I therefore conclude that none after that date is complained of. 2218504 2024 14[36]While it is not possible to put a specific date on when the Respondent “failed to interview the Claimants witnesses about her grievance” (which is one of the allegations of sex-harassment), the email of 17/5/23 shows that if this omission did occur, it did so before that date.[37]The Claimant has not provided any information or explanation to support any suggestion that the events complained of are part of a continuing act. The complaints are about different people at different (often widely separated) times doing different kinds of things.[38]The complaints of race harassment, relate to two matters (namely that “(i) in Oct 22The Respondent took down the Claimant’s contribution to ‘Being Black in the Construction Industry’ (brought to her attention by Paul Leighton in October 2022) and (ii) in 28/3/23 Nick Duggen referred to Cs hair as “nappi”). These are two isolated allegations different from each other and not suggested to having been done by the same person. They are not each part of a single continuing act.[39]If the three sex harassment complaints about Gary Stevens relate to a continuing act, that act was completed in March 23. They do not seem to be related to the other complaints of sex harassment which are different in kind and were also all completed on my findings by May 23 at the latest, and most of them much earlier than that.[40]The Claimant has not shown a prima facie case that any of the events complained of were part of a continuing act extending to a date after the commencement of the primary limitation period which started on 2/11/23.[41]I conclude that the EA 2010 claims are out of time and the question is whether it is just and equitable to extend time. Mr Giani’s submissions were made on that basis.[42]The Claimant refers to her medical leave which started on or about 24/4/23 following an “open myomectomy” operation as a factor making it just and equitable to extend time.[43]All the matters in respect of which the Claimant has identified specific dates were completed some time before the sick leave commenced, and most of them were in 2022. It is unlikely that her ability to bring claims in time in relation to those matters was impacted by any such leave.[44]The Claimant has not produced and GP or hospital records. The few fit notes she has provided state “open myomectomy” as the reason for absence. The Claimant has failed to provide proper information on the impact of the procedure on her. The fit notes demonstrate that the Claimant was unfit for work for the period from 3/5/23 to 30/11/23 but do not state or show that the Claimant was unable to engage with ACAS or any Tribunal process.[45]The Respondent during this period of absence did exchange emails with the Claimant and conduct regular check-ins with her as well as conducting a redundancy consultation with her.[46]The Claimant’s last fit note expired on 30/11/23 but she did not commence ACAS early conciliation for a further two months, until 1/2/24. 2218504 2024 15[47]The Claimant also relied on the fact that the outcome of her grievance was not given to her until 4/12/23. However, the grievance outcome and any delay in communicating it to the Claimant are not matters she has alleged as harassment, and there was no reason why the Claimant had to wait for the outcome before issuing her claim, particularly as she is now complaining in her ET1 about several matters which she did not complain about in the grievance, and vice versa.[48]The period of delay between the Claimant receiving the grievance outcome on 4/12/23 and her application to ACAS on 1/2/24 is not accounted for at all.[49]The Claimant did not suggest that she did not know her rights or how to claim.[50]Several of the alleged matters date from 2022. The alleged harassment which the Claimant wishes to complain about occurred in the range of about one year to one year and 9 months prior to her claim being presented This is a significant period of delay.[51]If these harassment claims were to be determined, the FMH would require a 6-day listing which could probably be accommodated no earlier than the second half of 2026, by which time the allegations would be even staler than they are now, essentially four years on from the alleged incidents. The ability of any relevant witness to accurately recall and respond to questions on (in many cases) one-off, discrete incidents from 2022 and early 2023 will be severely prejudiced by this years’-long time period.[52]I was also informed by Ms Davies that her instructions are that two of the alleged protagonists, Nick Duggen and Gary Stevens are no longer employed by the Respondent. That has since been corrected by the Respondent’s solicitors email dated 19/6/25. Mr Nick Duggen still works for the Respondent.[53]Hence the delay is likely to be prejudicial to a fair trial.[54]I find that it is not just and equitable to extend time and that it would be contrary to the overriding objective if I did so.[55]Hence the harassment claims are also outside the ET jurisdiction and must be struck out.