Miss S McParland v Hexagon Care Services Ltd: 2406303/2023 and 2402466/2024
EMPLOYMENT TRIBUNALS
Case No 2406303/2023, 2402466/2024
Between
Miss S McParlandClaimantHexagon Care Services LtdRespondent
Before
Employment Judge BuzzardIn person for claimantMr Bidnell-Edwards (instructed by Counsel) for respondentDate 20 May 2025
JUDGMENT
[1]The claimant’s claims under the scope of the Equality Act 2010 are all struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospect of being found to have been presented within the applicable time limits or of being granted the required extensions of time.[2]The respondent’s application to strike out the claimant’s unfair dismissal claim is refused. The claimant’s unfair dismissal claim can proceed to hearing.
REASONS
[1]This preliminary hearing determined the respondent’s strike out applications to the extent that they continued to be pursued. The applications were as follows: 1.1. That the claimant’s unfair dismissal claim should be struck out because it was presented out of time in circumstances where it was reasonably practicable to present it in time; 1.2. That in the alternative the claimant’s unfair dismissal claim should be struck out because she had previously presented and then withdrawn a claim of unfair dismissal; and Case Number: 2406303/2023 & 2402466/2024 2 1.3. That the claimant’s discrimination claims should be struck out on the grounds that the claimant has no reasonable prospects of establishing that her claims were presented in time and further she has no reasonable prospect of being granted the extensions of time her claims would need. Relevant Strike Out Law 1. The power to strike out all or part of a claim is contained in Rule 38 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2024, the applicable parts of which state: 38. Striking out (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 has no reasonable prospect of success;[2]The power to strike out is discretionary and is to be applied in a two stage test. At the first stage the tribunal must find that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim or response.[3]There has to be a reasonable attempt at identifying the claims and the issues before considering strike out. Reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case.[4]Langstaff J in Chandhok v Tirkey [2015] ICR 527 said that there is no blanket ban on the power to strike out in discrimination cases, but that the discretion should be exercised with greater caution than in other less fact-sensitive cases.[5]Whilst additional care when considering striking out discrimination claims is required, there is no bar to such a step. In the words of Underhill J (in Hawkins v Atex Group Ltd [2012] IRLR 807) 'Judges should not be shy of making robust decisions in a case where there is realistically only one possible outcome'. Relevant legal provisions that are applied when an Employment Tribunal considers if events form a continuing act.[6]In the case of Aziz v FDA [2010] EWCA Civ 304. Lord Justice Jackson summarised the approach that should be taken at a preliminary hearing when considering whether the claimant has established a prima facie case that events formed a continuing act. The question is; were the complaints capable of being part of an act extending over a period? In the words of Lord Justice Jackson “Another way of formulating the test to be applied at the Pre-Hearing Review is this: the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs.” Case Number: 2406303/2023 & 2402466/2024 3[7]In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA Lord Justice Mummery when considering if acts are continuing stated: “The burden is on [the claimant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’. and “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.”[8]Accordingly, the burden would fall to the claimant to establish a prima facie case that any acts are linked to one another and form a continuing state of affairs.[9]In Aziz v FDA Lord Justice Mummery gave further guidance about the impact of a change of persons involved in the alleged acts on the determination of whether they formed a continuing act. It is clear from this that the fact that different persons are accused of individual acts is not conclusive evidence that they are not, when taken together, a continuing act, but it is a relevant factor to consider. For example, different persons applying the same policy are likely to be participating in a continuing act whereas different persons acting on their own initiative, albeit in similar ways, may not be. Relevant legal provisions that are applied when an Employment Tribunal consider if an extension of time would be just and equitable[10]There is guidance on the exercise of this discretion. In Roberston v Bexley Community Centre (trading as Leisure Link ) CA 11 March 2003 the Court of Appeal stated: ‘It is of also importance to note that 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.’ 2. The guidance of the EAT in British Coal v Keeble [1997] IRLR 336 is also of relevance to the exercise of this discretion. This guidance suggests that factors to be considered when considering extending time should include (but are not limited to): 2.1. The length of, and the reasons for, the claimant’s delay. 2.2. The extent to which the cogency of the evidence is likely to be affected by the delay. 2.3. The extent to which the respondent had co-operated with any requests for information. Case Number: 2406303/2023 & 2402466/2024 4 2.4. The promptness with which the Claimant acted once she knew of the facts giving rise to the cause of action. 2.5. The steps taken by the Claimant to obtain appropriate professional advice once she knew of the possibility of taking legal action. Application to Strike out the claimant’s unfair dismissal claim 3. The respondent made an application to strike out the claimant’s unfair dismissal claim. This was made on two basis: 3.1. that the claim was presented out of time; and 3.2. that the claimant had previously claimed unfair dismissal and then withdrawn that claim, and accordingly the claimant should not be permitted to pursue a fresh unfair dismissal claim. 4. In relation to the first argument, whilst clarifying the date of the claimant’s dismissal with the parties it became clear that there was a genuine and credible dispute of fact regarding the effective date of termination of employment. That dispute, if resolved in the claimant’s favour, would bring the claim in time. Accordingly, it was accepted by the respondent’s representative that it would not be appropriate to strike out the claimant’s unfair dismissal claim on this basis. 5. In relation to the submission that the claimant had previously claimed unfair dismissal and then withdrawn that claim, the respondent’s application was not found to have merit. The previous unfair dismissal claim was made in error when the claimant had not been dismissed. It was therefore withdrawn, again prior to any dismissal. The current claim relates to a dismissal that occurred after the withdrawal of the earlier claim. Accordingly, it would not be appropriate or correct to preclude the claimant from being able to pursue a claim that a dismissal, that occurred after her previous claim was withdrawn, was unfair. 6. For the above reasons the respondent’s application to strike out the claimant’s unfair dismissal claim was refused. That claim is therefore proceeding. Claimant’s application made after the hearing to “Reinstate Withdrawn Claim: Failure to Provide Reasonable Adjustments” 7. Following the hearing day on 7 May 2025 the claimant wrote to the Employment Tribunal on 14 May 2025. In that correspondence the claimant has stated that her claims of discrimination by failure to make reasonable adjustments had been withdrawn and asked that they be ‘reinstated’. That request is refused. 8. The respondent has written to the Employment Tribunal in response to this application from the claimant. The respondent does not accept that there ever was a claim of discrimination by failure to make reasonable adjustments, and accordingly there is no claim to reinstate. 9. At a preliminary hearing before Employment Judge Horne on 12 August 2024 the claimant’s claims were considered in detail. To the extent that the claimant would need permission to amend her claim to pursue various allegations, this was also considered and a decision reached in relation to such applications. Employment Judge Horne concluded Case Number: 2406303/2023 & 2402466/2024 5 that the claimant appeared to require permission to amend her claim to pursue her claims of discrimination by failure to make reasonable adjustments, and that permission was refused. As such, the position taken by Employment Judge Horne was that there was no claim of discrimination by failure to make reasonable adjustments in the claimant’s claim and she was not permitted to add such a claim by way of amendment. 10. Following a preliminary hearing before Employment Judge Shotter on 5 March 2025 a judgment was issued dismissing the claimant’s claims under s20 and 21 of the Equality Act 2010 (that is claims of discrimination by failure to make reasonable adjustments. This is stated to have been a dismissal on withdrawal by the claimant. Accordingly, even if Employment Judge Horne was incorrect, and the claimant’s claim form contained a claim of discrimination by failure to make reasonable adjustments, the claimant has withdrawn any such claim, and it has been dismissed.[11]The interests of justice require finality in litigation. When a claimant withdraws a claim, that is final. It is not something that a claimant can reverse or retract later. Even if the claimant had made a later request to Employment Judge Shotter to reconsider the decision to issue a judgment that dismissed the claim, and that application for reconsideration was successful, the claim would remain withdrawn (to whatever extent it existed) and the claimant would still not be able to pursue it. The judgment dismissing a withdrawn claim makes no relevant practical difference to the parties’ position within the Employment Tribunal process.[12]At the outset of this hearing the claimant confirmed to the Employment Tribunal that she agreed and understood that her claim did not include one of discrimination by failure to make reasonable adjustments. This further confirms the position and the claimant’s knowledge and understanding of it.[13]The claimant confirmed at the start of this hearing that her claims were limited to: 13.1. direct disability discrimination; 13.2. disability related harassment; and 13.3. unfair dismissal.[14]Accordingly, it does not appear that there ever was a claim of discrimination by failure to make reasonable adjustments. The claimant applied to amend her claims, in part to add a such a claim, and in August 2024 that application to amend was refused. No claim of discrimination by failure to make reasonable adjustments was either found to be part of the claims already made or was permitted by amendment. If that is in error, the position is covered by the claimant’s withdrawal of any such claim and the dismissal judgement that followed. Application to strike out discrimination claims.[15]The respondent has made an application to strike out the claimant’s discrimination claims, or in the alternative to require the claimant to pay a deposit to be permitted to pursue them. This application is made on the following grounds: Case Number: 2406303/2023 & 2402466/2024 6 15.1. That the claimant has little or no reasonable prospect of establishing that the alleged acts of discrimination were part of a continuing act that ended with the claimant’s dismissal; and 15.2. the claimant has little or no reasonable prospect of being granted an extension of time to bring these claims within the jurisdiction of the Employment Tribunal to consider; and 15.3. that the claims pursued have little or no reasonable prospect of success based on their merits.[16]The respondent set out the grounds of their applications in an email sent to the Employment Tribunal and the claimant on 23 September 2024.[17]The respondent submitted a detailed written skeleton argument for this hearing. The claimant submitted written grounds of objection to any strike out or deposit order. In addition to this the parties made oral submissions at the hearing and presented bundles of relevant documents for consideration. When were claims presented?[18]The claimant commenced ACAS early conciliation on 10 February 2023. That conciliation ended on 24 March 2023. The claimant submitted her first claim form (“Claim 1”) on 3 June 2023. The applicable time limit for claims presented in the first claim form is three months plus the time spent on early ACAS conciliation. The one month minimum period allowed to claimants after the conclusion of ACAS conciliation is not relevant in this case.[19]Based on these dates, any claims in the Claim 1 claim form that relate to events that ended prior to 23 January 2023 are out of time. The claimant would need an extension of time to pursue any such claims.[20]The claimant submitted a second claim (“Claim 2”) on 25 April 2024. It is not possible to benefit from an extension to the limitation for a second attempt at ACAS early conciliation. Accordingly, any claims in Claim 2 arising from events that ended prior to three months before 25 April 2024 are out of time. The claimant would need an extension of time to pursue any such claims. Discussion of the claims at this hearing.[21]There were 18 allegations of mistreatment remaining in the list of issues as at the start of this hearing. Following the numbering created by Employment Judge Horne in this list of issues produced following the preliminary hearing of 12 August 2025, they were allegations numbered 2, 3, 4, 5, 10, 14, 16, 17, 18, 19, 22, 32, 40, 41, 42, 46, 48 and 50.[22]At this hearing the claimant further expressly confirmed that she does not pursue her dismissal as an act of direct disability discrimination. This is a material and significant concession for the purposes of this strike out decision. The claimant’s dismissal is not identified in any other part of the list of issues as being discriminatory. Dismissal cannot logically be argued to be an act of harassment, and the claimant does not seek to argue it is. Any other Equality Act 2010 claim that the claimant could have argued her dismissal could fall under (discrimination arising from disability or discrimination by failure to make Case Number: 2406303/2023 & 2402466/2024 7 reasonable adjustments ) have all been confirmed repeatedly as not being part of this claim and/or dismissed as claims.[23]At this hearing the claimant further confirmed that there was no claim of direct discrimination pursued. Allegations of less favourable treatment other than her dismissal, that had previously been suggested as allegations of direct disability discrimination, were either confirmed not to be pursued at all or were confirmed to be claims of disability related harassment only. This clarification of the status of other allegations of less favourable treatment made no material difference to the strike out decision but is appropriately noted.[24]The claimant confirmed that she does not pursue allegation numbered 48 as an allegation of discrimination. This followed a discussion as to how it could amount to an act of harassment, which it had been claimed to be, and which it does not appear capable of being found to be. Are there reasonable prospects of the claimant arguing that there was a continuing act such that her claims are in time?[25]Except for a single allegation (number 50) all of the discrimination claims pursued by the claimant in these proceedings relate to events on or before November 2022. This is in the context that, as noted above, the claimant withdrew her allegation that her dismissal was an act of direct disability discrimination. Allegation 50 is about the conduct of an individual identified as Mags Wilson in February 2023, and relates to the way and investigation was conducted by her. This is the only allegation against Mags Wilson specifically. This allegation was not raised until Claim 2 was presented, on 25 April 2024. It is significant that it forms no part of Claim 1.[26]Accordingly, although it appears that the last alleged act of discrimination in these claims occurred in February 2023, this allegation was not presented to the Employment Tribunal as being the basis for any claim until Claim 2 was presented, in April 2024. This is well over a year after the alleged events.[27]The claimant presented Claim 1 on 3 June 2023. The most recent allegation of discrimination contained in Claim 1 is one of alleged aggressive interviewing of the claimant by Eleanor Brammer in November 2022. Accordingly, this is alleged to have occurred around 7 months prior to presentation of Claim 1. This is the only allegation identified to relate to the conduct of Eleanor Brammer. The next most recent allegation of discrimination in either of the claims relates to events alleged to have occurred in August 2022, some three months earlier.[28]There does not appear to be any reasonable prospect of the claimant establishing that the actions of various persons up to and including August 2022 were part of an act that continued by either: 28.1. Eleanor Brammer in November 2022; and/or 28.2. Mags Wilson in February 2023.[29]The claimant has not identified these two individuals as having been involved in any earlier or other acts of discrimination. The allegations made against them, if found to have occurred as the claimant alleges, appear to be their own actions taken on their own initiative, and not to be a continuation of any prior actions taken by others. There are Case Number: 2406303/2023 & 2402466/2024 8 significant gaps between the acts up to and including August 2022 and these two allegations. Noting these gaps, the different types of conduct alleged and the fact that the allegations are made against persons not otherwise involved in matters the claimant complains about, there is no reasonable prospect of the claimant being able to argue these form a continuing act so as to bring the claimant’s claims in time. Is there a reasonable prospect that the claimant will be granted an extension of time?[30]Reasons for the delay in presenting her claims 30.1. There is no dispute that the claimant presented a grievance which was initially considered at a grievance hearing on 18 November 2022. The claimant then appealed, and the grievance appeal hearing took place on 12 January 2023. 30.2. The parties provided the documentation from the claimant’s grievance and the process that was followed. The merits of this were not considered as part of this decision. The documents do, however, show that the claimant was engaging in a detailed and complex grievance process throughout November 2022 to January 2023. At both the grievance hearing and the grievance appeal hearing the claimant is recorded as having been accompanied by a Mr B Lashley as her trade union representative. 30.3. The claimant submits that due to health issues that had been ongoing for years, and because she was having to “cope with horrendous harassment”, she was not able to bring her Employment Tribunal claim earlier. In November 2022 the claimant was, however, well enough to submit a detailed grievance. The claimant had the benefit of a Trade Union representative when doing this. Accordingly, the claimant’s submission that she was not well enough and able to present her claims earlier is found to have significantly reduced weight. 30.4. In any event, the claimant could have included in her claim the harassment that, in 2024 as part of Claim 2, she alleged occurred only weeks before she submitted Claim 1. The claimant has provided no explanation of why when submitting Claim 1 she did not refer to the only allegation of harassment, or other discrimination, that she now pursues and which she alleges she had been subjected to in the previous six months, i.e. since November 2022. 30.5. The lack of a persuasive explanation for the delay in presenting her claims, and when they were presented the omission of the only allegation of discrimination that is now argued to have occurred in the six months before Claim 1 was presented, are factors that would significantly weigh against granting the claimant an extension of time.[31]Length of the delay 31.1. The delay in this case is significant. For Claim 1 the claim was submitted over a month out of time. For Claim 2 it was presented around a year out of time. 31.2. These delays will be even more significant for earlier events alleged to amount to discrimination or harassment, given there is no reasonable prospects of the claimant being able to establish they were part of a continuing act as discussed above. On this basis the claimant’s earlier claims will be even more significantly Case Number: 2406303/2023 & 2402466/2024 9 out of time. The next most recent allegation included in Claim 1 is alleged to have occurred in August 2022, meaning the claim relating to that allegation was presented 10 months after the event. 31.3. The length of the delay is a factor that would weigh against the claimant being granted an extension of time to bring the claims within the jurisdiction of the Employment Tribunal to consider.[32]Prejudice to the Parties 32.1. The delay in bringing these claims was submitted to create prejudice to the respondent. This was on two basis: 32.1.1. that at least one witness against whom allegations are pursued is no longer with the respondent; and 32.1.2. for all witnesses the delay will have degraded the quality of recollections of events. 32.2. Both of these are relevant and persuasive factors. The claimant submitted that the respondent could still call as a witness a former employee, and this is correct. This consideration reduces the prejudice to the respondent, but does not eliminate it. The process of securing supportive evidence from reluctant witnesses often results in less effective evidence, even if the practical problems that often arise can be overcome. 32.3. The allegation of harassment suggested to have occurred in November 2022 has been clarified to arise from the alleged manner adopted by Ms Brammer when she asked the claimant questions about her recovery. Although this clarification has now been provided, the claimant did not suggest this, or anything from which this could be inferred, on her Claim 1 claim form. This allegation, that an aggressive manner had been adopted, was not identified by the claimant until April 2024, that is around 17 months after the meeting in which it is alleged it occurred. Prior to that date Ms Brammer could not reasonably have been asked whether she may have been perceived as adopting an aggressive manner at that meeting and her essential evidence in relation to that point captured for future use. This substantial delay in identification of the nature of the allegation is a material prejudice to the respondent, who would have to rely on the likely significantly faded recollections of Ms Brammer and any other persons at the relevant meeting to defend the claim. This prejudice would weigh against it being just and equitable to allow an extension of time for this, the most recent allegation by some distance which forms part of Claim 1. 32.4. There is clear prejudice to the claimant of not being able to pursue these claims. That being noted, the claimant continues to pursue her claim of unfair dismissal, which to a limited extent mitigates that prejudice. The prejudice to the claimant is further reduced by the consideration that even if the claims proceeded to final hearing the claimant would still need to be granted an extension of time. If an extension of time was not granted, the claims would not be within the jurisdiction of the Employment Tribunal to consider and would be dismissed in any event. It is also noted that and extension of time would have to be considered for each allegation that was not in time, i.e. an extension of time that brought the November Case Number: 2406303/2023 & 2402466/2024 10 2022 allegation in time would not automatically mean that the allegations up to and including August 2022 were in time. 32.5. There is limited prejudice in not being able to pursue claims where there does not appear to be any reasonable prospect that the claim would succeed.[33]Did the claimant merely tick the incorrect box on her ET1? 33.1. The claimant submitted with some force that she believed the issues she has in being permitted to pursue her claims stem from her in error ticking to say that she was claiming unfair dismissal as part of Claim 1. This submission is not persuasive. 33.2. The claimant’s unfair dismissal claim is proceeding. The claims that have been struck out are all under Equality Act 2010. As such, whether or not the claimant suggested she had an unfair dismissal claim on her first claim form is not a relevant consideration.[34]The need for finality in litigation 34.1. It is correct that the claimant appears to have withdrawn claims that, as she now explains her complaints, she may not have been well advised to withdraw. The case management note of Employment Judge Horne produced following the hearing on 12 August 2024 records the following: “Notably, there is no complaint of discrimination arising from disability. I asked the claimant a number of questions (for example in relation to her dismissal) aimed at establishing whether the claimant was really alleging that she had been treated unfavourably for a reason (such as sickness absence) that had arisen in consequence of her disability. The claimant answered that this was not her case. She says, for example, that her absence, and her difficulties in returning to work, did not motivate the respondent to dismiss her. She told me that a person without a stroke-related disability, who had been absent for the same length of time, and whose prospects of returning to work were the same as hers, would not have lost their job in relation to any claims.” 34.2. This was reaffirmed before Employment Judge Shotter and then again at the start of this hearing. As such the claimant is found to have repeatedly and emphatically confirmed that she did not pursue any claim of discrimination arising from disability at multiple hearings for over a year. There would be significant prejudice to the respondent if the claimant were permitted to now change her mind and reopen and pursue such potential claims. The interests of justice and fairness to litigants requires them to be able to progress through the Employment Tribunal process with reasonable certainty that the claims being pursued will not repeatedly change such that matters switch from definitely not being pursued to being pursued many months later. 34.3. The claims that are progressing do not appear to be likely to succeed, for the reasons inferred by Employment Judge Horne in August 2024. At this hearing, for that very reason, the claimant confirmed that she does not argue her dismissal Case Number: 2406303/2023 & 2402466/2024 11 was direct disability discrimination. That was the only Equality Act 2010 claim that related to the claimant’s dismissal. Equality Act 2010 Claims all struck out[35]On balance, there does not appear to be any reasonable prospects of the claimant’s claims being found to be in time or the claimant being granted the necessary extensions of time for them to be found to be within the jurisdiction of the Employment Tribunal to consider. Accordingly, the test for striking out the claims is met.[36]Having considered the circumstances, in particular the lack of prospects of securing an extension of time, it is appropriate to strike out these Equality Act 2010 claims. The claims have been listed for a 15-day hearing. It would be significantly prejudicial to both parties if the claims were not struck out and were allowed to proceed to such a significant hearing and then be dismissed because the Employment Tribunal lacks jurisdiction for the claims because they were submitted so late.[37]The claimant’s claims under Equality Act 2010 are therefore all struck out. The claimant has no reasonable prospects of establishing that they are in time, or that they were part of a continuing earlier act that would bring them in time or that it would be just and equitable to extend time.[38]The only claim that will proceed to the final hearing is the claimant’s unfair dismissal claim. Approved by: