J J De Souza De Oliveira v TC Facilities Management Ltd and Yodel Delivery Network Ltd: 2307963/2023
EMPLOYMENT TRIBUNALS
Case No 2307963/2023
Between
J J De Souza De OliveiraClaimant1. TC Facilities Management Ltd 2. YODEL DELIVERY NETWORK LTDRespondentDate 20 October 2025
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.[1]The Claimant’s application dated 7 October 2025 for leave to amend the content of his ET1 (previously presented 26 December 2023 – 14 months before) is refused.[2]The remaining claim as set out in the unamended ET1 is struck out:-2.1 For the purposes of Section 123 of the Equality Act 2010 (“EqA”), when presented on 26 December 2023 it was already out of time, and I judge that it was not presented within such further period of time as the Tribunal finds is just and equitable; On this basis, the Tribunal does not have jurisdiction to determine this claim - and in in any event -2.2 Under Rule 38 of the Employment Tribunals Rules of Procedure 2024 (“the Rules”) it is struck out on the grounds that the claim as pleaded has no reasonable prospect of success. 1 of 10
Introduction
[3]The Claimant (“C”) was assisted throughout this hearing by his representative (Mr S Downey of Counsel) and the Tribunal was assisted by an official Brazilian Portuguese speaking interpreter (A Senhora Wanklyn) commissioned by the Tribunal. Both Respondents (“R1 and R2”) were represented by Mr J Middleton (Solicitor) and where necessary R1 was represented by Mr G Underwood (consultant). I was able to ensure C could proceed with the hearing subject to taking any necessary breaks (there were three) for him to refresh himself or take time to reflect. I had available an electronic hearing bundle comprising 150 pages to which I refer below accordingly as PP1 to 150.[4]I note the Orders made by EJ Douse on 18 August 2025 (PP82-86) which defined my tasks today as follows (using their numbering):- 1 - To consider “C’s amendment application at a preliminary hearing “ - That application had been articulated orally but not set out formally until it was later consolidate in a single application dated 7 October 2025 (PP87-89); I take such application to be made under the Tribunal’s powers as to case management generally under Rule 30; I also note that the hearing of this application is to be in private; . 2 – “Unless the Judge at the preliminary hearing decides that it is in the interests of justice to leave these points for determination at the final hearing to consider Rs’ application for strike out/deposit order which will be heard at a public preliminary hearing on the same date”; I note that, subject to the outcome of C’s amendment application, Rs’ applications (under Rules 38 and 40) are to be heard publicly;[5]Though it is not referred to by EJ Douse, I also note the Rs’ joint submissions:-5.1 that C presented his claim for undefined sexual orientation discrimination on 26 December 2023 (relating to events starting on 1 April 2022 and ending on 29 September 2023) making any claim relating to events occurring more than 3 months before (i.e. 21 June 2023) seeking Early Conciliation out of time (he admits as much in his ET1 - P10) – and –5.2 that it was not presented within such time as a Tribunal can find just and equitable for the purposes of section 123(1)(a) & (b) of the Equality Act 2010 (“EqA”) to the extent that it should be struck out on this basis alone. I recognise that this time issue (and the strike out application) are to be considered in public. When I came to this point in the hearing, I declared the remainder of the hearing public. Clearly, on the terms of the amendment application, C is seeking now to rely on events preceding 1 April 2022 and are therefore even more out of time. 2 of 10 Background and Pleadings[6]I noted further that EJ Douse ordered that C provide further and better particulars about the sexual orientation discrimination claim being made and made additional orders as to responses and formal filing of an ET1 amendment application to which C’s representative had orally referred. Therefore my task today started with determining whether the amendment application should be granted and then moving on to determining the strike out/deposit order applications in that order. There was no application for an extension of time to validate late presentation of the discrimination claim. However, as possible lack of jurisdiction is a potentially determinative issue, I dealt with it anyway and then for the sake of completeness dealt with the strike out application on its own separate merits.[7]I recognised and advised the parties that if C’s application to amend were not granted, it may be necessary for me to consider the application of Rules 38 and 40 as referred to above. I gave both sides clear guidance as to what would need to be consider and gave C time to collect his thoughts and take advice before proceeding with his responses to the Rs’ submissions and my advice that Rules 38 and 40 may need to be considered.[8]Last, I noted that further and better particulars ordered by EJ Douse have not been provided by C. Instead, he has provided a witness statement and a letter dated 08 February 2023 from Westminster Adult Mental Health Services (PP107-108) referring to C’s state of health at that time (my emphasis added), and an Occupational Health Report (PP109-111) dated 6 September 2023 also referring to C’s health at that time. No further medical evidence is produced referring to the periods other than those limited periods upto the dates of both reports. C did not give evidence orally and thus could not be cross-examined, so all I had from him was a statement dated 05 July 2022 i.e. several days beyond the three month time limit for presenting a claim pleaded as the last act complained of which was 1 April 2022.[9]The unamended ET1 pleading is bland and lacks particularity both as to alleged facts and identification of the heads of claim framed under the EqA provisions. Unfair dismissal was originally claimed, but dismissal Judgment was signed in respect of this head of claim by EJ Andrews on 31 October 2024 on the basis that C did not have two continuous years qualifying service with either R, and it was confirmed on his behalf both at the preliminary hearing before EJ Douse on 15 September 2025 and here again today that he is not claiming automatically unfair dismissal. C’s claim as set out in the unamended ET1 is limited to unparticularised sexual orientation discrimination, but it does not clearly identify what form of prohibited conduct discrimination as defined in Chapter 2 EqA is the basis or bases of his claim.[10]The ET1 at Box 8.2 (P10) starts with reference to an event (an alleged assault) which occurred on 1 April 2022. It refers to aggression but not to any supposed causal link between the protected characteristic of sexual orientation as defined by S12 EqA and the alleged aggression. At best, C appears to make assumption but does not set out clear argument as to why his assumption should be relied upon. C then says he reported the assault to R2 on 2 April 2022 and to R1 on 5 3 of 10 April 2022, and that he then wrote a grievance letter 15 April 2022. He complains that the grievance was not dealt with for over a year and was ultimately unsuccessful as of 4 July 2023. He does not plead or say that these events were caused by or related to his sexual orientation, which appears to be relied upon purely and only as background and circumstance, not cause. He then says he was dismissed by R1 on 29 September 2023 without pleading cause being his orientation. He makes a leap of thinking to concluding that the dismissal was automatically unfair and does so without particularity. That complaint is now in any event redundant by reason of his concession. C even accepts in the ET1 that his claims are out of time. His pleading is, to say the least, defective at all levels of consideration and meaning. I note that it was prepared and filed by solicitors who were nominated to advise and represent him, which makes the flaws all the more stark.[11]I expected to see evidence of why C says today that he was not medically fit to plead his case more fully when he presented it or why he could not present in time. I expected to see evidence to support C’s solicitor’s response to the Rs’ application to strike out tending to show why they asserted they couldn’t take instructions. I was presented today with no such evidence in either case. The medical evidence was sought after the claim relating to the assault became out of time, and it does not bespeak an opinion as to C’s state of mind, based on observation as distinct from C saying so, before 1 July 2022. As best he could, Mr Downey submitted that C’s delay was caused by the Rs, but this completely ignores the fact obvious from the pleading that C had been instructing solicitors from a very early stage (see PP 112-113) indeed from the very same day of the alleged assault – AND - it also ignores the fact that Mr Downey could not point to case law supporting the proposition that delay by R absolves C from taking responsibility for his own delay. In any event I believe there to be none. Nonetheless in this respect as in all others, I applaud Mr Downey’s candour and valour in advancing such case as C had. Application of and relevant Rules & Authorities - Amendment[12]In considering an application to amend, the Tribunal must have regard to the overriding objective set out in what is now Rule 3 of the Employment Tribunals Rules of Procedure 2024 (“the Rules”) to deal with cases fairly and justly. Any such consideration should include: -12.1 Ensuring that the parties are on an equal footing.12.2 Dealing with a case in ways which are proportionate to the complexity and importance of the issues.12.3 Avoiding unnecessary formality and seeking flexibility in the proceedings.12.4 Avoiding delay, so far as compatible with proper consideration of the issues.12.5 Saving expense. 