Employment Judge AndersonIn person for claimantMr Dear (instructed by Solicitor) for respondentDate 23 December 2025
JUDGMENT
[1]All claims were submitted outside the primary time limit.[2]It was reasonably practicable to submit the claims of whistleblowing detriment and dismissal within the primary time limit and therefore the Tribunal does not have jurisdiction to consider these claims and they are dismissed.[3]In respect of all claims for disability discrimination, sex discrimination and age discrimination under the Equality Act 2010, it is not just and equitable to extend time and therefore the Tribunal does not have jurisdiction to consider these claims and they are dismissed.
REASONS
[1]The Claimant, Mrs. G Parkinson brings Employment Tribunal proceedings against her former employer, Yell Sales Limited.[2]This was a three hour public preliminary hearing listed to determine whether or not the Claimant had commenced proceedings within time and if not, whether it was possible to extend time. Procedural Matters[3]As the Claimant was representing herself, I took time to explain the basic process. During the course of the hearing, I had regard to the overriding objective and sought in so far as possible to ensure that the parties were on an equal footing.[4]This matter had been listed for a public hearing without any prior private preliminary hearing. I therefore considered it to be important that I ascertained the issues in the case generally before moving on to the purpose of the hearing which was to decide time points. As a matter of basic logic, when considering whether or not to extend time, it is important to know what the claims are so that you can in turn decide the time points. The list of issues below established the claims necessary to the extent required to determine the time points.[5]Therefore, the issues in the case were: i. Did the raising of a grievance regarding the Christmas party amount to a protected disclosure?a. Did the Claimant disclose information?b. Did she believe the disclosure of information was made in the public interest?c. Was the belief reasonable?d. Did she believe it tended to show that the Respondent or its employees were failing to comply with any legal obligation?e. Was that belief reasonable? ii. Detriment - Did the Respondent do the following: a. Remove her from her role as Senior Account Manager in May iii. Did the Claimant reasonably see that as amounting to a detriment? iv. If so, was it done on he ground that she had made a protected disclosure? v. Dismissal a. Did the Respondent without reasonable and proper cause act in a manner calculated or likely to breach the implied term of trust and confidence? b. Did the Claimant affirm the breach? c. Did the Claimant resign in response to the breach? d. If there was a fundamental breach, was the reason or principal reason for the dismissal any protected disclosure? vi. Age Discrimination a. Did the Respondent do the following things - In October 2023, her manager telling the Claimant that she would not progress in her role due to her age. (this claim is not immediately apparent in the ET 1) b. Did the Claimant reasonably view this as a detriment? c. If so, has the Claimant proven facts from which the Tribunal circumstances of a different age was or would have been treated? The claimant relies on a hypothetical comparison. d. If so, has the Claimant also proven facts from which the Tribunal of age? e. If so, has the Respondent shown that there was no less favourable treatment because of age? vii. Disability a. Did the Respondent (or those for whom it is vicariously liable) perceive the Claimant to have a disability between December 2022 and October 2023 in that she was perceived to have dwarfism? b. Did the Respondent do the following things: a. In December 2022, at a Christmas party, a trainer shouted across a busy restaurant ‘Gill how much disability do you claim a month?’ b. In December 2022, in the same incident, the trainer said, “Well you know she’s a dwarf so she should be able to claim’. c. In December 2022 in the same incident the trainer asking about her sex life as he ‘knew my husband is 6ft 3in” d. In December 2022, at the same Christmas party, Mr X shouted multiple times across a bar that he wanted to charge the people in the bar to throw the Claimant around like they do with midgets. c. Did the Claimant reasonably view the above as a detriment? d. If so, has the Claimant proven facts from which the Tribunal circumstances of not being perceived as a disabled person was or would have been treated? The claimant relies on a hypothetical comparison. e. If so, has the Claimant also proven facts from which the Tribunal of perceived disability?f. If so, has the Respondent shown that there was no less favourable treatment because of perceived disability? viii. In respect of the disability claim, the issues adopt the language put forward by the Claimant. Her claim is that she was ‘perceived by others as a dwarf’ although she also states that she is 4ft 11 inches and does not have dwarfism. Therefore, the disability case is a perception case. ix. Because it is a perception case, it is not possible to pursue the case as a harassment case. See Peninsula Business Service Limited v Baker [2017] ICR 714. However, because the preliminary hearing is concerned with time limits it is not necessary to explore this initial position further. The relevant incidents and dates of the points being pursued as direct remain the same. x. The Claimant also identified her mental health as a disability, but no specific claim arose from that. The matters referred to in the ET 1 related to the perception of dwarfism. Should the claim proceed, it would be part of the Claimant’s claim for damages that the discriminatory acts of the Respondent caused her to have mental health problems. xi. Sex harassment - Did the respondent do the following alleged things: a. Mr Y at the Christmas party in December 2022 rubbed the Claimant’s leg. b. Mr Y at the Christmas party in December 2022 rubbed the Claimants breasts and bottom and went to kiss her. c. Mr Z at the Christmas party in December 2022 spent the night talking about the nursery nurses at his children’s nursery and how he went out with the dads and was talking about raping them. d. Mr Z at the Christmas party in December 2022 touched the Claimant and other female members of staff. xii. If so, was that unwanted conduct? xiii. Was it related to sex? xiv. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? xv. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. xvi. Alternatively, was the conduct unwanted conduct of a sexual nature? xvii. Direct sex discrimination - Alternatively, the same incidents for sex harassment are pursued as direct sex discrimination. Therefore, in respect of those incidents, following the findings of fact having been made. a. Did the Claimant reasonably view the above as a detriment? b. If so, has the Claimant proven facts from which the Tribunal circumstances of being a different sex was or would have been treated? The claimant relies on a hypothetical comparison. c. If so, has the Claimant also proven facts from which the Tribunal of sex? d. If so, has the Respondent shown that there was no less favourable treatment because of sex?[6]There were no claims that related to a date past the effective date of termination. The claim form did not contain any such claims. The Claimant did exchange text messages with employees of the Respondent following her termination, but no claim is contained within the ET 1 regarding these. The claimant does refer to an April 2024 incident in her supplemental witness statement in which she says rumours were spread about her mental health. This is not pursued as a claim. These were alleged facts that were known to the Claimant at the time she completed her ET 1 and were not included in the ET 1.[7]And in turn, it followed that the issues for me to determine today in respect of the reasonable practicability test were: i. In respect of a claim under s.103A Employment Rights Act, was it reasonably practicable for the Claimant to submit her claim by the 30th January 2024? ii. In respect of a claim for whistleblowing detriment, was it reasonably practicable for a claim to be submitted within three months of the last detriment? iii. If it was not reasonably practicable, was the claim submitted within such further period as was reasonable?[8]In respect of claims made under the Equality Act 2010, the issues to determine were: (1) Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: (i) Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates? (ii) If not, was there conduct extending over a period? (iii) If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period? (iv) If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: (i) Why were the complaints not made to the Tribunal in time? (ii) In any event, is it just and equitable in all the circumstances to extend time?[9]Having clarified the issues, we then turned to the substantive hearing. There was a bundle of documents, to which the Claimant had added some additional documents at the end so that it totalled 173 pages. The Claimant having provided a witness statement (and a supplemental statement) gave evidence on oath. I asked some questions to assist in establishing a chronology of events following the Claimant’s resignation and she was then cross examined. Following the evidence, both parties were then given the opportunity to make closing submissions.
Findings of Fact
[10]The Claimant commenced employment with the Respondent as a Business Development Manager in April 2022. The Claimant worked in sales, helping clients with their digital strategies for improving their web presence and for managing those relationships with clients.[11]The Claimant’s position is that she was promoted to Senior Account Manager in October 2022. The Claimant alleges that in May 2023, she had her promotion removed from her. She says that the reason for this is the fact that she raised a grievance complaining about the Christmas party.[12]The ET 1 does not follow a chronological format. It is clear that the key event is the Christmas party in December 2022. Around that, other points are briefly referred to. I take this opportunity to note that it was common ground before me that the ET 1 form throughout the first paragraph of box 8.2 mistakenly refers to 2023 when it should refer to 2022. The Claimant commenced employment in April 2022 and the promotion occurred in October 2022.[13]In December 2022, there was a Christmas party held in Newcastle. The Respondent suggests that this occurred on the 15th December 2022 and I have not heard evidence to the contrary. In her ET 1 form, the Claimant refers to a number of incidents that occur at that party. There are at least three men who are alleged to have engaged in conduct that is discriminatory at that party. The list of issues above refers to those events which are referred to and pleaded in the ET 1.[14]On the 21st December 2022, the Claimant raised a grievance as to the events that she alleges occurred at the Christmas party. This included allegations of sexual harassment, inappropriate touching and offensive remarks relating to the Claimant’s height.[15]The Respondent investigated the Claimant’s grievance. Some, though not all of the Claimant’s complaints were upheld.[16]On the 22nd March 2023, the Claimant sent an email indicating that she would not be appealing the grievance decision.[17]Before me today, the Claimant refers to being told by her Manager in October 2023 that she would not progress in the company due to her age. The age discrimination box has been ticked in the ET 1, but the particulars of such a claim are not immediately apparent in the ET 1. Before me today, the Claimant wished to pursue such a point and I have therefore included it within this judgment in which I am considering a preliminary point as to jurisdiction.[18]On the 3rd September 2023, the Claimant raised a further grievance. In broad terms, this related to what she perceived to be a lack of support from Mr Z.[19]The Claimant resigned from her employment on 17th October 2023. The 31st October 2023 was the Claimant’s last day of employment.[20]The Claimant commenced new employment at Checkatrade for a period of 8 weeks following her resignation. This was obtained through a contact of hers.[21]In December 2023, the Claimant contacted Amanda Wright within the Respondent to see if there were any vacancies. The Claimant was informed in January 2024 that there were not any vacancies at that time.[22]Over the Christmas period in 2023, the Claimant flew to the United States. The Claimant travelled within the United States. Text messages before me refer to her visiting Las Vegas, the Grand Canyon and San Francisco. In a text message on the 16th January 2024 that is in the bundle the Claimant describes this as “It was amazing and everything you said it would be.” In another messages she describes Las Vegas as “brilliant.” Other text messages reference the possibility of other trips abroad in the coming year.[23]The Claimant’s evidence is that the trip to the United States was not a holiday. She says that her son and other family live within the United States. She said it was recuperative. I find that although the Claimant at the hearing before me may place different labels on this to a ‘holiday’ for the purposes of my fact finding the label is secondary. What is of greater importance is the fact that the Claimant spent time travelling, was capable of travelling long distances, including travelling within the United States at a time when the primary time limits for her claim would have been expiring.[24]In February 2024, the Claimant commenced employment with the HR firm Croner. This continued to October 2024.[25]The Claimant commenced ACAS Early Conciliation on the 19th September 2024 (Date A). A certificate was issued (Date B) on the 25th October 2024. The Claimant’s ET 1 was submitted on the 29th October 2024.[26]The Claimant was asked about whether she had taken any steps to progress an ET claim, she answered no.[27]In evidence before me, when asked about when she first considered making a claim in the Employment Tribunal, the Claimant answered October 2024. Given that ACAS early conciliation started in September 2024, I infer that there must have been some thought of commencing a claim earlier within the month of September rather than October.[28]When asked about whether she contacted ACAS the Claimant said that she had ‘spoke to ACAS a couple of times’. She was asked about dates of those conversations. She said that she had ‘no idea’. She was asked to provide a possible month and was unable to. She was asked to provide a possible season of the year when it happened and was unable to.[29]The Claimant refers to and relies upon her mental health as an explanation for not submitting a claim sooner. There was no medical evidence before me beyond a sickness absence record referring to the Claimant having two days of sickness absence in August 2023 due to “stress/anxiety”. The Claimant was asked about the absence of medical evidence. Her response was to the effect that she did not go down the medical route and her personality was to try and deal with these things herself. The Claimant referred to an example of finding out her husband was having an affair and she points to still attending work whilst suffering from what she describes as ‘bad mental health’.
The Law
[30]In the Employment Tribunal, time limits go to the jurisdiction of the Tribunals ability to consider a claim. Where a claim is out of time and time is not extended it means that the Tribunal cannot consider the claim.[31]Where a claim is already out of time, it does not benefit from the ACAS Early Conciliation.[32]Where a claim is out of time, the burden is on the Claimant to prove that an extension of time should be granted. There is no presumption that an extension will be granted.[33]A potential Claimant acting reasonably is expected to take steps to ascertain their rights and to make enquiries to that effect, including ascertaining the correct time limits.[34]In respect of reasonable practicability, Section 48(3) Employment Rights Act 1996 provides: (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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.[35]In respect of reasonable practicability, the term means what it suggests, reasonably practicable. Whilst this is to be given a wide interpretation (c.f. Marks and Spencer PLC v Williams Ryan [2005] IRLR 562) the test is capable of operating harshly, it is not a balance of prejudice test, it is about the practicability of submitting the claim.[36]In respect of the just and equitable provisions, Section 123 Equality Act 2010 provides:(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) ******* (omitted)(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[37]Hendricks v Commissioner of the Police for the Metropolis [2003] IRLR 96 is the leading authority on the concept of an act extending over a period and the concept of a continuing state of discriminatory affairs. Time runs from the last act.[38]As to just and equitable extension, the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050. At para 25 Leggatt LJ held: “As discussed above, the discretion given by section 123(1) of the Equality Act 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.”[39]In Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 Sedley LJ held at para 31 that there was “no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised.”[40]In Jones v Secretary of State for Health and Social Care 2024 EAT 2, HHJ Tayler reviewed the authorities relating to extensions of time on just and equitable grounds and noted that there was a ‘common practice’ among those seeking to argue that time limits should not be extended of relying on the comments of Auld LJ in Robertson v Bexley Community Centre t/a Leisure Link [2003] EWCA Civ 576, that time limits in the employment tribunal are ‘exercised strictly’ and that a decision to extend time is the ‘exception rather than the rule’, as if they were principles of law. HHJ Tayler stated that the practice of relying on these comments out of context should cease. In the EAT’s view – adopting a similar approach to that taken by Wall LJ in Chief Constable of Lincolnshire Police v Caston (above)– the propositions of law for which Robertson is authority are that employment tribunals have a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere, and therefore the comments of Auld LJ needed to be viewed in that context. The EAT suggested that a greater focus be placed on some other Court of Appeal authorities such as Abertawe (above). HHJ Tayler’s reasoning was not disturbed when the case was appealed to the Court of Appeal.
Conclusions
[41]On the facts found and the claims made, it is clear that all of the claims are out of time. The most generous interpretation of the dates that I have is that time would run from the effective date of termination, which is agreed as the 31st October 2023. Therefore, the primary time limit in respect of the dismissal expired on the 30th January 2024.[42]I first consider the claims that are subject to the reasonable practicability test. For the purposes of applying this test, I applied it to the most generous interpretation of the dates. That is to say from the very last potential date, namely the effective date of termination. I did not seek to resolve any debate in academia or at appellate level as to any distinction between dismissal and detriment.[43]In the three month period following her resignation, the Claimant obtained new employment and undertook work through a pre-existing contact. She then around December/January time travelled to the United States of America and visited locations including Las Vegas, The Grand Canyon and San Francisco. Upon her return from America, and just after the three month period, new employment was then obtained at the HR firm Croner.[44]It was also the Claimant’s evidence that in this period she did not take any steps to investigate making a claim or enforce her rights.[45]The Claimant seeks to add context to the facts in this matter. I have recorded that above. I nonetheless find that the failure to take steps to progress the claim whilst obtaining employment and also travelling are significant indicators that it would have been reasonably possible for the Claimant to commence proceedings in this period. The Claimant was aware that she had resigned. She was aware of the incidents that she claims occurred prior to her resignation going back to December 2022. The Claimant was able to apply for jobs and to undertake work. The Claimant is someone who works in sales and has the basic skills needed to use sources of information to achieve a goal. She is able to use the internet. The Claimant was able to make a claim.[46]I find that it was reasonably practicable to submit the whistleblowing claims within the primary time limit.[47]For the sake of completeness, if it had not been reasonably practicable then the claims were not submitted within such further period as is reasonable. This is a significant period of just under 9 months, around three times the primary time limit. There was nothing sufficient that meant that the claim could not have been submitted sooner.[48]I now move on to the claims that are subject to the just and equitable extension of time test. This is a broad test allowing a wide range of relevant factors to be weighed up. No one factor is determinative.[49]I find that the Claimant does not have a reasonable explanation for not submitting her claims within the primary time limit. This is because: i. The Claimant did not take any steps to investigate making a claim until September 2024. The Claimant was unable to give even a basic indication as to when she spoke to ACAS. The earliest verifiable date is September, based on the EC certificate. ii. The Claimant was able to undertake two different roles and was able to travel abroad and travel within the United States. iii. Within the primary time limit, the Claimant was contacting the Respondent to enquire if roles were available.[50]The Claimant puts forward mitigating factors in respect of the above. In particular, I do acknowledge that the Claimant relies upon her mental health. Before me, she has also referenced attempting suicide around Jan/Feb 2024. However, there is no medical evidence before me. I do not say that this is decisive in isolation, but medical evidence would assist me in establishing a chronology, identifying what could be corroborated and therefore went beyond an assertion in oral evidence and understand the extent of any impairment which amounts to an explanation as to why a claim was not submitted sooner.[51]What is before me is a limited number of text messages in which mental health is referred to in 2024. It would not be right to say that the Claimant has only first mentioned mental health as part of this claim. There is some, limited corroborative evidence.[52]I also record and understand what the Claimant said in evidence regarding her approach to dealing with such matters and the fact that her approach was to deal with it and not seek medical assistance.[53]My conclusion regarding mental health is that I believe that the Claimant did have mental health problems which varied in severity following her resignation. However, I am not persuaded that these mental health problems are in and of themselves a reasonable or sufficient explanation for not taking steps to pursue a claim.[54]For the purposes of the just and equitable test, I do not set the bar in terms of considering the reason for the delay as the Claimant being required to prove that she could not reasonably make a claim. The just and equitable test is a far broader test. It is about taking into account a wide range of factors and making a broad assessment.[55]The Claimant has family in the United States and it may be that she did not regard going there as a ‘holiday’. It may also have been the case that she considered going to be good for her mental health. At the same time, this was travel of significance. It required positive steps to be taken by the Claimant. It occurred around the time the primary time limit was expiring when the Claimant had already undertaken eight weeks in a new role.[56]The Claimant was capable of taking steps to investigate making a claim to the Tribunal in these circumstances and proceeding with the making of such a claim.[57]I pause here, because Abertawe makes clear that the fact that the Claimant has not adequately explained the delay does not mean that any attempt at an extension of time must fail. That would be treating one factor as determinative. I return to and repeat the point that no factor is determinative and I must consider all relevant factors.[58]The extension of time sought is significant. The most generous interpretation of the time limits in this case means that time runs from the 31st October 2023. It is that date on which I base my decision because there is an EDT and it may be said that the events of the Christmas party, which the Claimant did pursue as a grievance were partly in her mind when she decided to resign. Again, this is being generous because the unfair dismissal is pursued as a s.103A claim as the Claimant lacks sufficient service. What I have not excluded is a possibility of the resignation also amounting to a dismissal in law for the purposes of the Equality Act and therefore time running from that date for an Equality Act claim.[59]However, it is also right to say that there is additional context in that much, though not all of this case stems from the incidents at the December 2022 Christmas party. Therefore, if this claim were to proceed, the Tribunal would be asked to deal with events from December 2022 in respect of an ET 1 submitted in October 2024.[60]The Respondent submits that it is prejudiced by Mr X leaving in April 2024 and Mr Y leaving in September 2023. It submits that the delay exacerbates this prejudice because there is a significant gap between their leaving and any hearing date, the evidence not having been secured. v[61]The Respondent also relies upon the prejudice of Mr Z leaving in October 2025, though I note that this is almost a year post ET 1 and I do not consider this to be in the same category as the other two individuals. I placed limited weight on this.