Mr I D Plotog v Portable Battery Recycling Ltd: 2401221/2024 Mr I D Plotog v Portable Battery Recycling Ltd: 2401221/2024

EMPLOYMENT TRIBUNALS

Case No 2401221/2024

Between

Mr I D PlotogClaimant

Portable Battery Recycling LimitedRespondent

Before

Employment Judge Leach

In person for claimant

Date 20 June 2025

JUDGMENT

The claimant’s complaints(1) of harassment relating to comments alleged to have been made in December 2022 and

(2) of direct discrimination alleged to have taken place in June 2023; were presented outside of the time limits at section 123(a) Equality Act 2010. It is not just and equitable to extend time under section 123(b). Those complaints are therefore dismissed. The claimant’s remining complaints proceed to a final hearing. Approved by: Employment Judge Leach 20 June 2025 JUDGMENT SENT TO THE PARTIES ON 23 July 2025 FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ 2401221/2024 EMPLOYMENT TRIBUNALS Claimant: Mr I D Plotog Respondent: Portable Battery Recycling Limited Heard at: Manchester (in private) On: 16 June 2025 Before: Employment Judge Leach (sitting alone) Representatives For the claimant: In person For the respondent: Mr J Ellison, consultant Interpreter (Romanian): Ms A Marinescu JUDGMENT having been sent to the parties on 23 July 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided: REASONS - PRELIMINARY HEARING Introduction

[1]This public preliminary hearing was listed to decide whether the claimant’s complaints of harassment and direct discrimination should be dismissed on the grounds that they were presented out of time. Issues for this hearing

[2]At a preliminary hearing in January 2025 the Judge decided to list, for determination as a preliminary issue, whether the following complaints were presented in time:- 2401221/2024a. A complaint relating to payments made during a period of sickness in June 2023

b. Complaints relating to comments allegedly made to the claimant in December 2022. Previous Case Management orders

[3]The Judge at the preliminary hearing in January 2025 made various case management orders to ensure that evidence relevant to this preliminary issue (the time limit issue) was disclosed and that the parties and the Tribunal were ready for the hearing.

[4]The orders included ones providing for the disclosure of documents relevant to this preliminary issue and for the claimant to prepare and disclose (by 2 June 2025) a statement explaining why the claim form was not issued until it was.

[5]The claimant did not comply with the case management orders. Further, he attended the hearing today with no documentary evidence and no statement. Relevant Law - time limits.

[6]The claimant complains that the respondent was in breach of its obligations under the Equality Act 2010 (Equality Act 2010).

[7]Section 123 EqA provides that complaints may not be brought after the end of 3 months “starting with the date of the act to which the complaint relates” (s123(1)(a) EqA. This is modified by section 140B – providing for early conciliation.

[8]Section 123(1)(b) provides that claims may be considered outside of the 3- month primary time limit, provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable.”

[9]The EqA itself does not set out what Tribunals should take into account when considering whether a claim, which is presented out of time, has been presented within a period which it thinks is just and equitable. I note the following:-a. British Coal v. Keeble EAT 496/96 in which the EAT advised, when considering whether to allow an extension of time on just and equitable grounds, adopting as a checklist the factors referred to in s33 of the Limitation Act 1980. These are listed below:-

• the length of and reasons for the delay;

• the extent to which the cogency of the evidence is likely to be affected by the delay;

• the extent to which the party sued had co-operated with any requests for information.

• the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action. 2401221/2024

• the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

b. Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] ICR 283

EAT. This case noted that the issue of the balance of prejudice and the potential merits of the claim were relevant considerations to whether to grant an extension of time.

[10]I note the Court of Appeal judgment in the case of Robertson v Bexley Community Centre

[2003] IRLR 434

(particularly paragraph 23-25).

[11]As for the exercise of its power under section 123(1) I note the following passage from paragraph 25 of the judgment of Leggat LJ in Abertawe Bro Morgannwg University Local Health Board v. Morgan

2018 EWCA Civ 640

(“Abertawe”) the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.

[12]In Kumari v Greater Manchester Mental Health NHS Foundation Trust

2022 EAT 132

the claimant presented a claim alleging various breaches of the EQA 2010. They were presented out of time. The Employment Tribunal decided that it was not just and equitable to extend time, In reaching this, the Tribunal took some account of its view about the merits of the claimant’s complaints. The claimant appealed the judgment, particularly on the issue of whether merits should be taken into account when deciding whether or not to allow a claim, issued outside of the primary time limits, to proceed.

[13]The claimant’s appeal was dismissed. In dismissing the claimant’s appeal the Employment Appeal Tribunal (EAT) rejected the claimant’s argument that the Tribunal should not have taken account its view on the merits of the case when considering whether it was just and equitable to extend time. The EAT did note however that that the assessment of merits must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing, taking account of the fact that the tribunal does not have all the evidence before it, and is not at the stage conducting the trial. My Decision

[14]I need to consider whether it would be just and equitable to allow the claim to proceed. I note particularly in this case the guidance from the Court of Appeal in 2401221/2024 Abertawe that the absence of a good reason for the delay does not in itself mean that it cannot be just and equitable to allow the claim to continue.

[15]There is no evidence of a good reason for the delay. The claimant was provided with an opportunity to present that evidence in advance of the hearing (and he was ordered to) and did not do so. I have considered carefully the fact that the claimant is a litigant in person and whose first language is not English. But the claimant has decided it is important to bring these proceedings and to ask for justice through the Employment Tribunals. Having done that then it is incumbent on him to ensure that he complies with all case management orders in order to ensure a fair process and one which can proceed in ways that do not incur unnecessary expense and delay.

[16]I have considered whether there was anything preventing the claimant from issuing a claim form much earlier than he did and so ensuring that the claims were in time. There is no evidence of anything that prevented him from doing so. Whilst recognising that English is not the claimant’s first language, I note that he was able to issue the claim form when he did. There is no evidence of any change in his circumstances making him more able to proceed with ACAS early conciliation in December 2023 (leading to presentation of his claim on 23 February 2024) than prior to then.

[17]The claimant has told me he has been ill and that his grandparent recently passed away necessitating a visit to Romania. No dates or documentary evidence ( for example medical records) have been provided. These reasons indicate possible reasons for some delay but do not explain such a significant period of delay and why the claim was not issued until it was.

[18]If these claims proceed, there are evidential issues for the respondent. The complaints of race discrimination include complaints about things said orally in a workplace setting in December 2022. There was no complaint raised at the time and the evidence was not therefore captured within a reasonable time frame. The claimant did not detail what he says was said to him until his claim form in February 2024. He did not disclose the name of the person who is alleged to have made the comments until the case management hearing in January 2025.

[19]The other complaints of race discrimination relate to a decision not to make payments to the claimant whilst absent due to sickness in June 2023, over and above statutory sick pay. This complaint therefore is also significantly out of time.

[20]The claimant also told me that it is important to allow the claim to proceed because other discrimination has taken place against other employees. If that is so then those employees or former employees were/are entitled to bring claims. I did not accept that his submissions about other discriminatory acts means that it is just and equitable to extend time in this case.

[21]I note the claims of race discrimination are just some complaints that the claimant has made in this claim. The claimant is able to continue with other complaints and my decision does not prevent other complaints continuing to final hearing. The claimant is not prevented either from next proceeding with his application to amend the claim. 2401221/2024

[22]I have decided that the prejudice that would be caused to the respondent in allowing these complaints to proceed (particularly given the evidential issues) is outweighed by the prejudice to the claimant – who, as noted above, is entitled to proceed with the other complaints.

[23]Given these circumstances particularly the period by which these complaints are out of time, the evidential issues caused, the absence of a good reason for the delay and the claimants ability to pursue his other complaints; it is not just and equitable to extend time so as to allow these race discrimination complaints to proceed.

[24]Accordingly all complaints of direct race discrimination (contrary to section 13 Equality Act 2010) and harassment (protected characteristic race) brought under section 26 Equality Act 2010 are dismissed. Approved by: