Mr J P Harrop v IQ EQ Administration Services (UK) Ltd: 2307383/2024

EMPLOYMENT TRIBUNALS

Case No 2307383/2024

Between

Mr J P HarropClaimant

IQ EQ Administration Services (UK) LtdRespondent

Before

Employment Judge Richter

Mr Smith (instructed by Solicitor) for claimant

Ms Moss (instructed by Counsel) for respondent

Date 27 August 2025

JUDGMENT

The judgment of the Tribunal is as follows: The Claim Form1.1 On 1 October 2024 Mr Harrop presented to the Employment Tribunal an ET1 claim form. IQ-EQ (a multinational Investment Services Company) were named as the respondents.

1.2 On the form Mr Harrop identified the title of his employment as ‘Group Funds Adviser’ and at Question

5.1 identified that his employment with the respondent had ended on 17 April 2024. At Question

8.1 on the form, when asked to identify the type of claim the single box ‘I was unfairly dismissed’ was ticked. At Question

8.2 - within a body of narrative - Mr Harrop set out the claim (which he continued at Question 14) detailing the history of his employment with the Respondent and how he had come to be made redundant on 17 April 2024. He detailed how he had appealed that decision through the respondent’s internal processes which had finally concluded on 15 July 2024.

1.3 Mr Harrop further detailed in those sections how shortly after the 15 July 2024 decision had been made his wife had been diagnosed with breast cancer which had meant he had needed to concentrate on family matters and so was just now submitting the ET1.

1.4 Attached with the ET1 was an ACAS early conciliation certificate which showed that ACAS had been notified by Mr Harrop on 24 September 2024 and conciliation had ended on 26 September 2024.

1.5 The core then of Mr Harrop’s claim is that his dismissal was unfair. He asserts the ‘redundancy process’ conducted by the respondent was a sham and had been pre-determined. He claims that he was in truth dismissed to prevent him being entitled to the full benefit of the sale of shares were held in trust. The ultimate benefit to him may he believes be in the region of 10 million euros.

1.6 The respondent denies Mr Harrop’s allegations. It maintains that his redundancy was necessary for legitimate business reasons and at all times a fair and proper procedure was followed to reach the conclusion that his dismissal had to occur. It denies that the process was in any way motivated or influenced by the potential equity in any share sale.

1.7 These competing positions would then broadly would be the focus of determination at any final hearing but I am not called upon to decide them and I make no findings in relation to the merits or otherwise of the claim. Preliminary Issues

2.1 Two days were originally identified for the final hearing of the claim to take place on 26 and 27 August 2025.

2.2 On 27 June 2025 by a Case Management Order EJ Aspinall converted those dates to a public preliminary hearing to address a preliminary issue namely whether the Tribunal has jurisdiction to hear the claim, given – as it was expressed in the order - that: a) The effective date of termination was 17 April 2024 b) The primary time limit (for presenting a claim) expired on 16 July 2024 c) ACAS Early Conciliation commenced on 24 September 2024; and d) The claim was presented on 1 October 2024

2.3 The parties have therefore prepared for the hearing in those terms and having confirmed that position with the parties at the outset, this has been a public preliminary hearing conducted in accordance with the Employment Tribunal Procedure Rule 52(1)(b) to determine preliminary issues.

2.4 I have had regard to the following written material: Preliminary Hearing Bundle running to 116 pages Skeleton argument on behalf of the claimant Draft list of issues for full hearing on behalf of the claimant Claimant’s Timeline for preliminary hearing Claimant’s list of witnesses for preliminary hearing Claimant’s list of witnesses for the full hearing Claimant’s authorities bundle 3x Medical letters on behalf of the Claimant 5x Pages of emails and contract of employment on behalf of the Claimant 1x Page of emails on behalf of the Claimant Respondent’s draft list of issues for preliminary hearing Respondent's skeleton argument for preliminary hearing Respondent authorities bundle 5x emails provided by Respondent

