Mr E Potter v FDM Group Ltd and Citibank UK Ltd: 2301890/2024

EMPLOYMENT TRIBUNALS

Case No 2301890/2024

Between

Mr E PotterClaimant

FDM Group Limited (1) Citibank UK Limited (2)Respondent

Before

Employment Judge Porter

In person for claimant

Date 7 April 2025

JUDGMENT

[1]The claim was presented out of time.

[2]It is not just and equitable to extend time.

[3]The tribunal does not have jurisdiction to hear the claim, which is hereby dismissed. Approved by

REASONS

Issues to be determined

[1]At the outset it was confirmed that the issue was whether time for presentation of the claim should be extended to allow the claim to proceed to hearing. The claimant accepted that the claim had been presented out of time. Case Number: 2301890/2024 2 Orders

[2]A number of orders were made for the conduct and good management of the proceedings during the course of the Hearing. In making the orders the tribunal considered the overriding objective and the Employment Tribunals Rules of Procedure 2024. Orders included the following.

[3]The claimant had, prior to the hearing, disclosed to the parties and copied to the tribunal office a supplementary bundle which included copies of correspondence between himself and legal advisers. That supplementary bundle had not been copied to the employment judge prior to the hearing. She had not seen that correspondence. At the commencement of the hearing EJ Porter explained to the claimant that the nature and content of the legal advice received by the claimant was protected by legal professional privilege. The claimant was not required to disclose such advice. He may be questioned as to whether and when he had received any such advice but not as to the content of that advice. Counsel for both respondents indicated that they believed that the claimant had not made full disclosure of the legal advice received and had waived his right to legal professional privilege. After some discussion the tribunal retired to allow the claimant to consider his position, to obtain legal advice, and to consider whether he did intend to waive the right to legal professional privilege, which would allow counsel for the respondents to question the claimant on the nature and extent of the advice as disclosed.

[4]On return from the break the claimant confirmed that: 4.1. He had not been able to discuss this further with the CAB adviser during the break; 4.2. However, he had discussed this with the CAB prior to disclosing the legal advice and he had been advised by the CAB to disclose the documents; 4.3. He did wish to waive the right to legal professional privilege. He was prepared to answer questions raised in cross-examination on the disclosed documents.

[5]It was noted that the claimant had not prepared a witness statement setting out his evidence as to the reason for any delay in presenting the claim. It was further noted that the claimant had addressed this issue in the grounds of complaint set out in his claim form. It was therefore agreed and ordered that the grounds of complaint should be treated as the claimant’s witness statement. Submissions

[6]The claimant made a number of detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:- Case Number: 2301890/2024 3 6.1. The claimant was unfamiliar with the legal process. His father had never worked in the UK. His mother had never had a job. This was the claimant’s first graduate job; 6.2. He sought advice from the CAB on a number of matters. He has disclosed in full the advice he received. In March/April 2023 the CAB did not tell the claimant about the employment tribunal and his right to bring a claim there. He had received advice from his union, as disclosed in the supplementary bundle. Neither the Union nor the CAB told him about any time limits for bringing a claim; 6.3. He sought information from the respondents to enable him to challenge what they had said about the reason for terminating his placement and employment and to consider presenting the claim. There was a lack of transparency. The respondents failed to provide the required documentation and the claimant contacted the ICO, who made a finding that the respondents had failed to comply with the `subject access requests within the appropriate time limit. The respondents did not observe the time limits for compliance with his data subject access requests; 6.4. His father was suffering from ill-health and had a number of hospital visits in 2023. His father was suffering from low blood pressure and possible sepsis. This was the reason for his attending hospital in June 2023. There were a number of family issues which the claimant had to address after the termination of his employment. He concentrated on those while he awaited the information he needed from the respondents to progress his claim; 6.5. It is just and equitable to extend time: the claimant was delayed in presenting his claim by the respondents’ failure to comply with time limits when providing documents following his Subject Access requests.

[7]Counsel for the first respondent made a number of detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:- 7.1. Following the decision in Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

the burden is on the claimant to persuade the tribunal to exercise its discretion to extend time. The extension of time is the exception rather than the rule; 7.2. There is nothing to suggest that the illness of the claimant’s father or other family issues prevented the claimant from looking out for his own interests and presenting a claim; 7.3. the claimant had explored his potential claim with both the trade union and the CAB before the expiry of the time limit; 7.4. the claimant was assiduous in pursuing his data subject access requests drawing attention to time limits which applied to those requests; 7.5. it is clear that the claimant was well aware of his rights. The advice received from his trade union refers to the claim of unfair dismissal and mentions “no obvious signs of discrimination” ; Case Number: 2301890/2024 4 7.6. the claimant has been selective in his disclosure of advice from the CAB. It is clear that the claimant has not disclosed the case notes from 2023 onwards which he received from the CAB as indicated in the email dated 12 February 2024 (SB1); 7.7. there is nothing to support the claimant’s assertion that the withholding of information by the respondents prevented the claimant from presenting his claim. He presented the claim before he received the information from the first respondent following the Data Subject Access Request; 7.8. there is prejudice to the first respondent in allowing the claim to proceed out of time. There are number of witnesses to call. The respondent must prepare a case which the claimant was advised was a weak one.

[8]Counsel for the second respondent adopted the submissions made by counsel for the first respondent and made a number of further detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:- 8.1. The decision in Robertson (see above) was affirmed in the case of Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5 CA; 8.2. In weighing the prejudice to the respondent the tribunal should take into account the forensic prejudice which may arise by the need to investigate even older matters than the incidents relied upon. Concentrix CVG Intelligent Contact Ltd v Obi

2023 ICR 1

EAT; 8.3. The second respondent terminated the claimant’s placement on 16 February 2023.Time runs from that date. The claim should have been presented against the second respondent by 15 May 2023. The claimant did not contact ACAS for early conciliation until 5 March 2024. 8.4. The claimant asserts that his father was admitted to hospital between 3 – 16 March 2023. However, the claimant was able to obtain legal advice from the CAB in March 2023 and from the trade union in April 2023. There is no satisfactory evidence to support any assertion that the claimant was unable to conduct his affairs by reason of his father's ill health; 8.5. The claimant has displayed a lack of candour in the disclosure of his correspondence with the CAB. It is inconceivable that he would not have been told of the right to bring a claim to the tribunal and the time limit for bringing any such claim. The tribunal is invited to infer that the claimant became aware of the time limit by March 2023. In any event, the claimant was clearly aware of a claim to the tribunal upon receiving advice from his trade union in April 2023. 8.6. The claimant chose not to pursue a claim in the tribunal at that time. It is not clear why he failed to do so. The trade union clearly gave him advice on a discrimination claim. They advised that the claim was weak. If that was the reason for the claimant failing to present the claim in time then he could pursue a claim of professional negligence against the trade union. His remedy lies there. 8.7. The claimant asserts that he did not present a claim in time because he needed information from the respondents. However, the grounds of Case Number: 2301890/2024 5 complaint against the second respondent is based on information within the claimant’s knowledge at the time. Nothing arose after the expiry of the primary time limit. The appeal against dismissal (R92) indicates that the claimant had sufficient knowledge to present his claim at that time. 8.8. The claimant says that he was never told the reasons for the termination. However, this is clearly wrong. The documentary evidence shows (R94) that the claimant had the relevant knowledge to enable him to present a claim. 8.9. The claimant does not and cannot say that the second respondent failed to provide him with information following the Subject Access Request. The email at R 87 shows that the second respondent responded to the request on the 7 July 2023; 8.10. the claimant has failed to provide a satisfactory explanation for the delay in presenting the claim; 8.11. If time is extending to allow the claim to proceed the second respondent will suffer prejudice by the loss of the limitation defence. There is forensic prejudice to the second respondents. Any hearing is likely to take place in 2026 some three years since the events took place. The documentary evidence shows that the respondent had performance concerns with the claimant as far back as April 2022. If the claim proceeds the second respondent will be required to investigate all these matters.

Evidence

[9]The claimant gave evidence. He provided his evidence from the grounds of complaint set out in his claim form and provided additional evidence relating to the documentary evidence. He was subject to cross-examination, questioning by the tribunal and had the opportunity to provide further evidence in re-examination.

[10]Neither of the respondents called any witnesses.

[11]An agreed bundle of documents was presented, together with the Supplemental Bundle provided by the claimant. This was allowed into the evidence and a copy provided to the employment judge after the claimant had confirmed his intention to waive professional legal privilege. References to page numbers in these Reasons are references to the page numbers in the agreed Bundle with the prefix “R” and in the Supplemental Bundle with the prefix “SB”.

Facts

[12]Having considered all the evidence, the tribunal has made the following findings of fact. Where a conflict of evidence arose the tribunal has resolved the same, on the balance of probabilities, in accordance with the following findings.

