Mrs B N Lisowska v SCA Investments Ltd: 2404919/2024

EMPLOYMENT TRIBUNALS

Case No 2404919/2024

Between

Mrs B N LisowskaClaimant

SCA Investments LtdRespondent

Before

Employment Judge Kenward

Ms K Annand (instructed by Counsel) for respondent

Date 26 February 2026

JUDGMENT

(1) The complaint of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of unfair dismissal is therefore dismissed.

(2) The complaint in respect of breach of contract as to notice pay was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of breach of contract as to notice pay is therefore dismissed.

(3) The complaints of direct disability discrimination contrary to Equality Act 2010 section 13 was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaints are therefore dismissed.

(4) The complaints of discrimination arising from disability contrary to Equality Act 2010 section 15 were not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaints are therefore dismissed.

(5) The complaint of indirect disability discrimination contrary to Equality Act 2010 section 19 was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaint is therefore dismissed.

(6) The complaint of a breach of the duty to make reasonable adjustments contrary to Equality Act 2010 sections 20 and 21 was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaint is therefore dismissed.

(7) The complaints of harassment contrary to Equality Act 2010 section 26 were not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaints are therefore dismissed.

(8) The complaint of indirect race discrimination contrary to Equality Act 2010 section 19 was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaint is therefore dismissed.

(9) The application to amend the Claim is refused.

REASONS

[1]This was a public preliminary hearing listed to consider the following issues:(1) whether any part of the Claim should be dismissed as out of time;

(2) the Respondent’s application to strike out all or part of the Claim on the basis of the complaints having no reasonable prospects of success and / or that the Claimant be ordered to pay a deposit as a condition of continuing all or any part of the Claim where any complaint had little reasonable prospect of success;

(3) the Claimant’s application to amend her Claim;

(4) listing the case for a final hearing and making any further Case Management Orders.

Background

[2]The Respondent is a meal kit retailer, trading as “Gousto”, which supplies customers with recipe kit boxes. The Respondent employs approximately 1,200 colleagues operating across two sites located in Warrington and Lincolnshire with its headquarters in London.

[3]The Claimant was employed by the Respondent as a Production Operative based at the Respondent’s site in Warrington from 2 May 2022 to 3 May 2024 when she was dismissed with the reason for dismissal given as gross misconduct.

[4]The alleged gross misconduct involved an allegation that, on 12 April 2024, the Claimant was observed eating food (nuts) on the factory ﬂoor in breach of applicable health and safety rules (in respect of food contamination). In addition, it was alleged that she was eating food that had been taken without permission so as to constitute theft under her employer’s disciplinary policy. Proceedings

[5]For the purposes of commencing proceedings, the Claimant notified ACAS of her prospective Claim on 16 June 2024. ACAS issued the early conciliation certificate on 28 July 2024. The ET1 Form of Claim was submitted on 16 September 2024. It is to be noted that the Claim Form was not submitted within one month from the date of the ACAS certificate. Given the dates of early conciliation, any complaint about something that occurred before 6 May 2024 would be outside the primary time limit of three months.

[6]At section 8.1 of the ET1 Form of Claim, the Claimant indicated that she was pursuing complaints of unfair dismissal, race discrimination, disability discrimination, harassment and failure to pay notice pay. In the Claim Form, at Box 11, she provided details of her representative, namely William Slivinsky of the Employment Law Consulting Group.

[7]On 31 March 2025, a preliminary hearing for case management was held by Employment Judge Porter.

[8]At this preliminary hearing, there was discussion as to formulating a List of Issues setting out the complaints to be determined by the Tribunal. The subsequent Record of a Preliminary Hearing recorded that the comments which has been made on behalf of the Claimant on the Respondent’s draft List of Issues were suggested by the Respondent to amount to the Claimant seeking to expand the issues beyond the allegations pleaded in the Statement of Claim, in particular by seeking to allege that disciplining the Claimant had amounted to discrimination arising from disability.

[9]The Respondent’s position was recorded as being that the Claim, as pleaded, contained no complaint of discrimination in relation to the termination of the Claimant’s employment. Employment Judge Porter clearly accepted that the Respondent’s position was correct and recorded that she agreed with the Respondent’s assertion that (if the Claimant was seeking to pursue such complaints), she would be required to make an application for leave to amend the Claim to include “these allegations under s15 Equality Act and those relating to the dismissal, appeal and disciplinary process”. It was made clear that any application for leave to amend must include the proposed amended grounds of complaint, indicating the type of discrimination which was being alleged and that the Respondent’s position was that the application for leave to amend would be opposed. The Record of a Preliminary Hearing noted that the list of complaints and issues could not be completed until any such application had been determined.

[10]The subsequent Record of a Preliminary Hearing set out the Case Management Orders made by Employment Judge Porter and listed a preliminary hearing on 11 July 2025 to determine the Claimant’s application to amend her Claim, the Respondent’s application to strike out the Claimant’s complaints on the basis that they had no reasonable prospects of success and the issue as to whether any complaint should be dismissed as being out of time. Depending on the outcome, consideration would then be given to further case management, listing the case for a final hearing and finalising a List of Issues.

[11]At paragraphs 38 and 39 of the Record of a Preliminary Hearing, Employment Judge Porter noted that the Claimant’s representative “asserted that the Claimant had recorded a number of meetings and the representative would need time to listen to those recordings and decide whether to copy them to the Respondent and rely on them in Tribunal”. The Respondent had stated that it was not aware of this as they were covert recordings. It was recorded that Employment Judge Porter stressed any such recordings “MUST be disclosed to the Respondent, whether or not they assisted the Claimant’s case”.

[12]Employment Judge Porter did not, at this stage, order general disclosure, but ordered that documents relevant to the preliminary issues should be disclosed and, if the recordings were relevant to the preliminary issues, then the Claimant must disclose them and transcripts would need to be provided.

[13]On 28 April 2025, the Claimant made her written application for permission to amend the Claim.

[14]The complaint of discrimination arising from disability in the Statement of Claim appeared to allege that the Claimant was subjected to unfavourable treatment “when she was required to work in all sections of the business”. The something arising in consequence of the Claimant’s disability had been stated to be her “inability to work in all sections of the Respondent’s business, because of her disability”.

[15]The application to amend the Claim sought to amend the complaint of discrimination arising from disability so that the grounds of complaint were as set out below. “1. The Claimant asserts that she was treated unfavourably by the Respondent during her employment, including during the investigation and decision to dismiss her, due to something arising from her disability, in violation of the Equality Act 2010, section 15. 2. The Respondent requires all employees to be able to work in all sections of their business. However, this requirement disproportionately impacts the Claimant due to her disability, which significantly impairs her ability to climb stairs, and access the toilet or canteen. 3. The Claimant's inability to work in all sections of the Respondent’s business arises as a consequence of her disability. The Respondent has not provided any justification for this requirement during the material time of the Claimant's employment. 4. The Claimant was sanctioned for eating at her workstation when she was unable to go to the canteen to administer medication and have some food due to her disability. The Respondent's treatment of the Claimant was not a proportionate means of achieving a legitimate aim, neither during her employment nor throughout the disciplinary procedure. 5. The Respondent failed to consider reasonable adjustments that could have accommodated the Claimant's disability, thereby disregarding the Claimant’s needs and the effective cause of her conduct. 6. The Respondent's actions constitute unfavourable treatment arising from the Claimant's disability, and the Respondent cannot demonstrate that such treatment was a proportionate means of achieving a legitimate aim”.

[16]On 13 May 2025, the Respondent filed its written application to strike out the Claim or, in the alternative for a Deposit Order to be made. On 2 June 2025, the Claimant filed a document setting out the grounds upon which she objected to these applications.

[17]Also, on 2 June 2025, the Claimant filed a document headed as setting out the grounds upon which she asserted that the Claim was not presented out of time and the grounds upon which she was applying (if necessary) for an extension of time. In fact, the document did not seek to contend that the Claim had been presented in time (save on the basis that any discretion as to time limits should be exercised in the Claimant’s favour).

[18]The Claimant had also provided further information as to her complaints, in compliance with the Case Management Orders of Employment Judge Porter.

[19]Prior to the preliminary hearing listed for 11 July 2025, the Claimant had made an application to postpone the hearing and / or for Unless Orders to be made, on various grounds, including alleged non-compliance with Case Management Orders by the Respondent.

[20]The application to postpone had been considered, on the papers, by Employment Judge Barker. By letter dated 8 July 2025, her decision was notified to the parties as being that the “hearing is not postponed, and an Unless order is currently refused, but the Claimant’s representative should address the Tribunal on what he says the issues are at the start of the hearing”.

[21]At 9.43 am on 11 July 2024, 17 minutes before the hearing was due to commence, the Claimant made a further application to postpone the hearing, both on the grounds of alleged continued non-compliance with Case Management Orders by the Respondent and on the ground that the Claimant was not medically fit to attend the hearing. No medical evidence was provided but the information was given that the Claimant was “currently awaiting urgent medical treatment”. The e-mail also applied for further Case Management Orders to be made.

[22]The Tribunal decided to postpone the determination of the preliminary issues identified by Employment Judge Porter on the basis that it was in the interests of justice to do so due to the Claimant’s non-attendance and the stated reasons for that non-attendance. The Tribunal was not satisfied that the other grounds for seeking to postpone the hearing were well-founded. A decision as to whether to postpone had to be made at a point in time when the medical evidence as to the reasons for the Claimant’s non-attendance had not been provided and making further enquiries as to when such evidence might be available and awaiting the outcome of those enquiries seemed likely to place the Tribunal in a position where there was insufficient time any way to deal with the issues for which the hearing had been listed.

[23]In e-mailing the outcome of the postponement application, the Tribunal ordered that the Claimant “should send to the Tribunal and the Respondent, by 25 July 2025, medical evidence as to not being fit to attend the hearing on 10 July 2025 (sic) and as to any medical reasons for being unfit to attend the hearing”. The reference to the date of the hearing as 10 July 2025 was an error, and it was subsequently confirmed that the Claimant was required to provide the medical evidence described above in relation to her non-attendance at the hearing on 11 July 2025. In so far as might be necessary, the time for providing this medical evidence was extended so that the Claimant was ordered to provide this medical evidence within 14 days of this Record of a Preliminary Hearing being sent to the parties.

[24]The postponed preliminary hearing was relisted to take place, before an Employment Judge, sitting alone, at 10.00 am on 26 November 2025, with an estimate of 1 day, at Manchester Employment Tribunal, with the Tribunal to arrange for the attendance of a Polish interpreter.

[25]In relisting the case, the Tribunal made further Case Management Orders and also dealt with the applications made by the Claimant for further Case Management Orders. The subsequent Record of a Preliminary Hearing provided reasons for the decisions on the various applications.

[26]The Record of a Preliminary Hearing also noted that, in her Statement of Evidence for the preliminary hearing, the Claimant relied upon not speaking English and the subsequent language barrier as a relevant factor in whether any time limit should be extended. Any recording made by the Claimant of her participation in any meeting conducted by the Respondent was likely to be of assistance in assessing the extent to which the Claimant’s language difficulties were a material factor. As such, the Tribunal had been satisfied that any such recordings were likely to be relevant and should be disclosed with a transcript of what was said.

[27]In the event, despite the Respondent pressing for disclosure of any recordings or transcripts, none had been disclosed. The Respondent was inviting the Tribunal to infer that the reason that the recordings had not been supplied is because they do not assist the Claimant’s case. Preliminary hearing on 26 November 2025

[28]At the preliminary hearing on 26 November 2025, it was agreed that, after the Claimant had given evidence, the applications before the Tribunal would be considered together given that there were some overlapping issues, information provided in relation to one application might be relevant to another and it would be consistent with the overriding objective to consider the position as a whole.

[29]Both representatives had provided detailed written submissions in advance of the preliminary hearing. The Respondent’s written submissions were those which had been drafted in advance of the previous preliminary hearing on 11 July 2025. The Claimant’s written submissions were dated 25 November 2025. There was the opportunity for further oral submissions to be given after the Claimant had given evidence. At this stage, Mr Slivinsky relied upon the submissions which are already been provided in writing. In her oral submissions, Ms Annand effectively took the Tribunal through the points made in her written submissions in the same order, supplementing her written submissions by reference to the documentation which had been generated and the evidence given since the submissions have been drafted. At the close of the Respondent’s oral submissions, at 3.50 pm, Mr Slivinsky sought to submit further written submissions. When asked as to the matters which he wished to address in any further written submissions, he explained that this would be limited to referring to the medical records which he suggested he had not been able to refer to by way of re-examination of the Claimant. In the circumstances, it was agreed that, instead, there would be a short adjournment until 4.15 pm on the basis that Mr Slivinsky accepted that this would be sufficient to enable him to deal with the medical evidence to which he wanted to refer the Tribunal in the Bundle. Mr Slivinsky then took the Tribunal through this medical evidence as well as commenting further upon the Respondent’s submissions in his oral submissions which concluded at 4:40 pm.

[30]In the circumstances, there was insufficient time for the Tribunal to deliberate and provide a reasoned decision orally, so that the decision was reserved on the basis that it would be given by way of a Judgement in writing with written reasons.

Evidence

[31]The Tribunal was provided with a Bundle of 465 pages which had originally been prepared for the hearing on 11 July 2025. In addition to this Bundle, for the hearing on 26 November 2025, there was a supplementary Bundle of 148 pages. The Bundles included medical documentation disclosed by the Claimant.

[32]The Claimant provided a Statement of Evidence, as directed to do so, and gave oral evidence which included being cross-examined on behalf of the Respondent and re-examined at length by Mr Slivinsky. Relevant history from the Statement of Claim

[33]In the Statement of Claim, both at the beginning and at the end, the Claimant set out the complaints that she was making, as set out below:(1) direct discrimination contrary to section 13 of the Equality Act 2010;

(2) discrimination arising from disability contrary to section 15 of the Equality Act 2010;

(3) indirect disability discrimination contrary to section 19 of the Equality Act 2010;

(4) breach of the duty to make reasonable adjustments contrary to section 21 of the Equality Act 2010;

(5) harassment contrary to section 26 of the Equality Act 2010;

(6) indirect race discrimination contrary to section 19 of the Equality Act 2010.

[34]The complaints of unfair dismissal and in respect of notice pay were not specifically listed in the Statement of Claim but the extended narrative at paragraph 1 had described the dismissal as unfair and denied the gross misconduct which had been the basis for dismissing without notice.

[35]At paragraph 1.2 of the Statement of Claim, it was alleged that the Claimant is unable to understand or pronounce a single word in English other than “hello” or “thank you”. It was also alleged she “cannot walk, climb stairs, or bend her body and requires daily assistance since 4 August 2023”.

[36]At paragraph 1.6 of the Statement of Claim, it was further alleged that the Claimant became disabled on 4 August 2023 when she hurt her back at work due to lifting trays of approximately 12 kg for an entire shift without any rotation. This was reiterated at paragraph2.1 of the Statement of Claim where it was stated that, since the Claimant suffered from “bodily harm” on 4 August 2023, “she cannot walk, bend, stand longer than 10-50 minutes”. Paragraph

2.2 of the Statement of Claim stated that the Claimant’s condition had been diagnosed as mechanical sciatica.

[37]At the preliminary hearing on 31 March 2025, the Claimant had described this as a misdiagnosis. The Claimant confirmed that the physical impairment was sciatica / compression of the spinal cord.

[38]According to the Statement of Claim, the Claimant had returned to work on 9 October 2023.

[39]Paragraphs 1.19 to 1.21 of the Claimant’s Statement of Claim stated that, on 12 April 2024, the Claimant needed to take 12 tablets throughout her shift, she had to eat something when she took her pills and as she was unable to walk from her position to the toilet or the canteen, she was forced to swallow her medication on the production line.

[40]In the Statement of Claim, it was then stated that, at 12.30 pm, on 12 April 2024, the Claimant was invited to an investigation meeting. She was accused of having eaten on the production line and, further, that the food she had eaten had belonged to the Respondent (see paragraph 1.22).

[41]The Statement of Claim suggested that the Respondent did not have grounds to believe the Claimant had committed theft and stated that the Claimant believed that it was malicious retaliation for her “acting on her rights in [terms] of her disability” and race discrimination because she is Polish and she does not speak English (paragraph 1.23).

[42]Paragraphs 1.25 to 1.26 of the Statement of Claim dealt with the Claimant’s dismissal in the terms set out below. “1.25. Effectively, as all her lines of [enquiries] were dismissed by the Respondent she was dismissed with effect from 3rd of May 2024. The Respondent to avoid admission [of] failure to do reasonable adjustment of extra breaks for medication, did not dismiss the Claimant for eating on the line but for unfounded claims of theft of two 20g packs of nuts belonging to the Respondent. The Claimant is 65, wears dentures and does not eat nuts. 1.26. Although the dismissal was with effect from 3rd of May 2024, it is not the Effective Date of Termination. The Claimant on that day had a disciplinary hearing but the standard procedure was not followed. Claimant was told she may have been dismissed but the outcome of the meeting was not communicated to the Claimant together with the right of appeal until 9th of May 2024. On that day the Claimant received P45 via email, with the termination date 3rd of May 2024, this was first time she learnt to have been dismissed. She had not, however, been fully aware of her dismissal, as the outcome was still not communicated to her. She was only informed via email that she had had right to appeal the decision, thus she emailed her appeal to the Respondent the same day, in was returned [sic], Claimant was advised to follow the outcome letter instructions that had not been provided to her until 24th of May 2024. It is [seen] as deliberate attempt by the Respondent to outdate the Claimants claims of discrimination and unfair dismissal. She was not supported by a solicitor and effectively lost significant amount of time. On 24th of May 2024 the Respondent provided the Claimant with the outcome letter. Having received it, the Claimant filed additional information to support her appeal letter dated 9th of May 2024 which eventually was sent to correct addressee. On 13th of June 2024 the Claimant had her appeal, the appeal was [not] upheld”. Complaints of direct discrimination

[43]The Claimant’s complaints of direct discrimination (as particularised in the Claimant’s Statement of Claim at paragraphs 3.1.1 to 3.1.5) were that she was subjected to less favourable treatment because of her disability “each time she was placed on clarification 0 and 1, without a chair or when she was told off not to use it”. It was stated that “there had been multiple incidents of this nature, the last incident took place on 12 April 2024”.

[44]In terms of the time limit, the Claimant alleged the last act of less favourable treatment took place on 12 April 2024. It follows that the last day for notifying ACAS of the prospective Claim was 11 July 2024. The Claimant contacted ACAS on 16 June 2024, and the certificate was issued on 28 July 2024. However, the Claim Form was submitted on 16 September 2024 and not within one month of the date of the ACAS certificate. There were 42 days between 16 June 2024 and 28 July 2024 so that the Claimant therefore benefits from an extension of time of 42 days from 11 July 2024 so that the time limit expired on 22 August 2024. The Claim was issued on 16 September 2024. Therefore, the Claimant’s complaints of direct discrimination, if considered on their own, were (at least) 25 days out of time. Complaint of discrimination arising from disability

[45]The Claimant’s complaint of discrimination arising from disability (as particularised in the Claimant’s Statement of Claim at paragraphs 3.2.1 to 3.2.4) was that she was subjected to unfavourable treatment “when she was required to work in all sections of the business” with it being stated that the “something arising in consequence of her disability was her inability to work in all sections of the business”.

[46]In terms of the time limit, the Statement of Claim did not specify when the alleged unfavourable treatment occurred. However, the Claimant was suspended from 18 April 2024 until her dismissal on 3 May 2024. Therefore, the last day that she could have been subjected to this alleged unfavourable treatment was 18 April 2024. It follows that the last day for notifying ACAS of the prospective Claim was 17 July 2024. Applying an extension of time of 42 days in respect of the period of early conciliation would have extended the date that the time limit for issuing proceedings expired until 28 August 2024. The Claim was issued on 16 September 2024. Therefore, the Claimant’s complaints of discrimination arising from disability, if considered on their own, were (at least) 19 days out of time. Complaint of indirect disability discrimination

[47]The Claimant’s complaint of indirect disability discrimination (as particularised in the Claimant’s Statement of Claim at paragraphs 3.3.1 to 3.3.4) was that the Respondent applied a provision, criterion or practice (“PCP”) of requiring all members of staff to work in all sections of the Respondent’s business which placed the Claimant “at a disadvantage because of her disability”, although no particular disadvantage was identified in the Statement of Claim.

[48]In terms of the date from which any time limit ran, the Statement of Claim did not specify when the alleged particular disadvantage arose. However, given that the Claimant was suspended from 18 April 2024 until her dismissal on 3 May 2024, the last day she could have been subjected to this requirement was 18 April 2024 (the same date from which the time limit ran for bringing a complaint of discrimination arising from disability). Therefore, the Claimant’s complaint of indirect disability discrimination, if considered on its own, was (at least) 19 days out of time. Complaint of failure to make reasonable adjustments

[49]The Claimant’s complaint of a failure to make reasonable adjustments (as particularised in the Claimant’s Statement of Claim at 3.4.1 to 3.4.4) was that the Respondent applied a PCP of requiring all members of staff to work in all sections of the Respondent’s business, although the Statement of Claim did not identify the substantial disadvantage in issue or the reasonable adjustment(s) which should have been made (unless the reasonable adjustment in issue is that of allowing “the Claimant to work in an environment that is conducive to the requirements of her disability”, as set out at paragraph 3.4.3 of the Statement of Claim).

[50]In terms of the date from which any time limit ran, the Statement of Claim did not specify when the alleged substantial disadvantage arose or when any alleged reasonable adjustments should have been made. The date of the breach of duty (for the purposes of calculating when any time limit begins to run) would be when the Respondent did an act inconsistent with complying with the duty or, if the Respondent had not acted inconsistently with the duty (which is not the Claimant’s case here), the notional date would accrue at a stage where it would be reasonable for the Claimant to conclude that the Respondent would not comply, based on the facts known to the Claimant. In other words, the omission will have ceased to be a continuing cause of action. Here, the Claimant’s case is effectively that the Respondent was continuing to act inconsistently with the duty so that the cause of action must have arisen before her suspension on 18 April 2024. Therefore, on this analysis, the last day from which the time limit potentially ran would have been 18 April 2024. Indeed, it seems rather more likely that any cause of action crystallised well before this date. If this analysis is wrong, then clearly any time limit cannot have run from a date later than the dismissal. Complaints of harassment related to disability

[51]The Claimant’s complaints of harassment related to disability (as particularised in the Statement of Claim at 3.5.1 to 3.5.7) placed reliance on the alleged unwanted conduct on the part of the Respondent as set out below:(1) in the welfare meetings held between January and May 2024 demanding that the Claimant “declare to have not been disabled anymore” and questioning her disability in a derogatory manner (in fact, when the Claimant was ordered to provide further information about this complaint, it became a complaint about the investigatory and disciplinary meetings stated to have taken place on 24 April 2024, 26 April 2024 and 3 May 2024, with the questioning the Claimant about her disability in a derogatory manner specifically relating to a disciplinary hearing on 3 May 2024);

(2) not providing an interpreter for the welfare meetings so that the Claimant was not able to duly defend herself and was distressed;

(3) putting pressure on the production floor supervising team members to demand that the Claimant work on without reasonable adjustments;

(4) production floor supervising team members resonating a negative attitude towards the Claimant and telling off the Claimant in front of other workers, for using a chair;

(5) production floor supervising team members demanding of the Claimant in an “erethic manner” to accept placement on clarification level 1, with other workers also being present;

(6) derogatory and judgemental approach towards the Claimant’s disability throughout investigation meetings into malicious allegations and throughout the disciplinary hearing on 3 May 2024.

[52]In terms of the date from which any time limit ran, the Claimant alleges the last act of harassment occurred on 3 May 2024. It follows that the last day for notifying ACAS of the prospective Claim was 2 August 2024. Applying an extension of time of 42 days in respect of the period of early conciliation would have extended the date that the time limit for issuing proceedings expired until 13 September 2024. The Claim was issued on 16 September 2024. Therefore, the Claimant’s complaints of harassment were (at least) three days out of time (on the basis of the last act of harassment alleged). Complaint of indirect discrimination on grounds of race

[53]The Claimant’s complaint of indirect discrimination on grounds of race (as particularised in the Statement of Claim at paragraphs 3.6 to 3.10), was that the Respondent applied a PCP of “requiring all staff … to have welfare appointments in English without a relevant interpreter”. It is alleged this put the Claimant at a particular disadvantage, but that disadvantage is not identified although the dates on which the alleged indirect discrimination occurred are given as 23 January 2024, 11 March 2024 and 27 March 2024.

[54]In terms of the date from which any time limit ran, taking the last date given, which was 27 March 2024, it follows that the last day for notifying ACAS of the prospective Claim was 26 June 2024. Applying an extension of time of 42 days in respect of the period of early conciliation would have extended the date that the time limit for issuing proceedings expired until 7 August 2024. The Claim was issued on 16 September 2024. Therefore, the Claimant’s complaints of indirect race discrimination were (at least) 40 days out of time (on the basis of the last date given for indirect race discrimination. Complaint as to dismissal

[55]If the date of dismissal was 3 May 2024, then the primary time limit expired on 2 August 2024. Applying an extension of time of 42 days in respect of the period of early conciliation would have extended the date that the time limit for issuing proceedings expired until 13 September 2024. Therefore, any complaint of unfair dismissal was three days out of time. Latest date for expiry of time limit

[56]As the first preliminary hearing, Employment Judge Porter had concluded, as confirmed in the Record of a Preliminary Hearing, that the Claimant’s Statement of Claim did not include any allegation that her dismissal was discriminatory under any of the heads of complaint which were particularised in detail and did not complain about any matters which occurred after her dismissal.

[57]On the basis that the Claimant’s employment had terminated on 3 May 2024, it followed that all of the Claimant’s complaints were out of time.

[58]Employment Judge Porter had made it clear that if the Claimant wished to make any complaint in respect of any post-termination cause of action, including in relation to her appeal against dismissal, she would need to make an application to amend her Claim. Claimant’s case as to time limits

[59]In the Claimant’s Statement of Evidence, she asserted that “my dismissal was not an isolated incident but the final act in a continuous course of discriminatory treatment, including repeated failures to make reasonable adjustments for my disability, harassment linked to my health condition, and indirect race discrimination because of my lack of English and my need for a Polish interpreter” (emphasis added).

[60]In this Statement of Evidence, the Claimant accepted, at paragraph 5, that the time limit for bringing her Claim expired on 13 September 2024 (which presupposed that there was a continuing cause of action in respect of discrimination until 3 May 2024). Even on this basis, her Claim was out of time.

[61]In her Statement of Evidence at paragraph 6, the Claimant further asserts that it was not reasonably practicable for her to submit her Claim in time, “because of my severe health conditions, the adverse effects of medication, my limited English, lack of family support, misleading advice from ACAS, and the Respondent’s conduct”.

[62]Prior to the preliminary hearing on 31 March 2025, in proposed amendments to the draft List of Issues, the Claimant’s representative had described the position of the Claimant as set out below. “The Claimant is vulnerable, new to the country, totally unable to communicate in English, she was misadvised by ACAS or not told of the time limit when she contacted them in May 2024. She has not family to turn to, her only son works night shifts, is only breadwinner of his family, lives away of the Claimant, his wife is of Chinese origin, and she and grandchildren speaks English and Chinese. Local CAB does not provide interpreters. Additionally, the Claimants, physical impairments its very toxic treatment, high BMI and uncontrolled infections affected the Claimant cognitive and intellectual functions”.

[63]In the Case Management Agenda completed by the Claimant’s representative on behalf of the Claimant, before the preliminary hearing on 31 March 2025, the position of the Claimant was further described as set out below. “Furthermore, it was not reasonably practicable to bring the claim earlier because the Claimant is vulnerable, has no knowledge of English, has no family to turn to for advice, and has limited access to local services such as the Citizens Advice Bureau due to cuts in the provision of interpreters, which the Respondent also implemented during the material time. Additionally, the Claimant suffers from intellectual deficiencies due to age and cognitive functioning issues due to pain and extensive medication causing confusion and inflammation or infection, with the last serious infection occurring at the beginning of August 2024. All these factors also impacted her ability to provide all necessary information to her adviser, who speaks the same language, and whom she only managed to find post-dismissal. On 7th of May 2024 Claimant was provided with interpreter by ACAS but was advised to gather documents from Respondent who would delay it, ACAS did not explain the Claimant time limits”.

[64]In the Claimant’s document entitled “Grounds upon which the Claimant applies for necessary extension”, the Claimant’s representative further set out the position as set out below.(1) “In March 2024, the Claimant contacted ACAS for the first time. An interpreter was provided, and the Claimant shared details of her situation with the Respondent. Full details were given, but the Claimant was not advised of the time limits. Instead, she received an email from ACAS on 25 March 2024 advising her to wait for contact from a relevant team, which never followed up with the Claimant”.

(2) “It was only around 16 June 2024 that the Claimant began to feel better and contacted a bilingual employment consultant, who registered her claim with ACAS. The certificate was issued on 28 July 2024 when the Respondent refused to engage in Early Conciliation. During this time, the Claimant was experiencing an adverse reaction to the medication and was going through major health concerns. Her cognitive functions were severely affected, and she was unresponsive, dysfunctional, and fighting for her life, particularly during August and early September 2024”.

(3) “On 10 September 2024, doctors determined that the major deterioration in her condition was due to an adverse reaction to amitriptyline, which had been increased in March 2024. This was confirmed by abnormal blood test results. The Claimant was dysfunctional, particularly through August and early September 2024, and it was not reasonably practicable for her to bring the claim within the prescribed time limit”.

[65]In the Claimant’s Statement of Evidence, at paragraphs 7 and 8, she sets out that she has physical disabilities. At paragraphs 9 and 10 of her Statement of Evidence, the Claimant further sets out that, from July 2024 to early September 2024, she suffered an adverse reaction to her medication (of amitriptyline) which meant she was “unable to think clearly or communicate effectively”. She claims she was called on 10 September 2024 and told to stop taking amitriptyline. She states that she “stopped the medication immediately and my condition began to stabilize, however, in July and August I was in a critical state not functioning at all”. This timeframe was expanded at paragraph 17 of her Statement where, as part of the timeline, she says that “July – early September 2024: I was unable to act due to severe adverse reactions to Amitriptyline”.

[66]At paragraphs 18 and 19 of her Statement, the Claimant describes the position having immediately stopped the medication upon the advice of her GP on 10 September 2024, as set out below. “18. 10 September 2024: Blood tests confirmed the adverse reaction. My GP urgently called me for review, and I stopped the medication immediately. 19. Shortly after: Once I regained capacity, I instructed a bilingual employment consultant, who had started Early Conciliation, and submitted my claim as soon as possible”.

Findings of fact

[67]One of the issues raised by both sides is that of the extent to which the Claimant was able to speak English. In the Claimant’s Statement of Claim, it was stated that the Claimant can only say “hello” and “thank you” in English. At the initial preliminary hearing, it was explained on behalf of the Claimant that she had covertly recorded meetings with the Respondent. Such recordings would potentially have provided evidence as to the extent to which the Claimant had any proficiency in English. Despite being ordered to do so, the Claimant has not produced any such recordings or transcripts of recordings.

[68]The Respondent pointed out that the notes of various welfare meetings in the Bundle had been prepared on a template form which provided for the name of any companion or translator in attendance to be inserted with “NA” being inserted for the meetings in 2024. Thus, from the record of those in attendance at the meetings, the Claimant was in attendance without someone to translate from English to Polish for her. Indeed, this was consistent with her Statement of Claim in which one of the complaints was that failing to provide an interpreter at these meetings amounted to harassment. Despite this, the Claimant was recorded, in the notes of these meetings, as having given reasonably detailed answers.

[69]On 23 January 2024 the Claimant attended such a welfare meeting with Irina Lopez (Production Supervisor) and Sophie Kennah (Employee Relations Adviser), but no companion or translator was recorded as being in attendance. It is to be noted that the Claimant explained that she had applied to register with a GP on 7 December 2023 which had taken almost two months as she had only just got an appointment for 1 February 2024. Much of the meeting was spent discussing the Claimant’s sciatica and identifying the duties that she could not do.

[70]On 28 February 2024, the Claimant saw her GP and was given an increased dose of amitriptyline.

[71]On 11 March 2024, a further welfare meeting took place with Callum Wilcock (Production Supervisor) and Sophie Kennah. Again, there was no companion or translator recorded as being in attendance and the Claimant was recorded as giving similarly detailed answers. She did say that her son talked on her behalf to her GP. There was also a reference to having been given medication which she thought was for sciatica but found out that it was depression, having had it translated.

[72]On 18 March 2024, the Claimant’s GP spoke to her son, who relayed that the Claimant had tried the increased dose of amitriptyline, but she could not tolerate it and so stopped taking the medication.

[73]On 27 March 2024, the Claimant had a further welfare meeting with Callum Wilcock and Sophie Kennah, with no companion or translator recorded as being in attendance. The meeting was to discuss fit notes which had been provided. There were two separate fit notes from separate doctors. There was a fit note which was described by the Claimant as being from the “Polish clinic” which was advising amended duties indefinitely and another fit note from the “GP I go to locally” which was advising amended duties until 29 April 2024.

[74]The Bundle did contain a photograph of the fit note dated 17 March 2024 from the Polish clinic which was advising no climbing stairs or lifting loads over 5 kg. The stamp on the fit note identified the medical practice as being “Poland Medical” which was described as a private medical clinic based in Coventry.

[75]When asked which fit note was accurate in terms of the end of amended duties, the Claimant’s answer referred to that from her local GP. The conversation between Callum Wilcock and the Claimant appeared to be proceeding in English because a point is reached, in the note of the meeting, where Callum Wilcock asks “do you not think you will be able to pick and decant again in the future” to which the Claimant replies “I don’t understand Callum” at which point Sophie Kennah asks “[can] we translate?”

[76]On 17 April 2024, the Claimant’s GP notes confirmed that she had stopped taking amitriptyline as she could not tolerate it. Reference was made to the GP having been told that the Claimant was currently taking medication (the name of which was not known) prescribed by a private Polish doctor with her pain being managed better by this medication having been prescribed.

[77]Investigatory meetings with the Claimant took place on 12 and 18 April 2024 with these being conducted by Nolan Timmins. In her oral evidence, the Claimant accepted that she had recorded one of these meetings. She was asked if she had provided the recording to Mr Slivinsky and answered that she had let him hear it on the telephone. She was asked if she had provided the recording to Mr Slivinsky and said that she had not done so, with the reason given that she was now unable to locate it.

[78]On 26 April 2024, the Claimant attended a disciplinary hearing. The notes of the meeting confirmed that the Claimant did have a colleague as a translator. However, the notes of the hearing seemed to record the Claimant (rather than the translator) saying “I won’t understand anything because I don’t really speak English” and “I only really know a few words I need to speak at work”, to which she added that it “won't help me if you speak slowly”. The translator then added that the Claimant “says she understands some words but not everything”.

[79]The disciplinary hearing lasted approximately an hour and a half and was then adjourned to be reconvened on 3 May 2024 with the same translator in attendance. After a further 43 minutes, the meeting was adjourned for just over an hour for the decision-maker to arrive at his decision. When the hearing was reconvened, the disciplinary findings were explained and the decision announced as recorded in the notes of the meeting and as set out below. “As a result, my decision is to summarily dismiss you due to Gross Misconduct. Your termination date is 3 May 2024. You will receive contact from me in writing conﬁrming what we have discussed today”.

[80]In her oral evidence, the Claimant accepted that the decision was announced in the meeting. Written confirmation of the decision was provided on the same date by way of an e-mail sent to the Claimant.

[81]On 9 May 2024, the Claimant appealed. The e-mail is written in comprehensive English. The Respondent makes the point that either the Claimant wrote this herself or she had the assistance of someone who wrote English to a high standard. The Tribunal considered that it was more likely to be the latter.

[82]On 21 May 2024, the Claimant wrote an e-mail regarding a request to have a professional interpreter booked for the appeal meeting. The e-mail was sent from the Claimant’s e-mail address and is phrased as if it was written by the Claimant, but it was clearly drafted by Mr William Slivinsky who is described by his e-mail footer as providing paralegal and advocacy services and as being licensed in this regard. Thus, from the documentation in the Bundle, it is clear that, at least by 21 May 2024, the Claimant had assistance from Mr Slivinsky. In her oral evidence, she accepted that she was being assisted by him by 15 May 2024.

[83]However, this would appear to be inconsistent with the document entitled “Grounds upon which the Claimant applies for necessary extension” where it is stated that it “was only around 16 June 2024 that the Claimant began to feel better and contacted a bilingual employment consultant, who registered her claim with ACAS”.

[84]On 6 June 2024, the Claimant (or someone acting on her behalf) wrote to the Respondent asking for further documents prior to the appeal hearing.

[85]On 11 June 2024, the Claimant submitted a lengthy additional statement for the appeal hearing. In that document, it was noted that “[my] legal representative analysed documentary evidence and performed an interview with me in my own language”. Detailed representations were made as to the requirements in respect of a fair dismissal on the grounds of conduct. It is highly likely that this document was prepared by Mr Slivinsky. In light of the detailed content of this lengthy document, the Tribunal has concluded that Mr Slivinsky clearly had all the information he required from the Claimant to be able to submit a Claim to the Employment Tribunal on her behalf or to assist the Claimant in doing so.

[86]The additional statement actually made reference to Tribunal time limits. In her oral evidence the Claimant accepted that she had been advised as to the Tribunal time limits by Mr Slivinsky “and that is reason why he asked me to provide him with all of the documents”.

[87]On 13 June 2024, the Claimant attended the appeal meeting (following which she was sent the appeal outcome letter on 27 June 2024).

[88]Between 13 June 2024 and 23 August 2024, the medical records which the Claimant has disclosed do not show her attending any medical appointments with her GP. There is no evidence at all of her reporting “an adverse reaction to the medication” or reporting that her “cognitive functions were severely affected” or that she was “unresponsive, dysfunctional, and fighting for her life”. In her oral evidence, the Claimant claimed that she had seen a different or private doctor during this period and had been prescribed amitriptyline again but no such medical records had been disclosed notwithstanding the requirement to do so. She suggested that she had taken this medication for two or three days and then gone back and told the surgery that she had had it before and it had caused high blood pressure.

[89]On 16 June 2024 the Claimant notified ACAS of her prospective Claim against the Respondent.

[90]On 28 July 2024, the early conciliation certificate was emailed by ACAS to the Claimant.

[91]On 23 August 2024, the Claimant had a telephone appointment with her GP in which she reported low back strain. The GP notes recorded that she “sounded alert and orientated”.

[92]On 2 September 2024, the Claimant completed the new patient registration process for Lowton GP surgery. The medical history recorded referred to a history of hypertension and regular medication. As part of this process, a physical activity questionnaire was undertaken which certainly showed that the Claimant’s level of physical activity was limited. Equally, it was not suggestive of a patient who was that unwell that she could not make arrangements for her Claim to be filed.

[93]On 6 September 2024, an appointment was arranged for the Claimant on Monday, 10 September 2024 which did not suggest that the appointment was an urgent appointment.

[94]On 10 September 2024, the Claimant saw her GP at the Lowton surgery. The notes show there was a discussion about sciatica and taking paracetamol. There was no specific mention in the notes of amitriptyline, and no indication she was told to stop taking it on this date. There is certainly no record of an adverse reaction to it which left her unresponsive, dysfunctional, uncommunicative, or fighting for her life. The GP notes did record “will prescribe neuropathic pain killer as neurology will advise conservative management”. The Claimant would seem to have had some blood tests and was subsequently sent a text message asking her to book an appointment with the nurse to discuss the results of the blood tests. It seems that the appointment did not take place until 30 September

[95]On 16 September 2024, the Claimant submitted her ET1 Form of Claim giving the details of Mr Slivinsky as her representative and attaching a detailed Statement of Claim setting out a detailed version of events and the legal basis for the complaints that she was seeking to bring.

[96]On 30 September 2024, a prearranged telephone appointment took place with a nurse to discuss the test results which seem to have indicated non-diabetic hyperglycemia / prediabetes. The Claimant was given advice about diet and fluid intake. A GP appointment was to be made to discuss medication. The notes recorded a history of hypertension, headache, dizziness and palpitations. As a result, it seems that the Claimant was advised to attend A&E.

[97]The Claimant subsequently attended A&E later that afternoon. The presenting complaint was recorded as being palpitations. Investigations were undertaken and no abnormality was detected. She was discharged later that day.

[98]On 1 October 2024, the Claimant’s saw a GP at the Lowton surgery. The history of the previous day’s A&E attendance was recorded. There seems to have been a discussion regarding medication in respect of the Claimant’s recent tests having indicated high cholesterol levels as well as a recent history of hypertension. The Claimant was prescribed medication for her high blood pressure based on recent high blood pressure readings with the notes suggesting that this had been persisting for four months. In relation to the dizziness and palpitations which had prompted the visit to A&E, the GP notes seem to record that the Claimant was putting this down to taking amitriptyline as she had “had similar symptoms when given in Poland”. The advice was to stop taking amitriptyline to see if the symptoms settled and to review if not.

[99]In cross-examination, the Claimant was asked about the application to postpone the preliminary hearing on 11 July 2025 which had been made on the basis that the Claimant was not medically fit to attend the hearing with the information given that the Claimant was “currently awaiting urgent medical treatment”. The information subsequently provided was that she “has secured an urgent appointment this morning” and “is currently awaiting to be seen”. It was stated that if “she cannot get an appointment, she will attend A&E”.

[100]The Tribunal had postponed the hearing but ordered that the Claimant “should send to the Tribunal and the Respondent, by 25 July 2025, medical evidence as to not being fit to attend the hearing” and as to any medical reasons for being unfit to attend the hearing.

[101]The explanation subsequently provided, which the Claimant confirmed in cross-examination to be correct, was that she had not contacted her GP or gone to A&E on 11 July but called 111 on 14 July and been referred to her GP with her GP calling back on 16 July 2025 resulting in medication being prescribed for panic / anxiety symptoms on 17 July 2025. However, bizarrely, it transpired that the log of calls (in the Polish language) provided by the Claimant in support of this timeline was actually a log of calls from April rather than July.

[102]From the Claimant’s oral evidence and the disconnect between the contents of the contemporaneous documentation and medical records and the assertions made by the Claimant in statements and later documents, I ended up concluding that the Claimant was an unreliable historian with a casual approach to the need to be precise or truthful about what had happened. I was unable to place any confidence in her explanation of the circumstances in which the ET1 Form of Claim had come to be filed out of time. I suspected that the half-truth at the heart of the history of the matter was that there had been a minor medical crisis on 30 September 2024 which the Claimant was now conveniently blaming for the fact that no steps had been taken in early September in order to commence proceedings in time. Relevant law Amendment of Claims

Relevant law

[103]The key test for considering amendments is identified in Cocking v Sandhurst (Stationers) Limited

[1974] ICR 650

, as below. “In deciding whether or not to exercise their discretion to allow an amendment, the Tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused”.

[104]That key test was effectively refined and repeated in Selkent Bus Company Limited v Moore

[1996] ICR 836

, which set out some of the factors which may be taken into account in considering whether to exercise the discretion. They are: the nature of the amendment, the applicability of time limits and the timing and manner of the application. Those factors were given as examples as to what may be taken into account when conducting the fundamental balancing exercise which was described in Cocking. They are not therefore the only factors that may be relevant. The exercise of balancing injustice or hardship remains the paramount consideration.

[105]In Abercrombie and Others v Aga Rangemaster Limited

[2014] ICR 209

, CA, Underhill LJ made the observations set out below. “Consistently with that way of putting it, the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new Claim and by the old, the less likely it is that it will be permitted”.

[106]Underhill LJ advised the Tribunal to focus on the practical consequences of allowing an amendment and this practical approach should underlie the entire balancing exercise. This means that the considerations for the Tribunal may include those of: if the application is refused how severe the consequences will be in terms of the prospects of success of the Claim or defence, and if permitted what would be the practical problems in responding.

[107]In Vaughan v Modality Partnership

[2021] ICR 535

, EAT, HHJ Tayler gave detailed guidance on applications to amend Tribunal pleadings. He confirmed that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The parties must therefore make submissions on the specific practical consequences of allowing or refusing the amendment. Where they do not do so, it will be difficult for them to challenge a Tribunal Judgment on the basis that the balancing exercise has not been carried out correctly. The factors identified in Selkent (above) should not be treated as a checklist to be ticked off to determine the application. Representatives should start by considering what the real, practical consequences of allowing or refusing the amendment will be. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted, what will be the practical problems in responding? Where the prejudice of allowing an amendment is additional expense, consideration should be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party can meet it. In this case, the Tribunal had not erred in law in refusing the Claimant’s application to amend her whistleblowing Claim by adding two further alleged protected disclosures. Although the Tribunal’s Judgment did not make an express reference to the specific hardship that would be suffered by the Claimant, no such specific hardship had been identified by her. Consequently, there was just enough in the Tribunal’s decision to show that it had conducted the appropriate balancing exercise.

[108]The case of Transport and General Workers Union v Safeway Stores Limited [2007]

UKEAT/0092/07

, is authority for the proposition that the fact that an amendment would introduce a complaint that was out of time was not decisive against allowing the amendment but was a factor to be taken into account in the balancing exercise. Thus, the extent to which any new allegations are out of time is a factor to be weighed by the Tribunal in the balancing exercise, and the weight to be attached to it varies according to the circumstances of each case.

[109]In Galilee v Commissioner of Police of the Metropolis

[2018] ICR 634

, EAT, it was held that, where new complaints were added by way of amendment to an existing Claim, there was no doctrine of "relation back" by which the new complaints were treated as having been made at the time when proceedings were started. Thus, in relation to the issue of “relation back”, the conclusion at paragraph 109(a) of Galilee, was as set out below. “Amendments to pleadings in the Employment Tribunal, which introduce new Claims or causes of action take effect for the purposes of limitation at the time permission is given to amend and there is no doctrine of “relation back” in the procedure of the employment Tribunal”.

[110]Furthermore, in Galilee, it was held that there was no mandatory rule by which that any limitation defence based on time limits (in respect of the complaints being added by amendment) had to be determined at the point in time of the application to amend. A Tribunal can allow an amendment to introduce a complaint that might be out of time, and order that the question of time limits be determined at the final hearing. Striking out Claims

[111]Employment Tribunal Rules of Procedure 2024 rule 38 provides as below. “(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;

[112]When considering whether to strike out a Claim, a Tribunal should adopt a two-stage approach. First, it must consider whether any of the grounds set out in rule 38(1) have been established, and then, having identified any established grounds, it must decide whether to exercise its discretion to order that the Claim should be struck out by the Tribunal (see HM Prison Service v Dolby

[2003] IRLR 694

, EAT, and Hasan v Tesco Stores Limited [2016]

UKEAT/0098/16/BA

[113]In Malik v Birmingham City Council [2019]

UKEAT/0027/19/BA

, Choudhury J, summarised the law on striking out the complaints of discrimination, as set out below. “30. It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union

[2001] ICR 391

. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A

[2016] ICR 1121

…. 31. In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;

(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;

(3) the Claimant's case must ordinarily be taken at its highest;

(4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and

(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts." 32. Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen

UKEAT/0024/11

, it was stated that in appropriate cases, claims should be struck out and that “the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail””. Deposit Orders

[114]Employment Tribunal Rules of Procedure 2024 rule 40 provides as below. “(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party ("the depositor") to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument ("a deposit order").

[115]It follows that the Tribunal should begin by considering whether the Claim has little reasonable prospect of success. If that threshold is reached, the Tribunal should consider whether to exercise the discretion to order that a deposit be paid. If so, the Tribunal should make reasonable enquiries into the Claimant’s means and his ability to pay any deposit. The Tribunal should bear in mind that any Order should be proportionate and not act as a bar to the Claimant’s pursuit of the Claim.

[116]In Hemdan v Ishmail

[2017] ICR 486

, Simler P, as she then was, observed that the purpose of ordering a deposit , as a case management tool, “is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails”. However, the purpose “is emphatically not … to make it difficult to access justice or to effect a strike out through the back door”.

[117]Further, as Simler P made clear in Hemdan v Ishmail [2017], just because a Tribunal concludes that a Claim or allegation has little reasonable prospect of success does not mean that an Order as to the payment of a deposit must be made. The Tribunal retains a discretion in the matter and the power to make such an Order has to be exercised in accordance with the overriding objective, to deal with cases fairly and justly, having regard to all of the circumstances of the particular case. Regard should be had, for example, to the extent to which costs are likely to be saved and the allocation of limited Tribunal resources.

[118]The case of Garcia v The Leadership Factor Limited

[2022] EAT 19

, contains a helpful review of the correct approach to be taken when assessing whether a Claim or allegation has little reasonable prospect of success. Evaluating the likelihood of success for these purposes entails a summary assessment intended to avoid cost and delay and a mini trial of the facts is to be avoided. Given+ the stage at which an Order for the payment of a deposit is usually made and the need to avoid a mini trial, it is inevitable that a Tribunal’s assessment will be impressionistic. In determining that a Claim or an allegation has little reasonable prospect of success, a Tribunal is not making a finding in relation to that Claim or allegation but is assessing the likelihood of success at any subsequent full hearing. Consistent with that exercise, in most cases, a Tribunal’s reasons for making an Order for the payment of a deposit can be expressed relatively concisely. Time limits for unfair dismissal complaints and breach of contract complaints

[119]The time limits applying to complaints of unfair dismissal are provided for at section 111 of the Employment Rights Act 1996 (“ERA 1996), namely that a complaint cannot be considered 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”.

[120]Under article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, an employee’s breach of contract complaint, which would include a complaint seeking notice pay as damages for breach of contract by dismissing without notice, would need to be brought within the period of three months beginning with the effective date of termination of the contract giving rise to the complaint, unless it was not reasonably practicable to do so.

[121]The onus of proving that presentation in time was not reasonably practicable rests on the party seeking the extension. In Porter v Bandridge Limited

[1978] ICR 943

, the Court of Appeal stated that this “imposes a duty upon him to show precisely why it was a that he did not present his complaint”.

[122]In Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

, the Court of Appeal concluded that “reasonably practicable” does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like “reasonably feasible”.

[123]In Asda Stores Limited v Kauser [2007]

UKEAT/0165/07/RN

, the EAT explained: “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.

[124]In Lowri Beck Services Limited v Brophy

[2019] EWCA Civ 2490

, the Court of Appeal summarised (at paragraph 12) the key points from the case law about the correct approach to the test of reasonable practicability as set out below. The essential points for our purposes can be summarised as follows: “(1) The test should be given a liberal interpretation in favour of the employee (Marks and Spencer plc v Williams-Ryan

[2005] EWCA Civ 470

[2005] ICR 1293

, which reaffirms the older case law going back to Dedman v British Building & Engineering Appliances Ltd

[1974] ICR 53

). (2) The statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was "reasonably feasible" for the claimant to present his or her claim in time: see Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

…. (3) 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. (4) If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman)…. (5) The test of reasonable practicability is one of fact and not of law (Palmer)”.

[125]The shortness of the delay is not a reason, in itself, for exercising any discretion to extend the time limit.

[126]In Reed in Partnership Limited v Fraine [2011]

UKEAT/0520/10/DA

, the Claimant presented his unfair dismissal claim one day late, wrongly believing that the three-month time limit ran from the day after the effective date of termination. The EAT overturned the Employment Judge’s decision to accept the Claimant’s late Claim. The Claimant was not reasonably ignorant of the start date for the limitation period. He knew of his right to bring a claim, as well as the three-month time limit.

[127]In Koudriachova v University College London [2015]

UKEAT/0132/14/JOJ

, a Tribunal found that the Claimant had presented her unfair dismissal claim one day late because of her mistaken belief that the time limit expired on 28 May rather than 27 May. On appeal, the EAT upheld the Tribunal’s decision that the Claimant’s mistaken belief was not reasonably held, and so it had been reasonably practicable for her to present her Claim in time.

[128]In Beasley v National Grid

[2008] EWCA Civ 742

, CA, Tuckney LJ held that whilst section ERA 1996 111 may impose a harsh regime, the time bar exists for “the very good policy reason, that parties should know where they stand within a limited time of any dispute arising”. Tuckney LJ also stated that there are good policy reasons behind the regime outlined in ERA 1996 section 111(2) and there “is no grey area for complaints which are only a bit out of time”.

[129]In Chouafi v London United Busways Limited

[2006] EWCA Civ 689

, CA, the Claimant had been dismissed as a result of a medical condition, severe depression. He was admitted to a psychiatric ward. He submitted a late Claim of unfair dismissal and disability discrimination to an Employment Tribunal, accompanied by a letter from his doctor stating that the extent of the Claimant’s mental disorder prevented him from lodging the Claim on time. The Tribunal declined to accept the claims out of time, in part owing to evidence that the Claimant had written coherent letters to third parties about his pension during the limitation period. On appeal, the EAT upheld the Tribunal’s decision, as did the Court of Appeal.

[130]In Wall’s Meat Co Limited v Khan

[1979] ICR 52

, CA, Lord Justice Brandon clarified that ignorance or a mistaken belief will not be reasonable if it arises either from the fault of the complainant or from the fault of his or her solicitors or other professional advisers in not giving him or her such information as they should reasonably in all the circumstances have given him.

[131]In Marks and Spencer plc v Williams-Ryan

[2005] ICR 1293

, the Court of Appeal confirmed that where the employee has retained a solicitor to act for him or her and fails to meet the time limit because of the solicitor’s negligence, the solicitor’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to the tribunal.

[132]In Ashcroft v Haberdashers’ Aske’s Boys’ School

[2008] ICR 613

, the EAT held that the principle that negligence or delay by an adviser in presenting a Claim to the Tribunal is to be ascribed to the Claimant applies to employment law consultants even though they are not qualified solicitors. Time limits in discrimination cases

[133]In relation to discrimination complaints, section 123(1)(a) of the Equality Act 2010 provides that “a complaint … may not be brought after the end” of … “the period of 3 months starting with the date of the act to which the complaint relates” or “such other period as the employment Tribunal thinks just and equitable”. Equality Act 2010 section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of the period” and section 123(3)(b) provides that “failure to do something is to be treated as occurring when the person in question decided on it”.

[134]A failure to make an adjustment amounts to an omission so that the provisions of Equality Act 2010 section 123(3) and (4) apply to the issue of the date from which any time limit would run. The date of the breach of duty (for the purposes of calculating when any time limit begins to run) is either when the employer does an act inconsistent with complying with the duty or, if the employer does not act inconsistently with the duty, the notional date will accrue at the point at which it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee (see Fernandes v Department for Work and Pensions

[2023] IRLR 967

, EAT). In other words, the omission will cease to be a continuing cause of action.

[135]In Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, CA, the Court of Appeal gave guidance as to considering whether allegations of discrimination amounted to an act extending over a period (so that any time limit would run from the end of that period) as set out below. “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed” (Mummery LJ at paragraph 52).

[136]In Bexley Community Centre v Robertson

[2003] IRLR 434

, CA, the Court of Appeal provided the guidance set out below. “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule” (Auld LJ at paragraph 25).

[137]In relation to the above guidance, in Chief Constable of Lincolnshire v Caston

[2010] IRLR 327

, CA, Sedley LJ gave the further guidance set out below. “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised …. and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Thus, the burden of proof is on a Claimant to satisfy the Tribunal that any complaint was either made within the applicable time limit for doing so, or that it would be just and equitable to extend time” (paragraph 31).

[138]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

, CA, the Court of Appeal dealt with the argument that, in the absence of an explanation from the Claimant as to the reasons for not bringing a Claim in time and an evidential basis for that explanation, the Employment Tribunal could not properly conclude that it was just and equitable to extend time. The argument was rejected, as set out below. “I cannot accept that argument. As discussed above, 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” (paragraph 25).

[139]In British Coal Corporation v Keeble

[1997] IRLR 336

, the Employment Appeal Tribunal suggested that the factors listed in Limitation Act 1980 section 33 might serve as a checklist of potentially relevant factors to take account in considering whether to exercise the discretion to extend time in discrimination cases, with the position as to the applicability of Limitation Act 1980 section 33 being summarised below. “That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action”.

[140]The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is “customarily” relevant in such cases (see DCA v Jones

[2007] IRLR 128

, paragraph 44).

[141]In Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, [2021] ICR D5, the Court of Appeal upheld an Employment Judge’s refusal to extend time for a race discrimination complaint presented three days late. Underhill LJ indicated concern that Tribunals had tended to use the factors relevant in dealing with any discretion to extend time in personal injury cases, as set out in Limitation Act 1980 section 33 as a checklist and advised that they should not do so. He went on to give the guidance set out below. ''The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.

[142]In Lupetti v Wrens Old House Limited

[1984] ICR 348

, the EAT noted that Tribunals may, if they think it necessary, consider the merits of the Claim. However, this is not necessarily a definitive factor. Even if the Claimant has a strong case, time may not be extended for it to be heard.

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

[2022] EAT 132

, the Claimant, who was unrepresented, presented complaints of direct race discrimination and / or harassment to a Tribunal that were all out of time. In reaching its decision not to extend time, the Tribunal weighed in the balance its view that the merits of the Claimant’s complaints appeared to be weak (although not so weak that they had no reasonable prospect of success). The EAT dismissed the Claimant’s appeal. The EAT was satisfied that the Tribunal had conducted the assessment in the appropriate way, having weighed all relevant factors in the balance, including the apparent weakness of the Claimant’s case. It had identified that it was difficult to discern anything in the alleged discriminatory treatment which linked it to race, and that certain features of the allegations suggested that at least some of the conduct of which the claimant complained was not targeted at her. Conclusions Time to bring Claim

Conclusions

[144]The effective date of termination was 3 May 2024 when the Claimant’s employment was terminated by way of a summary dismissal. This summary dismissal was communicated to her in the disciplinary meeting on that date. This is clear both from the note of the meeting and the subsequent e-mail sent on 3 May 2024 in which the dismissing manager stated that “I write to confirm the outcome of the meeting”. Although the Statement of Claim originally sought to suggest otherwise, by the date of the preliminary hearing, it was not disputed that any cause of action in respect of unfair dismissal arose on 3 May 2024.

[145]From 3 May 2024, when the Claimant was dismissed, she had three months less one day to contact ACAS for early conciliation purposes, which was by 2 August 2024. She was able to contact ACAS by 16 June 2024. Her certificate was issued on 28 July 2024. She had until 13 September 2024 in which to submit her Claim. The period of time between 3 May 2024 to 13 September 2024 is 4 months and 10 days. Application for extension of time to bring complaint of unfair dismissal

[146]In her application for an extension of time, the Claimant asserted that she had contacted ACAS for the first time in March 2024 (when an interpreter was provided) and “was not advised of the time limits” (although this pre-dated any dismissal) but was told “to wait for contact from a relevant team, which never followed up with the Claimant”. In the comments on the draft List of Issues, the Claimant was to claim that she was “misadvised by ACAS or not told of the time limit when she contacted them in May 2024”. However, the Tribunal was not satisfied that this was a case where the Claimant reasonably remained ignorant of the applicable time limits.

[147]The Claimant had assistance from a bilingual employment law consultant from as early as 21 May 2024. As a result, she was able to consult and take advice from this consultant in her own language.

[148]Mr Slivinsky prepared documents for the Claimant, such as her additional appeal statement, which referred to employment law principles and authorities, as well as time limits. In the circumstances, having engaged such an adviser, any purported ignorance of employment law time limits would not have been reasonable (see Ashcroft above).

[149]The additional appeal statement referred to the Claimant having been interviewed by a legal representative in her own language as well as the legal representative having analysed documentary evidence. By that point, if not before, and certainly following the outcome of the appeal hearing which was confirmed on 27 June 2024, sufficient instructions had been provided and there had been sufficient opportunity for advice to be given so as to enable proceedings to be commenced well in time.

[150]Throughout June 2024, the Claimant was able to instruct Mr Slivinsky to produce detailed documents for her appeal.

[151]The medical evidence produced by the Claimant does not begin to support the contentions made that “in July, August and early September 2024”, she “was going through major health concerns”, “her cognitive functions were severely affected”, and she was “unresponsive, dysfunctional, and fighting for her life”, or that she was going through a “major deterioration in her condition… due to an adverse reaction to a amitriptyline”, and was “dysfunctional”, contrary to the grounds relied upon in her application for extension of time.

[152]No medical evidence has been produced to show that the Claimant was suffering from an illness which was sufficiently debilitating or severe to have prevented the Claimant from submitting the Claim on time.

[153]In the circumstances, by reason of the matters set out above, the Tribunal was not satisfied that the Claimant has discharged the burden of proving that presentation in time was not reasonably practicable. Accordingly, the Tribunal refuses the application for an extension of time to allow the Claimant to bring her complaint of unfair dismissal.

[154]The same test applies in respect of the complaint of the dismissal being in breach of the Claimant’s entitlement to notice pay which, on her case, arose on his dismissal. As such, for the same reasons, the outcome is the same. Application for an extension of time to bring complaints under Equality Act 2010

[155]Based on the last date when it is arguable that any separate cause of action arose, the discrimination complaints are out of time to the extent set out below:(1) the complaint of indirect race discrimination is 40 days out of time;

(2) the complaint of direct disability discrimination is 25 days out of time;

(3) the complaint of discrimination arising from disability is 19 days out of time;

(4) the complaint of indirect disability discrimination is 19 days out of time;

(5) the complaint as to reasonable adjustments is 19 days out of time;

(6) the alleged final act of harassment is three days out of time.

[156]Despite the Claimant having access to an employment law adviser from May 2024, which means that her Claims could have been presented in time, it was presented late in September 2024.

[157]Based on the analysis set out above in the Tribunal’s findings of fact, I have concluded that the reasons or explanation for the delay are simply not credible. There is no evidence that supports the Claimant’s hyperbolic contentions, in her application for an extension of time and elsewhere, that her cognitive functions were severely affected, and she was unresponsive, dysfunctional, and fighting for her life, or that she was going through a major deterioration in her condition due to an adverse reaction to amitriptyline and was dysfunctional as a result.

[158]I recognise that the failure to provide a satisfactory explanation for any delay is not determinative of the issue as to whether it would be just and equitable to extend time (see Abertawe Bro Morgannwg University Local Health Board above). However, it is clearly a relevant factor; the more so where an explanation is not just lacking but is so palpably unsatisfactory.

[159]Clearly, I also recognise that, if an extension of time was not granted, then the Claimant would suffer the prejudice of not being able to pursue her complaints under the Equality Act 2010 to an adjudication on their merits. However, it does not flow from this that any discretion must be exercised in the Claimant’s favour. It is in the nature of a jurisdictional hurdle imposed by reference to time limits that the Equality Act 2010 is providing that there will be some Claimants who suffer the prejudice of not being able to pursue out of time complaints. Clearly, the prejudice the Respondent will suffer from facing a Claim which would otherwise be time-barred is also relevant (see DCA v Jones above).

[160]In balancing these competing prejudices, the issue of merits will be relevant in some cases. Thus, the Respondent has submitted that, in considering whether or not it is just and equitable to extend time, the Tribunal should take account of the merits of the Claim.

[161]Given that this is a case where it is likely that there will be a significant disputes of evidence and where the Claimant’s case is likely to hinge upon the Tribunal accepting her narrative as factually accurate, I concluded that the Claimant’s prospects of success are likely to be diminished having regard to the extent to which her credibility has been undermined as a result of the extent of the inconsistency between the basis put forward by way of an explanation for the delay in issuing proceedings and the contemporaneous documentary evidence.

[162]The Tribunal turned to look at the individual complaints being made under the Equality Act 2010. Direct disability discrimination

[163]The complaint of direct disability discrimination was that the Claimant was subject to less favourable treatment than others as she was placed in the clarification area of the business without a chair and told not to use a chair.

[164]Taking the Claimant’s case at its highest, and assuming that she can demonstrate that she was placed in the clarification area of the business without a chair and / or was told not to use a chair, in order to succeed with this complaint, the Tribunal would still need to find that the Respondent’s treatment of the Claimant was “because of her disability”, namely that the Claimant was not given a chair because of her disability and was told not to use a chair because of her disability. In other words, the Tribunal would need to conclude, despite evidence in the Bundle suggesting that steps were taken to assist the Claimant, that an employee of the Respondent purposefully did not give her a chair because she is a disabled person.

[165]At the preliminary hearing on 31 March 2025, the Claimant was ordered to provide further information about this allegation, namely against which individual was the allegation made. The further information provided was as set out below. “This is not just one person, it would be either Callum Wilcock, Nolan Timmons and Irina Lopez. The Claimant took pictures of the chair being taken, one of such photos was taken on 1 and 12 April 2024, both photos attached below. The Respondent is in the best position to track what supervisor was on that day”.

[166]It seemed to the Tribunal to be an unlikely state of affairs that the Claimant was not able to identify or remember the individual responsible for any such alleged treatment. The Production Supervisors would have been well known to her, as can be seen, for example, from the welfare meetings documented in the Bundle.

[167]The position of the Respondent was that it allowed the Claimant the option to work solely on the clarification and decant areas of the business (as acknowledged in the Claimant’s Statement of Claim at paragraph 1.10) as a reasonable adjustment for the Claimant’s back pain. The duties in the clarification area did not involve any heavy lifting and had a chair allowing the Claimant to sit if she needed to do so. The decant area did involve heavy items; however, there was a table for heavy boxes to be moved along, which reduced the need for the Claimant to lift them.

[168]Whilst the Tribunal was not satisfied that it could say with confidence that this part of the Claimant’s case had no reasonable prospects of success, the Tribunal considered, for the reasons set out above, that it had little reasonable prospects of success. Discrimination arising from disability

[169]As originally pleaded, the Claimant’s complaint of discrimination arising from disability was that she was subjected to unfavourable treatment when she was required to work in all sections of the business. The “something” arising in consequence of her disability was her inability to work in all sections of the business.

[170]It follows that the Claimant’s complaint, as pleaded, is that she was subject to the less favourable treatment of being “expected to work in all sections of the business” because of something which arose in consequence of her disability, which was that “she was unable to work in all sections of the business”. .

[171]Effectively, in order to find in the Claimant’s favour, the Tribunal will need to conclude that the Claimant was expected to work in all sections of the business because she could not work in all sections of the business. This suggests that the Respondent specifically targeted her and made it a requirement for her personally because of her disability or what arose in consequence of her disability.

[172]Such a conclusion would appear to be inconsistent with the Claimant’s complaints of indirect discrimination and failure to make reasonable adjustments where she asserts that the requirement to work in all sections of the business was a PCP that was applied to her and other employees who were non-disabled.

[173]Again, whilst the Tribunal was not satisfied that it could say with confidence that this part of the Claimant’s case had no reasonable prospects of success, the Tribunal considered, for the reasons set out above, that it had little reasonable prospects of success. Proposed amendment to complaint of discrimination arising from disability

[174]Prior to the preliminary hearing on 31 March 2025 (and as recorded in the subsequent Record of a Preliminary Hearing), the Claimant had sought to change the draft List of Issues so that the “something arising in consequence of the Claimant’s disability” was changed to the Claimant’s “inability to climb stairs, leading to her taking medicine and food upstairs and being disciplined for eating while working, flawed investigation wrongly found the Claimant eating Respondent’s nuts, the Claimant is age 65 with no teeth”.

[175]However, in the proposed List of Issues, the alleged unfavourable treatment was not amended and remained the allegation that the Claimant had been “expected to work in all sections of the business”.

[176]Employment Judge Porter had made it clear that if the Claimant was seeking to amend the Claim in this way, she would need to seek permission to do so, and would need to make a written application for such permission.

