Mr D Neale v Mitie Ltd: 2309165/2024 and 2309166/2024
EMPLOYMENT TRIBUNALS
Case No 2309165/2024, 2309166/2024, 2301463/2023
Between
Mr D NealeClaimantMitie LtdRespondent
Before
Employment Judge MurdochIn person for claimantMiss Minto (instructed by counsel) for respondentDate 29 January 2026
JUDGMENT
[1]The complaints of direct disability discrimination and failure to make reasonable adjustments are struck out, as they are an abuse of process.[2]The complaint of holiday pay is dismissed on the basis that it is out of time.
REASONS
[1]The Claimant was employed by the Respondent, within the Mitie Telecoms sector, as a Surveyor, with effect from 16 November 2020 (the Claimant was transferred into the Respondent’s employment pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006) until 24 July 2024.[2]There are three relevant claims in this matter as follows:a. A previous claim 2301463/2023 was made on 2 April 2023(“the 2023 claim”) which was the subject of a four-day trial from 14-17 May 2024. The claim was dismissed.b. The first claim 2309166/2024 (formerly 6003833/2024) was made on 13 June 2024. The ACAS EC notification was 24 May 2024. The EC Certificate issued on 11 June 2024.c. The second claim 2309165/2024 (formerly 6011219/2024) on 10 September 2024. The ACAS Early Conciliation period began on 2 August 2024 and ended on 28 August 2024.[3]On 24 July 2024 the Claimant was dismissed by reason of redundancy.[4]By Order of 30 October 2024, REJ Khalil consolidated the two remaining live claims (2309165/2024 and 2309166/2024). Preliminary issues[5]The first preliminary issue I dealt with was reasonable adjustments. This is recorded in full in the Case Management Order that I have produced alongside this judgment.[6]In terms of paperwork, I did not have access to the same bundle and paperwork as the parties, so we spent some time at the outset making sure we were all working with the same documents, including a 426 page bundle.[7]The Claimant has sleep epilepsy and Autistic Spectrum Disorder (ASD). The Respondent has accepted that those impairments constitute a disability under section 6 EQA. Purpose of today’s preliminary hearing[8]There have been two prior Case Management Orders in this case: one issued on 23 June 2024 by Employment Judge Ramsden, and another on 25 July 2024 by Employment Judge Robinson.[9]A third preliminary hearing took place on 29 August 2025. I agreed with the parties at the outset that the purpose of this hearing was as follows:a. Consider and determine the Respondent’s strike-out application on grounds of abuse of process;b. Consider and determine the Respondent’s application, in the alternative, that the complaints are time-barred; andc. Conduct any further case management accordingly.[10]I heard oral representations from the Respondent and the Claimant first on the abuse of process point, and then on the time limit point. I adjourned to deliberate and then delivered my judgment on the two issues, before moving on to deal with case management for the remaining claims. Findings and conclusions[11]I have set out my findings and conclusions on the matters claim-by-claim. Unfair dismissal[12]The Respondent did not seek to strike out this claim on any grounds, did not contend that it was an abuse of process, nor did they argue that the claim was time-barred.[13]As such, the claim for unfair dismissal stands, and I see no reason to amend this section of the list of issues outlined in the Case Management Order dated 25 July 2024. Direct Disability Discrimination (section 13) 12.A party is prevented from raising issues before a court in new proceedings which could have been raised in separate, earlier proceedings, but were not, had the parties exercising reasonable diligence brought them forward at the time (Henderson v Henderson [1843] 3 Hare 100). 13.The Respondent’s representative pointed me to the recent case of Szucs v GreenSquareAccord Ltd [2025] EAT 110, where the EAT confirmed at para 27 that the Henderson v Henderson principle applies not only to matters existing at the time a claim is issued but also to events arising before the final hearing. Where facts are known and there is time to seek an amendment, failure to do so can render subsequent proceedings an abuse of process. It is no defence that an amendment might have been refused; the obligation is to bring the matter before the tribunal so it can decide whether to permit amendment or require a separate claim.[14]The Claimant’s claim under section 13 is that Respondent did not allow Claimant to return to work from 19 May 2023 to 24 July 2024, including not accepting the Occupational Health (OH) reports or Welfare Report recommending Claimant could return to work.[15]I find that the Claimant could have raised the claim under section 13 that he had been discriminated against because of his disability in the earlier claim but did not. The Tribunal in the 2023 claim was heard on 14-17 May 2024, therefore by that time 12 of the 14 months alleged had passed. Furthermore, the Tribunal in the 2023 claim had heard evidence on this matter. At para 57 of the Tribunal’s judgment, the OH report of 19 May 2023 is referred to. By the time of the trial, both OH reports complained of as instigating the Claimant’s cause of action had been made. The Claimant had time to seek an amendment, did not do so, and should have done so. 16.The Claimant’s claim of direct disability discrimination is therefore struck out on abuse of process grounds. Discrimination arising from disability (section 15)[17]The Claimant’s claim under section 15 is two-fold.[18]The first relates to dismissal. This part of the claim will remain in the list of issues.[19]The second related to whether Respondent treated Claimant unfavourably by ‘not allowing him to return to work from 19 May 2023 to 24 July 2024 including not accepting the OH Reports or Welfare Report recommending that the Claimant could return to work’. 20.As set out above, the Tribunal in the 2023 claim was heard on 14-17 May 2024, therefore by that time, 12 of the 14 months alleged had passed. Furthermore, the Tribunal in the 2023 claim had heard evidence on this matter, e.g. the OH report of 19 May 2023 is referred to at para 57. By the time of the trial, both OH reports complained of as instigating his cause of action had been made. The Claimant had time to seek an amendment, did not do so, and should have done so.[21]The Claimant’s claim of discrimination arising from disability is therefore partly struck out on abuse of process grounds. Failure to make reasonable adjustments (sections 20 and 21)[22]Claimant knew and took issue with the fact that he said reasonable adjustments were not made at the time of the last trial. As the Tribunal said: ‘that was not an allegation before this Tribunal.’ At the time of the trial, on the Claimant’s case, the PCP was not implementing the OH reports between May and December 2023. The Claimant could have brought this claim and/or raised it with the Tribunal in May 2024.[23]The Claimant’s claim of failure to make reasonable adjustments is therefore struck out on abuse of process grounds. Victimisation (section 27)[24]Claimant’s claim for victimisation is three-fold.[25]The first relates to dismissal. This is not in issue and this claim will therefore remain in the list of issues.[26]The second relates to not being allowed to return to work, which was, bar two months, known about by Claimant at the time of the trial.[27]The third relates to the ‘protected conversation’ of January 2023 which was also known about at the time of the instigation of the claim in April 2023 and thereafter.[28]The Claimant could have brought this claim and/or had time to seek an amendment, did not do so, and should have done so.[29]The Claimant’s claim of victimisation is therefore partly struck out on abuse of process grounds. Holiday pay[30]I find that the holiday pay claim is out of time. The Claimant by his claim form of 10 September 2024 makes a claim for holiday pay in respect of the calendar year 2023 (from January to December 2023).[31]The Claimant has three months plus the early conciliation extension to present his claim. We can infer that the basic time limit would be 31 March 2024. The date of presentation of the claim for holiday pay was the second claim, case number 2309165/2024, on 10 September 2024 in which Claimant says he was ‘Refused Holiday Pay’. This claim is therefore approximately six months out of time. The Claimant has not shown that it was not reasonably practicable for him to make a claim in time.
Summary
[32]In summary then, before the preliminary hearing today, the complaints were as follows:a. Unfair dismissalb. Direct Disability Discrimination (section 13)c. Discrimination arising from disability (section 15)d. Failure to make reasonable adjustments (sections 20 and 21)e. Victimisation (section 27)f. Holiday pay[33]As a result of the hearing today, after I made the above decisions on the abuse of process arguments and the out of time arguments, the remaining complaints are now as follows (for which I have issued a separate Case Management Order):a. Unfair dismissalb. Discrimination arising from disability (section 15)c. Victimisation (section 27) Approved by:
Summary
[1]By Rule 70 of the Employment Tribunal Procedure Rules 2024, the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.[2]An application for reconsideration shall be presented in writing (and copied to all of the other parties) within 14 days of the date upon which the written record was sent to the parties.[3]In this case the application for reconsideration was sent on 30 October 2025, which is 54 days after judgment was sent to the parties on 6 September 2025. The Claimant in this case has not therefore made an application for a reconsideration within 14 days of the date that the judgment was sent to him. His application is rejected on that basis. I do not consider that it is necessary in the interests of justice to consider the application in any event. Approved by:
Summary
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[3]The complaint of victimisation is not well-founded and is dismissed. Approved by: