Mrs Rosenow v Achieving for Children Community Interest Company: 2300757/2021

EMPLOYMENT TRIBUNALS

Case No 2300757/2021

Between

Mrs RosenowClaimant

Achieving for Children Community Interest CompanyRespondent

Before

Employment Judge Braganza KC

Represented herself. for claimant

Date 19 September 2023

JUDGMENT

The Claimant’s claim is rejected pursuant to Rule 10(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 because the claim form did not give the Claimant’s address. .………………….

REASONS

[3]This claim was presented by Mrs Giuliana Rosenow against her employer, Achieving for Children, on 22 February 2021. The Claimant brings claims of disability discrimination and age discrimination.

[4]The purpose of this hearing was to determine the outstanding issues listed at paragraph 10 of the Case Management Order made by Employment Judge Braganza KC on 12 May 2023, following her decision to reconsider and accept the claim.

[5]Those issues were: a) whether the claim should be struck out for not being actively pursued or because it has no reasonable prospects of success; b) whether a deposit order should be made; c) to make any further appropriate case management orders; d) whether the Claimant should be permitted to amend her claim to add additional particulars; and e) whether the claim is brought in time and if not, whether it is just and equitable to extend time. The primary issue for determination today was the Respondent's application to strike out the entirety of the claim as significantly out of time.

[6]The claim form originally submitted by the Claimant on 22 February 2021 was defective as it did not contain the Claimant's address. Under Rule 10 of the Employment Tribunals Rules of Procedure 2013, a claim must contain basic prescribed information including the names and addresses of the parties. As the Claimant's address was not provided, the original claim form was rejected. 2300757-2021 Mrs Giuliana Rosenow -v- Achieving For Children: 19-09-2023 Judgment Page 2 of 3

[7]The Claimant subsequently submitted a revised claim form rectifying this defect on 31 January 2023 by including her correct address. Under Rule 13(4) of the Employment Tribunal Rules, where a claim has been rejected for a notified defect which is then rectified, the claim is treated as presented on the date that the defect was rectified. Therefore, the effective date of presentation of this claim is 31 January 2023.

[8]The normal time limit for bringing claims under the Equality Act 2010 is within 3 months less one day of the date of the act complained of. The delay between the alleged discriminatory acts cited by the Claimant and the presentation of the claim ranges from around 1 year 8 months to over 2 years. The strike out consideration

[9]The Respondent applies to strike out the entirety of the Claimant's claims under Rule 37(1)(a) of the Employment Tribunal Rules on the basis that they have no reasonable prospect of success as they are significantly out of time. Mr Davies submitted that the delay is excessive and prejudices the Respondent's ability to defend very old allegations where memories may have faded and records be harder to locate. He highlighted that the earliest alleged acts appear to date back to February 2020, making parts of the claim around 3 years out of time.

[10]He further submitted that the rules on time limits exist for good reason. He argued there is no medical reason for the delay and pointed to opportunities the Claimant had to rectify the defect in her claim form long before January 2023.

The Law

[11]Time limits for bringing discrimination claims are set out in section 123 of the Equality Act 2010. The Act provides that where no proceedings are brought within the primary time limit of 3 months less one day, the employment tribunal may nevertheless consider a complaint if it is just and equitable to do so.

[12]Rule 37(1) of the Employment Tribunal Rules of Procedure 2013 further provides that at any stage the Tribunal may strike out all or part of a claim if it appears to the Tribunal that the claim or part has no reasonable prospect of success.

[13]The legal principles on extending time were helpfully summarised by the Employment Appeal Tribunal in Ms Rowena Owen v Network Rail Infrastructure Ltd [2023] EAT106 as requiring the tribunal to consider all the circumstances including: a) the length of the delay; b) the reasons for the delay; c) whether the respondent would suffer prejudice in their ability to defend the claim due to the passage of time; and d) the strength of the merits of the claim.

[14]The Owen case also took into consideration the commonly cited case of Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

;

[2018] ICR 1194

[15]The Court of Appeal in Abertawe emphasised that even where there is no good reason shown for delay in bringing a claim, the employment tribunal must still consider all relevant factors and carry out a broad merits-based assessment before concluding it is not just and equitable to extend time. The mere absence of explanation for the delay, while relevant, does not absolve the tribunal from weighing everything in the balance when applying the statutory test. This authority requires me to evaluate all circumstances, including the length and impact of the delay, before determining whether it is just and equitable to extend time in this case. The lack of persuasive explanation from the Claimant for the extensive delay is an important factor but not solely determinative of the outcome. Opportunities to correct defect

[16]I find that the Claimant had various opportunities to correct the defect in her claim form; prior to the occasion on which she did (31 January 2023): a) The Respondent's ET3 response form dated 8 April 2021 clearly set out in the grounds of resistance that the claim may be struck out because the Claimant had not provided her 2300757-2021 Mrs Giuliana Rosenow -v- Achieving For Children: 19-09-2023 Judgment Page 3 of 3 address. b) Further opportunities arose from the case management order of EJ Hyams-Parish on 30 June 2022 requiring the Claimant's contact details and again in the unless order of EJ Wright on 14 July 2022.

[17]The Claimant gave evidence that these notices may have originally gone into her junk email folder and been missed or deleted. However, I note she confirmed she periodically checked this folder and did not suggest these emails were irretrievably lost. I am satisfied that with reasonable diligence, she could have picked up on the defect and corrected it well before January 2023. Claimant's explanation for delay in correcting defect

[18]In relation to the original mistake in the February 2021 claim form, I accept the Claimant's evidence that this occurred because she completed the form late at night while feeling stressed, and she has dyslexia. I accept she made a genuine error.

[19]However, the Claimant confirmed that her lengthy delay of almost 2 years in correcting this error, despite the prompts outlined above, was not due to her dyslexia. She acknowledged missing or ignoring these prompts was a mistake she apologises for.

[20]The Claimant did not assert any medical reason for the delay in correcting the defect over a prolonged period. I find there is no good explanation for why it took until January 2023 for the Claimant to rectify the issue with her address, given the Respondent repeatedly highlighted it. Prejudice to the respondent

[21]I accept the Respondent's submission that it would face considerable prejudice in now having to defend very stale claims relating to events occurring up to 3 years ago. There is a real risk of faded memories and relevant records being lost. This seriously impacts the fairness of proceedings and the Respondent's ability to defend itself. Prospects of success

[22]Given the significant delay - measured in years - I do not consider the claims can be said to have reasonable prospects of success. The delay is fatal unless there are compelling reasons why it would be just and equitable to extend time. I have found there are none.

Conclusion

[23]Balancing all the circumstances, I find the delay of at least 1 year and 8 months from the acts complained of is inordinately long. The Claimant has provided no good reason for the extensive delay. The Respondent is likely to suffer significant prejudice to its ability to defend very stale claims. And with such overwhelming delay, I do not consider the claims have reasonable prospects of success.

[24]While the initial mistake in the claim form may have resulted from the Claimant's dyslexia and stress, her prolonged failure to rectify the address issue despite multiple prompts cannot sensibly be attributed to her disability. I am not satisfied there is any medical or other substantial reason accounting for the overall delay of around 2 years.

[25]In all the circumstances, for the reasons outlined, I do not find it would be just and equitable to extend time. I therefore strike out all the claims pursuant to Rule 37(1)(a) as having no reasonable prospect of success given they are significantly out of time. The Claimant's claims are struck out. Judge M Aspinall Tuesday, 19th September 2023