[13]The claim relates to a period of employment with the first respondent between October 2021 and 24 March 2023. Case Number: 2301890/2024 6

[14]The claimant was assigned to work for the second respondent on 4 January 2022. The second respondent terminated the assignment on 16 February 2023.

[15]The first respondent terminated the claimant’s employment on 24 March 2023.

[16]By email dated 31 March 2023 (R94) the first respondent provided reasons for the termination and includes the following: The termination from your placement with Citigroup is a decision that the client can exercise at any point as you are a contractor with them as opposed to an employee. I understand that there were concerns with your placement that FDM spoke to you about in June 2022. This involved completion of tasks not being up to the required standards, lack of engagement with your team, booking time off or making up hours on the weekend without prior approval from your line manager. There were also issues later on with not attending the client office when required without a reasonable explanation. Citi had set further things for you to improve on in December and did not see any improvement. They found you were consistently missing mandatory meetings, lacking motivation, not raising blockers or asking questions and failing to complete tasks. In January you had taken a week of absence without notifying anyone. This resulted in the decision to finish your placement early in February this year. In terms of your termination with FDM, the business had made the decision to exercise the termination clause in your contract, which states: 12.1. Despite clause 2, we may, in our sole and absolute discretion, terminate your employment at any time and with immediate effect by paying a sum in lieu of notice ("Payment in Lieu") equal to the basic salary (as at the date of termination) which you would have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already been given, during the remainder of the notice period) less income tax and National Insurance contributions. …. The decision was made due to a loss of trust and confidence in placing you on a regular basis with our clients. This was treated as a no-blame situation, hence the decision to terminate the contract and not to dismiss. You do however have the right to appeal the decision, so please let me know if you wish you proceed with this and I will escalate internally.

[17]The claimant did appeal against the decision and set out the grounds of appeal by email dated 3 April 2023 (R92), contesting some of the reasons put forward for the termination of his placement with the second respondent.

[18]The claimant was told that there would be an appeal hearing but by email dated 5 May 2023 (R97) the claimant was advised that his appeal was not upheld.

[19]The claimant was a member of the Communication Workers Union CWU and sought advice from the Union in relation to the termination of his employment. By email dated 3 April 2023 CWU advised: Case Number: 2301890/2024 7 it would be extremely unlikely that you would have a case for claiming unfair dismissal in a tribunal based on: · You have been employed by FDM for less than two years · That your termination of contract has not been on the grounds of discriminati7on based on the information you have shared.

[20]This email shows that in April 2023 the claimant received advice about a potential claim to the tribunal in relation to a claim of unfair dismissal. It is clear from this documentation that a potential claim of discrimination was discussed with the CWU.

[21]The claimant also obtained advice from the Citizens Advice Bureau (CAB) in March and April 2023 about the termination of his employment. In February 2024 the claimant made a Data Subject Access request to the CAB relating to the advice he received in 2023. By email dated 12 February 2024 (SB1) the CAB informed the claimant that it was providing the claimant with the documents as listed therein including Copy of case notes 3 March to 11 April 2024:

[22]The claimant has not provided copies of those case notes. He asserts that no copies were provided with that email and that he has disclosed all the documents received from the CAB relevant to the advice he obtained from them. The tribunal does not accept the evidence of the claimant on this point. It is clear that the email stated that the claimant was being provided with the documents as listed. The evidence of the claimant that there were no attachments, that this was all he received is not credible.

[23]After the termination of his employment the claimant made a number of Subject Access Requests of both respondents.

[24]In May 2023 the claimant made a number of Data Subject Access Requests of the second respondent. The respondent asked for an extension of time to provide the information. The second respondent provided the requested information by email dated 7 July 2023 (R87).

[25]The claimant was aware of the time limits applicable to such requests as indicated in the correspondence. He was in contact with Information Commissioners Office (ICO) prior to commencing his claim against the respondents and made a formal complaint to the ICO alleging that there had been a failure to provide documentation. There was a delay in the first respondent providing the requested information. The claimant received some documentation from the first respondent at the end of February 2024. Case Number: 2301890/2024 8

[26]The claimant’s father was hospitalised between 3 and 16 March 2023. The claimant has provided medical evidence to show that his father was admitted to hospital on 19 June 2023 when he presented at the Accident and Emergency Department. The claimant’s father was discharged on 21 June 2023.

[27]The claimant has produced no satisfactory evidence as to his involvement in the care of his father, who has been diagnosed with a number of debilitating conditions including Alzheimers. There is no satisfactory evidence that the illness of the claimant’s father prevented the claimant from presenting a claim to the tribunal.

[28]The claimant commenced the Early Conciliation process in relation to the first respondent with ACAS on 2 January 2024. It ended and a certificate was issued on 8 January 2024. The claim of disability discrimination against the first respondent was presented to the tribunal on 6 February 2024.

[29]The claimant sought to present a claim of disability discrimination against the second respondent , in relation to the placement, on 6 February 2024. That claim was rejected on the grounds that the claimant had failed to provide an Early Conciliation Certificate for the second respondent. The claimant rectified that error. He contacted ACAS in relation to the second respondent and the Early Conciliation period commenced on 5 March 2024. It ended and an Early Conciliation Certificate was issued on 11 March 2024. The claim against the second respondent was then accepted by the tribunal and treated as having been received on 12 March 2024.

[30]The claimant has failed to identify any information or documentation which prevented him from presenting his claim in time, has failed to identify any information or documentation which prompted and/or enabled him to present his claim to the tribunal in February 2024.

The Law

[31]A claim concerning work-related discrimination must be presented to the employment tribunal within the period of three months beginning with the date of the act complained of s123 (1) (a) Equality Act 2010. Conduct extending over a period is to be treated as done at the end of that period - if there is continuing discrimination, time only begins to run when the last act is completed.

[32]The Tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. The Tribunal has a wide discretion to do what it thinks is just and equitable in the circumstances Hutchinson v Westward Television Ltd

[1997] IRLR 69

. The Tribunal should consider the prejudice which each party would suffer as a result of granting or refusing an extension and have regard to all the other circumstances of the case including in particular the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be effected by the delay, the extent to which the parties Case Number: 2301890/2024 9 sued had cooperated with any request for information, the promptness with which the applicant acted once he or she knew of the facts given rise to the cause of action and the steps taken by the claimant to obtain appropriate professional advice once he or she knew the possibility of taking action; British Coal Corporation v Keeble

[1997] IRLR 336

[33]In Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5 CA it was noted that rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. The best approach when considering the exercise of the discretion is for the tribunal to assess all the factors in the particular case that it considers to be relevant, including in particular the length of, and the reasons for, the delay. Given the breadth of the discretion afforded to tribunals by the ‘just and equitable’ formulation, a multi-factorial approach is appropriate when considering whether to extend time.

[34]When tribunals consider exercising the discretion to extend time ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.’ The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit. Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

[35]However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law simply requires that an extension of time should be just and equitable.

[36]Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other. Pathan v South London Islamic Centre EAT 0312/13 .

[37]In Miller and other v Ministry of Justice and others EAT 0003/15 it was noted that there are two types of prejudice that a respondent may suffer if the limitation period is extended:(i) the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and

(ii) the forensic prejudice that a respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses.

[38]The strength of the claim may be a relevant factor when deciding whether to extend time. Kumari v Greater Manchester Mental Health NHS Foundation Trust

2022 EAT 132

[39]The date upon which the claimant became aware of the facts giving rise to the claim may be relevant to the discretion to extend time. HSBC Bank plc v Chevalier-Firescu 2025 ICR D7 CA. Case Number: 2301890/2024 10

[40]The tribunal has considered and where appropriate applied the authorities referred to in submissions. Determination of the Issues

[41]This includes, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence.

[42]The claimant accepts that his claim was presented out of time.

[43]In deciding whether it is just and equitable to extend time the tribunal has considered all the relevant circumstances including the following.

[44]The length of and reasons for the delay. 44.1. The claim against the first respondent was presented on 6 February 2024. The claim relates to a period of employment between October 2021 and 24 March 2023. The claimant makes complaints relating to the decision to dismiss and the failure to consider the claimant’s appeal against that decision. The claimant was notified that his appeal had not been upheld on 5 May 2023. It is not clear on what grounds the claimant asserts that the failure to consider the claimant’s appeal at an appeal hearing and/or the appeal outcome was a discriminatory act. However, for the purpose of this decision the tribunal has considered that the claimant is asserting that there was a discriminatory course of conduct ending on 5 May 2023. Time for presenting the claim ended on 4 August 2023. The claim was presented nearly 6 months late. The claimant commenced Early Conciliation with ACAS on 2 January 2024. It ended on 8 January 2024. ACAS was contacted after the expiry of the time for presentation of the claim. It does not extend time. 44.2. The claimant was assigned to work for the second respondent on 4 January 2022. The second respondent terminated the assignment on 16 February 2023. Time for presenting the claim against the second respondent ended on 15 May 2023. The claimant sought to present a claim against the second respondent on 6 February 2024. However, that claim was rejected on the grounds that the claimant had failed to provide an Early Conciliation (EC) Certificate for the second respondent. The claimant rectified that error. He contacted ACAS on 5 March 2024. An EC Certificate was issued on 11 March 2024. The claim was then accepted against the second respondent and treated as received on 12 March 2024. The claim was therefore presented nearly 10 months late. Case Number: 2301890/2024 11 44.3. I have considered the reason for the delay. The claimant’s evidence as to when and how he became aware of his right to bring a claim is inconsistent and unsatisfactory. The claimant was a member of the Communication Workers Union CWU and sought advice from them in relation to the termination of his employment. In April 2023 he received advice about a potential claim to the tribunal in relation to a claim of unfair dismissal. It is clear from the documentation that a potential claim of discrimination had been discussed with the Union. The claimant was therefore fully aware of his right to bring a claim to the tribunal in April 2023, before the expiry of the time limit. 44.4. The claimant also obtained advice from the CAB in March and April 2023. The claimant asserts that the CAB did not advise him of his right to bring a claim and that neither the union nor the CAB advised him of any time limit for bringing any claim to the tribunal. The tribunal finds that extremely unlikely in relation to any advice received from the CAB. It is clear that the claimant has not fully disclosed the nature and extent of the advice given to him by the CAB. He has volunteered certain information and documents and acknowledges that in doing so he has waived his right to privilege for those selected documents. There is of course no obligation on the claimant to disclose the case notes provided to him by the CAB. However, the claimant asserts that the reason he has not provided the case notes referred to in the email dated 12 February 2024 (SB1) (see paragraph 21 above) is because he has not received them. The tribunal does not accept that evidence as indicated at paragraph 22 above. In all the circumstances the tribunal is prepared to draw the appropriate inference and finds that the CAB did advise the claimant in relation to a claim before the tribunal and that the claimant was aware of the time limit for presenting a claim by April 2023, before the expiry of the time limit; 44.5. Further, and in any event, the claimant is fully aware of the application of time limits in relation to other matters. He was fully aware of the time limits applicable to his Subject Access Requests. It is incumbent upon any potential claimant to investigate a right to claim and any potential time limits. 44.6. The claimant has failed to provide a satisfactory explanation for the delay in presenting the claim. It is noted that the claimant’s father was ill and that he had a number of hospital admissions. This was clearly upsetting for the claimant. However, there is no satisfactory evidence that the claimant’s father’s illness prevented the claimant from pursuing the claim. The claim was able to seek legal advice, make Subject Access Requests, pursue an appeal. 44.7. There is no satisfactory evidence to support the assertion that the failure of the respondents to provide certain information prevented the claimant from presenting a claim in a timely fashion. The claimant has not identified any information which was withheld by either respondent and which, upon receipt, enabled the claimant to pursue his claim. The claimant received the documents from the first respondent upon which he now relies at the end of February, after he presented the claims. Case Number: 2301890/2024 12

[45]Balance of prejudice. There is of course prejudice to the claimant in refusing to extend time for presentation of the claim. He is barred from pursuing these claims against the respondents. However, both of the respondents are prejudiced by the late submission of the claim. There is the obvious prejudice of having to meet a claim which would otherwise have been defeated by the limitation defence. However, the respondents will also suffer forensic prejudice if the limitation period is extended by many months. Memories do fade. It is not clear to what extent the claimant asserts that the first respondent, as his employer, was liable for any discriminatory treatment by the second respondent to whom the claimant was assigned. However, the claims relate in part to the termination of the assignment by the second respondent and the consequent termination of the claimant’s employment by the first respondent. They are linked as indicated in the documentary evidence and, in particular, the email dated 31 March 2023 giving the reason for the termination of employment by the first respondent. The claimant challenges the reasons given for the termination of his assignment. The second respondent asserts that the termination relates to issues of conduct and performance over the period of the assignment dating back to June 2022, as indicated in the documentary evidence. In the case of the second respondent it is highly probable that evidence will be required in relation to matters dating back to 2022, to support its assertion in relation to the reason for termination of the assignment. That is a period of three years and it may be difficult for witnesses to recollect events.

[46]The claimant was fully aware of his right to claim and the time limit for so doing. He chose not pursue the claim within the time limit. There is no satisfactory explanation for the delay. The respondents are prejudiced by the delay. In all the circumstances it is not just and equitable to extend the time for presenting the claim of disability discrimination.

[47]The tribunal has no jurisdiction to hear the claim, which is hereby dismissed. Approved by