J Claydon v Secretary of State for Justice: 2304908/2023
JUDGMENT
[1]The Claimant’s claim of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The claim of unfair dismissal is therefore dismissed.[2]The Claimant’s claim of disability discrimination was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The claim of disability discrimination is therefore dismissed. _____________________________ Employment Judge Hamour 5 November 2024REASONS
The claimant’s claims (including proposed amendments to her ET1) were for unfair dismissal and disability discrimination, including a failure to make reasonable adjustments. The following applications were before me: Claimant’s applications Amendment of ET1[2]Extension of time Respondent’s applications 1. Strike out (due to time limits and lack of reasonable prospects of success) 2. Deposit order Time Limits The claimant’s effective date of termination was 31 December 2022. The ET1 was not filed until 4 September 2023. The discrimination claims related to historic events which were also significantly out of time. Case No: 2304908/2023 The claimant’s claim was brought substantially out of time, and there was an application before me to extend time. The test for the unfair dismissal claim is one of reasonable practicability, and for discrimination it is whether it is just and equitable to extend. Amendments The claim has been the subject of previous case management. The claimant has since sought to amend the ET1, she says, to provide clarification, the respondent says to add new claims. I heard submissions from both parties as to the amendments sought to be added. In considering the amendments, I had regard to the Selkent factors, being the nature of the amendments, the applicability of time limits, and the timing and manner of the application. Strike out The application is on grounds of no reasonable prospects of success. I had regard to this by reference to the original claim in the ET1, and the proposed amendments to the ET1. Deposit order The Respondent sought this in the alternative to a strike out, on the basis that if there were prospects of success, they were no better than little prospect of success. The claimant opposed the application, but put forward no objection to a deposit order on affordability grounds. Consideration of the applications The four applications before me were all entwined, so it was not practical to consider them entirely in turn, as each one could potentially affect another. I therefore considered the four applications alongside each other, although I now set out my findings separately. I heard oral submissions from both parties, and also had the benefit of written submissions from the Respondent’s representative. I carefully considered these and reached the following conclusions: Conclusions Time limitsConclusions
Conclusions
[1]The claimant’s original ET1 was substantially out of time. The claimant provided written submissions on time limits, which I considered.[2]The claimant sought to rely, amongst other things, upon anxiety, depression and dyslexia, as reasons for being unable to submit in time, and the claimant’s representative referred to severe impact on the claimant’s functioning as a result.[3]Whilst the bundle contained impact statements, and some medical evidence, some of which referred to these conditions, or some of them, it did not provide support for the submissions made, or indicate an impact that Case No: 2304908/2023 would have made it impracticable for the claimant to submit her claim in time.[4]Given the delay of several months, I would expect relevant, detailed medical evidence to support such a claim.[5]The claimant’s representative also referred to the claimant’s lack of knowledge of the relevant time limits. This can be relevant if the lack of knowledge is reasonable, but I did not find that to be the case here. The claimant has clearly been aware of her rights, both by bringing other actions in respect of personal injury, but also by referring to a possible tribunal claim, and by initially declining a CAB referral. It is a relatively simple matter to identify the process for filing a tribunal claim, and it was reasonably practicable for the claimant to have done so within the primary limitation period.[6]I also had regard to the claim not being filed promptly even after acas notification was filed.[7]It was not the responsibility of the respondent to notify the claimant of any time limits applicable to a claim to the tribunal. Although there was an internal process underway, having regard to Palmer and anor v Southend- on-Sea Borough Council 1984 ICR 372, I do not find that there were any special facts, additional to the bare fact of an internal process, such that it was not reasonably practicable for the claimant to bring her claims in time.[8]I find that it was reasonably practicable for the claimant to bring the unfair dismissal claim in time.[9]Although I found that it was reasonably practicable to bring the claim in time, for the purposes of the disability discrimination claim, I further considered whether it was just and equitable to extend time. I considered that with regard to both the existing claim in the original ET1, and the requested amendments to the ET1.[10]I recognised that not extending time meant that the claimant would not be able to pursue her claim in the employment tribunal, so the prejudice to her was significant. However, I also gave consideration to the length of the delay in filing the claim, and the potential merits of the case.[11]The Judge in the previous preliminary hearing noted that it appeared the claimant’s main complaint against the respondent was one of personal injury, and that she was seeking to pursue such a claim “under the guise of the tribunal’s jurisdiction”.[12]The discrimination claims being brought before this tribunal related to matters significantly prior to the date of the claim being filed, although the proposed amended ET1 sought to address this, amongst other matters.[13]It did not appear to me that the potential amendments to the ET1, even taken at their highest (i.e. presuming I was to allow all the amendments), would demonstrate sufficient merits to counter the months-long delay in filing the initial claim. Case No: 2304908/2023[14]Taking into account all of the above, I found that it would not be just and equitable to extend time for the claimant’s discrimination claims. Amendments[15]As I did not grant the claimant’s application to extend time, the issue of amending the original claims does not fall to be decided. However, I concur with the respondent’s submission that some, although not all, of the proposed amendments, indicate new claims rather than clarifications of existing claims. This would have been a factor for me to take account of in deciding whether to allow the amendments, or any of them, had I not reached the conclusion set out above in respect of time limits. Strike out/deposit order[16]As I did not grant the claimant’s application to extend time, the respondent’s applications no longer fall to be decided. Judgment The judgment was therefore that:[1]The claimant’s claim of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The claim of unfair dismissal was therefore dismissed.[2]The claimant’s claim of disability discrimination was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The claim of disability discrimination was therefore dismissed.