[177]Employment Judge Porter further made plain that the “application for leave to amend must include the proposed amended grounds of complaint, indicating the type of discrimination which was being alleged”.

[178]However, when the Claimant subsequently made her application to amend her Claim, the “something arising” had been changed back to the “Claimant’s inability to work in all sections of the Respondent’s business”.

[179]Under the proposed amendment, the alleged unfavourable treatment is not precisely identified in that it is pleaded that the “Claimant asserts that she was treated unfavourably by the Respondent during her employment, including during the investigation and decision to dismiss her”.

[180]This does not identify any unfavourable treatment involved in the investigation, unless it is the simple fact of the investigation taking place.

[181]The Tribunal has assumed that the purpose of the proposed amendment is to complain about the Claimant’s dismissal as amounting to discrimination arising from disability with the scope of the unfavourable treatment alleged including the investigatory stage of the process which resulted in the Claimant’s dismissal. This would be consistent with the Claimant’s case in relation to time limits as set out in the comments inserted into the draft List of Issues where it was asserted that “the series of discriminatory acts, including the investigation into her conduct, the disciplinary actions taken against her, and her eventual dismissal, should be considered as a single, extended act of discrimination” so that “the date of her dismissal should be regarded as the last incident of discrimination for the purposes of determining the timeliness of her claim”.

[182]However, I was satisfied that this proposed complaint, as formulated, was misconceived. There would be little reasonable prospects of success in terms of the prospects of the Tribunal concluding that the Claimant was investigated and subjected to the various stages of the disciplinary process culminating in her dismissal because she was unable to work in all sections of the Respondent’s business. She was dismissed because the Respondent (whether reasonably or otherwise) believed that she stole two tubs of peanuts and ate them at her workstation in violation of the Respondent’s policies, which, in part, aim to prevent contamination.

[183]In the context of complaining about her dismissal, and the steps leading to it, as unfavourable treatment, relying upon the Claimant’s purported inability to work in all sections of the Respondent’s business did not make sense in terms of establishing that the reason for the dismissal arose from the Claimant’s disability.

[184]In any event, in terms of the reasons for the Claimant’s dismissal, I was satisfied that there was little reasonable prospect of the Tribunal concluding that the reason for the dismissal was not that of the reason(s) given at the time, on the basis that:(1) the disciplinary process started because the Claimant’s colleague, Elmer Alvarenga, reported her for eating peanuts, which was one of the Respondent’s products (as described in the notes of an interview conducted on the day of the report);

(2) a picture was taken of the two empty peanut tubs in the bin;

(3) the CCTV footage showed the Claimant eating at her station (as described in the dismissal letter);

(4) the CCTV footage showed the Claimant hiding something up her sleeve and then putting something in the bin – the same bin in which the empty peanut tubs were found (as described in the appeal outcome letter);

(5) In one of her interviews, the Claimant tried to suggest she was set up by her colleague, Elmer Alvarenga, who reported her because he had asked her for some sweets, and she had chosen not to share the sweets she had with him that day.

[185]The Respondent’s case is that it reasonably believed that the Claimant had taken peanuts from the Respondent’s stock, eaten them at her station, risking contamination, and then refused to admit she had done this.

[186]By contrast, the Claimant’s case is effectively that there was a widespread conspiracy to cover up the real reasons for the Claimant’s dismissal (which was that she could not work in all parts of the Respondent’s business), with this conspiracy including Elmer Alvarenga, the investigation officer, the dismissing officer and the appeal manager, as well as relying on CCTV footage. All of this was inherently unlikely.

[187]The above points are pertinent in considering the prospects or potential merits of a complaint that dismissal was for a reason arising from the Claimant’s disability (and in concluding that those prospects would be poor). Rather more fundamentally, I was not satisfied, for the reasons set out above, that the Claimant’s case of discrimination arising from disability, as proposed to be pleaded by way of the amendment application, provided a basis for the Tribunal to conclude that the Claimant was dismissed because of something arising from disability, where the “something” was being identified as her inability to work in all parts of the business. Conclusion on application to amend

[188]In terms of the nature of the amendment, Employment Judge Porter had already concluded that the Claimant needed permission to add any complaints that her dismissal, or the investigatory and disciplinary process, amounted to discrimination arising from disability. I accept that the effect of paragraph 1.25 of the Statement of Claim is to plead that the dismissal amounted to an unfair (and wrongful) dismissal which relied upon a sham reason (seemingly to cover up a failure to make adjustments). However, the proposed amendment does involve putting forward a new case, in that another purported reason is being put forward as the real reason for the dismissal, namely the Claimant’s inability to work in all parts of the business. Furthermore, whilst paragraph 1.2.5 of the Statement of Claim already set out a narrative in respect of the Claimant’s dismissal, that narrative had not been identified as giving rise to a complaint of discrimination arising from disability in the list of complaints at paragraph 3 of the Statement of Claim.

[189]In addition, on the basis of the conclusion that the unfair dismissal complaint was out of time and that time should not be extended, the complaint of unfair dismissal did not amount to a justiciable complaint before the Tribunal. Even if, contrary to my conclusions, the complaint of unfair dismissal was a justiciable complaint before the Tribunal, the issues involved in considering an alleged discriminatory dismissal would involve separate areas of enquiry, particularly having regard to the Claimant’s case that the reason put forward was effectively a sham reason as a result of a conspiracy by various employees of the Respondent to cover up the supposed real reason.

[190]There had been no real explanation put forward for this complaint of discrimination arising from disability not having been made (as Employment Judge Porter had concluded) as part of the original Statement of Claim submitted on 16 September 2025 notwithstanding the Claimant having had the advice and assistance of an employment law adviser dating back to May 2025. The possibility of adding such a complaint does not seem to have been raised until the Respondent formulated a draft List of Issues shortly before the preliminary hearing on 31 March 2025 with the application then having been confirmed in writing on 28 April 2025. By this point in time, it was approximately a year after the Claimant’s dismissal.

[191]In terms of the impact of time limits, even if the complaint had been included in the original Statement of Claim, it would have been outside the primary time limit in the same way as the other causes of action in the Statement of Claim. Whilst recognising that such an issue is not determinative of the application, by the time of the application to amend, the complaint was already substantially out of time. Whilst the case of Galilee both confirmed that there was no doctrine by which the date that the complaint was made could be related back to the date of the original Claim, but also that the issue of time limits could potentially be determined at the final hearing, the reality was that all of the complaints in the ET1 Form of Claim were out of time and the Tribunal had listed a preliminary hearing specifically to determine those time issues.

[192]In terms of the balance of prejudice, this is a case where I have concluded that the Tribunal has no jurisdiction to hear the unfair dismissal complaint. It follows that an investigation as to the circumstances of the Claimant’s dismissal would not be a matter which the Tribunal will be considering in any event. Therefore, allowing the Claim to be amended in this way will considerably expand the scope of the factual enquiry. If the Claimant is permitted to amend her case, it will be likely to increase the number of witnesses required and the number of hearing days, which would probably also result in a later hearing. Further, as presently proposed to be pleaded, and for the reasons set out above, I am not satisfied that the Claimant’s complaint of discrimination arising from disability, as set out in the proposed amended grounds of complaint, will even get off the ground. Even if it did, the prospects of success appear poor given the documentation in the Bundle pointing in the direction of the actual reason for dismissal being that of the Respondent’s belief that there was conduct on the part of the Claimant which made dismissal appropriate.

[193]For the reasons set out above, it follows that I the application to amend the Claim is refused. Indirect disability discrimination and failure to make reasonable adjustments

[194]The Claimant’s complaints of indirect disability discrimination and failure to make adjustments rely upon the Respondent having applied a PCP requiring all staff to work in all sections of the Respondent’s business. However, whilst it is alleged that this puts the Claimant at a substantial disadvantage, the specific disadvantage is not identified; nor is the specific adjustment (although I recognise that, in a case of this kind, the adjustment will normally be some kind of measure which involved removing or relaxing the requirement in issue).

[195]These complaints appear to be inconsistent with the Statement of Claim in which the Claimant accepts that she was permitted to work in the clarification and decant areas of the business and was not required to work in all sections of the business (paragraph 1.10). This is consistent with the notes of the Claimant’s welfare meeting on 23 January 2024 which recorded the adjustment being made of keeping the Claimant on clarification pending the provision of fit notes. At the time of the 11 March 2024 welfare meeting, the Claimant had been on amended duties since her return to work in October and had been on clarification for five months In other words, the PCP was not being applied to her and / or adjustments were being made. Put another way, if one assumes that, given the PCP, the reasonable adjustment would be that of allowing the Claimant to work only in some parts of the business, this would appear to be what was being allowed.

[196]Whilst I accept that the position might be clearer once any evidence had been heard, which caused me to be reluctant to conclude that these complaints had no reasonable prospect of success, it did seem to me that these were complaints which had little reasonable prospects of success. Harassment related to disability

[197]The Statement of Claim set out a number of complaints of harassment, as previously listed above.

[198]The first complaint was that of the Respondent demanding that the Claimant declare that she was not disabled anymore in welfare meetings from January to May 2024 and that “her disability was being questioned” in a derogatory manner”. However, when the Claimant was ordered by the Tribunal to provide further information regarding this complaint, the basis of the complaint appeared to change so that it was a complaint about the investigatory and disciplinary meetings, with the allegation that the Claimant’s disability was questioned in a derogatory manner being made about the disciplinary hearing on 3 May 2024.

[199]At first blush, the first part of this complaint, namely that she was being required to declare that she was not disabled anymore, seems an implausible complaint. In any event, this appeared to be inconsistent with the minutes of the meetings which were in the Bundle where there was no suggestion anywhere that anyone demanded the Claimant declare that she was not disabled. It occurs to the Tribunal that the implausible nature of the complaint might be explicable on the basis of the Claimant having misunderstood something which was said.

[200]Similarly, the minutes of the disciplinary hearing on 3 May 2024 do not appear to provide a basis for complaining that the Claimant’s disability was questioned in a derogatory manner.

[201]Clearly, any such complaints are likely to depend on the evidence before the Tribunal which means that I could not conclude, at this stage, that the complaints have no reasonable prospect of success, but the above analysis suggests that the complaints have little reasonable prospect of success.

[202]The second complaint of harassment, as originally pleaded, was that of the Respondent failing to provide the Claimant with an interpreter in each of the welfare meetings with it being stated that “thus Claimant was not able to duly defend herself and she was distressed [which] deteriorated her mental issues”. There is a difference between unwanted conduct related to someone’s disability as against impacting someone’s disability. In any event, the relevant disability in this case is not that of any mental impairment, but that of the Claimant’s physical impairment. The basis for contending that not providing an interpreter was related to the Claimant’s disability appears non-existent or, at best, tenuous.

[203]I recognise that any determination as to whether unwanted conduct is related to a protected characteristic is likely to depend upon the factual matrix identified by the Tribunal. As such, it would be difficult at this stage to conclude that any complaint had no reasonable prospect of success. However, for the reasons set out above, I concluded that this complaint had little reasonable prospect of success.

[204]In the context of contending that the complaints had no reasonable prospect of success or little reasonable prospect of success, the Respondent’s written submissions did not specifically deal with the complaints of harassment at paragraphs 3.5.4 and 3.5.5 of the Statement of Claim. This is possibly because the sub-paragraphs at paragraph 94 of the written submissions jump from (c) to (g).

[205]The complaint at paragraph 3.5.4 of the Statement of Claim was essentially suggesting that there was resistance or a negative attitude towards the Claimant using a chair as a reasonable adjustment on the production floor. In other words, it arose out of the same or similar facts to the complaint direct disability discrimination already discussed above. It is to be noted that the further information provided by the Claimant, as required by the Tribunal, phrased the complaint in terms of the Production Supervisors, who were identified as Callum Wilcock, Irina Lopez and Nolan Timmons, having asked the Claimant to work without reasonable adjustments and having told her off in front of co-workers for using a chair. By contrast, the notes of the welfare meetings, which are in the Bundle, and which took place with Callum Wilcock and Irena Lopez, involve considerable discussion as to making adjustments from which it seems clear that there was a willingness to make adjustments.

[206]The complaint at paragraph 3.5.5 of the Statement of Claim was a little unclearly worded. The further information provided by the Claimant as required by the Tribunal was to the effect that the same Production Supervisors had “demanded that the Claimant be placed on clarification level 1 when other coworkers were present”. The Grounds of Resistance explain that the clarification area is where the quality of products is checked and does not involve heavy lifting with operatives able to remain stationary other than infrequent walking. The amended duties which were given to the Claimant as an adjustment involved working on the clarification and decant areas. These adjustments were discussed at length in the welfare meetings for which the notes appear in the Bundle. In the welfare meeting on 11 March 2024, the Claimant confirmed that she had been working in the clarification area for five months. As such, the actual complaint being made in paragraph 3.5.5 of the Statement of Claim or by way of the further information provided is difficult to understand.

[207]The final complaint of harassment was that of a derogatory and judgemental approach towards the Claimant’s disability during the investigation hearings and disciplinary hearing on 3 May 2024. Effectively this overlapped with the first complaint of harassment once it had been clarified by the further information provided. The same points as made above apply, and on the basis of those points, I concluded that this complaint also had little reasonable prospect of success. Indirect race discrimination

[208]The complaint was that failing to provide an interpreter at welfare meetings on 23 January 2024, 11 March 24 and 27 March 2024 amounted to indirect race discrimination. As already discussed, the notes of the meetings are in the bundle and confirm that no translator was present, although there does seem to have been a translator present at an earlier welfare meeting on 9 October 2023. The Grounds of Resistance place in issue the Claimant’s proficiency in English on the basis that it is alleged that the Claimant is able to hold a conversation in English. The extent of any proficiency or, indeed, any disadvantage, might be clearer from any recordings of meetings made by the Claimant, but these have not been produced. It is clear that the formal meetings which took place as part of the disciplinary process did have a translator in attendance, albeit another work colleague. Given the nature of the welfare meetings, the Grounds of Resistance seek to contend that holding such meetings without an interpreter would be justified. Certainly, the notes of the welfare meetings in the Bundle do suggest that, for the most part, it was possible to have a detailed discussion with the Claimant at the welfare meetings regarding the issues which needed to be discussed. However, these would really be matters to be assessed after hearing evidence. Conclusion on time limits for complaints under Equality Act 2010.

[209]All of the complaints made under the Equality Act 2010 were out of time, albeit, if viewed as separate complaints, by varying amounts of time, the amounts which have been calculated above and were not disputed in any meaningful way.

[210]I recognised that the Claimant’s case was that the various alleged acts amounted to conduct extending over a period. The last alleged act of discrimination pleaded in the Statement of Claim related to the conduct of the disciplinary meeting on 3 May 2024; specifically, the allegation that there was derogatory questioning in relation to the Claimant’s disability at the disciplinary hearing on that date, albeit the basis for any such complaint seemed difficult to identify from the notes of the meeting.

[211]Determining whether or not the various alleged acts amounted to conduct extending over a period was not a determination which I was invited to embark upon (at least by the Respondent) and, realistically, the case was not a case where it was appropriate to start considering whether the various alleged acts were linked in this way without hearing evidence, which it would have been difficult to do at a preliminary hearing since it would probably have entailed hearing evidence as to the alleged acts of discrimination themselves.

[212]However, the case had clearly been listed by Employment Judge Porter on the basis that the issue of time limits could be decided substantively at a preliminary hearing given that there was no complaint in the Statement of Claim in respect of which the Claimant was still within the primary time limit for bringing proceedings (allowing for any early conciliation extension) as at the date when proceedings were commenced. In other words, there was no ‘in time’ complaint with the potential to cause any other complaints to be in time if the Tribunal was satisfied that the complaint which was in time was linked with the earlier complaints in the way required by Equality Act 2010 section 123 in terms of amounting to conduct extending over a period.

[213]In terms of the length of any delay, I proceeded on the basis that it was at least arguable that the Claimant might establish that there had been conduct extending over a period up to 3 May 2024 which might cause some of the earlier matters to be in time.

[214]It was in the nature of some of the complaints that the Claimant was not specific as to when any cause of action arose, and this might more precisely need to be established by evidence, but the Respondent’s application was put forward on the basis of relying upon the latest date upon which each cause of action could have arisen if each complaint was viewed separately. Thus, with the complaints of discrimination arising from disability, as originally pleaded, indirect disability discrimination and failure to make reasonable adjustments, the complaints were, at best, 19 days out of time. On this basis, the complaint of direct disability discrimination was, at best, 25 days out of time and that of indirect race discrimination was 40 days out of time.

[215]I reminded myself that it was not a requirement that the Claimant provide a satisfactory explanation for the delay in issuing proceedings in order for the Tribunal to exercise any discretion to extend time on a just and equitable basis, but the explanation for any delay is clearly a relevant factor. Moreover, where the explanation was palpably so unsatisfactory, for the reasons which have already been explained, it seemed to me that this became a particularly relevant factor. The Claimant was asking the Tribunal to exercise a discretion on a just and equitable basis but was doing so by seeking to persuade the Tribunal to act unjustly by accepting explanations which I had concluded to be untrue. At best, viewed very generously, the Claimant was putting forward factors as being causative when they simply had not been causative at all. Further, this impacted upon her credibility which was likely to be an important factor in determining any complaints.

[216]Whilst I took into account the Claimant’s evidence as to her medical condition, and the undoubted fact that she does have various medical issues which would doubtlessly have impacted her, ultimately, I concluded that the Claimant’s medical situation should not have prevented or inhibited the making of the Claim.

[217]This was even more so having regard to the fact that very soon after any cause of action arose, the Claimant had the benefit of access to an employment law consultant as an adviser. With that assistance, the Claimant had been able to prepare detailed documentation in support of her appeal to the Respondent with that documentation demonstrating that the Claimant had been able to provide instructions as to her case, which her adviser had been able to analyse. Unless the appeal documentation was an elaborate bluff, if the Respondent was being told that it had breached the Claimant’s employment law rights and discriminated against her, it follows that this would also have been the Claimant’s understanding from the assistance she was being given.

[218]From the evidence given at the preliminary hearing, notwithstanding the suggestion that misleading information had been provided by ACAS, it was clear the Claimant had been made aware of time limits. Indeed, the additional statement drafted on her behalf for the purposes of the appeal meeting specifically referred to the issue of Tribunal time limits albeit in the context of suggesting that this was operative factor in the dismissing officer’s decisionmaking.

[219]On 16 June 2024, the Claimant had notified ACAS of her prospective Claim. The period of early conciliation lasted until 28 July 2024, at which time the Claimant had long since had the outcome letter dismissing her appeal.

[220]There had been some suggestions made on behalf of the Claimant subsequently that there were failings on the part of the Respondent in cooperating with requests for information, but the Tribunal has not been referred to any document suggesting that the Claimant was not in a position to set out the complaints contained within her Statement of Claim well before the ET1 Form of Claim was filed. This is not a case where the Claimant was not in a position to start proceedings before 13 September 2024 because of the absence of information or documentation and subsequently commenced proceedings on 16 September 2024 once she had that information or documentation.

[221]In terms of prejudice, it is difficult to avoid the conclusion that the Claimant’s main complaint is really about her dismissal and that, having been dismissed, the complaints of discrimination were then raised. The complaint of unfair dismissal is a complaint which I have decided the Tribunal does not have jurisdiction to consider. This is not a case where the discrimination complaints made in the Statement of Claim had already been raised in any formal kind of way, save to the limited extent that such issues were raised and considered as part of the Claimant’s appeal. Thus, this is not a case where the allegations made seem to have been the subject of extensive investigation during the Claimant’s employment. Moreover, on the face of it, the available documentation, such as that in respect of the welfare meetings, suggests that this was an employer which has taken steps to accommodate the Claimant’s physical limitations. In the Respondent’s written submissions, the Respondent had invited the Tribunal to consider the liability issues in this case both in terms of prospects of success in the context of the striking out and deposit applications and to the extent that the merits of a discrimination complaint are a potentially relevant factor in considering whether it is just and equitable to extend time. Based on the analysis set out above, conducting any such exercise casts doubt on the Claimant’s prospects of success. Had the complaints been in time, or time extended, the majority of the complaints are complaints in respect of which there would appear to be little reasonable prospect of success. In other words, the threshold for making deposit orders was met. I am satisfied that, if any of the complaints which were identified as having little reasonable prospect of success were not struck out as being out of time, it would be appropriate to exercise the tribunal’s discretion to make deposit orders. These are complaints which would otherwise occupy a significant amount of Tribunal time with significant costs being incurred. In the circumstances, I have concluded that the prejudice to the Claimant is likely to be limited. By contrast, the prejudice to the Respondent would be significant in having to defend discrimination complaints which would otherwise be out of time, but which would be likely to involve a multi-day hearing with a significant number of witnesses having to recall events from 18 months or more ago which appear to be largely undocumented save for the meetings in respect of which notes have been recorded (with the possibility of the accuracy of those notes even being in dispute).

[222]In relation to the complaint that the dismissal amounted to discrimination arising from disability, the Tribunal has not, for the reasons set out earlier, granted permission for such a complaint to be added by way of amendment. Alternatively, if the position was that, contrary to the conclusion of Employment Judge Porter and my analysis, the Statement of Claim already includes a complaint of discrimination arising from disability through dismissing the Claimant, then the issue would be whether any such complaint should be dismissed as out of time. For the reasons set out above, both generally in relation to the issue as to whether it could be just and equitable to extend time in respect of any of the complaints, and more specifically in considering the complaint(s) of discrimination arising from disability, any complaints that the dismissal amounted to discrimination arising from disability would also be dismissed as out of time.

[223]Ultimately, the burden is on a Claimant to satisfy the Tribunal that it would be just and equitable to extend time. The Equality Act 2010 sets out statutory time limits which will shut out an otherwise valid claim unless the Claimant can displace them. In this case, the Claimant has not done so.

Outcome

[224]It follows that the decision of the Tribunal is that the Claim is dismissed as out of time and permission to amend the Claim is refused.

[225]In the circumstances, it is not necessary to arrive at a decision on the applications to strike out all or any part of the Claim as having no reasonable prospects of success and / or to order that a deposit be payable in respect of any part of the Claim. Had it been necessary to arrive at such a decision, the Tribunal would not have struck any complaints out as having no reasonable prospects of success, for the reasons already discussed and having regard to the high threshold for striking out complaints in discrimination cases, but would have been satisfied that it was appropriate to exercise the discretion of the Tribunal to make Deposit Orders in respect of those parts of the Claim which were identified above as having little reasonable prospect of success, for which purposes an enquiry as to the Claimant’s means would have been necessary before any Deposit Orders were made. Approved by