Miss M Martin v Vinci Construction UK Ltd: 2301161/2021
EMPLOYMENT TRIBUNALS
Case No 2301161/2021
Between
Miss M MartinClaimantVinci Construction UK LtdRespondent
Before
Employment Judge A MatthewsIn person for claimantMs A Greenley (instructed by Counsel) for respondentDate 5 May 2023
JUDGMENT
[1]The Claimant’s application to amend the originating application is granted. This is dealt with further in case management orders setting down the claims and issues.[2]The Respondent’s application, that the claims to be struck out, is dismissed.[3]The Respondent’s application, that the Claimant be ordered to pay a deposit, is granted. This is dealt with by separate order.
REASONS
Introduction
[1]These written reasons are provided on the application of the Respondent, made at the hearing. Background and procedural history.[3]This open preliminary hearing (later converted into a private hearing for case management) has resulted in this Judgment, case management orders and an order that the Claimant pay a deposit. All three documents should be referred to for the full picture.[4]The Respondent produced a 57 page electronic bundle of documents. As is not uncommon with an electronic bundle, this included the index. The electronic bundle is, therefore, out of step with the hard copy bundle by one page. References in this Judgment to pages in the bundle are to pages in the electronic bundle. Case No: 2301161/2021 2[5]The Tribunal understands that Ms Greenley sent written argument to the Croydon office of the London South employment tribunal. That had not reached the Tribunal at the time of the hearing and the Tribunal has not seen it since. However, Ms Greenley spoke to the argument at the hearing.[6]The Claimant lodged her application with the employment tribunals on 27 March 2021 (3-13 - the “Claim”). The Early Conciliation Certificate records notification on 25 January 2021 and the date of the issue of the certificate as 3 March 2021 (2).[7]The case came before Employment Judge Khalil for case management on 31 May 2022. The resultant orders sent to the parties on 7 June 2022 are at 43-46 (the “Khalil Orders”). They should be referred to for their full content.[8]At that case management hearing the claims could not be properly identified without further information from the Claimant. An order to that effect was made. It was agreed that, in any event, the factual allegations did not support a claim of victimisation by reference to section 27 of the Equality Act 2010 (the “EA”). The Khalil Orders note: “There may be a pleaded direct discrimination claim or harassment, but this is for the claimant to assert and particularise. It is not an invitation to expand the claim to include a claim not pleaded. That would require an application to amend and adjudication.”[9]The Khalil Orders, therefore, left open the possibility that there might be a claim of direct discrimination or harassment to be found in the wording of the Claim but, if so, it needed particularising. Otherwise, anything additional would require an application to amend.[10]The Claimant sent in further information (28-29 - the “Further Information”).[11]As it had been given leave to do, the Respondent filed an amended response in reply (30-36).[12]On 17 October 2022 the Respondent lodged an application for strike out or, in the alternative, for a deposit order (47-48). The basis of the application, in short, was that, notwithstanding the Further Information, the Claimant had failed to particularise her claims and/or they were time barred.[13]The Khalil Orders had set down this open preliminary hearing. The purpose of the hearing was explained in paragraphs (2) and (3) of those orders.[14]At the start of this hearing, having regard to what had happened since the Khalil Orders were made, it was agreed that the purpose of this hearing was to deal with the Respondent’s application for a strike out or deposit order and any amendment application made by the Claimant. Before this could be done, however, it seemed to the Tribunal that it was necessary to understand the claims as set out in the Claim but with the benefit of the Further Information. The order of proceeding, therefore, was to identify the claims, deal with any resulting application for amendment, hear the Respondent’s application for a strike out or deposit order and then deal with case management as appropriate.[16]The way the claims are presented in this case is not untypical. The Claimant, an apparently unrepresented litigant in person, provides some Case No: 2301161/2021 3 factual information and ticks the boxes that seem to the Claimant to characterise the claims. The Claimant does not otherwise put legal labels on them. (Where there are claims of discrimination, litigants in person often do not understand the legal niceties of the different heads of discrimination in the EA. As a result, they either do not label their claims at all or mis-label them.) Sometimes, as in this case, the factual detail is not clear and further information is ordered. Once that is provided, it is the Tribunal’s task, working with the parties and having regard to the overriding objective set out in rule 2 of the Employment Tribunals Rules of Procedure 2013 (the “ET Rules”), to clarify the claims and issues. This includes agreeing legal labels for the claims.[17]In the Claim, the Claimant completed box 8 (“Type and details of claim”) by ticking the boxes for race and sex discrimination and “I am making another type of claim which the Employment Tribunal can deal with.” Below the “another type of claim” box the Claimant had typed “VICTIMISATION After raising a grievance against senior Manager Michael (Mike) Harris, i believe how i was treated and the lack of support i was given was a punishment for raising a grievance against him.”[18]As noted, it was established at the hearing before Employment Judge Khalil that there was no claim of victimisation. Nevertheless, the wide factual allegation about treatment and lack of support remained.[19]In addition to the information at box 8 in the Claim, the Claimant provided some narrative at box 15. This can be seen at 14 and will be referred to as needed below.[20]Ms Greenley’s central submission on the issue of the claims is straightforward. It is that it is clear from the additional information provided by the Claimant at box 15 that the Claimant’s real claim is “My reason for claim – I believe that i was victimised for raising a grievance against a senior manager and i believe the redundancy consultancy was used as i way of getting me out of the business. This was performance based, despite the issues i was having that they were aware of and the admission by a senior manager that i was working/managing someone that was racist and sexist his pressure was not taken into consideration and this was not dealt with.”[21]As the Tribunal understands the argument, it is that the Tribunal should conclude from this that the claims are about the redundancy process and nothing else.[22]There is no question that, on a plain reading of the Claim, that is a central issue for the Claimant. However, on that plain reading there is another central issue. This is in the wider narrative that follows in box 15 and that is also included in box 8 of the Claim. It is about wider treatment attributable to a grievance the Claimant brought against Mr Harris earlier in 2020.[23]Working with the parties, the Tribunal identified four sets of factual assertions made by the Claimant that might give rise to a claim within the framework of the EA.