4 of 10 In applying these principles, I conclude that the parties are on equal footing as no suggestion has been advanced to the contrary, it would be disproportionate now and highly prejudicial to the Rs to allow major amendments now which come full three years after the events in question, and delay would ensue without saving of cost and expense in the Rs having to undertake considerable further statement preparation and witness engagement. C is fully responsible on what has been set before me for not referring to events before 1 April 2022 in presenting his case. The delay he attributes to R1’s postdates the events the subject of the amendment application. Furthermore, the evidence relied on to explain C’s delay is not as probative as he supposes, which I have already explained (para 11 above).[13]The Presidential Guidance on General Case Management 2018 further states: -13.1 The Employment Tribunal can allow amendments, but it will generally only do so after careful consideration and taking into account the views of the other parties. (Para 1, Guidance note 1)13.2 Generally speaking, minor amendments cause no difficulties. Sometimes the amendment is to give more detail. There may have been a typographical error, or a date may be incorrect. The Tribunal will normally grant leave to amend without further investigation in these circumstances. (Para 2, Guidance note 1)13.3 More substantial amendments can cause problems. Regard must be had to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. If necessary, leave to amend can be made conditional on the payment of costs by the claimant if the other party has been put to expense as a result of a defect in the claim form. (Para 3, Guidance note 1)13.4 In deciding whether to grant an application to amend, the Tribunal must carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment. (Para 4, Guidance note 1)13.5 Relevant factors would include: the amendment to be made…The Tribunal must decide whether the amendment applied for is a minor matter or a substantial alteration, describing a new complaint…Time limits…the Tribunal must consider whether that complaint is out of time and, if so, whether the time limit should be extended…The timing and manner of the application…A party will need to show why the application was not made earlier and why it is being made at that time. (Para 5, Guidance note 1)13.6 The Tribunal looks for a link between the facts described in the claim form and the proposed amendment. If there is no such link, the claimant will be bringing an entirely new cause of action. -In this case, the Tribunal must consider whether the new claim is in time. 5 of 10 -The Tribunal will take into account the tests for extending time limits: the “just and equitable” formula in discrimination claims; (Para 12, Guidance note 1) I have taken all the above into account.[14]In Chandhok v Tirkey [2015] ICR 527, Langstaff J (President in the EAT) held: Para 16 - "The claim, as set out in the ET1, is not something just 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, under the Rules of Procedure 2013, the claim as set out in the ET1." Thus, I infer (inter alia) that my starting point must be C’s pleading in his ET1 and that I am not allowed to expand into new heads of claim where they are not already identified and pleaded in the ET1. C has “nailed his colours to the mast” in expressing certain undetailed particulars “to the particular masts” of either possibly direct discrimination or harassment, but not to any other mast or head of claim recognised by the EqA. He presented his claim form on 26 December 2023 at a time when he had legal representation and access to advice. What he now seeks to add is in my judgement new facts, not elaboration or relabeling of an existing pleading. I am persuaded by Mr Midddleton’s submission on this point.[15]In Selkent Bus Company Ltd v Moore [1996] IRLR 661, the EAT held that, when faced with an application to amend, a Tribunal must carry out a careful balancing exercise of all the relevant circumstances and exercise its discretion in a way that is consistent with the requirements of "relevance, reason, justice and fairness inherent in all judicial discretions." The EAT considered that the relevant circumstances would include the nature of the amendment, the applicability of time limits and the timing and manner of the application. I have considered each of these factors and conclude that what C now seeks to add must have been known and discussed with his lawyers well over 3 months before presentation of the ET1. They are based on events preceding 1 April 2022 the date of the alleged assault. I deal with respective prejudice arguments below. Application of and relevant Rules & Authorities - Jurisdiction[16]With reference not only to the amendment application but also with reference to the question of whether I should exercise discretion and validate the ET1 and extend time, I am to have regard to the provisions of Section 123(1) EqA which provides as follows: - 6 of 10 “Proceedings on a complaint (under section 120) may not be brought after the end of –(a) the period of three 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.” In assessing whether it is just and equitable to extend time for a discrimination complaint, the Tribunal is entitled to consider anything that it deems to be relevant (Hutchinson v Westward Television Ltd [1977] IRLR 69). The Tribunal's discretion is as wide as that of the Civil Courts under section 33 of the Limitation Act 1980 (British Coal Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494)[17]The case law (of which I was already aware) and to which I directed the parties included the following: -16.1 Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 from which I note that the time limit for issue of proceedings “… is a jurisdictional and not a procedural issue … “which means that if a case is out of time and time is not extendable, the Tribunal simply has no power or jurisdiction to hear the claim;16.2 Palmer & Saunders v Southend BC [1984] IRLR 119 from which I note inter alia that I am to consider the substantial cause (if shown) of the Claimant’s failure to issue within the Primary Period, whether there was any impediment preventing issuing in time, whether or not the Claimant was aware of her right to issue a claim, whether the Respondent has done anything to mislead or impede the Claimant issuing her claim, whether the Claimant had access to advice, and lastly whether delay was in any way attributable to that advice.16.3 Robertson v Bexley Community Centre [2003] IRLR 434 from which I note that application of S123(b) involves the exercise of a discretion which is an exception rather than the rule; this point is augmented by the EAT’s decision in Simms v Transco [2001] All ER 245 which is authority for the proposition that whilst the fact a fair trial is impossible will most likely preclude extension of time, it does not follow that merely because a fair trial is still possible time should be extended – each case is fact specific;16.4 Afolabi v Southwark BC [2003] ICR 800 from which I note that it is my duty to ensure no significant circumstance is left out of my consideration when considering whether to exercise my discretion or not and also that if I fail to take account of prejudice to a Respondent of allowing a claim to proceed out of time, I will be in error. As can be seen above, I have concluded that C had no impediment of the kind he supposes which prevented him from presenting his complaints in time. If he were able to raise grievance, he has not explained satisfactorily why he could not present a claim to Tribunal. 7 of 10[18]Under Section 33(3) Limitation Act 1980, Courts (and Tribunals) are required to consider factors relevant to the prejudice that each party would suffer if an extension were refused, including as paraphrased by me:18.1 The length of and reasons for the delay.18.2 The extent to which the cogency of the evidence is likely to be affected by the delay.18.3 The extent to which the party sued had co-operated with any requests for information.18.4 The promptness with which the claimant acted once they knew of the possibility of taking action.18.5 The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action. Again, I refer to my findings above to show due consideration having been given to Section 33(3).[19]However, there is no legal obligation on the Tribunal to go through the list above, providing that no significant factor is left out (see Afolabi [2003] IRLR 220). The emphasis should be on whether the delay has affected the ability of the tribunal to conduct a fair hearing (DPP v Marshall [1998] IRLR 494). Application of relevant Rules & Authorities – Strike Out[20]I must also have regard for Rule 38(1)(a) of the Rules which provide that: - “at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim in response on any of the following grounds - that it is scandalous or vexatious or has no reasonable prospect of success “ I recognise that paragraph (2) provides as follows: - “a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations either in writing or if requested by the party at a hearing"[21]For the sake of completeness, I set out below the basis upon which I had to consider the position as far as set out in Rule 38(1): - 8 of 10 “At any stage of the proceedings, either on its own initiative or on the application of a party, a tribunal may strike out all or part of a claim or response on any of the following grounds –(a) that it … has no reasonable prospect of success - (my emphasis) ;(b) …..