[62]The broader point made by the Respondent is that all three individuals are no longer employed by the Respondent. The fact that someone is no longer employed by a party does not mean that they cannot be called as a witness. Witness orders do exist. Nonetheless, the Tribunal must also be realistic in acknowledging that people move on with their lives, being asked to deal with something years later in relation to old employment often results in reluctance or a lack of cooperation.[63]The Respondent also relies upon memory fatigue generally and its inability to secure evidence immediately following the Claimant’s resignation as it did not receive an ACAS notification or an ET 1. A counter point is that there was an internal grievance process in the earlier part of 2023, which would secure some of the evidence, albeit not in a form that a solicitor would secure a draft proof of evidence. The granular detail of the investigation was not before me, though I also note that at para 20 of its Grounds of Resistance, the Respondent records that some of the Claimant’s allegations were upheld, particularly (for the purposes of the pleaded case) in relation to the conduct of Mr X and comments regarding the Claimant’s height and asking a question regarding her sex life. I take all of this into account.[64]I find that there is prejudice to the Respondent through the Claimant delaying the bringing of her ET 1 around 9 months after the expiry of the time limit, around 12 months after her resignation, including the additional context of the Christmas party occurring around 22 months prior to the ET 1 and many of the key findings of fact in Tribunal needing to focus on what occurred at that drunken event, even though it appears to be agreed that some words were said. At a full hearing, if this case were to proceed, the Tribunal would be required to make clear findings of fact as to what occurred in December 2022, including as to the wider context of the words for the purposes of s.26 and s.13 Equality Act 2010. It would still be a fact sensitive case.[65]Weighing all of these matters up, I have concluded that it is not just and equitable to extend time. The factors of the significant length of the extension sought, the lack of positive steps taken by the Claimant to progress her claim, the prejudice to the Respondent outweigh the Claimants explanation for the delay based on ill heath, her wish to bring claims, which I recognise include pursuing serious allegations that on the face of it would fall within the ambit of the Equality Act.[66]In the same way that the lack of a reasonable explanation for the delay is not decisive, the fact that there are serious allegations that are made and that some were upheld in a grievance process is not decisive either.[67]I do record that this is a case in which it is possible to have genuine sympathy for the Claimant in terms of what she alleges occurred in December 2022. Whilst I have not made any liability findings, the sex harassment and perceived disability points are particularly serious.[68]Although I have reached the same conclusion in respect of all Equality Act claims, I have also considered each claim individually and considered whether the outcome would change depending on the claim that is being made. I have concluded that the outcome would not alter. The overlap in respect of the core facts is clear and there is not a sufficient basis on which it could be said that the result would be different.[69]For the sake of completeness, I note that the Claimant pursued her complaint about the removal of her role in May 2023 as a whistleblowing complaint. If this were pursued as a victimisation complaint, with the grievance relied upon as a protected act then this would attract the just and equitable test rather than the reasonable practicability test. I record that if the claim were reframed this way, the above reasoning regarding just and equitable would also apply to such a claim.[70]In light of the above, the Tribunal lacks jurisdiction to consider the Claimant’s claims and they are dismissed. Postscript[71]Following my oral reasons, of my own volition I raised with the parties whether or not Rule 49 should be considered given the nature of the issues referred to in this Judgment. All parties discussed the point. I was particularly concerned with the position of the Claimant because these were plainly sensitive issues and given their relevance to the Judgment, it was necessary to refer to them. Before me, the Claimant’s position was that she was not seeking any anonymity and sought written reasons with the knowledge that the reasons would be published online. I had regard to her wishes and did not make any Rule 49 order.[72]In respect of individuals against whom allegations had been made, they had not had any opportunity in these proceedings to respond to the allegations or defend themselves. They were not parties to the proceedings. I did not make any order under Rule 49. I did however decide to refer to these individuals as Mr X or Mr Y above. This seemed to me to be a proportionate and sensible way forward that did not affect the substance of the judgment.