2.5 Yesterday (26 August 2025) I heard evidence from Mr Harrop and submissions from Mr Smith and Ms Moss in relation to the issue identified above and as to whether further preliminary issues, which had been identified in correspondence between the parties, namely whether a separate claim for ‘Part-time Worker detriment’ was included in the originating process and if the Tribunal had jurisdiction to hear such a claim. The Law 3.1 It is convenient at this point to set out certain aspects of the relevant law: s.111 of the Employment Rights Act 1996 (“ERA”), so far as is relevant, mandates that the Employment Tribunal shall not consider a complaint (of unfair dismissal) under this section unless it is presented to the tribunal a) before the end of the period of three months beginning with the effective date of termination; or b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. s.97 ERA – sets out (as far as is relevant) that the Effective Date of Termination is: a) in relation to an employee whose contract of employment is terminated by notice, means the date on which the notice expires. s.95 ERA addresses dismissal and subsection 1(a) reads as follows: An employee is dismissed if, and only if, a) The contract under which he is employed is terminated by the employer (whether with or without notice). Effective Date of Termination

4.1 Raised in argument before me is an issue as to dismissal and so more fundamentally the ‘Effective Date of Termination’ (“EDT”).

4.2 The letter of dismissal – said to be due to redundancy – relied upon by the respondent is at pp.80 - 81of the bundle. It sets out that meetings with the claimant had occurred on 7 and 13 March and 2 April 2024 to discuss the situation. It noted that all alternatives to redundancy had been considered but ultimately it concluded that the respondent was: “… sorry to inform you that your position as Group Funds Advisor is redundant and that your employment will therefore terminate due to this redundancy. You are not required to work your notice and you will be paid in lieu of it, meaning that your termination date and last day of work is 17 April 2024.”

4.3 Attached to the letter was a financial statement which set out the payments due in respect of redundancy pay, notice pay – paid for a period of 6 months – and holiday pay. In total a figure in the region of £45,000 was determined which was to be paid to Mr Harrop.

4.4 In argument on behalf of the claimant it is now submitted that the letter did not have the effect of terminating the contract. It is submitted that during 2023 Mr Harrop had agreed a contractual variation which placed his employment onto a ‘12 month rolling contract’. Details of the discussions in respect of this aspect were provided in evidence by the claimant and email exchanges supporting this were provided to the Tribunal under separate cover.

4.5 I have had regard to the emails but note that what is clear from them is that no formal document recording the full terms of any contractual variation was ever drawn up. The claimant asserts that this was deliberate action, with malign intent, on the part of the respondent to try and frustrate the already agreed variation of his contract.

4.6 The ultimate submission made by Mr Smith however is that Mr Harrop had successfully varied his contract of employment which, by the time of discussions concerning any redundancy, was now of a ‘rolling nature’ every 12 months. With that in mind Mr Smith submits that the 17 April 2024 is not accepted to be the EDT as it is said that the notice given in the letter sought to terminate a different contract which Mr Harrop was no longer employed under.

4.7 It is right to observe that this is not a point that was ever raised by the claimant in the representations he made during the meetings concerning the redundancy process, or through the internal process of appealing that decision or indeed within the ET1 claim form. It is also right to observe that no evidence has been provided or submission made as to how this newly varied contract might be effectively terminated. Mr Smith makes no submission as to how the varied contract of employment was actually brought to an end. Nor does Mr Smith, when asked, make any submission as to when the claimant asserts that the EDT did occur in this case.

4.8 The respondent denies that the contract was varied in the way described by the claimant. Of some interest the respondent does not rely upon the employment contract terminating on 31 January 2024 (which the original contract was expressed as doing) and it accepts that Mr Harrop remained employed and working until the 17th April 2024.

4.9 The respondent submits however that it gave proper and effective notice of termination of any employment contract which Mr Harrop was employed under. It is submitted that Mr Harrop was paid in lieu of notice so if, for example, Mr Harrop genuinely believed he was entitled to 12 month’s notice (as opposed to 6 months) because of any contractual variation than this ‘money claim’ is an issue he could have raised through the appeals process or brought as a claim within the ET1 form. In any event they contend such an issue does not affect the validity of the dismissal.

4.10 In his evidence Mr Harrop accepted that he last worked for the Respondent on 17 April 2024. He accepted that he understood that he was given this date as his EDT. He accepted that he had received the payments set out in the Financial Statements appended to the dismissal letter and he further explained that his wife had told him that the money had come into his accounts and he had effectively ‘banked the money’ whilst the internal appeal process continued in case a position was reached where he had to repay it. Findings and Conclusions on EDT

4.11 I have looked with care through the correspondence brought to my attention within the bundle, in my view, this makes clear that Mr Harrop understood that his employment had been terminated on 17 April 2024. In his evidence Mr Harrop explained that he understood the Respondent’s appeal process was focussed on whether to maintain or overturn the decision which had been made to terminate his employment on 17 April 2024 and I am satisfied that was his understanding at the time.

4.12 In my judgment I do not need to resolve any issue of contractual variation – I would not be in a position to do so in any event not having heard witnesses from the respondent.

4.13 What I must determine is whether Mr Harrop was actually dismissed and if so when. I am reminded by Ms Moss that termination is a question of fact and law. I note the clear terms of the letter. It gives express notice that the claimant’s employment will terminate. It is also clear from the letter that it is said that the claimant’s position as Group Funds Adviser is made redundant. The wording is clear and unambiguous. It does not express itself as tied to any particular employment contact and I am satisfied that whatever the contractual position the letter was giving clear notice of termination of the claimant’s position. I then further note that payments were made to Mr Harrop in respect of the termination of his employment. I note the accepted position that Mr Harrop did not complete any further work for the Respondent after 17 April 2024. I note that throughout the correspondence in relation to his internal appeal and for the documentation prepared for the Employment Tribunal claim Mr Harrod has consistently referred to his employment as having being terminated. I can find no basis for saying that the claimant’s employment extended beyond the 17 April 2024 and I am therefore satisfied on the evidence and find as a fact that the EDT in this case was 17 April 2024. The Primary Time Limit - Was the claim presented in time? 5.1 Given the EDT s.111 ERA requires that the ET1 claim form should have been presented by 16th July 2024. As set out above the claim form was presented on 1st October 2024 around two and half months after the expiry of that primary time limit.

5.2 I note that no involvement with ACAS took place during the period of the primary time limit so as to extend it. I find therefore as a fact that the claim was presented out of time.

5.3 Two further considerations then arise for consideration:

[1]Is the tribunal satisfied that it was not reasonably practicable for the complaint to be presented within the primary time limit? and

[2]If it was not reasonably practicable, were the claims made within such further period as the tribunal considers reasonable? ‘Reasonably practicable’ - Why the claim was not presented in time?6.1 Giving evidence Mr Harrop explained that he had not submitted the claim by 16 July 2024 as his understanding was that he had three months to present a claim from the outcome of the final internal appeal hearing. He said that he had ‘heard about this from people’. He said he had thought ‘that the courts would want to see that you had done all you could to appeal’ the decision internally before bringing a claim and so that he had three months to bring a claim from the internal appeal decision.

6.2 Mr Harrop gave further evidence that his wife had had been undergoing medical investigations in respect of suspected breast cancer as from around late June and the diagnosis he said was confirmed on 19 July 2024. He said that the focus of his life had at that point to be on his wife and children and he could not focus upon the ET1 until after his wife’s treatment had settled in around the middle of September 2024.

6.3 When cross examined it was put to Mr Harrop that he had not submitted the claim within the primary time limit because he had assumed he had three months from the outcome of the appeal process and he agreed with this proposition. When asked who he had heard this from Mr Harrop said it was people he had been speaking to. He accepted that he had internet access and access to sources of advice but he said he did not believe he had researched the process of bringing an employment claim as he had expected the respondent to act ‘honourably’ in the internal appeal process and that he had heard that there was 3 months to bring a claim from the end of that process.

6.4 In respect of Mr Harrop’s wife’s cancer diagnosis three medical letters have been produced by the claimant to the tribunal: - The first is dated 30 May 2024 and invites Mrs Harrop to a mammogram screening on 24 June 2024. Mr Harrop gave evidence that this appointment was prompted as his wife had herself detected a lump which was, as would be expected, greatly concerning. - The second letter is undated inviting Mrs Harrop for further testing on 11 July 2024. Giving evidence Mr Harrop says that at this appointment he and his wife were told to ‘prepare for the worst’ and that they took this to mean a cancer diagnosis was likely. - The third letter is dated 19 July 2024 and gave a diagnosis of breast cancer. In the ET1 form and in his evidence in chief, as set out above, Mr Harrop detailed the effect of the diagnosis of cancer as meaning from that point on he had to focus upon his family to the exclusion of employment related issues. In re-examination Mr Harrop’s evidence varied slightly to detailed that his wife’s medical situation had had a devasting effect upon their family lives as from late June such that he could not attend to this employment issue.

6.5 I have no doubt that the finding and diagnosis of Mrs Harrop’s condition would have had a significant impact on Mr Harrop and his family. I am entirely satisfied and find as a fact that that impact would naturally have escalated throughout the period set out above as the further testing was conducted and as a fear of cancer was replaced with diagnosis, prognosis and treatment. I have no doubt that from the point of diagnosis onwards it was reasonable for Mr Harrod to have focussed his immediate attention on his family life.

6.6 The tribunal has every sympathy for the situation in which Mr Harrop and his family found themselves. What I must assess however is the impact that this medical dimension had upon Mr Harrod’s ability to present the claim form within the primary time limit given that he asserts that it did play a part in his inability to present the claim. In so doing I must note that sadly many people experience traumatic medical events which deeply affect them personally and their families. I have to observe however that often people are able to and do still attend to significant personal matters, including the filing of legal proceedings, whilst they personally are undergoing testing and even treatment for very serious conditions.

6.7 Having heard the evidence I am not satisfied that the medial situation of Mr Harrop’s wife did play any significant part in preventing the presentation of the claim within the primary time limit. As acknowledged above whilst the period of investigation would no doubt have been a period of increasing stress and I keep in mind the extra burden that this would have placed upon Mr Harrop, it would not in my judgment have prevented Mr Harrop from filing the ET1 form in time. It is clear that this developing situation occurs at the end of the primary time limit and, in my view importantly, the actual confirmation of a diagnosis of breast cancer occurs after the time limit had already expired. Mr Harrop’s evidence in re-examination that the effect of the ongoing medical situation was such that he could not attend to matters as from late June is at odds with the narrative within the ET1 form and with his evidence in chief and cross examination I can not accept that it had such an all consuming impact at that relatively early stage of the process.

6.8 As to the effect of the diagnosis and then treatment on Mr Harrop’s ability to file the claim form after the primary limitation period I make no finding.

6.9 In any event the primary reason asserted by Mr Harrop for the failure to submit the claim form in time was his belief that the time limit expired at the conclusion of the internal appeal process. I am satisfied on the evidence I have heard and find as a fact that this was the reason that the claim form was not submitted in time. In simple terms Mr Harrop made a mistake as to when the claim should be presented and it is this error which prevented him from submitting the claim in time. Was it not reasonably practicable to present the claim in time? The Law

6.10 I have been referred to several helpful authorities. I am reminded that the onus is on the claimant to prove that it was not reasonably practicable to bring the claim in time Porter v Bandridge Ltd

[1978] ICR 943

6.11 I remind myself that test is strict one in the sense that it requires the tribunal to focus on whether it was reasonably feasible for the claim to have been filed in time. I keep in mind though that this test should give a liberal interpretation in favour of the employee – Marks & Spencer v Williams-Ryan

[2005] ICR 1293

6.12 It is clear that a mistaken belief by an employee as to the proper time to exercise a right which they are aware of can render it ‘not reasonably practicable’ for a claim to have been presented in time if that belief is reasonably held.

6.13 I note that what is reasonable must be considered in a case specific context. There are, for example, a wide variety of claimants who bring claims to the Employment Tribunal. Some have limited education and/or command of English and/or have no ready access to sources of assistance or advice. Other claimants however are different and are in different circumstances. 6.15 In the Marks & Spencer case I note that a combination of advice by a citizens advice bureau to pursue an internal appeal combined with insufficient and misleading advice by the employer and stress upon the claimant from a teacher training course were sufficient to permit a finding that it was not reasonably practicable to present the claim in time and for there to be an extension of time (although it was felt on appeal that that was potentially a generous finding to the employee).

6.14 A belief by a claimant that the internal appeals system had to be exhausted though is not necessarily sufficient to justify a finding that it was not reasonably practicable to present a complaint to a tribunal within the time limit. Such has long been established with Bodha v Hampshire Area Health Authority

1982 ICR 200

, EAT – being just one example.

6.15 Ms Moss highlights Loweri Beck Services Limited v Patrick Brophy

[2019] EWCA Civ 2490

where Underhill LJ VP set out at para 12(3)&(5): “If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will have been reasonably practicable for them to bring the claim in time (see Wall’s Meat Co Ltd v Khan

[1979] ICR 52

); but it is important to note that in assessing whether ignorance or mistake are reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made.” And “The test of reasonable practicability is one of fact and not of law” Factual position

7.1 I must consider then the factual situation in this case, Mr Harrop gave evidence that he was conducting the representations he made in respect of redundancy and through the internal appeal process and the submission of the ET1 claim form himself. I find as fact that this was the position.

7.2 It is clear from the evidence that Mr Harrop is a successful businessman. When giving evidence he was articulate and intelligent. He gave evidence that as a professional businessman working in a large multinational business he is used to taking a methodical approach to complex issues. He accepted that he has been involved in HR issues at work and had sat on various hearings for HR matters. I do not of course regard any such experience as imputing any special knowledge to Mr Harrop, but I am satisfied that it would no doubt have provided at least some exposure to employment issues and an awareness of the necessity, even above his experience from business dealings, to ensure that the correct processes were followed.

7.3 Mr Harrop accepted he had access to the internet and I am entirely satisfied that he would have been able to conduct his own personal research as to his employment rights without any difficulty.

7.4 Importantly though Mr Harrop accepted that he had access to other sources of advice and I find as fact he did. Mr Harrop detailed in evidence that he was discussing his employment situation with a friend, who was an HR consultant, who was assisting him at the time. Mr Harrop was also professionally consulting from an early stage with Mr Smith. Mr Smith who appears to represent him at this hearing is a qualified solicitor practising in the areas of commercial law and non-contentious employment law. Mr Harrop references the fact that he was receiving his professional advice throughout his correspondence in connection with the redundancy appeal process and I am satisfied therefore that Mr Harrop had ready access to specialist advice and assistance.

7.5 I am satisfied that Mr Harrop knew he had a right to bring a claim to the Employment Tribunal as again this is set out clearly within the correspondence during the internal process in connection with the proposed redundancy.

7.6 Mr Harrop asserts that he believed he had three months for the end of internal appeal process because of what he had ‘heard from people’. He did not specify who he had heard this information from beyond it being ‘word of mouth’. Mr Harrop specifically said he did not ask the friend with an HR background who was providing him with assistance. Nor did he ask Mr Smith who he was paying to advise him and I am satisfied that he did not.

7.7 A key consideration then at this stage is whether it was reasonable to have expected Mr Harrop to have sought information and advice as to the enforcement of his rights i.e. found out the correct time limit for presenting the claim?

7.8 It is worth noting that it is argued by the claimant that the respondent in essence deliberately delayed the internal appeal process so that he was left with just two days left to run on the primary time limit after the notification of the final outcome of the appeal. It is submitted by Mr Smith that the respondent ‘gamed the system’ in this way. I note that no evidence of deliberate manipulation has been presented and I am satisfied that the material submitted within the bundle tends to show a thoughtful and considered internal appeal process. In any event whatever period of time the internal appeal process took misses the core question for the tribunal at this stage which must focus on the reasonableness of Mr Harrop’s ignorance of the correct time limit.

7.9 Ms Moss highlights from the correspondence generated by the claimant during the redundancy and internal appeal process material which she says shows that Mr Harrop was not only aware of the right to present a claim to the Employment Tribunal (as set out above) but which demonstrates his ready access to professional advice and other sources of information and support. In particular she highlights: - At the first meeting to discuss potential redundancy on 7 March 2024 Mr Harrop at the end of the meeting commented that “This comes across as a ‘fait accompli’ given I was shut out 6-8 weeks ago (20th Jan). My lawyers can add to this based on the bigger puzzle.” Mr Harrop explained in evidence that this was a reference to Luxembourg lawyers who he had instructed in connection with the company shares issue. - At the second meeting on 13 March 2024 Mr Harrop provided a written statement in which he set out that he felt that there were grounds for ‘constructive dismissal’ as from January 2024 and that he should remain employed until legal action in Luxembourg had resolved as otherwise he would ‘commence action withing the UK courts’. Cross examined about this Mr Harrop explained that he was by now receiving professional advice although he was ‘taking the lead’ on how to phrase things. He explained that this came from both the lawyers he had instructed in Luxembourg and from Mr Smith. Mr Harrop explained that he had a professional relationship with Mr Smith and was paying him to provide advice through this period albeit with a focus on the issue of shares held in trust. - At the final meeting on 2 April 2024 Mr Harrop provided a further script which in the concluding paragraph said: “Once redundancy is confirmed, my U.K. lawyers will commence legal proceedings against IQEQ for unfair and wrongful dismissal on the grounds of discrimination due to my part-time status”. Mr Harrop confirmed in evidence that this reference to a UK lawyer was to Mr Smith. 7.8 Ms Moss further highlights that Mr Smith was copied in to email correspondence regarding the internal appeal process and that that documentation too refers to him having taken professional advice – see for example pages 83,84,85 and 96 of the bundle. Findings and Conclusion on ‘Reasonably practicable’ 8.1 Considering the factual position in my judgment I am satisfied that it was reasonable for Mr Harrop to have sought information and advice as the time for presentation of any complaint to the Employment Tribunal:

[1]I am satisfied that it is not difficult to find information about the correct primary time limit from even a cursory search of the internet. In my judgment, even with all that was occurring in Mr Harrop’s life during the period of the primary time limit (and even with particular regard to his wife’s developing illness) it was still in my judgement reasonable to expect Mr Harrop to have made some enquiry as to the time limit for bringing a claim. It is clear that he was well aware of the substantial impact that the termination of his employment may have. He was clearly actively involved in contesting the decision to make him redundant and was considering and drafting material to make submissions to contest the decision. A simple check of the internet would have revealed the correct information as to presentation within a matter of moments.

[2]Put another way, as a professional man used to dealing with complex business operations it was in my judgment unreasonable of him to simply accept and rely upon ‘word of mouth’ reports as to the time for bringing a claim. These reports, made by unspecified and seemingly unqualified individuals, were clearly objectively unsatisfactory when Mr Harrop was acutely aware of the importance of the substance matter.

[3]Whilst Mr Harrop in evidence says he had ‘faith’ in the internal appeal system, which it is said mitigates the necessity to have conducted research, this is not supported by the contemporaneous documentation. From the material submitted Mr Harrop was asserting during the internal process, as he does now, that the whole process was in fact pre-determined. This again supports my view that it was reasonable for Mr Harrop to have made some efforts to clarify the time limit for submission of an ET1, from independent and professional sources, given it appears he had at least in serious contemplation the possibility that his internal appeal would fail.

[4]It is also clear that Mr Harrop had ready access to professional advice. He had informal guidance from an HR professional and he had retained specialist legal advice. Whilst I accept he did not ask them for advice in connection with the time limit in my judgment it was reasonable for him to have done so. It is clear he readily had the means to seek even further specialist employment advice if they were unable to provide the required information. It is then in my judgment reasonable to have expected Mr Harrop to have made enquiries and sought advice as to the time limit for presentation of the ET1 claim form. 8.2 Having considered the matter with great care and applying the test as I must I am satisfied, and I find as a fact, that it was reasonably practicable for Mr Harrop to have presented the complaint of unfair dismissal within the period of 3 months from the effective date of his termination. It was reasonable to have expected him to have ascertained the correct time limit and had he done so he clearly could have complied with it even despite all that was occurring in his life at the time. Accordingly, despite the sympathy the tribunal has for the medical situation which faced Mr Harrop at the time, the complaint of unfair dismissal was submitted ‘out of time’ and this tribunal does not have jurisdiction to consider the complaint which must therefore be dismissed. Part Time Worker detriment9.1 One other matter has been raised at this hearing which it is agreed requires determination as a preliminary issue.

9.2 Within the ET1 form Mr Harrop set out in the narrative of his claim how having negotiated a contractual variation during the course of 2023 – as I have set out above – it was then refused because it was said (in an email dated 20 December 2023) no changes could be made at that stage of the investment cycle other than for those employed full time. Mr Harrop asserted that this discriminated against him as he was a part time worker.

9.3 As set out above no separate claim was specifically identified at section 8.1 of the ET1 as being made under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“The Regulations”).

9.4 Within the ET3 response form the respondent set out that it was: ‘unclear whether or not the Claimant intends to bring this as a separate claim to his unfair dismissal claim. The Claimant is called upon to clarify if he wishes to bring this as a separate claim and if so the Respondent requests further and better particulars of this claim including details of the alleged less favourable treatment and the comparator relied upon.’

9.5 In correspondence with the Tribunal dated 9 Jan 2025 Mr Smith on behalf of the claimant set out the following: “We feel it is worth highlighting the significance of the Part-Time Worker element of Mr Harrop’s claim. Is it clear that Mr Harrop was treated less favourably because of his part-time status, as evidenced in the message from Mr Chris Marsden on 20th December 2023. Regulation 5 from Parttime Workers (Prevention of Less Favourable Treatment) Regulations 2000 sets out the basis of such a claim. This states that a Part-time worker has the right not to be treated by his employer less favourably that the employer treats a comparable full-time worker

(a) as regards the terms of his contact; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.” “In relation to the Respondent’s attempt to have this case considered to be time-barred, the test for extending time to raise a ‘less favourable claim’ is set out in Regulation 8(4) and says “A 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”.

9.6 Despite that correspondence no application was ever made to amend the ET1 form or to provide further details and none has been made to date. In addition the draft list of issues prepared by the claimant in respect of the final hearing and submitted for consideration at this hearing does not include any reference to issues in relation to a free standing ‘part time workers detriment’ claim.

9.7 Ms Moss submits that any claim under the above regulations has not been properly particularised within the ET1. She sets out that in particular no actual comparator has been identified. The only individual mentioned is not employed in the same jurisdiction and could not properly be regarded as a comparator for the purposes of the regulations. Ms Moss draws my attention to the authority of Carl v University of Sheffield

[2009] ICR 1286

where giving judgment Judge Peter Clake confirmed that for a complaint made under the regulations an actual and not a hypothetical comparator is required. 9.10 Ms Moss further submits that the respondent has interpreted the comments made within the ET1 as part of the complaint made in respect of the unfairness of the dismissal and not as a free-standing claim. She says that the respondent would be prejudice by the inclusion of any such claim now as the witness statements and case material, which have all been prepared already for the final hearing, have not addressed this issue and considerable further evidence would be needed to address it. In any event Ms Moss submits that the claim at the moment remains too unclear to be responded to in any event. 9.11 Mr Smith however asserts that the claim should be regarded as a free-standing complaint made within the ET1 form. He asserts that the substance of the complaint is obvious and that the claimant should not be prevented from pursuing this claim even if it is out of time, as the tribunal may consider a claim if it ‘just and equitable’ to do so. Mr Smith submits that this is a broader test than the application of the ‘reasonably practicable’ test in relation to the presentation of an unfair dismissal complaint. 9.12 It is right to observe that Regulation 8(2) of the Regulations provides that an employment tribunal may consider a complaint which is presented before the end of the period of 3 months of (to paraphrase) the last example of unfavourable treatment. Regulation 8(3) of the Regulations provides that the Tribunal may consider any complaint brought outside of that time limit if it is just and equitable to do so. 9.13 In respect of whether a tribunal might find it just and equitable to hear a claim Mr Smith provides a summary number of authorities which I have considered namely: Bexley Community Centre v Robertson

[2003] IRLR 434

British Coal Corporation v Keeble & others

[1997] IRLR 336

Abertawe Bro Morganwg University Local Health Board v Morgan

[2018] ICR 1194

9.14 I must determine first though if the ET1 does include a complaint brought under the Regulations. As set out I note that Mr Harrop drafted the ET1 himself, he is not a lawyer and as such a perfect standard of drafting is not required. What would be necessary in my judgment however is an articulation of the complaint, an identification of the detriment suffered and, given the decision in Carl referred to above, the identification of an actual comparator. Findings and Conclusions 9.15 Looking at the ET1 and considering the submissions which have been made to me I find I can not say with any clarity what the complaint under the Regulations is said to be made here. 9.16 It has been asserted in argument before me that Mr Harrop’s contract was actually varied during the course of negotiations in 2023. This it has been made clear is the Claimant’s position. In my judgment that argument as advanced does not correlate with the allegation made in the ET1 which appears to allege that the contractual variation was refused because of Mr Harrop’s status as a part time worker. It has not been explained how these two positions could be run in contradiction to each other and so it is unclear what the complaint is under the Regulations is and what the detriment suffered is said to have been. Further, it is clear no valid comparator is identified either in the ET1 nor has one been in the course of argument. 9.17 Overall, for the reasons set out above, even accepting that Mr Harrop is not a lawyer, I am not satisfied that a freestanding complaint is made under the Regulations in the ET1 form which was submitted. 9.18 Even if I am wrong in that conclusion I note that any such claim would again have been brought outside of the primary time limit. Would it be ‘just and equitable’ for the tribunal to hear the claim? This is clearly a broader test than the one of ‘reasonably practicable’ considered above but as a starting point I come back to consider the factual situation as I have set it out above in respect of the unfair dismissal claim. 9.19 I then further identify that by the time Mr Harrop was drafting the ET1 form and during the course of preparation for this hearing he has had access to legal advice and assistance. He has had an ability to research the claim he was making and to seek to amend the claim form as invited to by the respondent at an early stage. I note the fact that the argument advanced now, that his contract was varied, is in contrast to the supposed basis for the claim which is sought to be brought. I have regard to the fact that the respondent would be prejudiced by having the expense of further preparation in order to address this new complaint if it were permitted to proceed. Whilst I have in mind that a refusal to permit such a claim to continue will deprive Mr Harrop of an opportunity to present a case on this aspect balancing all the factors I do not consider that it would be just and equitable to allow any complaint under the regulations to be brought.