(c) for non-compliance with any of these Rules or with an Order of the Tribunal”;[22]I took account of the Court of Appeal’s finding in Swain v Hillman [2001] 1 All ER 91 in which it was held that a Court (or Tribunal in this case) must consider whether a party “ … has a realistic as opposed to fanciful prospect of success …” in the context of assertions, as in this case, that C’s case has no, as opposed to little prospect of success. In this case there is clearly on my examination no conflict of pleading on the key points such as would necessitate ventilation of evidence necessary to make factual findings on contested allegations at a full hearing. On C’s own pleading, there is only one factual dispute (i.e. as to whether the assault in question actually occurred) but otherwise, there are no other relevant factual disputes to be determined one way or another at a full hearing.[23]A v B (and another) [2011] ICR D9, CA - In this case the Court of Appeal held that a Tribunal was wrong to find a claim had no reasonable prospect of success basing this conclusion on a finding that on proper analysis it had “more than a fanciful prospect” of success. From this I derive a distinction between “no prospect” and no more than a “fanciful prospect.” If a point is clear cut to show that a case as pleaded is such that C simply does not set out a basis for asserting connection between orientation and discrimination, then C’s claims MUST be doomed to fail. I conclude that this is a clear example of no prospect as opposed to no more than a fanciful prospect of success.[24]Anyanwu (and another) v South Bank Students’ Union [2001] ICR 391. - In this case the House of Lords (Lord Hope especially) highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact sensitive and usually require full examination to make a proper determination. This is still dependent on how the claim is initially pleaded. If the pleading is fundamentally flawed as I have explained above, it can’t be remedied simply by the fact that it relates to alleged discrimination.[25]Anyanwu was followed by the Court of Appeal’s decision in Community Law Clinic Solicitors v Methuen [2012] EWCA Civ 571, in which it was held that and employee’s claim for age discrimination should not be struck out because the case required further examination of the facts so as to properly consider whether age discrimination could be inferred. C’s case before me today as currently pleaded is easily distinguishable from Methuen because though C has pleaded sexual orientation as a protected characteristic, he has not pleaded connection of causality between that and the discrimination he alleges occurred.[26]In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, the Court of Appeal again held that it will only be in an exceptional case that a claim will be struck out 9 of 10 as having no reasonable prospect of success when the central facts are in dispute. However, in the current case, C’s claim as pleaded and as responded to does not show that central facts are in dispute - BUT - I find that, as pleaded C’s claim shows a complete absence of pleading as to causation.[27]I considered the balance of prejudice facing C if I struck out his case leaving him with no further way of arguing here his views as to what has happened, or to both Rs if the case were not struck out causing them to have to devote considerable time and energy to meeting claims which on what I have seen and heard today, and also based on C’s admissions, have no prospect of success.[28]On this analysis, I conclude that the balance of prejudice favours both Rs leading me to conclude it is right I should strike out the claim and vacate the forthcoming Full Merits Hearing listing set for next year.[29]I have considered as an alternative to striking out some other form of finding which would permit C to proceed with his claim. However the cruciality of the need for him to have asserted up front in initially causal connection between orientation and the discrimination alleged in the face of both Rs’ clear responses is so central to his case that as he has not pleaded it, his case is fatally flawed from the start. Logic dictates that his claim is therefore doomed to fail at any hearing whatever order I make today. It is in the interests of justice and fulfilling the overriding objective to achieve finality where it is possible and necessary to do so, and I conclude that it is not in C's interests to pursue a claim which is doomed to fail.[30]For all the reasons set out above, I conclude that paragraphs (a) and (c) of Rule 38(1) is engaged and empowers me to strike out the discrimination claims in accordance therewith. Therefore, I find that I have no alternative but to dismiss the claim of alleged unlawful discrimination. The need for me to consider Rule 40 was obviated by my finding under Rule 38.