[24]The first arises from a meeting on 19 May 2020 between Mr Harris and Mr Pace (both employees of the Respondent) and the Claimant. The Claimant Case No: 2301161/2021 4 complains generally about treatment and lack of support from the Respondent in box 8 of the Claim (see above). The meeting is referred to in box 15 of the Claim. Apparently, it was covertly recorded. The Claim suggests that a transcript was attached but, if it was, it has not reached this Tribunal. Whilst it is for the tribunal at any full hearing of the matter to find what was actually said, in its amended response in these proceedings the Respondent accepts that Mr Harris referred to Mr Tyler (who reported to the Claimant) as a “chauvinist pig” and went on to say “you know, and he might be partially racist as well”. (33). In the Further Information the Claimant provides specifics about both what she alleges happened and how she alleges she felt about it (28).[25]The second factual assertion is that the Respondent recommended mediation between the Claimant and Mr Tyler, a person who Mr Harris had described as above. It is the case that the word “mediation” does not figure in the Claim. However, the Claimant complains about treatment generally and this is the sort of matter an order for further information is intended to tease out.[26]The third factual assertion is that the Respondent took no action to address the Claimant’s continued management of Mr Tyler; someone that Mr Harris had made the above comments about. Apart from the general reference to treatment and lack of support in box 8 of the Claim, box 15 is specific about this. The Claimant refers to it as “not dealt with”. Clarification is provided in the Further Information.[27]It seems to the Tribunal that what has happened in relation to each of the above three sets of factual allegations is this. The Claimant raised the issue of treatment generally in the Claim and, as she was required to do, provided clarificatory information about it. As such, it seems to the Tribunal that no application to amend is required. However, these areas are often “grey” and, if the Tribunal is wrong about that, the issue is addressed below on the basis that such an application is required.[28]The Tribunal discussed with the parties a fourth set of factual circumstances. These were plainly made out in the Claim (see paragraph 20 above). The Claimant says that, in conducting the assessment to determine which employees would be made redundant, no account was taken of the view that Mr Harris had expressed about Mr Tyler and the effect that might have had on the Claimant’s performance. It was agreed that this did not “work” as a direct discrimination claim or a claim of harassment in the context of the EA. These were the only two legal labels contemplated by the Khalil Orders. The Respondent may have anticipated a third possibility when it pleaded that “The Claimant has not pleaded any claims for direct discrimination, indirect discrimination and/or harassment” (30). This was not, however, discussed at this hearing. It is for the Claimant to decide if she wishes to pursue this further. The application to amend[30]The Claimant did not have sufficient knowledge of employment tribunal procedures to make an application to amend of her own initiative. However, Case No: 2301161/2021 5 having regard to the overriding objective, the Tribunal invited such an application and it was made.[31]The Respondent opposes that application on the basis that the Claimant should not be permitted to add to the factual allegations. The Respondent’s response raises two further issues. First, it opposes the Claimant relying on any type of discrimination (other than victimisation) because no other type has been specifically pleaded. Second, concerning time limits, the Respondent says that the Claimant may not rely on any argument that there is “conduct extending over a period” under section 123 EA nor may the Claimant make any application for an extension of time under that section, because there is no pleading or application to that effect.[32]The general background and procedural history of the claim as it stands before the determination of this application and the application itself is set out above. In essence, the Claimant applies to allow the first three of the specific allegations identified above (paragraphs 24-26) to proceed as distinct claims. Bound up in that are the Respondent’s other points about the type of discrimination relied on, “conduct extending over a period” arguments and any application for an extension of time limits. The applicable law on the application to amend[34]An employment tribunal has jurisdiction to determine the case put before it, not some other case (per Gibson LJ at paragraph 42 of Chapman v Simon [1994] IRLR 124). If a case is not before the tribunal, it needs to be amended to be added.[35]The EAT held in Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT: In determining whether to grant an application to amend, the employment tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J, as he then was, explained that relevant factors would include the following.[36]The nature of the proposed amendment - applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action.[37]Any mislabelling of the relief sought is not usually fatal to a claim. Where the effect of the proposed amendment is simply to put a different legal label on facts that are already pleaded, permission will normally be granted.[38]The applicability of time limits - if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended. Whether this is still “essential” is now the subject of conflicting case law. This factor only applies where the proposed amendment raises what effectively is a brand new cause of action (whether Case No: 2301161/2021 6 or not it arises out of the same facts as the original claim). Where the amendment is simply changing the basis of, or “relabelling”, the existing claim, it raises no question of time limitation – (see for example Foxtons Ltd v Ruwiel UKEAT/0056/08 per Elias P at para 13).[39]The timing and manner of the application - an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made. For example, the discovery of new facts or new information appearing from documents disclosed on discovery.[40]These factors are not exhaustive and there may be additional factors to consider, for example, the merits of the claim). The EAT observed in Woodhouse v Hampshire Hospitals NHS Trust EAT 0132/12 that there is no point in allowing an amendment to add an utterly hopeless case, but otherwise it should be assumed that the case is arguable.[41]The Balance of Prejudice: per HHJ Tayler in Vaughan v Modality Partnership UKEAT/0147/20/BA(V): [21] “… Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice … [26] a balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice. [27] Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it. [28] An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional costs; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.”[42]Overall, on the subject of amendment, the Tribunal bears in mind Langstaff P’s observations in Chandhok v Tirkey [2015] IRLR 195 EAT from paragraph 16: “The claim, as set out in the ET1, is not something to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made meaning … the claim as set out in the ET1. [17] … If a claim or a case is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the Case No: 2301161/2021 7 case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendment; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in light of the identification resolving, the central issues in dispute. [18] In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time ground; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand-in-hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverting into thinking that the essential case is to be found elsewhere than in the pleadings.”[43]Conclusions on the application to amend.[44]In the Tribunal’s view the applications involve the addition of factual details to existing allegations and not the making of entirely new factual allegations which change the basis of the existing claim. The amendments sought are not substantial alterations pleading a new cause of action.[45]Whatever the state of the law on time limits, one of the factual allegations (see paragraph 26 above) may involve the determination of whether or not there was “conduct extending over a period” (section 123 EA). It is trite law that such issues are to be determined after the facts are aired at a full matters hearing. As far as the other two allegations are concerned, they may be more vulnerable to the out of time argument, but the issues are so bound up that this is better determined at the full matters hearing having heard the evidence and on the basis that the Claimant makes an application for an extension of time, if necessary.[46]Nothing arises from the timing and manner of the application. How it arose is set out above.[47]As far as prejudice is concerned, it appears that whilst one of the Respondent’s potential witnesses (Ms Patel) has left the Respondent’s employment, the others are available. This seems to have been the position before and after the application was made. It is also true that the relevant events will be well over two years old by the time the matter comes to a full hearing. That is regrettable but not uncommon. There appears to be relevant documentary evidence and two of the Respondent’s key witnesses are available. There is no other obvious prejudice.[48]There are some issues relating to the merits of the claim. However, this is not an utterly hopeless case. Case No: 2301161/2021 8[49]Accordingly, the application for amendment is granted.[50]Apart from opposing the applications to amend the facts relied on by the Claimant, the Respondent also raises the two other points mentioned above.[51]First, the Respondent opposes the Claimant relying on any type of discrimination (other than victimisation) because no other type has been specifically pleaded. The Claimant did not particularise the type of discrimination alleged other than by ticking the “race” and “sex” boxes in the Claim and mentioning victimisation.[52]Litigants in person cannot be expected to have detailed knowledge of the types of discrimination covered by the EA. It is in accordance with the overriding objective and also accepted practice within the employment tribunals for the parties to agree the type of discrimination alleged as part of case management.[53]Second, the Respondent says that the Claimant should not be able to rely on any argument of “conduct extending over a period” in relation to time limits, nor should the Claimant be allowed to make any application for an extension of time, because neither is raised in the Claim.[54]These are jurisdictional issues that the tribunals are required to consider in any event. They are commonly anticipated and identified as being relevant or not in the course of case management discussions.[55]The application for strike out or for a deposit order[56]As noted above, this arises both from the Claimant’s failure to particularise the claims (as the Respondent sees it) and/or that they are time barred.[57]The grounds on which a Tribunal may make a strike out order are set out in rule 37 of the ET Rules.[58]The failure to particularise the claim is dealt with above. The Tribunal sees no grounds on which it can strike out the now particularised claim on the basis that it has no reasonable prospect of success either on its merits or as far as the arguments about time limits are concerned.[59]The grounds on which a tribunal may make a deposit order are set out in rule 39 of the ET Rules. In the Tribunal’s view it is appropriate to make such an order. The terms of the order and the grounds for making it are set out within it. ____________________ Employment A Matthews Dated 1 November 2022 Judgment sent to Parties on: 15 November 2022 For the Tribunal Office Case No: 2301161/2021 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Ms M Martin Respondent Vinci Construction UK Limited Employment Judge A Matthews In Chambers RECONSIDERATION JUDGMENT Acting in accordance with rules 2, 5, 29 and 72 of the Employment Tribunals Rules of Procedure 2013 (the “Rules”) the Employment Judge varies the date for the payment of the deposit set out in the Deposit Order made on 2 November 2022 and sent to the parties on 15 November 2022 (the “Deposit Order”) from “not later than 21 days from the date this Order is sent” to “not later than 12 December 2022”. The strike-out, that took effect at midnight on 6 December 2022, is revoked and Ms Martin’s claims remain to be heard.[1]A brief record of recent developments in the case is appropriate.[2]The Deposit Order was sent to the parties on 15 November 2022. Ms Martin was required to pay a deposit of £1,000 as a condition of being permitted to continue her claims. The payment was required to be made on or before 6 December 2022. If it was not, the effect of rule 39(4) of the Rules is that the claims would be automatically struck out.[3]Ms Martin sent a banker’s draft for the deposit through Royal Mail at 1224 on 5 December 2022 by “Special Delivery Next Day Guaranteed by 9am”. In the event, the banker’s draft was delivered by Royal Mail at 0838 on 8 December 2022.[4]Notification that the deposit had been received was sent by HMCTS Finance Support Centre to the London South office of the employment tribunals on 12 December 2022. Case No: 2301161/2021 2[5]On 14 December 2022 the Respondent’s solicitors sent an email to the employment tribunals (copy to Ms Martin). They pointed out that, under rule 39(4) of the Rules, the claims had been struck out. (Note: under the Rules this occurred at midnight on 6 December 2022 - see rule 4).[6]On 15 December 2022 Ms Martin sent an email to the employment tribunals (copy to the Respondent’s solicitors). Ms Martin explained what had happened and provided documentary evidence (see paragraph 3 above).[7]On 6 January 2023 the employment tribunals wrote to the parties on the directions of Employment Judge Siddall. In summary EJ Siddall made these points:• Ms Martin’s claims had been struck out under rule 39(4) of the Rules.• Ms Martin’s email of 15 December 2022 was treated as an application for reconsideration of the strike out of the claims.• EJ Siddall’s provisional view was that the application should be granted on the basis that Ms Martin had posted the deposit by special delivery on 5 December 2022.• The parties were invited to provide their further views and to indicate whether they considered the matter could be determined without a hearing by reference to rule 70 of the Rules.• The file would then be referred to this Employment Judge.[8]On 12 January 2023 the Respondent’s solicitors responded to EJ Siddall in an email (copied to Ms Martin). They opposed any reconsideration. The email can be referred to for its full content, but the salient points were:• Ms Martin had left it too late to pay the deposit and too late to apply for a reconsideration of the Deposit Order.• The merits of Ms Martin’s case were weak and this should be taken into account.• It would be in accordance with the overriding objective not to disturb the strike out on the grounds of equal footing, proportionality and expense.• Helpfully, in the circumstances, that the application could be decided on the papers.[9]Nothing further has been heard from Ms Martin.
Applicable law
[10]The Employment Judge must consider this application by reference, in particular, to rules 1, 5, 29, 70, 71 and 72 of the Rules. So far as they are applicable, they read as follows: “1 Interpretation” …. “(1) in these Rules-” …. “(3) An order or other decision of the Tribunal is eitherCase No: 2301161/2021 3(a) a “case management order”, being an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment; or(b) a “judgment”, being a decision, made at any stage of the proceedings (but not including a decision under rule 13 or 19), which finally determines- (i) a claim, or part of a claim, as regards liability, remedy or costs (including preparation time and wasted costs); (ii) any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue);” “5 Extending or shortening time The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.” “29 Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to rule 30A(2) and (3) the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.” “39 Deposit orders” …. “(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out.” “70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. 71 Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72 Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the Case No: 2301161/2021 4 reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.”[11]The provisions of rule 2 of the Rules (Overriding objective) are paramount.
Conclusions
[12]The Deposit Order is a case management order, which may be varied under rule 29 of the Rules.[13]When a claim is struck out under rule 39(4) of the Rules, the strike out is a judgment which may be reconsidered under rule 70 of the Rules.[14]The Employment Judge considers that a hearing is not necessary in the interests of justice.[15]The circumstances of this case are unusual. However, considering the interests of justice and dealing with the issue fairly and justly it seems to the Employment Judge that the claims should be allowed to proceed and the above judgment entered. In reaching this conclusion the Employment Judge has considered all the circumstances and the Respondent’s arguments but, in particular, the following:• Ms Martin clearly intended to pay the deposit within the time limit originally specified. Although Ms Martin might have been best advised to make the payment earlier, the fact that it arrived late was not her fault.• The merits of the claim have been subjected to the “hurdle” of the Deposit Order. Ms Martin has taken the steps necessary to jump that hurdle. It would be unjust to take any further account of the Employment Judge‘s view on the merits of Ms Martin’s case in considering what is in the interests of justice and the fair and just step to take in these circumstances.[16]Accordingly, the Employment Judge gives Judgment as set out above. Employment Judge A Matthews Date: 15 January 2023 Sent to the parties on Date: 26 January 2023 Case Number: 2301161/2021 1 THE EMPLOYMENT TRIBUNAL Claimant: Miss M Martin Respondent: Vinci Construction UK Sitting At: London South On: 8-10 March 2023 Before: Employment Judge Morton Appearances: For the Claimant: Ms S Martin, non-legal representative For the Respondent: Ms J Smeaton, Counsel
Introduction
[1]By a claim form presented on 27 March 2021 the Claimant, Ms Martin, presented to the Tribunal claims of direct discrimination because of race and sex, harassment related to race and sex and a claim of victimisation. All the claims were resisted by the Respondent. It was ascertained at a case management hearing on 27 October 2022 that the claim of victimisation was not being pursued. The Claimant was also ordered at that hearing to pay a deposit of £1000 on the basis that her remaining claims of discrimination of the grounds of her race and/or sex had little reasonable Case Number: 2301161/2021 2 prospect of success.[2]The panel spent the first part of the hearing reading the witness statements and the documents referred to in them. The Claimant then gave evidence on her own behalf and the Respondent had two witnesses, Richard Pace, Operations Manager in Vinci Facilities and Kellie Hockings, Divisional Head of Human Resources of Vinci Facilities and Ringway UK. The bundle of documents comprised 305 pages and any references to page numbers in these reasons are references to page numbers in that bundle. Two further documents were handed up during the course of the hearing that are referred to as ‘additional email ‘A’’ and ‘additional email ‘B’’.[3]At the end of the hearing the Tribunal gave oral judgment on liability and these written reasons were requested by the Claimant. The Claimant’s claim that had been the subject of the deposit order did not succeed and accordingly the deposit is payable to the Respondent under Rule 39(5)(b) of the Tribunal Rules.
The issues
[4]The agreed issues in the case were as follows: Time limits1.1 The claim form was presented on 27 March 2021. The Claimant commenced the Early Conciliation process with ACAS on 25 January 2021 (Day A). The Early Conciliation Certificate was issued on 3 March 2021 (Day B).1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide in relation to each claim:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? Direct sex and/or race discrimination (s13 Equality Act 2010)2.1 The Claimant describes herself as a woman of Black African-Caribbean ethnic origin.2.2 Did the Respondent do the following things:2.2.1 Through Mr Harris, refer to Mr Taylor (who reported to the Claimant) as a “chauvinist pig” and go on to say “you know, and he might be partially racist as well” or words to that effect;2.2.2 take no action to address the Claimant’s continued management of Mr Taylor; someone that Mr Harris had made the above comments about. Case Number: 2301161/2021 32.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who she says was treated better than she was and therefore relies upon a hypothetical comparator for both the claim of sex discrimination and that of race discrimination.2.4 If so, was it because of sex/race?2.5 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to sex/race? Harassment related to sex and/or race (s 26 Equality Act 2010)3.1 Did the Respondent do the following things:3.1.1 Those set out in paragraph 2.2 above;3.1.2 Recommend mediation between the Claimant and Mr Taylor, a person who Mr Harris had described as above.3.2 If so, was that unwanted conduct?3.3 Did it relate to one or both of the Claimant’s protected characteristics, namely race and/or sex?
The law
[5]The law on time limits in discrimination cases is set out in s123 Equality Act as follows: Section 123 (1) proceedings on a complaint within section 120 may not be brought after the end of- (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable….. (3) For the purposes of this section- (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[6]Direct discrimination: S 13 Equality Act prohibits direct discrimination. Under s 13(1) a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The circumstances of the claimant and the chosen comparator must be the same or not materially different. S 4 Equality Act sets out the protected characteristics. These include age and race. Case Number: 2301161/2021 4[7]Harassment: S 26 Equality Act prohibits harassment related to a protected characteristic, including race or sex. (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected (b) characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.
Findings of fact
[8]The Tribunal makes the following findings of fact on a balance of probabilities based on the oral and written evidence presented to it. We have not made findings on every matter of dispute between the parties, but only on those that are relevant to the issues we needed to decide.[9]The Respondent is a concessions and construction services provider. Its facilities management division, Vinci Facilities is a facilities management and building maintenance provider that delivers a range of integrated facilities, energy, and property services. The Claimant was employed by the Respondent from 15 December 2019 to 17 November 2020 under a contract of employment dated 6 November 2019 (page 106). At all material times, the Claimant worked as a Technical Service Manager (‘TCM’), although this position is now referred to as a Facilities Manager.[10]The Claimant worked on the Respondent’s contract with Transport for London (‘TFL’). The role is essentially a facilities management role in relation to services that the Respondent describes as ‘hard services’, by which it means all elements of site and building maintenance on a reactive and proactive basis. Accordingly, the TCMs in the Claimant’s role would oversee a team of engineers and other skilled tradespeople such as electricians and plumbers. She was based at the Palestra Building (although she had to visit other sites) and following the onset of the pandemic continued to work there on a hybrid basis. At the time that the Claimant commenced employment, the work on the TFL project was divided between 5 Head Office Regions, each consisting of a portfolio of buildings and sites. Each Head Office Region was headed by a TCM. The Claimant reported to Richard Pace, an Operations Manager. In turn, Mr Pace reported to Mike Harris, who is a Senior Account Manager at the Respondent.[11]The Claimant had previously worked for the Respondent for three years on a different contract between 2014 and 2017.[12]The Claimant raised some issues about one of her reports, an electrician called Case Number: 2301161/2021 5 Chris Taylor, early on in her employment. Mr Taylor worked at Pier Walk, one of TFL’s sites. At page 180 is an email from the Claimant to Mr Pace’s predecessor Michael Smith dated 23 December 2019, that was copied to Mike Harris. In it the Claimant sets out a number of concerns that the client had raised about Mr Taylor, and said that similar issues had been raised by some of her team members when she had undertaken one to one meetings with them in the preceding week. We find as a fact that the Claimant had also met with Mr Taylor on or around that date. The Claimant reported a level of frustration with Mr Taylor and asked for a discussion in the new year about how best to deal with the issues.[13]The relationship between the Claimant and Mr Taylor was difficult from the outset. The evidence suggests that he was unwilling to accept her authority and was inclined to disregard instructions, act autonomously without informing her and undermine her with the client. Mr Pace expressed the view that Mr Taylor had wanted the Claimant’s role. He also believed that the fact that the Claimant did not have a technical background, but had experience as an administrator caused Mr Taylor to be resistant to being managed by her because he believed she lacked relevant expertise.[14]The Claimant continued to have difficulties with Mr Taylor. There was an example of this in an exchange of emails at pages 182-184. Mr Taylor had written directly the client, misrepresenting the Claimant’s position about cover at one of the sites. The Claimant escalated this to Mr Harris. There were other examples in the bundle including the email exchange with Mr Pace starting on page 193 although we did not hear any evidence directly about this. The Claimant also gave unchallenged evidence of a further example in paragraph 13 of her witness statement.[15]The Claimant eventually raised a grievance about Mr Taylor’s conduct on 26 April (pages 232-233). Mr Pace, who had become the Claimant’s line manager in early March 2020, observed that this was a very unusual step for a manager to take in relation to a subordinate. In cross examination the Claimant accepted that Mr Harris’s written response to her concerns at page 182 had been supportive, but in the grievance she painted a different picture and said ‘My complaint is in relation to the way that my concerns have been dealt with by Mike Harris. …. No-one seems to be reprimanding him [Chris Taylor] about this which emboldens him to continue to act and treat me in this way. From what I understand he has been spoken to by both MH and RP but I have seen no evidence that this has changed his behaviour to me. By undermining me in such a public way he makes it very difficult for me to maintain authority over other members of staff who may feel that perhaps they can treat me in this way also. It seems Chris has been given tacit authority to undermine me as a Manager. For example, if he disagrees with a decision I have made, he discusses this with MH or RP rather than with myself and they discuss it with me in return. It seems that Chris thinks that he can go over my head when he does not agree with my decisions; he does not have to listen to me; and he leverages his relationship with senior management to escape reprimand. This has allowed him to undermine my authority which has happened since the beginning of my employment. This has made it increasingly difficult to function as a Manager. Case Number: 2301161/2021 6[16]The grievance was referred to Paul Stubbs, who at the time was the Respondent’s operations director. Notes of the grievance meeting, which took place on 6 May 2020, were at page 114-126 (as referred to in Ms Hocking’s witness statement). Mr Stubbs also spoke to Mr Harris, Mr Pace, and Mr Taylor. The grievance outcome was sent on 15 June 2020 (page 234-238).[17]However, prior to the Claimant receiving the grievance outcome she was invited on 13 May 2020 by Mr Pace, her line manager, to a ‘1-2-1’ with himself and Mr Harris. The Claimant immediately raised a query with Priya Patel, HR manager, asking whether they would be able to discuss the grievance with her. On 20 May, Ms Patel replied and said that would not be possible as the grievance had not been concluded, but the Claimant did not receive that email (which was also copied to the two managers in question) until the 1-2-1 meeting had taken place. The meeting took place on 19 May 2020 and as the Claimant covertly recorded it there was a full transcript at pages 141-170.[18]Mr Pace conceded in answer to a question put by the judge that the reason Mr Harris had asked him to set up the meeting was ‘the circumstances surrounding the grievance’. The Tribunal was unanimous in its view that this was an inappropriate step to take and would have felt intimidating and overbearing to the Claimant in the circumstances. We return in our conclusions to the relevance of that fact to the issues in the case.[19]In her grievance email the Claimant had said that she did not understand why Chris Taylor was showing such resistance to accepting her authority. During the course of the meeting on 19 May 2020 Mr Harris made this statement (page 160): I know you know I’m uncomfortable talking about Paul Stubbs but what I said to Paul was I think Chris is a male chauvinist pig actually, I really do, you know and he might even be partially racist as well. I don’t know. I was quite forthright with Paul you know. He’s a tosser. But at the same time I think there’s a lot you can do to step up as a manger and a leader this is what’s happening because you’ve got to have support.[20]This remark is relied on by the Claimant in her claims of direct discrimination and harassment. The Claimant remained professional throughout the meeting, but was very upset by it and was in tears once the meeting was over and she was by herself. She wrote to Priya Patel after the meeting (29 May page 282) setting out her concerns in detail. In that email she says: ‘The responsibility seems to fall entirely on my shoulders. They both seem to be saying that I am not managing the situation. MH said that he believes that Chris Taylor is a chauvinist and possibly racist. In my opinion how am I supposed to manage and deal with someone who he classifies in this way?’ It is not therefore the case that the Claimant did not raise any complaint about the meeting and what was said at it, as suggested by the Respondent. The Claimant also wrote to her union representative on 15 June setting out her concerns about the appropriateness of the meeting, the handling of the issue of Mr Taylor’s insubordination and the lack of effective support from Ms Patel, who had said she was not able to comment, having not been at the meeting.[21]The grievance outcome however upheld a number of aspects of the Claimant’s Case Number: 2301161/2021 7 original grievance. Mr Stubbs wrote: ‘From my investigation, I found that MH and Richard Pace (RP) have recognised that CT has not in fact made sufficient effort to modify his behaviour or attitude and therefore I will be recommending to RP that he conducts a documented ‘Record of Conversation’ with CT, during which the issues you have raised are discussed. I will suggest that he makes it clear that should the situation not improve going forward it may lead to a formal investigation and any subsequent instigation of the disciplinary policy and procedure. In concluding based on the evidence, I partially uphold the allegation. ‘ He also ‘partially upheld’ the allegation that Mr Taylor had questioned the Claimant’s ability, but did not uphold the allegation that she had been insufficiently supported by Mr Pace and Mr Harris. There was also a discussion of some performance concerns that are not relevant to this case. Mr Stubbs’ recommendations were set out at page 238 as follows:• RP to hold ‘Record of Conversation’ with CT to highlight your concerns and expectations going forward, and any subsequent actions that may follow• MM to consider some personal development training e.g. ILM Management Course or Assertiveness’ Training• RP and MM to hold a 1-2-1, captured via a ‘Record of Conversation’ detailing that the issues raised above are discussed, mutual actions agreed, performance measures and targets agreed, and a format agreed for regular reviews of progress going forward• RP to hold regular and ‘diarised’ wellbeing discussions / catch ups with MM focusing on wellbeing issues.• An action for me to discuss email communication with MH• Should the need arise, you should give consideration to mediation (conducted independently outside of anyone on this contract) with CT to agree a way of working going forward. The recommendation of mediation as a potential solution to the issues with Mr Taylor is relied on by the Claimant as an act of harassment.[22]The grievance outcome letter also contained the following passage (page 237): ‘Following implementation of the above recommendations, should you not see an improvement with CT towards yourself, I would suggest you raise this with RP with a view to him conducting a formal investigation which may potentially result in having to instigate the disciplinary policy and procedure.’ The Tribunal found it somewhat difficult to reconcile that suggestion with the message that had been delivered to the Claimant at the 1-2-1, which was that it was her responsibility to manage Mr Taylor and if necessary, instigate disciplinary action. We did not hear evidence from Mr Stubbs and were not given copies of the investigation notes and our findings on this point are therefore necessarily limited. However, it seemed to us that the Claimant was on the receiving end of mixed messages about what was expected of her that would have added to her distress.[23]The remainder of the Claimant’s complaint is that that there was insufficient follow up of the grievance outcome recommendations. It is not the case as the Respondent suggested, that the Claimant made no complaint following the grievance outcome. In fact ,she wrote to Ms Patel on 7 August 2020 saying that the recommendations appeared not to have been acted upon (additional email A). Case Number: 2301161/2021 8 Additional email B suggested that Ms Patel had tried to call the Claimant and said that she would follow up with Mr Harris. She wrote to the Claimant again on 18 August 2020 saying, ‘I have spoken with Mike and he will follow up on the points raised as recommendations on his return but had said he would also liaise with Richard prior to going on leave to review and action points where possible’.[24]The Claimant replied the same day, saying that 4 months had passed (in fact this was not correct as the grievance outcome had been delivered two months earlier) and that she had been left in limbo after going through a stressful experience with no recommendations having been put in place. However, the rest of that email was to seek clarity about the Respondent’s grievance process and whether the discussion of her grievance at the 1-2-1 had been in accordance with that policy.[25]The Respondent’s case was that one to one meetings with Mr Pace had continued throughout on a regular basis although not for a specific wellbeing purposes. This state of affairs is confirmed by paragraph 50 of Mr Pace’s statement. It also emerged from Mr Pace’s oral evidence that the ‘Record of Conversation’ recommended by Mr Stubbs had not taken place at Mr Harris’s direction, Mr Harris being of the view that Mr Taylor was not aware that a grievance had been raised against him. The Tribunal considered that that was an egregious failure to comply with a clear grievance recommendation and although the Claimant was unaware of it at the time, adds credence to her perception that there was a degree of collusion between Mr Harris and Mr Taylor which was undermining her ability to manage Mr Taylor effectively.[26]A little over a month after the exchanges with Ms Patel discussions were initiated with the Claimant and others about potential redundancies. Those discussions do not form part of the issues before the Tribunal. We heard evidence from Ms Hockings, who considered the grievance and its outcome when considering the Claimant’s assertion that the redundancy process had been initiated as a result of her having raised a grievance. She gave evidence to the effect that the Claimant’s concerns about the 19 May meeting and follow up of the grievance recommendations had fallen short of the standards she would ordinarily expect. However she confirmed that she had had limited knowledge of what had passed in phone calls between the Claimant and Ms Patel, who preferred the phone to email correspondence. We note in passing that even if an HR professional has a preference for communicating by phone, as a matter of good practice there ought to be a written record of what has been said, which appears not to have been the case here – a striking omission in our collective judgment.[27]We therefore find that there were therefore material omissions in the Respondent’s follow up to the grievance recommendations. The ‘Record of Conversation’ did not take place. We find that Mr Pace did not put in place either formal performance appraisal or wellbeing meetings as recommended. Whilst we accepted the Respondent’s evidence that the Claimant declined management training, overall it was clear that the grievance recommendations were inadequately implemented. Conclusions Case Number: 2301161/2021 9[28]Having considered that facts as we have found them and the helpful submissions of both parties, the Tribunal reaches the following conclusions on the issues in the case. We deal first with the substantive issues in the case before dealing with the question of time limits. We also record our gratitude for the courteous and respectful way in which the Claimant’s case was put by her sister Ms Martin and for the lucid legal submissions made by Ms Smeaton. Direct discrimination[29]The Tribunal did not think that the Claimant’s claims of direct discrimination could succeed. The Claimant’s case was that two matters constituted direct discrimination:a. Through Mr Harris, the Respondent referred to Mr Taylor (who reported to the Claimant) as a “chauvinist pig” and went on to say “you know, and he might be partially racist as well” or words to that effect;b. it took no action to address the Claimant’s continued management of Mr Taylor; someone that Mr Harris had made the above comments about.[30]The remark made to the Claimant was not in our judgment made to her because of her race or her sex, using the ‘reason why’ test derived from the authorities, and in particular Nagarajan v London Regional Transport [2000] 1 AC 501. It was made to her because Mr Harris was trying to show the Claimant that he understood that Mr Taylor was difficult and chose to do so by attributing to him some prejudices. The existence or not of those prejudices has not been tested in the evidence in this tribunal and we wish to emphasise that no part of this judgment should be construed as a finding that Mr Taylor, who did not appear, had such attitudes. What the Claimant is effectively saying was that but for the fact that she had been a black woman, the comment would not have been made to her. But that is not the correct test. The Tribunal has to consider the mental processes of the alleged perpetrator of the discrimination. In this case that must have been Mr Harris. The Claimant has never at any time made a complaint against Mr Taylor himself. We find that Mr Harris did not say what he said because the Claimant was a woman and black. He said it because she was struggling to manage a difficult subordinate and he was (albeit misguidedly) trying to show support by acknowledging that Mr Taylor was indeed difficult. The fact that he chose to use words connoting possible prejudice on Mr Taylor’s part cannot possibly lead to the conclusion that he himself was discriminating.[31]Mr Harris did not say anything to the Claimant that indicated that he himself had a discriminatory mindset. He was reporting his suspicions of Mr Taylor, but there was no evidence that Mr Taylor himself had ever actually said anything discriminatory to or about the Claimant. The Claimant did not understand Mr Taylor’s hostility and after hearing that remark was left with the impression that Mr Taylor might have been rejecting her authority because of her race or sex. That must have been a painful thing to contemplate, but as an impression based on a statement of opinion it does not amount to direct discrimination by Mr Harris or indeed any other person for whose actions the Respondent was vicariously liable. Case Number: 2301161/2021 10[32]For the same reasons we find that the failure to fully implement the grievance recommendations was not direct discrimination. The test is not a ‘but for’ test but one that involves an enquiry into the mental processes of the alleged perpetrator of the discrimination. Again, that must have been Mr Harris and/or Mr Pace. However, the Claimant did not establish a prima facie case that a person who did not share her protected characteristics would have been treated more favourably in comparable circumstances by either Mr Harris or Mr Pace or adduce any evidence that the failures to follow up the grievance recommendations were because of her race and/or sex. Harassment[33]The Claimant relies on the same two matters described in paragraph 29 as incidents of harassment. She also relies on a third, the suggestion that she might engage in mediation with Mr Taylor.[34]The Tribunal has considered carefully the two authorities to which the Respondent referred us – UNITE the Union v Nailard [2018] IRLR 730 and BDW Trading Limited v Kopec UKEAT/0197/19. Both involve discrimination by third parties and we consider that they are distinguishable from the facts of this case, where all the Claimant’s complaints are directed at individuals for whom the Respondent is vicariously liable in the way that the employers in Nailard and BDW Trading were not.[35]In our judgment the making of the remark that Mr Tayler was a “chauvinist pig” and “might be partially racist as well” was an act of harassment in the particular context in which it was made. We say that for the following reasons.a. The remark was made by a senior manager;b. The Claimant had raised a grievance about the extent to which that manager had been supporting her in dealing with a difficult subordinate – her belief was that she was being undermined by Mr Taylor;c. The claimant did not know why Mr Taylor was being so difficult. She then discovered from a senior manager, whose views she had no reason to question, that he believed that Mr Taylor was chauvinist and racist, in other words that he was prejudiced towards women and black people;d. At the same meeting she was being told that she must manage this person more effectively and that to do so was her responsibility;e. She was also told that she was going to be supported in doing so by the very manager about whom she had complained because he had failed to do that to date;f. The Claimant was already concerned that having raised a grievance against Mr Harris, that he had called her into a meeting at which another of her managers, also a white male, was present. The very set up was intimidating, the more so because the conversation immediately turned to the grievance that she was hoping would be independently investigating.[36]In our judgment it was reasonable for the claimant to find that the remark created an intimidating and hostile environment for her. Her managers had effectively told her that she must get on and manage someone they believed to be racist and Case Number: 2301161/2021 11 sexist. That aspect of the conversation in our judgment was unwanted conduct that was related to the Claimant’s sex and race. Her trust in the organisation’s grievance process had been undermined by the circumstances of the meeting. That in our judgment would have affected the Claimant in the way that she received and experienced the remark at the time – in other words it would be amplified the effect. In our judgment that is a circumstance that it is relevant to take into account under s 26(4)(b). In our collective judgment it was quite wrong for Mr Harris to undermine independent grievance process in the way that he did and for Mr Pace to participate in the meeting. They were abusing their position and authority by their actions and causing the Claimant to feel that there was no effective channel for her concerns.[37]We did not consider that the suggestion of mediation was an act of harassment given the guarded way in which it was suggested to the Claimant by Mr Stubbs in the grievance outcome letter, as follows: During the investigation, both RP and MH stated they have both expressed support for you personally and want you to succeed in this position. You passed your probationary period and MH has received positive feedback from the client in regard to yourself. It does however appear that this situation with CT and the COVID-19 crisis has almost certainly impacted upon you and your performance. I would suggest that once RP has had held a record of conversation with CT, if you do see a change in CT’s approach, I also ask that you give consideration to embarking on a mediation process with him. I believe mediation can be utilised to help bridge the gaps which remain unresolved in the current workplace conflict. I believe that mediation can help you and the other parties repair and maintain a working relationship and environment so that you can continue to work alongside each other. We concluded that it was not reasonable for that suggestion, expressed in the way that it was, to be received as violating the Claimant’s dignity or creating an intimidating, hostile, offensive, degrading or humiliating environment for her.[38]Did the failure to implement the grievance recommendations referred to above also amount to harassment? The Claimant remained concerned about what had happened. She complained that nothing had been done both to Priya Patel in August 2020 and to Kelly Hockings in November 2020. The Claimant continued to feel unhappy and aggrieved by the failure to put in place support – although she did not explain exactly what she considered to be missing. The Tribunal was not satisfied however that the state of affairs that prevailed after the grievance outcome could properly be characterised as harassment. As the Respondent submitted, there were no instances of Mr Taylor actually discriminating against the Claimant or making remarks that could themselves be regarded as harassment. We considered that it would be stretching the definition of harassment too far to regard the relevant failures to be ‘related to’ the Claimant’s sex and or race within the meaning of the statute. The failures in question were the failure to hold a Record of Conversation meeting with Mr Taylor and the failure to set up structured performance and wellbeing meetings. These were obviously connected to the Claimant’s concerns about Mr Taylor, but we were unable to see in what way these particular omissions were related to her sex and race. It was for the Claimant to explain to us in what way that test was met and she did not do so in this instance. Case Number: 2301161/2021 12[39]We have therefore found for the Claimant on one matter only. We find however the remark was made outside the statutory time limit and we were not persuaded by the Claimant’s submission that it would be just and equitable to extend time in this case. The meeting took place on 19 May 2020 and the Claimant was deeply upset by it. However, it was not until 25 January 2021 that she approached ACAS. The factors that the Tribunal may take into account in deciding whether or not to extend time in a discrimination case have been set out in British Coal Corporation v Keeble and ors [1997] IRLR 336 (the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the Claimant acted once aware of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action). We have also considered the guidance in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, CA on the correct approach to the Keeble factors - they may be wholly or partly relevant, but should not automatically be used as a checklist in every case.[40]In this case the delay between the incident occurring and the Claimant deciding to act on it was significant. The Claimant’s explanation was that she wanted to exhaust all avenues internally before commencing proceedings. She then became preoccupied with the events leading to her dismissal for redundancy. The Claimant’s employment however came to an end on 17 November 2020 and it was not for another two months that she made the approach to ACAS. We were not satisfied that there was an adequate explanation for this further delay such that it would have been just and equitable to extend time in this case.