Miss R Olyazadeh v Newcastle University: 2500668/2023 and 2502011/2023

EMPLOYMENT TRIBUNALS

Case No 2500668/2023, 2502011/2023

Between

Miss R OlyazadehClaimant

Newcastle UniversityRespondent

Before

Employment Judge Langridge

Date 22 October 2025

JUDGMENT

[1]The claimant's complaints under case number 2500668/2023 for maternity and pregnancy discrimination are dismissed on withdrawal.

[2]The claimant's complaints under case number 2500668/2023 of unfair dismissal and for notice pay are dismissed on withdrawal.

[3]The claimant's complaints under both case numbers 2500668/2023 and 2502011/2023 for a redundancy payment are dismissed on withdrawal.

[4]The claimant's complaints under case number 2502011/2023 of unfair dismissal and for notice pay were not presented within the applicable time limit. It was reasonably practicable to do so. Those complaints are therefore dismissed.

[5]The respondent's application to strike out the claimant's claims under Rule 37 Employment Tribunal Rules of Procedure 2013 is refused.

REASONS

[1]Today’s public preliminary hearing was listed to deal with various issues arising from the two claim forms submitted by the claimant. The first ET1 was brought under case number 2500668/2023 (‘the first claim’). It was submitted on 3 April 2023, while the claimant's employment was continuing. The complaints raised in the first claim were for unfair dismissal, notice pay, a statutory redundancy payment; and discrimination on the grounds of sex, pregnancy/maternity and race. The race discrimination claim has previously been dismissed on withdrawal.

[2]On 29 August 2023 the claimant submitted another ET1 under case number 2502011/23 (‘the second claim’), relying on an effective date of termination of 31 May 2023. This followed a previous preliminary hearing at which the claimant was made aware that her first claim may have been premature. The second claim was limited to complaints of unfair dismissal, notice pay, and for a statutory redundancy payment.

[3]During the discussion of the issues at today’s hearing the claimant withdrew all her complaints under the first claim, so far as they were brought under the Employment Rights Act 1996 (unfair dismissal, notice pay, and redundancy payment). The claimant also withdrew her claim for a statutory redundancy payment under the second claim, after accepting that there was no redundancy situation. The claimant had previously indicated to the Tribunal that she wished to withdraw her complaints under the Equality Act 2010 in respect of pregnancy and maternity discrimination, and this judgment gave effect to that decision. The remaining discrimination complaints were for direct sex discrimination and victimisation.

[4]The issues for the Tribunal to determine at today’s hearing were therefore:a. Whether the second claim (for unfair dismissal and notice pay) was submitted in time, by reference to the effective date of termination; and

b. Whether the complaints of direct sex discrimination and victimisation should be struck out under Rule 37 of the Tribunal Rules of Procedure 2013; or whether they should be the subject of deposit orders under Rule 39.

[5]If it were determined that the second claim was not brought in time, then the Tribunal would have no jurisdiction to hear those complaints. This was subject to the question whether it was reasonably practicable for the claimant to have brought the second claim in time.

[6]The Tribunal heard evidence from the claimant and reviewed a number of contemporaneous documents produced in an agreed bundle. The Tribunal had to make findings of fact so as to decide the correct effective date of termination (‘EDT’). The strike out issues had to be determined by reference to the pleaded case and the information presented at this hearing. A. The second claim – time point The pleaded case

[7]The first claim was submitted on 3 April 2023 when the claimant's employment was still continuing. At a preliminary hearing on 20 June the claimant was ordered to provide Further Information about her claims. By then her employment had ended but there was a dispute between the parties about which of them had brought it to an end. In her Further Information document the claimant continued to challenge that it was her decision to leave, though at today’s preliminary hearing she conceded that she had resigned. She said she handed over the two projects she was working on in March 2023, and took annual leave until 17 March. In her LinkedIn profile she said her employment ended in March 2023 because that was when she handed over her projects. She said she was paid until 23 March and stated that the respondent “ended my employment on 18th April”. The claimant then received a payment of £321.10 at the end of May, and said that when she checked the HMRC website at the beginning of June she saw that her employment “ended 18th of April”.

[8]The question of the EDT was discussed at a later preliminary hearing on 24 August, when both parties agreed that the claimant's employment ended on 18 April 2023 (paragraph 31 of Judge Sweeney’s Case Summary).

[9]When submitting her second claim on 29 August 2023 the claimant relied on a new termination date of 31 May 2023. In the form ET1 she referred to the fact that she had emailed the respondent on 3 March 2023 and had mentioned “my last working day at the university is the 2nd of March and I will use all my holiday till the 17th of March. This was clear communicating through email for ending employment was not acceptable by them.” She relied on 31 May as the EDT because that was the date she received her final wages payment. If correct, that date would mean the second claim was brought in time.

Findings of fact

[10]The following findings of fact reflect the written and oral evidence presented to the Tribunal, and are intended to be limited to the issue of identifying the EDT.

[11]The claimant’s employment began on 23 March 2020 and she was issued with Conditions of Service applicable to research associates. These provided that the appointment was a whole time one, terminable after two years’ continuous service on three months’ notice from either side. The Conditions of Service further stated: “The member of staff shall not retain or accept any other employment or appointment which involves substantial calls upon his/her time or energies without the agreement of his/her Head of Unit and the Faculty Pro-ViceChancellor where appropriate.”

[12]From 12 September 2022 the claimant was appointed on an open-ended contract as a research associate working on a water security and sustainability hub project which was due to end on 31 March 2024.

[13]In an email dated 11 November 2022 the claimant told her line manager, Professor J Mills that she had found a new job, working remotely. The new employer had agreed to her working part time for both employers. She said she could only focus on the water hub project 40% of her time. She invited Prof Mills to discuss this with colleagues and revert to her. The respondent's position was that the claimant's role required a commitment of at least 80%. Part-time working was not agreed.

[14]On 18 November the claimant emailed Prof Mills again, using the subject heading “waterhub handover and leaving”. She said she had written a resignation letter as she was expecting to take up her new job on a full time basis. She set out the proposed text of her resignation in the body of her email and discussed the handover arrangements she was putting in place for someone to take over her work. The claimant proposed a termination date of 31 January 2023, which Prof Mills agreed in his reply of the same date. The claimant was unsure about how to proceed, as she hoped to be given new opportunities in similar projects in the future. Prof Mills explained that she could not stay on an open contract with the respondent, though they could consider making her a visiting researcher until the end of the water hub project.

[15]On 14 December Prof Mills sent a follow up email asking the claimant to submit a formal resignation letter, receipt of which was essential in order to action her proposed one month’s notice and arrange a replacement. The claimant replied to say she was only required to give one week’s notice and had done so verbally in November. She said she would provide the letter the following month.

[16]The next day, Prof Mills replied with the benefit of advice from People Services on the resignation formalities. He advised the claimant that she was contractually obliged to give 3 months’ notice but they would accept her proposed leaving date of 31 January 2023. She was given a link to the online leavers form she needed to complete, but she said she was unable to access it. The following day, People Services sent further guidance on how to proceed, but the claimant did not action this. When asked about this in early January 2023, the claimant said the link was for a fixed term contract whereas hers was open-ended. She questioned why she could not have an ongoing open contract with the university to take advantage of future research opportunities.

[17]On 5 January 2023 the claimant exchanged several emails with Mr Usher in People Services. She said: “I am just dropping out from the current project Waterhub we have, for a couple of years due to Covid they had issues with money and we all had to leave at some points.” In his reply Mr Usher explained that the link to the leavers form was not specific to any type of contract. Any future employment with the respondent would depend on the claimant applying for a new position. Her current position was tied to a funded project and that funding was due to end on 31 March 2024. The respondent did not have research colleagues who were free to float between projects. Mr Usher explained the need to complete a leavers form to ensure she would be correctly paid, otherwise an underpayment may result. The claimant saw this email as a threat that she would not get paid. She replied to say so, and to question the need to fill out the leavers form at all. She said: “I will fill out the form when there will be someone to clearly tell me what exactly this open contract means”.

[18]As part of this email exchange the claimant told People Services that she was not leaving the project due to redundancy but for other reasons “and one is that they were expecting me to work part time since I was back from maternity and issues we got for funding”. She therefore looked for another job, but rather than leave the university she wanted to apply for funds so as to collaborate with future research, and keep her affiliation as a research associate.

[19]On 19 January the claimant met with Ms Hugall from People Services. The claimant told her there was “a funding issue where she was expected to go part time”. The claimant said this was “fine with her” and she had told Prof Mills that her Global Talent Visa would allow part time working. She had been offered a new job to start on 1 February and wanted to do the two roles, but Prof Mills had said the respondent needed someone full time. The claimant told Ms Hugall that she was not resigning and was not going to sign anything to that effect. She alleged that Prof Mills said he “did not want” her. Ms Hugall felt there was some confusion and said she hoped that a conversation with Prof Mills would lead to a better understanding of the situation.

[20]Ms Hugall followed this up by meeting Prof Mills on 23 January. He denied telling the claimant that he did not want her. He understood that she wanted to go part time and he had put arrangements in place for her to reduce to 80%. The claimant had asked to remain at 100% as she wanted to apply for a Global Talent Visa. He agreed to that request, and she remained full time. Prof Mills said the claimant had told him her prospective new employer was pushing for her to work 100%, but her preference was to work part time for both employers. Prof Mills said they could not agree to this arrangement, at which point there was a discussion about 100% working for the new employer and notice periods. That is how the subject of the claimant’s possible resignation arose.

[21]A meeting then took place on 26 January between the claimant, Prof Mills and Ms Hugall, to discuss the question of the claimant's resignation. The claimant was reminded of the Conditions of Service provision that external work had to be approved by management. The claimant said she knew she was not wanted because she had previously been asked to go part time and now that she wanted to work part time she was being told it could not be accommodated. Ms Hugall’s record of the meeting stated: “I asked whether you were asked to go part time and you said no. You then said that colleagues in a research meeting had told you that ‘the hub’ no longer wanted a decision platform, which is what you were working on and is why you know that you are not wanted.”

[22]At this same meeting Prof Mills told the claimant that the part time cover that had been arranged with a colleague was intended to cover key elements of her role only, pending recruitment of a full time replacement. This could not be actioned until the claimant submitted her formal resignation, but she made it clear she was not prepared to do that. She invited the respondent to dismiss her. The respondent said it had no grounds to do so, and said it would continue to honour the contract. It remained willing to agree a reduction to 80% FTE.

[23]On 27 January Prof Mills emailed the claimant's colleague who was due to take over aspects of the claimant's work, saying that since the handover meeting the situation had changed and the claimant was no longer resigning from her post. The email was copied to the claimant.

[24]Ms Hugall’s letter recording the meeting was sent to the claimant on 30 January. On 31 January she sent her detailed notes in reply, which led to an invitation to meet again. The claimant agreed to this, but pointed out that she was involved in a stressful family court case in February. Ms Hugall agreed to await that before fixing the meeting. In the same exchange of emails the claimant expressed her upset at the way she had been treated at the 26 January meeting. She said she was going to leave the project because she was “tired of all things happened to me at work since I got pregnant or even before when Covid was blamed for it”.

[25]In her response to the record of the 26 January meeting the claimant added commentary on some of the points raised. She denied that she had ever intended to resign, but wished simply to switch to a part time contract. She again invited the respondent to dismiss her, by reference to the prohibition on taking a second job without permission.

[26]The next step the claimant took was to initiate early conciliation with Acas on 14 February, in respect of the first claim.

[27]On 22 February the claimant emailed Ms Hugall in the context of a possible meeting to discuss her ongoing role. She refused to share information about her second job, and asked the respondent to give her a decision. She ended by saying, “I do not wish to work for the university any more” and asked for advice on how to do that.

[28]The last day when the claimant carried out any substantive work was 2 March 2023. She told colleagues it was her last day as she was leaving the university. The same day, the respondent offered her the opportunity to raise a grievance, but the claimant was not interested in pursuing this. She wanted the respondent to offer a settlement agreement and was prepared to sign her resignation if that was offered by the end of her 10 days’ holiday on 17 March. In a further email exchange on 8 March the claimant repeated that she did not wish to work for the university any more.

[29]On 30 March Acas informed the respondent that the claimant intended to submit her resignation, and Ms Hugall emailed the claimant asking her to forward it to People Services. The claimant did not do so. On 13 April she chose to return all university property to the respondent.

[30]The next exchange of emails has an important bearing on the case. Several messages were sent on 18 April, beginning with an email from Ms Hugall at 12:08. This notified the claimant that her recent unpaid leave would end on 24 April when she was expected to return to work. The claimant was invited to an informal meeting with Prof Dawson that day. Ms Hugall asked the claimant to advise if she was not intending to return to work, in light of the recent return of property. The claimant opened her reply sent at 12:44 by saying, “I believe you are kidding me no?”. She went on to make allegations about being forced to resign and being denied part time working. She said, “I am not going to work any more and I believe I made it clear my last working meeting was 2nd March”. She said, “There is no role to return”, and asked Ms Hugall not to communicate with her further.

[31]Ms Hugall replied at 17:00 on 18 April inviting the claimant to reconsider, and reminding her of the option of raising a formal grievance. She said: “If we do not hear any further from you by this Friday 21 April 2023, we will accept your email below [sent at 12:44] as confirmation of your resignation with effect from today's date.”

[32]This email was sent to the claimant at both her work and personal email addressed, and the claimant did receive it. She did not respond.

[33]Having heard nothing in reply to this email, the respondent processed the claimant as a leaver on 25 April, and wrote to her on that date to say so. The letter stated that the employment ended with effect from 18 April, and that accrued annual leave would be paid no later than 31 May. The sum of £331.89 was paid on that date. The respondent processed the claimant's P45 on 23 May and this – as well as pay records – showed the termination date as being 18 April. The claimant returned to the UK on 28 May and saw the P45 then.

[34]The claimant initiated early conciliation with Acas in respect of the second claim on 28 August 2023 and the certificate was issued on 29 August 2023.

Conclusions

[35]I am satisfied that the claimant's employment ended on 18 April 2023. The effective date of termination is a question of law, taking into account the facts as found above.

[36]It is clear that the claimant’s original intention was to negotiate a reduction in her contractual hours from 100% to around 40%, for the purpose of enabling her to combine two part time jobs once her new role began on 1 February. The respondent maintained that the claimant's role had to be carried out with a commitment of at least 80% of a full time position. It had not approved the holding of a second job, as required by the claimant's Conditions of Service.

[37]In this context, the claimant contemplated resigning so that she could take up her new role on a full time basis. She had an intention to resign throughout the discussions which followed after notifying her line manager of the new job in November 2022, but she did not give effect to that intention at that time. In response to the respondent's numerous prompts, the claimant chose not to complete the formal records to treat her as a leaver. She did not formally give notice but indicated (incorrectly) that she was only obliged to give one week’s notice. Under her contract she was obliged to give three months’ notice. The respondent was nevertheless willing to agree a shorter period of one month. The respondent required the claimant to complete the leavers records online, but she never did so. Her reason was that she wanted the respondent to agree to maintain a contractual relationship with her, in effect without pay or duties in the first place, in the hope that she could be considered for future research projects as and when they arose in the future. The respondent made clear this was not something it could do, nor a form of contractual arrangement which it operated. As the claimant did not proceed to complete the leavers paperwork, her intention to resign remained only that, and the employment was not brought to an end as initially expected.

[38]The claimant communicated her change of mind to the respondent at the meeting with Ms Hugall on 19 January 2023. From this point the respondent sought to discuss the claimant's future role with her, and the 26 January meeting was part of that. However, numerous other grievances arose at that meeting and these remained unresolved. By 22 February the claimant had decided to leave her employment and communicated this to the respondent. From 2 March she did no more work other than to attend a handover meeting with a colleague. She then absented herself on holiday, and the respondent agreed to a period of unpaid leave.

[39]By this time the claimant's ongoing employment status was still ambiguous. She still had an intention to resign but again took no formal steps to give effect to that intention. Ms Hugall therefore brought matters to a head in her emails of 18 April. The key communication is this: “If we do not hear any further from you by this Friday 21 April 2023, we will accept your email below [sent at 12:44] as confirmation of your resignation with effect from today's date.”

[40]By not replying to that email, the claimant effectively communicated to the respondent confirmation of her resignation, effective 18 April 2023. This was communicated by her conduct in not replying to the explicit language in the email, and it was also in keeping with her conduct prior to that date. In her email of 22 February email the claimant had stated, “I do not wish to work for the university any more”. On 2 March she carried out her last substantive work and announced her departure to colleagues. She then took a unilateral decision to return all the respondent's property and stopped attending work.

[41]The contemporaneous paperwork showed that the respondent treated 18 April 2023 as the EDT when it calculated the claimant's final pay and submitted the P45 to HMRC. The fact that the P45 was processed on 23 May, and the accrued holiday pay was paid on 31 May, do not determine the EDT. They are simply the administrative consequences of an employment contract being brought to an end.

[42]As the claimant's effective date of termination was 18 April 2023, the primary time limit under the Employment Rights Act 1996 for bringing a claim for unfair dismissal or for notice pay was 17 July 2023. By that date, the claimant should have contacted Acas to initiate early conciliation, but she did not do so until 28 August 2023, more than one month later. She took this step after being alerted at the preliminary hearing on 24 August of the fact that her first claim had been brought prematurely, before her employment ended.

[43]The claimant did not identify any reason why it was not reasonably practicable for her claim for unfair dismissal and notice pay to have been brought in time. It was in fact reasonably practicable to have done so. The claimant was considering bringing claims against the respondent from the early part of 2023, and contacted Acas on 14 February. She was in a position to know or find out from around that then, what time limits applied to the claims she wished to bring. Although the claimant acted promptly after the 24 August preliminary hearing, there was no explanation for not acting before then.

[44]Accordingly, the claimant's second claim was brought outside the time limit under section 111 Employment Rights Act 1996 and the Tribunal has no jurisdiction to hear the complaints of unfair dismissal and for notice pay. B. The first claim – strike out

[45]The strike out application relates only to the surviving complaints under the Equality Act 2010 (‘the Act’). These are complaints of direct sex discrimination under section 13 and victimisation contrary to section 27. Both claims were brought in time as part of the first claim.

[46]At previous preliminary hearings there were questions about the nature and scope of the discrimination allegations. Previous complaints of race, pregnancy and maternity discrimination had already been withdrawn by the claimant. At this hearing I invited the claimant to specify clearly what act or acts of direct sex discrimination she complains of; what protected act she says she carried out; and what detrimental treatment she alleges she was subjected to as a result. The issue to be determined was whether those complaints should be struck out under Rule 37(1)(a) for having no reasonable prospects of success, or alternatively whether deposit orders should be made under Rule 39 because the complaints have little reasonable prospect of success. The pleaded case

[47]The claims for sex discrimination and victimisation were identified in the first claim as being based on the following facts:a. Being told by the respondent to go part time in July 2022 after her maternity leave, because she had an infant at home, when extending others’ contracts to 100%.

b. Submitting a “formal discrimination” form in September 2021 after returning from maternity leave, and being “blamed for it”. This related to an incident about someone else using her desk on the first day back from maternity leave.

c. Giving a part-time contract to a male colleague in October 2022.

d. Forcing her to work full time in February 2023 when she requested a 40% contract.

[48]The effect of the claimant's withdrawals is such that only the fourth of these issues survives as a cause of action in its own right. The other allegations may have evidential value in support of that claim, but do not amount to distinct claims.

[49]At the first preliminary hearing on 20 June 2023, the claimant was ordered to provide Further Information about her claims. In summary, she made the following allegations:

[50]Direct sex discrimination – The act complained of is the handling of the meeting on 26 January 2023 by Prof Mills and Ms Hugall, to discuss the claimant's possible resignation. She alleges that the respondent refused her the option to work part time and told her to work full time or resign. The individuals who decided first that the claimant should work part time, then later denied her that opportunity, were alleged to be:a. Prof J Mills (line manager)

b. Prof R Dawson (Principal Investigator on the water hub project)

c. Dr C Walsh (Project Lead)

d. Ms C Grundy (Project Manager)

[51]The claimant stated in her Further Information that the discussion about part time working started at around the beginning of March 2022, “considering they have funding issues”. In July 2022 she did not want to work part time unless and until she obtained another job. She said the respondent's decision about “not wanting me part time when they found out I will have another job too”, was mid November 2022, though the main discussion was on 26 January 2023. This was the date of the last act of discrimination.

[52]The claimant's belief that this treatment was related to sex was based on her being a mother and a single parent. She stated: “They wanted me part time, and I thought it was because of funding issue till they mentioned it is because I had a son at home and claiming this was my request due to child arrangement, apparently new mothers prefer to work part time, and they wanted me to want that.” The claimant said she made it clear that that was not her wish, and she could not afford to live on part time earnings and so would need to find a second job. She stated [emphasis added]: “They denied me working part time because they knew I will still be working full time considering I have second job too and for them it was unacceptable due to my child arrangement. They clearly think I can only work part time for them with no other part time jobs. Nothing else can explain why they wanted me part time before but not when I found a second job.”

[53]When clarifying this allegation at today’s preliminary hearing, the claimant said the respondent had previously asked her for over a year to work part time, because they believed she could not manage to work full time as a mother. When she later requested part time working, the respondent would not agree to this. She accepted that there were funding issues behind the previous request to work part time, but said the respondent only asked her and not the men in the team.

[54]Victimisation – In her Further Information the claimant states that her line manager requested a resignation letter on 18 November 2022. This arose because the respondent was not happy that she had said she was dropping out from one project. The claimant wanted to continue working as a researcher and look for funding. She informed her line manager and Dr Walsh that “I will not be working and fixing any issues regarding to that project after I leave (data platform 15 December 2022).”

[55]The claimant describes the treatment she says she received. This included alleged threats of being paid less if she did not give her resignation letter on 5 January 2023; and being excluded from a group researcher meeting on 20 January 2023 by Dr Walsh, who had already informed everyone that the claimant was leaving. She alleges that at the 26 January meeting her line manager shouted at her that it was not her business to know why another person could take over her role part time, but she could not work part time herself. The claimant also relies on an email from her line manager on 27 January 2023 informing the new person that she was not in fact resigning from her post, which she describes as “humiliation”. She felt she had been forced to attend informal meetings in spite of having a family court appointment in February 2023. The claimant informed the respondent she could not attend any further informal meetings, only formal ones, and her request to be accompanied by a friend was denied. She was then required to attend a meeting on 17 February by Prof Dawson, at a time of day she could not manage due to dropping her son at nursery. She says the respondent requested that she disclose details of her other employment, which she refused to do.

[56]The Further Information refers to the claimant being treated differently after informing Ms Hugall about Acas, by email. She does not, however, give any details. She does not identify a protected act which would bring her complaint within the scope of section 27 of the Act. She refers to the incident in September 2021 when she returned to work from maternity leave and found someone else working at her desk, but does not link this to her later treatment relating to the resignation issue. Preliminary hearing 24 August 2023

[57]At the follow up preliminary hearing on 24 August Judge Sweeney set out his understanding of the claimant's claims based on the further information provided by her. Relevant extracts are set out below.

[58]Sex discrimination – This is based on the decision in November 2022 to deny the claimant part time working, the reasons for which she did not know until 26 January 2023. The claimant had been asked to go part time after her return from maternity leave in September 2021. It was only when she obtained another job outside the university that she requested part time working, but by then the respondent was insisting she work full time.

[59]The claimant raised the subject of the respondent holding a discriminatory belief about working mothers, which had first been mentioned in her Further Information. She linked the respondent's preference for her to work part time with this state of mind. She alleged that the respondent's managers did not like the fact that as a mother she would be working full time between her two jobs.

[60]Judge Sweeney noted that the claimant's argument was an unusual one and referred to the legal authority of Madarassy v Nomura International which says that a claimant must prove facts from which a Tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. He felt that the point was suitable to be considered for a deposit order, on the grounds that it may not have more than a little prospect of success.

[61]Victimisation – Judge Sweeney directed the claimant to the need to identify a protected act as a condition of pursuing a victimisation claim. She was unable to identify any such act – and indeed had not done so at the previous preliminary hearing. He noted that the complaint in September 2021 was not the protected act which had led to the alleged detriments. He therefore added this claim to the agenda for the public preliminary hearing. Other relevant information

[62]At today’s hearing I explored these issues with the claimant again. In answer to repeated questions about what act(s) of discrimination she was relying on, the claimant repeated her position about the respondent's refusal to allow her to work part time, which she said was “because I had another job”. When asked what this had to do with sex discrimination, the claimant said it was because she is a mother with caring responsibilities. She related this back to the respondent wanting her to work part time after her return from maternity leave in September 2021. She alleged that this was because the respondent believed she could not manage her full time work and motherhood; yet when she requested part time working at the end of 2022, it was not allowed.

[63]The claimant again acknowledged there were funding issues on the previous occasion, but reiterated that only she and not her male colleagues in the team were asked to reduce to part time working.

[64]When asked to explain why the 26 January meeting was an act of discrimination, the claimant referred to the dispute about her proposed resignation. The respondent told her she was resigning because her request for part time working was not agreed, but she replied that this was not the case and she was “resigning because they wanted me to leave because I am a working mother”.

[65]The claimant relies in support of this contention on the discriminatory belief she says was held by the four individuals named above. When asked to explain this, she said Prof Mills and Dr Walsh had knowledge of her work. They were “constantly judging me and said my output was less than full time”. I pressed the claimant to identify on what basis she makes this allegation, emphasising that a mere statement to this effect is not enough without some evidence to support it. She said that these four individuals had made the decision she could not work part time. The claimant then modified the allegation to exclude Prof Dawson and Ms Grundy. She relies only on Prof Mills and Dr Walsh holding this belief. Her reason is that they were both involved in her research. They said they needed someone full time in the role but then gave it to someone part time. Prof Mills was assuming she wanted to work part time because of her childcare responsibilities.

[66]That summarises the claimant's argument on sex discrimination. When we discussed her victimisation complaint, I asked the claimant to identify a protected act. She referred to an email dated 31 January 2023 in which she told Prof Mills and Ms Hugall that she would be getting a representative and taking advice. In fact, that email was sent only to Ms Hugall. In it the claimant referred back to previous complaints such as the incident in September 2021. She made a general assertion that she was “going to leave the project because I was tired of all things happened to me at work since I got pregnant or even before when Covid was blamed for it”. She added that she would be collecting emails and documents to give to her representative and would not be attending further meetings until she had legal advice.

[67]Related to the above is the detailed reply (attached to the above email) in which the claimant took issue with the Ms Hugall’s record of the 26 January meeting and reiterated her various grievances. This document included references to the respondent's alleged mindset which doubted that the claimant could manage a full time job and motherhood. The claimant stated: “I felt that they think because I have an infant and I'm fully responsible for his, they do not think I can manage and I should go working less.” “They do not believe I can manage a baby and a full time job.” The only other specific reference to discrimination referred back to the incident in September 2021.

[68]When asked to clarify what detrimental treatment she had experienced as a result of this email, the claimant referred again to the September 2021 incident, and the fact that Prof Mills had told colleagues she no longer wanted to resign. The only incident post-dating the 31 January email was that Prof Mills required her to provide a Fit Note in February 2023 whereas previously he had not needed one. He also wanted to hold a researcher meeting after that. The claimant conceded that these were facts not previously part of her pleaded case.

[69]In reaching my decision I reviewed the emails and other documents provided in the agreed bundle, including the respondent's contemporaneous record of the meeting on 26 January 2023. Ms Hugall’s letter of 30 January noted the claimant's unhappiness at being denied part time working in order to take up her second job, and said Prof Mills had explained at the meeting that part time working had previously been raised in the context of cuts to funding, to mitigate against possible redundancies. In the event, that funding was maintained and the claimant's contract had been extended. In her letter Ms Hugall recorded that she: “[…] asked whether you were asked to go part time and you said no. You then said that colleagues in a research meeting had told you that ‘the hub’ no longer wanted a decision platform, which is what you were working on and is why you know that you are not wanted.”

[70]In her detailed reply to this letter, on 31 January, the claimant conceded that she had replied ‘No’ to Ms Hugall’s question and explained: “I said no because like this story, I was told I wanted to go part time. Like now you mentioned I no longer intended to resign.” On the subject of Prof Mills saying she was not wanted, the claimant denied mentioning this at the meeting. She said it was others in the hub who did not want her there, and gave reasons relating to the work on the data management platform. She said the meeting had ended because Prof Mills raised his voice when saying it was none of her business if they hire someone else part time. Conclusions

[71]The authorities on striking out claims urge caution before taking such a serious step, especially in discrimination cases where it is likely that allegations may need to be aired fully at a final hearing. The law recognises that discrimination can be difficult to prove, though claimants do have the burden of proving facts which, if proved, could lead a Tribunal to draw the inference that discrimination has occurred. If such facts are established through the claimant's evidence, then the burden of proof passes to the respondent to explain why the alleged treatment occurred. This is the test under Madarassy to which Judge Sweeney referred in his case management orders of 24 August.

[72]In the case of Blockbuster Entertainment Ltd v James

[2006] IRLR 630

the Court of Appeal held that a tribunal should not be too quick to consider striking out for any non-compliance with its order, which is a Draconian power and not to be exercised too readily. The question is one of proportionality. The court held that a tribunal should make a structured examination in order to see whether there is “a less drastic means” of achieving the aim, short of an order striking out the claims.

[73]In reaching today's decision I was mindful of the importance of not conducting a mini trial on issues of fact, and considered the guidance in other key authorities on striking out, especially in the case of discrimination claims. I considered N Glamorgan NHS Trust v Ezsias

[2007] IRLR 603

and Mechkarov v Citibank

2016 ICR 1121

, as well as some more general principles set out in Cox v Adecco

UKEAT/0339/19/AT

. I also took into account the overriding objective, which requires fairness between the parties and a proportionate approach to the claims.

[74]The respondent referred to the Court of Appeal decision in Ahir v British Airways

2017 EWCA Civ 1392

which dealt with a successful application to strike out a victimisation claim. The court held that: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established […] It remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be “little reasonable prospect of success” […] Where there is on the face of it a straightforward and well documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so.''

[75]I accept that a Tribunal should not be quick to strike out discrimination claims, which generally need to be decided on their merits based on evidence at a final hearing. In this case, the claimant has put forward the proposition that her request for part time working was denied in early 2023, and she treats this as direct sex discrimination because two of her managers allegedly held a discriminatory mindset about working mothers. There is, however, an inherent contradiction in the claimant's argument, because that mindset supports the notion that mothers are better working part time so as to accommodate their caring responsibilities. That was the claimant’s interpretation of the reason she and not male colleagues was asked to reduce to part time working in 2021/2022. By the time the claimant requested to work part time a year later, her purpose was to take up a second job outside the university.

[76]In order for the claimant to succeed in her direct discrimination claim, she would have to produce evidence supporting her contention that the respondent refused her part time working request by reference to this discriminatory mindset. Yet if that evidence were established, the mindset would support the opposite argument. If the claimant is right about the beliefs held by Prof Mills and Dr Walsh, that would suggest they would be happy to allow her to reduce her working hours.

[77]It is therefore difficult to see on what basis the claimant could present a cogent argument supporting the direct discrimination allegation. I note also that there are apparently innocent explanations for the part time versus full time working arguments. The claimant herself conceded that in 2021 there were funding issues which had a bearing on the request that she work part time. It is also not in dispute that the claimant's reasons for wanting to do that in early 2023 were to take up another job. They had nothing to do with motherhood or childcare. Again, there is an apparently innocent explanation for the respondent’s stance on this occasion. Under the claimant's Conditions of Service she was not permitted to take a second job without the respondent's permission. She did not have that. The respondent took the view that the claimant's role required a commitment of at least 80%. It says that some but not all of the claimant's duties were to be covered by a colleague in the department, but if the claimant had formally resigned, it would have been recruiting a full time replacement for her.

[78]The claimant can see no other explanation for the respondent denying her part time working request when she obtained a second job. However, it does not follow that the explanation must be connected to sex discrimination. The claimant bears the burden of proving facts which could permit a Tribunal to conclude that the decision was tainted by discrimination.

[79]Turning to the victimisation claim, this too is extremely weak. The protected act the claimant relies on is her email dated 31 January 2023 and accompanying notes. This date is significant because it post-dates more or less all of the treatment about which the claimant complains. The only detriments which follow the making of a protected act are the requirements to produce a Fit Note, and being asked to attend a researcher meeting. These are new facts which have not previously been pleaded. The claimant has not applied to amend her claim to include these allegations.

[80]The above issues weigh in favour of both claims being struck out. However, as flimsy as the claimant's contentions appear to be, I am not willing to take this step without giving the claimant an opportunity to present her arguments more fully and more coherently at a final hearing. Those arguments must be supported with evidence, which may arise indirectly from other events at work. I note, for example, that there is an issue about male colleagues not being asked to reduce their working hours in 2021. While that is not a cause of action in its own right, it might be supporting evidence of a certain approach being adopted towards the claimant. Likewise, the claimant's letter of 31 January 2023 refers to her being “tired of all things happened to me at work since I got pregnant”. Evidence of past issues relating to pregnancy or maternity may need to be aired at a final hearing of the issues, if the claimant is to have any hope of persuading the Tribunal that her allegations are well-founded.

[81]Taking account of the legal authorities, I accept that a Tribunal should not be too quick to strike out a claim involving allegations of discrimination, unless the circumstances make it clear that such a step should be taken. Discrimination can be difficult to prove and claimants should not be deprived too readily of the chance to present their evidence. The test under Rule 37(1)(a) is whether the claim has “no” reasonable prospect of success. This is a high bar and on balance, I am not satisfied that it has been quite reached in this case. There is, however, no doubt in my mind that the discrimination and victimisation complaints have “little” reasonable prospect of success, and accordingly a deposit order is being made as a condition of proceeding with those claims.

[82]I would reiterate to the claimant the importance of seeking legal advice on the issues raised in this judgment and the related deposit order. Her claims have now been reduced to two issues:a. Whether the respondent's refusal to allow her to work part time in January 2023 in order to take up a second job was an act of sex discrimination, and if so, what evidence is there to support that?

b. Whether the claimant was subjected to any detriment after making a protected act through the content of her email of 31 January 2023.

[83]Finally, given the concession made at this preliminary hearing, I note that the allegations of a discriminatory mindset are not pursued in the case of Prof Dawson or Ms Grundy, neither of whom needs be called as witnesses to refute that allegation (though they may be called to give evidence on the issues generally). This is subject to any decision by the Tribunal hearing this claim. SE Langridge Employment Judge Langridge

Introduction

[1]This preliminary hearing was fixed for the purpose of rehearing one matter arising from the Tribunal's judgment dated 14 December 2023 following a preliminary hearing on 25 October 2023. By that judgment (‘the 2023 judgment’), I determined that the claimant's claims identified in her second ET1, presented on 29 August 2023 and given the above case number, were not brought within the statutory time limits under the Employment Rights Act 1996 (‘the Act’). I further decided that it was reasonably practicable for the claimant to have brought those claims in time. This latter point was the subject of a successful challenge to the Employment Appeal Tribunal.

[2]By orders dated 30 January 2025 the EAT directed that the issue of reasonable practicability under section 11(2)(b) of the Act be remitted to me for rehearing. The EAT directed that I need consider no new evidence, and should take into account the findings of fact in the 2023 judgment, as well as the two prior preliminary hearings, the claimant's witness statement, and the parties’ written submissions. Those submissions were provided to the Tribunal in advance of this hearing, and the parties agreed it could go ahead without their attendance.

[3]The two preliminary hearings which predated the 2023 judgment took place before Judge Robertson on 20 June 2023 and Judge Sweeney on 24 August 2023.

[4]The present claim under the above case number comprised claims for unfair dismissal and for notice pay. Other like claims had been brought in the claimant's first ET1 dated 3 April 2023 under case number 2500668/2023. Those claims were withdrawn by the claimant at the October 2023 preliminary hearing. They had been brought prematurely in that they predated the claimant's effective date of termination (‘EDT’).

[5]Some claims of discrimination under the Equality Act 2010 remain live under the first ET1, and were the subject of a deposit order made at the October 2023 preliminary hearing.

[6]At the October 2023 preliminary hearing the Tribunal was tasked with determining as a fact, and with the benefit of evidence, the date of the claimant's EDT. It was determined to be 18 April 2023, and as a result the primary time limit for the claimant to bring her claim (subject to the Acas Early Conciliation provisions) was 17 July 2023. The second claim was presented some weeks later, on 29 August 2023, and so was out of time.

[7]The issue for this remitted hearing was simply to consider whether it was reasonably practicable for the claimant to have submitted her second ET1 in time, having regard to:7.1 The reasons put forward by the claimant for not submitting that ET1 within the statutory time limit; and

7.2 Whether, once she became aware of the problems with the time limit, the claimant presented her second ET1 within a reasonable time after the expiry of the time limit.

[8]The findings of fact from the 2023 judgment were reviewed, as well as the pleaded case, and the claimant's written and oral evidence from the October 2023 preliminary hearing. The following facts derive from a combination of these sources and I have included a summary of some key findings of fact from the 2023 judgment.

Relevant facts

[9]The chronology of events during these proceedings has a bearing on the claimant's understanding of the time limits and her conduct throughout that period. All dates refer to 2023 unless otherwise stated.

[10]At the time of presenting her first ET1 on 3 April, the claimant was unaware of the position regarding her pay and P45. She had been paid her salary at the end of March, then submitted the first claim without knowing whether she would receive any payment from the respondent at the end of April. Although absent from work, the claimant had no reason to believe that her contract of employment had terminated as at 3 April, and she gave no such indication in her form ET1. At that time the majority of the complaints the claimant was pursuing were discrimination claims under the Equality Act 2010.

[11]By the time the respondent submitted its Response on 23 May, the claimant's employment had terminated. The respondent put her on notice that it considered her EDT to be 18 April. The claimant took no steps to investigate the implications of this or seek advice. Preliminary hearing 20 June 2023

[12]A preliminary hearing was fixed to discuss the first claim. It took place on 20 June 2023 before Judge Robertson, whose Case Management Orders were sent to the parties on 14 July. This was three days before the primary time limit expired on 17 July. The Judge ordered the claimant to set out some Further Information about her claims, which was provided on 28 July.

[13]In her case summary attached to the Orders, Judge Robertson noted that the first ET1 dated 3 April indicated the employment was continuing. She further noted that the claimant was aware of the time limits for the discrimination claims under the Equality Act 2010. This was confirmed by the claimant herself in the Further Information, where she stated that:13.1 She believed her sex discrimination claim had been brought in time, relying on a meeting on 26 January 2023.

13.2 She was aware that her pregnancy discrimination claim had not been brought in time, as the facts dated back to 2021.

[14]Judge Robertson indicated that the circumstances of the claimant's employment ending and the EDT were unclear at that stage.

[15]In paragraph 31(m) of her case summary the judge stated: “If there is a suggestion from the claimant, on reflection, that her employment ended after presentation of the ET1, it is possible that her claim has been presented prematurely.”

[16]Neither the claimant (nor, for that matter, the respondent) has made any reference to this part of the Judge’s notes during the course of these preliminary hearings. I note it is also not referred to in the EAT’s judgment, which suggests it was not brought to the attention of the EAT either.

[17]What is clear is that the claimant took no steps to reflect on what the judge said, or to investigate the implications of a premature claim, after the 20 June hearing. Claimant's Further Information

[18]In her Further Information the claimant identified a number of matters which set out her own interpretation of events. Many of these are reflected in the findings of fact made in the 2023 judgment, for example the fact that she contacted Acas in February 2023; told colleagues on 2 March that that would be her last meeting; and that she would be taking annual leave until 17 March.

[19]Other matters contained in the Further Information have a bearing on the present issue. The claimant stated that:19.1 She was being pushed to work full-time or resign, and that the respondent's conduct towards her happened between 26 January 2023 and 2 March 2023.

19.2 The respondent had taken away her projects and informed everyone in January she was not working there any more.

19.3 The respondent had paid her to “the date we agreed with Acas (23 March 2023)”. In fact, no such agreement was ever reached.

19.4 The respondent had ended her employment on 18 April, with a further small payment being made at the end of May.

19.5 “I checked at HMRC website beginning of June 2023 that my employment ended 18th of April.” Preliminary hearing 24 August 2023

[20]A second preliminary hearing took place on 24 August before Judge Sweeney. By this time both parties were in agreement that the claimant's employment ended on 18 April 2023. Despite this, when the claimant submitted her second ET1 a few days later, she relied on an entirely new termination date of 31 May. The only explanation for this new date is that it was when the claimant received her accrued holiday pay. If that date had been accepted, it would have brought the second claim within the time limit.

Judge Sweeney’s case management summary included the following relevant matters:

[21]1 There was a dispute as to which party had terminated the employment. He outlined the difference between a dismissal by termination by the employer, and a resignation where the employee considers they have been constructively dismissed. 21.2 The Judge inferred that the claimant had constructive dismissal in mind when submitting her first ET1, from the directions made by Judge Robertson. 21.3 The EDT had been discussed at the previous hearing and was now agreed by both parties to be 18 April 2023. The claimant was relying on information from the HMRC portal. 21.4 In paragraph 32 Judge Sweeney stated: “Whatever the precise date, and whoever ended the contract, what was clear was that the claimant maintained that at no point prior to 3 April 2023 (the date of presentation of the claim form) did she tell the respondent she had resigned or was resigning. As she explained to me, it was never a plan for her to resign … and she did not want to give them a resignation.”

[22]It was not therefore the claimant's case that she had resigned at the point when she submitted her first ET1. This led Judge Sweeney to raise the issue of whether that claim had been presented prematurely, and whether the Tribunal would have jurisdiction to hear it.

[23]On 28 August the claimant initiated Early Conciliation with Acas and on 29 August she presented her second form ET1. Findings of fact in 2023 judgment

[24]The Tribunal made findings of fact in its 2023 judgment, of which the following are relevant to the present decision.

[25]In an email dated 11 November 2022 the claimant told her line manager, Professor J Mills that she had found a new job, working remotely. There followed communications about the fact that the claimant wanted the respondent to allow her to reduce her hours to part-time. The respondent did not give permission. By January 2023 the claimant was exchanging emails with the respondent's HR department. This was to clarify her intentions regarding a resignation, and the practicalities of giving effect to this. At no time did the claimant take steps to give effect to her intended resignation. At one stage she told the respondent she did not want to leave but instead wanted to apply for funds so as to collaborate with future research, and keep her affiliation as a research associate. Following a number of meetings with line management in 26 January the claimant then decided she did not want to work with the respondent any longer.

[26]On 31 January 2023 the claimant emailed the respondent's HR adviser and said she would be getting a representative and taking advice. She said she would be collecting emails and documents to give to her representative and would not be attending further meetings until she had legal advice.

[27]The claimant then initiated early conciliation with Acas on 14 February 2023.

[28]The claimant ceased carrying out any substantive work on 2 March, then took 10 days’ holiday from 17 March. She was paid until 23 March. On 13 April she returned all university property to the respondent. These decisions were taken by the claimant unilaterally and she was not following the instructions of the respondent in stopping work or returning equipment.

[29]In the meantime, on 30 March Acas had informed the respondent that the claimant intended to submit her resignation. Emails were exchanged with the claimant about actioning this, but she chose not to do so.

[30]The emails exchanged between the claimant and the respondent's HR adviser on 18 April recorded the fact that she was by now on unpaid leave, until 24 April. Having heard nothing in reply to the 18 April email about her resignation, the respondent processed the claimant as a leaver on 25 April, and wrote to her on that date to say so. The letter stated that the employment ended with effect from 18 April, and that accrued annual leave would be paid no later than 31 May.

[31]The claimant saw her P45 on returning to the UK on 28 May. The claimant stated in evidence that she checked the HMRC website at the beginning of June and saw her P45 showing that a termination date of 18 April.

[32]The claimant contacted Acas to initiate early conciliation on 28 August 2023, more than one month after the expiry of the time limit. Supplementary findings of fact

[33]As to the claimant's understanding of the position during these events, I make the following supplementary findings of fact, based on the evidence already heard and the formal Tribunal documents.

[34]Firstly, the claimant is clearly a highly educated and articulate person working in an academic field. She had no difficulty in representing herself at the October 2023 preliminary hearing or through her written submissions for this hearing. In doing so, she demonstrated both confidence and a relatively high degree of knowledge and understanding of the issues in her claims. Furthermore, the claimant’s conduct during the latter months of her employment shows that she had a high level of understanding of her employment rights from the beginning of 2023. Her conduct then shows her to be assertive and capable of pursuing both her decisions and her employment rights.

[35]The claimant was not confused as to whether her employment had ended when she decided to submit her first ET1 on 3 April 2023. On the contrary, she was adamant that she would not be the one bringing it to an end. She understood that the respondent was asking her to formally submit her resignation and that without that, her employment would be ongoing. The claimant specifically did not want her employment to end because she wanted to remain employed on a part-time basis so as to take up another part-time role. She also wanted to keep her employment alive to enable her to apply for funds in the future so that she could keep her affiliation with the respondent as a research associate.

[36]The claimant's aspirations to be retained as an employee changed at some point in January 2023 and on 14 February she contacted Acas about potential claims. These included a possible constructive unfair dismissal claim as well as discrimination claims under the Equality Act 2010. Although the claimant then took unilateral steps to absent herself from work and duties in March and April, she knew that she had still not submitted any resignation or received any notice of termination from the respondent. The claimant therefore knew that her employment had not ended when she submitted her ET1 on 3 April.

[37]In her witness statement for the October 2023 preliminary hearing, the claimant said the respondent had emailed her on 30 March saying she had advised Acas that she had given her resignation. She asserted that this was not true, and that “Acas advised me that I should give my resignation and I mentioned no, I read in Gov.UK that I should leave the job immediately if I cannot solve it”. The claimant added: “She told me even if it is constructive, you should give resignation, I said ok because I did not want to get to an argument with ACAS”.

[38]By the time she saw the Response dated 23 May, the claimant was on notice that the respondent considered 18 April to be her EDT. She took no steps to investigate the implications this might have on her claims for unfair dismissal and notice pay.

[39]By the preliminary hearing on 20 June the claimant demonstrated to Judge Robertson that she was aware of and understood the time limits applicable to her Equality Act claims. She was explicitly told by the judge that her unfair dismissal claim may have been brought prematurely. By this time the claimant was in no doubt that there may be a problem with the date she filed her claim, but again she took no steps to look into that.

[40]At Judge’s Sweeney’s preliminary hearing on 24 August, the subject of the premature claim was raised again. This time the claimant did look into the matter, contacting Acas on 28 August and submitting her second ET1 the following day. The claimant named the EDT as 31 May, despite agreeing with the respondent's position at the preliminary hearing. Her stance was also contrary to her own statement in the Further Information where she identified 18 April as the EDT and referred to the P45 submitted to HMRC by the respondent.

[41]I therefore find that when she submitted her second ET1 on 29 August, the claimant was in no doubt about the fact that her employment had ended in April, and probably on the 18th of that month, by virtue of:41.1 the date stated in the P45 that she had seen at the latest by early June;

41.2 the content of the contemporaneous emails with the respondent around 18 April;

41.3 the fact that she had received no wages at the end of April; and on a continuing basis, had carried out no duties for the respondent after March; and

41.4 the respondent identifying 18 April as the EDT when filing its Response on 23 May.

[42]The claimant further knew that she was at risk of a finding by the Tribunal that her EDT was 18 April 2023, which could jeopardise her unfair dismissal claim. Even if she did not understand the implications of the EDT relied on by the respondent, the claimant was left in no doubt that her claim might be premature when Judge Robertson raised this at the 20 June preliminary hearing and referred to it in her case management orders and case summary sent to the parties on 14 July.

[43]It was only after the 24 August preliminary hearing that the claimant took steps to investigate the implications of her first ET1 being premature. She decided, opportunistically, to identify the EDT as 31 May 2023 when submitting the second ET1 as this would mean that claim was in time.

The law

[44]Section 111 Employment Rights Act 1996 provides that:(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) […] an employment tribunal shall not consider a complaint under this section 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.

[45]These provisions are subject to the extension of time rules which mandate early conciliation through Acas. The 3 month primary time limit is met if a claimant initiates early conciliation within that period, beginning with the EDT. The Tribunal has the power to allow a late claim where it is satisfied that it was not reasonably practicable for the complaint to be presented in time.

[46]The question of reasonable practicability is one of fact: Walls Meat Company Ltd v Khan

1979 ICR 52

. The Court of Appeal said that presenting a complaint is not reasonably practicable “if there is some impediment which reasonably prevents, or interferes with, or inhibits” carrying out that act. Furthermore, the impediment may be “the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters”. The Court added: “Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made […]”

[47]In Palmer and anor v Southend-on-Sea Borough Council

1984 ICR 372

, the Court of Appeal reviewed the authorities, including Walls Meat Company Ltd v Khan. It concluded that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ would be too favourable to employees. It also does not mean physically possible, which would be too favourable to employers, but it means something like ‘reasonably feasible’.

[48]A claimant’s ignorance of his or her right to claim unfair dismissal may be a factor, but that ignorance must itself be reasonable. In Porter v Bandridge Ltd

1978 ICR 943

, the Court of Appeal decided that the correct test is not whether the claimant knew of his or her rights but whether he or she ought to have known of them. The Court referred to Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA, in which Scarman LJ commented on the position where a claimant pleads ignorance as to his or her rights: “… does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion, no. It would be necessary to pay regard to his circumstances and the course of events. What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?”

[49]This principle was dealt with in Trevelyans (Birmingham) Ltd v Norton

1991 ICR 488

, EAT where the Court said that, when a claimant knows of his or her right to complain of unfair dismissal, he or she is under an obligation to seek information and advice about how to enforce that right. Failure to do so will usually lead the tribunal to reject the claim.

[50]In Meaker v Cyxtera Technology

2023 EAT 17

there was confusion about the date when the claimant's employment had terminated. In that context, the Court referred to the claimant's knowledge of payments calculated by the respondent by reference to its understanding of the EDT. The Employment Tribunal had taken the view that it was not reasonable for the claimant to have taken any other view than that his employment terminated on the date relied on by the respondent. The EAT said that even if the claimant considered that he had a good argument for a later EDT, he plainly knew that he was at risk of being ruled out of time.

[51]In Software Box Ltd v Gannon

2016 ICR 148

, the EAT considered the application of the ‘not reasonably practicable’ extension in circumstances where the claimant was mistaken in her belief that proceedings were already pending. Referring to Wall’s Meat Co Ltd v Khan, the EAT stated that the focus should be on what was reasonably understood by the claimant when presenting her second claim and whether, on the basis of that understanding, it was not reasonably practicable for her to bring that claim earlier. Written submissions Claimant's submissions

[52]The claimant submitted that she presented her first ET1 in circumstances that amounted to constructive dismissal and under the mistaken belief that her EDT was 23 March 2023, after she ceased to work and the respondent ceased to pay her. This was her explanation for the delay in presenting the second ET1.

[53]She says she acted promptly once she learned on 24 August that the first claim was brought prematurely, and that she made reasonable efforts to comply with the time limit “as soon as the legal position was made clear to her”, at the August preliminary hearing.

[54]The claimant said her reason for not bringing the second claim in time is because there was a case for constructive dismissal already before the Tribunal. She also relied on Judge Sweeney having described her claim as a claim for “direct” unfair dismissal, “not constructive”, and asserted that the respondent had agreed with that labelling. She acted promptly after being made aware of that. Once the claim was characterised as a “direct” unfair dismissal, that meant it was not constructive unfair dismissal and so March 2023 could not be the EDT.

[55]The claimant submitted that the respondent changed its position on the EDT at the October 2023 preliminary hearing, whereas previously it had known she did not intend to return to work after March 2023 and had accepted that March was her EDT.

[56]The claimant relied also on inconsistent statements from the respondent during the proceedings. Whereas in the Response to the second claim the respondent had relied on an 18 April EDT, in the Response to the first claim it had stated the claimant would not return to work after March and denied any breach of contract. She said she relied on statements made by the respondent and the Tribunal and resubmitted her claim once she had clarification.

[57]Referring to the difficulty and confusion surrounding the identification of the EDT, the claimant stated that her initial reference to constructive dismissal resulted from the respondent's misinterpretation of her statements. In support of this she referred only to the respondent's “unfounded claim about an unpaid leave agreement”.

[58]The claimant referred to what she saw as inconsistencies and contradictions in the information provided by the respondent in its first Response, where it had said the claimant had exhausted her right to annual leave. She nevertheless received a payment for accrued holiday pay in late May. The claimant referred to discussions with Acas which had been mentioned in her witness statement for the October 2023 preliminary hearing. There had been discussions about her leaving on 15 April but no such agreement was reached. She represented that as a “false statement” by the respondent, in contradiction to its reference to unpaid leave.

[59]All of this was raised in the claimant's submissions to show examples of the respondent's alleged “failure to provide clear and consistent information” which she asserted directly contributed to her misunderstanding of the EDT.

[60]The claimant submitted that her confusion about the EDT being in March 2023 was reasonable, given what was happening that month, with the absence from work and her repeated statements that she would not be returning. That belief was reinforced by the respondent's proposals via Acas.

[61]The claimant submitted that her belief was based on an understanding of the EDT, which was “the date on which an employee communicates their constructive resignation and it takes effect … not when the employer chooses to acknowledge it”. She did not identify when that communication from her was made or when it took effect. She said her reply to the 18 April email was simply a “reconfirmation and reiteration” of her earlier position.

[62]The claimant concluded by saying the Tribunal had failed to properly assess the complexities in determining the EDT. She acted in good faith and responded as soon as the legal position became clear. Respondent's submissions

[63]In its submissions the respondent referred the Tribunal to Trevelyans (Birmingham) v Norton and Wall’s Meat Company Ltd v Khan (above). Where a claimant is generally aware of their right to claim unfair dismissal, they are obliged to seek information and advice about how to enforce that right. Even if they are genuinely ignorant or confused, that ignorance or confusion must in itself be reasonable.

[64]Relying on Meaker v Cyxtera Technology the respondent submitted that if there is a dispute about the EDT it was still reasonably practicable for the claimant to present her claim when she knew she was at risk of being ruled out of time. The relevant circumstances of this case include the following:63.1 The claimant was in contact with Acas on 14 February 2023 and was in a position to find out about time limits.

63.2 When she presented the first ET1 the claimant knew her employment had yet to terminate.

63.3 The first ET3 dated 23 May put the claimant on notice that the respondent considered 18 April to be the EDT. That has been its consistent stance throughout.

63.4 At the 20 June preliminary hearing the claimant was again on notice that the respondent considered the EDT to be 18 April. Therefore she knew she could be ruled out of time.

63.5 The claimant's Further Information dated 28 July says the respondent ended her employment on 18 April.

[65]Any mistaken belief had therefore been resolved by the respondent and Tribunal putting the claimant on notice in May and June of the EDT of 18 April. The claimant herself relied on this date in her Further Information, which resolved any confusion by 28 July at the latest. On each of these dates, any impediment arising from the claimant's mistaken belief had been removed. Even in reliance on the 28 July date, any confusion about the EDT was resolved, yet the claimant took no action to present her second claim for a month, which was not reasonable.

[66]The claimant's confusion based on having been constructively dismissed in March 2023 was not a reasonable belief. She clearly knew about her rights and potential claims in general, and took no steps to make inquiries or seek advice despite her confusion about the EDT.

Conclusions

[67]It is clear from the authorities referred to above that an impediment to bringing a claim within the statutory time limit can be a state of mind. However, whether a claimant relies on ignorance of their rights, or confusion about how to enforce them, that state of mind must be a reasonable one to hold in all the circumstances – Walls Meat Company.

[68]It is not just a case of assessing what the claimant actually knew at the relevant points in time, but also what she ought reasonably to have known – Porter v Bandridge and Dedman.

[69]The authorities also make clear that a claimant has a responsibility to seek information or advice about how to enforce their rights. In this case the claimant undoubtedly had a good understanding of her right to bring an unfair dismissal claim, even allowing for her confusion about whether this is labelled “direct unfair dismissal” or “constructive unfair dismissal”. They amount to the same type of complaint, albeit the routes to the claim are very different depending on which party ends the employment. Either the employer or the employee must terminate the contract in order to bring it to an end. It is not in dispute that the respondent in this case never took that step.

[70]What is manifestly clear in this case is that the claimant wished to resign and treat herself as constructively dismissed. She used that language when in contact with Acas in February 2023 and in her first claim form. The claimant may not have understood the difference between a termination of employment and a ‘dismissal’ as defined by section 95 Employment Rights Act 1996. What is colloquially referred to as a ‘constructive dismissal’ is a case where an employee resigns in the circumstances set out in section 95(1)(c) of the Act. That person may then bring an unfair dismissal claim and try to persuade a Tribunal that they were dismissed. Such a claim may be referred to as a ‘constructive unfair dismissal’ claim, even though that is not the language of the Act. Either way, the employment must have ended, either by virtue of the employer terminating it expressly, or by the employee’s resignation.

[71]The reason relied on by the claimant for not submitting her second claim in time was identified by the EAT when it allowed Ground 1 of her appeal, by reference to paragraph 6 of the claimant's witness statement: “If any other dates will be decided by the Employment Judge as end date, The reason this was not brought on time because there was a case for constructive dismissal already at Tribunal and both claimant and respondent were looking at it as constructive dismissal. It was suggested by Employment Judge Sweeney that it is unfair dismissal and respondent agreed to that. I brought it as soon as possible when it was clear that it was unfair dismissal, and the other claim will be dismissed because it was premature. I did not add any delay after it was clear to me it is unfair dismissal. I informed the tribunal immediately after I filled the ET1 again.”

[72]Therefore the reason was that the claimant had a claim for constructive dismissal which was already before the Tribunal. The purpose of this rehearing is to consider that reason and whether it was a good reason to explain why the claimant did not initiate her second claim until 28 August. I have considered the claimant's reasons by reference both to what she knew and what she ought to have known at various points in time.

[73]I acknowledge that the claimant referred in both her witness statement and written submissions to the confusion she says existed about the type of unfair dismissal claim she was bringing. The first point to make is that I do not accept her interpretation of what Judge Sweeney said at the preliminary hearing. His case summary did not say that this case involved a dismissal by reason of the respondent terminating the employment, nor did the respondent agree with that contention. There was never any question of the claim being presented in two different ways, as there was never any evidence of termination by the respondent. Judge Sweeney was simply clarifying the law in an effort to assist the claimant.

[74]I found that the insertion of this debate into the present case of little relevance or assistance in reaching my decision. I do not accept that the perceived difference between what the claimant terms a ‘direct unfair dismissal’ claim and a claim of ‘constructive dismissal’ was material to her decision-making when presenting her claims. On 3 April the claimant knew that she was trying to bring a constructive unfair dismissal claim, as was plain from paragraph 3.1 of her witness statement. Under the heading “Constructive dismissal”, the claimant explicitly identified the claim and linked it to the respondent’s conduct towards her, which she described as a “serious breach of contract”: “The respondent denied my constructive dismissal (serious breach of contract) for 5 months that involves humiliation, bullying, harassment, and discrimination.”

[75]That is entirely consistent with the claimant understanding the nature of the claim she was bringing. I do not therefore accept that there was any misunderstanding about the type of claim the claimant was seeking to bring. If there was, I would have no hesitation in concluding that the claimant's misunderstanding was unreasonable and did not amount to any impediment preventing her from presenting her claim in time.

[76]I would add that the nature of the claim was obviously in the claimant's mind at an early stage, as she had already discussed constructive unfair dismissal with Acas in February and March 2023. Her own evidence about a conversation with Acas on around 30 March shows that she was very aware of the need for a resignation to precede a constructive unfair dismissal claim.

[77]Turning to the second claim, which is the one engaged by this rehearing, in conclude that the claimant’s reason for presenting it late was the existence of the first claim – but not its characterisation.

[78]The critical misunderstanding in the claimant's mind related to the premature presentation of the unfair dismissal claim before her employment had ended. On its own that may have weighed in favour of a reasonable misunderstanding. However, that ignores the claimant's responsibility for making enquiries or seeking advice about how to bring her claim. I note that on 31 January 2023 the claimant was telling the respondent that she intended to get a representative and take advice; that she would be collecting emails and documents to give to her representative; and she would not be attending further meetings until she had legal advice. It appears the claimant did not take any such steps.

[79]Giving the claimant the benefit of doubt as to the prematurity of her first claim, any such doubt should have been dispelled as soon as there were further developments in the proceedings. Specifically, the claimant was made aware by the Response filed on 23 May that the respondent considered her EDT had not happened until 18 April, after her claim was presented. It should be a matter of logic and common sense that a person cannot claim to have been unfairly dismissed if their employment has not yet ended. Likewise, there can be no claim for failure to give (or pay for) notice of termination, if no such notice has been given.

[80]From that point on, the claimant was on notice that there could be a problem with her first claim, but she took no steps whatsoever to investigate that or take advice. Had she done so, she would have found out that she had brought her claim prematurely and that she had ample time, up until 17 July 2023, to correct this by bringing a fresh claim.

[81]On 28 May the claimant returned home from leave and at the beginning of June she checked the HMRC portal, which told her that the EDT was 18 April. She did not challenge that and in fact later relied on that EDT when submitting her Further Information on 28 July.

[82]At the two preliminary hearings there was some confusion about who had terminated the employment, and when, but my conclusion is that it was the claimant who created that confusion in the way she presented her case. She knew well what steps she had taken between January and March 2023, absenting herself from work and yet refusing to give effect to a resignation. As later noted by Judge Sweeney and in the October 2023 judgment, the claimant did not want to resign.

[83]The chronology of these events as outlined in the above findings of fact persuade me that the claimant was well aware of the position: she knew her employment was coming to an end but she also knew that neither she nor the respondent had given effect to any termination of employment.

[84]Judge Robertson’s observation at the 20 June preliminary hearing is very significant as to the state of the claimant's knowledge and understanding. Paragraph 31(m) of her case summary records the possibility that the first claim had been presented prematurely. The claimant appears not to have taken up the suggestion to reflect on the fact that her employment may have ended after presentation of the ET1. The claimant still had a month to act, but again did nothing.

[85]It is therefore incorrect to say, as the claimant has repeatedly done, that she was not aware of the premature nature of her first claim until the preliminary hearing on 24 August. The claimant was present at both hearings (though I note the respondent had different representation then).

[86]The claimant demonstrated to Judge Robertson her knowledge of the time limits applicable to her Equality Act claims. I conclude that there was no impediment to the claimant finding out about the time limits under the Employment Rights Act. She could have done so at any time from January 2023, and should have done so as soon as she became aware of the potential problem with her first claim.

[87]Once the 24 August preliminary hearing took place, the claimant did act promptly to present her second claim after first initiating early conciliation with Acas. I do not fault her in relation to this timeframe. However, she had already ignored multiple prompts that should have alerted her to a potential problem with her first claim:87.1 Seeing the 18 April EDT in the Response dated 23 May;

87.2 Seeing the same EDT on the HMRC portal at the beginning of June;

87.3 Being told by Judge Robertson on 20 June that the claim may be premature;

87.4 Having the above confirmed in the case summary sent to her on 14 July;

87.5 Her own reliance on the 18 April EDT in the Further Information dated 28 July.

[88]None of the above prompted the claimant to take any action whatsoever. If she was still under any misapprehension about her claims, that was not a reasonable position to hold. She had a good understanding that the correct EDT was likely to be 18 April, and said so herself until the 24 August preliminary hearing. Although she acted promptly then, her lack of action in the three months between 23 May and the second claim cannot reasonably be explained by a mistaken belief of ignorance of how to proceed. Furthermore, the claimant cannot reasonably rely on the respondent – as she now suggests – or the Tribunal to advise her on how to proceed. She was misled by nobody.

[89]Although in her submissions the claimant said she misunderstood the correct EDT and what type of unfair dismissal claim she was bringing, I do not accept that this was actually the case. What she describes as the “evolving interpretations” on the EDT bear no connection to the contemporaneous events as I have found them. The claimant's submissions contained a number of inaccuracies and irrelevancies, for example about being misled by the respondent as to her annual leave. Her retelling of the circumstances of her departure did not fit the evidence or the findings of fact already made.

[90]The key issue was for me to consider the claimant's explanation for not bringing her second claim by 17 July 2023. She relied on the fact that she had already brought a constructive dismissal claim. While any confusion about the EDT may have explained why the claimant brought her first claim prematurely, it did not explain why she took no corrective action after learning about the correct EDT. The lack of any attempt to investigate or understand the position between 23 May and 17 July is not reasonable, and there was no impediment preventing the claimant from finding out how to pursue her claim in time, if she was in fact mistaken in her understanding. SE Langridge Employment Judge Langridge