Mr Y Sharafeldeen Abdelrhman Yousif v Asda IDC: 2600067/2018
EMPLOYMENT TRIBUNALS
Case No 2600067/2018
Between
Mr Y Sharafeldeen Abdelrhman YousifClaimantAsda IdcRespondent
Before
Employment Judge ClarkDate 28 March 2019
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claim succeeds and the remedy to which the claimant is entitled will be determined at a Remedy Hearing.[2]The hearings listed on 30/04/2018 and 17-19/09/2018 are cancelled.
REASONS
hearing.
[1]The parties attended a closed preliminary hearing on 29 June 2018 before EJ Clark. At that hearing, the issues were decided and orders were made. Specifically, EJ Clark ordered the Claimant to produce a disability impact statement, his relevant medical records, that is relevant to his two claimed disabilities, and a written witness statement explaining why his claims were not brought in time. The Claimant was ordered to produce those and to send them to the Respondent by 4 pm on 10 August 2018.[2]The case was listed for a one day hearing to take place today to determine the following issues:2.1 whether it is just and equitable to extend time for the presentation of the claims;2.2 whether the Claimant satisfies the definition of disability at the material time;2.3 the Claimant’s application to amend his claim to add a claim of direct race discrimination, and2.4 to make any case management orders as are necessary.[3]The Claimant arrived at the hearing today with a disability impact statement and a large number of medical records. He did not produce the required witness statement. Further and much more significantly, he had not sent any of the documents to the Respondent.[4]I canvassed with the parties whether it was possible to undertake a hearing given the complete failure by the Claimant to comply with EJ Clark’s orders.[5]Mr Gillie has submitted, and I accept it, that he was not in a position to crossexamination the Claimant on any of the matters, whether that is the question of the disability, the lateness of the claims and the application to amend. He did not know what was in the medical records and it would take some time to go through them as there seemed to be at least 200 pages; he did not know what the Claimant would say about the reason for the delay in making his claims and there is no basis for seeking to add a claim of race discrimination which is significantly out of time.[6]The Claimant’s position was that he did not understand what he had to do and he thought that he could bring everything today. I pointed out that if that was right, he did not bring everything today, he failed to bring his witness statement. In any event, having looked at the record of the closed preliminary hearing, it seems to me that EJ Clark was careful to ensure that the Claimant did understand what was going on. EJ Clark says expressly that at the outset of the hearing he explored with the Claimant his level of English for the purposes of the hearing and the Claimant was content that it was good enough to continue, although he may need some explanation from time to time. They did agree that an interpreter would be needed for future hearings, which is of course what happened today. Further, EJ Clark’s orders are concise and clear.[7]Given that we are unable to proceed today and having contacted the listing section, a new hearing has been fixed for one day on 13 December 2018 in Leicester before an Employment Judge sitting alone. This should be taken as notification of that hearing, no further notice of hearing will be sent out. The parties should attend at 09:45 ready to start at 10:00.[8]Mr Gillie asked for a short break to take instructions and I allowed that. On return, he said that he was instructed to make two applications before me. The first of those was for an unless order to the effect that the Claimant should comply with the orders otherwise his claim would stand as being struck out. Mr Gillie’s reason for doing that is that thus far, simple orders requiring the Claimant to provide his medical records for example had not been complied with and there needs to be some teeth, as he put it, to the orders. The second was for the brief fee the Respondent had incurred for him to attend today and which had clearly been wasted through no fault of the Respondent. He confirmed that the brief fee was £500. The Respondent is not seeking costs wasted by any solicitors in putting the brief together and Mr Gillie was not seeking the cost of his attendance today.[9]Mr Gillie said that given the clear orders set out by EJ Clark following the closed preliminary hearing and in the context of the claims having clearly been submitted a significant period out of time and an application for a new claim which is even more out of time, the Claimant really should have come prepared to deal with those matters today and the whole day has in effect been completed wasted by his unreasonable conduct in failing to comply with the orders.[10]I listened to the Claimant’s response to that although in fairness to him there was not much he could say about his failure to comply with the orders. I did not accept, as I have set out, that he did not understand what he was required to do.[11]The Claimant took the oath and I asked him a number of questions about his means. He has been off sick since August 2017, his sick pay has run out although he had at some point around £4,200 of savings. He has spent a portion of that. He is about to rent out a room in his house and he thinks that he will get something between £300 and £350 per month for that. He currently has a claim for benefit. Other than outgoings for food etc, his biggest expense is a mortgage which is £400 per month. He lives alone.[12]Having considered the context of this case, the circumstances of today and my finding that the Claimant’s behaviour was manifestly unreasonable, it seems to me that it is reasonable to award costs in this case and I have done so under rule 76(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. On or before 4 pm on 5 October 2018 the Claimant shall comply with orders 1a, 1b and 1c) set out by EJ Clark in his case management orders made on 29 June 2018. 2. A costs order in the sum of £500 is made against the Claimant and in favour of the Respondent on the basis of the Claimant’s unreasonable behaviour in failing to comply with orders 1a, 1b and 1c set out by EJ Clark in his orders made on 29 June 2018 following the closed preliminary hearing. 3. In preparation for the one day preliminary hearing set for 13 December 2018, the Respondent shall on or before 8 December 2018 send to the tribunal (and they shall bring an extra copy to the tribunal) the disability impact statement, the Claimant’s witness statement and the Claimant’s relevant medical records. Employment Judge Brewer 02 November 2018 Notes(i) The above Order has been fully explained to the parties and all compliance dates stand even if this written record of the Order is not received until after compliance dates have passed.(ii) Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.(iii) The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.(iv) An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Any further applications should be made on receipt of this Order or as soon as possible. The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’: https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presidential- guidance-general-case-management-20170406-3.2.pdf(v) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties and state that it has done so (by use of “cc” or otherwise). The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so”. If, when writing to the Tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written. Order sent to Parties on …………………………………[1]The Claimant presented his claim to the Tribunal on 11 January 2018. He said that he was employed by the Respondents as a Warehouse Operative and had been since 3 August 2009. He claimed disability discrimination only. Page 1 of 6[2]At the time he was represented by Mr Ian Lewis of Bray and Bray Solicitors in Leicester.[3]He said that he suffered from a long term chest infection problem and that he had also contracted a long term stomach problem whilst on sabbatical leave. He said that both those ailments amounted to physical impairments which amounted to a disability.[4]He also mentioned that he was suffering from a severe stress reaction and had not been able to return to work since the end of August 2017.[5]His complaint was that: -5.1 The company had withheld his sick pay.5.2 His membership of the Respondent’s share scheme had been cancelled.5.3 The Respondent’s had refused to consider allocating work and duties to the Claimant which would not require him to bend.[6]He complained that these amounted to: -• Direct disability discrimination• Discrimination arising from disability• A failure to make reasonable adjustments[7]The Respondent filed a response to the claim on 18 April 2018. They denied that the Claimant suffered from a disability and/or that the Claimant had been subjected to disability discrimination. They also said that the Claimant’s claims were out of time and that the Tribunal did not have jurisdiction to hear the complaints.[8]On 29 May 2018 the Claimant wrote to the Tribunal to say: “I write to make an application for the Tribunal to consider my complaints about disability claim as well as the same complaints of race discrimination because today 29 05 2018 at the Coventry Central Library, I met a former colleague named Senay Zerehannes who explained to me the bad treatment he’s receiving from managers at work which is similar to my problems, and now I understand the reason of the treatment I received was because I am black Africa.”[9]At a telephone case management Preliminary Hearing conducted by my colleague Employment Judge Clark he identified the issues in respect of the disability discrimination claims. He ordered the Claimant to provide medical records in respect of his disability. He also identified that the current claim raised allegations arising in: -• November 2016• April 2017• May 2017 Page 2 of 6[10]All those allegations were prima facie out of time and the Claimant would have to satisfy the Tribunal that it is just and equitable for the time limit to be extended.[11]He decided that there should be a Preliminary Hearing to determine: -• Whether the Claimant’s application to amend his claim should be granted to add claims of race discrimination• Whether the Claimant at the relevant time suffered from a disability• Whether the claims or any of them were matters which the Tribunal had jurisdiction to deal with because they appeared to be out of time.[12]He also ordered that the Claimant should have the benefit of an Arabic interpreter at the Preliminary Hearing although the Claimant does generally understand English and the Tribunal was assisted at the hearing today by Mr Omar Lamarti, a Court appointed interpreter.[13]The attended Preliminary Hearing took place on 19 September 2018 before my colleague Employment Judge Brewer. At that hearing the Claimant arrived with a disability impact statement and a large number of medical records. He had not provided these documents to the Respondents in advance of the hearing. The Claimant had therefore failed to comply with the orders that Employment Judge Clark had made on 29 June 2018 about producing the impact statement and his medical records.[14]Employment Judge Brewer was left with no alternative but to adjourn the Preliminary Hearing to today’s date and ordered the Claimant to pay a contribution of £500.00 towards the Respondent’s costs.[15]Employment Judge Brewer ordered the Claimant to comply with the orders made at 1A, 1B and 1C of the orders by Employment Judge Clark by 5 October 2018.[16]The Claimant did not comply with that order. The Respondent’s applied to strike out the claims but this was refused and the Claimant eventually provided his impact statement and other documents on 16 November 2018.[17]Also on that date the Claimant produced further particulars of his claims.[18]On 5 December Dr Ibakakombo wrote to the Tribunal to attach further better particulars of his claim. These particulars of claim raise matters that had not been raised at all in any previous claim form submitted by the Claimant. At the hearing today[19]The Claimant appeared with his representative Dr Ibakakombo and the Respondent was represented by Ms White of Counsel. We first dealt with the issue of the amendment application. There was a bundle of documents provided by the Respondents which appeared to be agreed and there was a supplemental bundle of documents produced by Dr Ibakakombo. Where I refer to page numbers it is from those bundles of documents. Page 3 of 6 The Claimant’s position[20]Dr Ibakakombo submitted as follows: -20.1 That the race discrimination matters had already been pleaded.20.2 They required the same evidence as the existing claim of disability discrimination.20.3 There was no prejudice to the Respondents if I allowed the amendment.20.4 The same witnesses would give evidence which would cover the other complaints.20.5 The Claimant had only realised on 29 May 2018 that he had suffered race discrimination as well as disability discrimination.20.6 I should allow him to present what Dr Ibakakombo described as a good case of direct race discrimination.[21]Dr Ibakakombo produced to me the case of New Star Asset Management Holdings Limited v Evershed [2010] EWCA Civ 870 which he said supported his contention that I should grant the amendment to allow him to proceed with a claim of race discrimination. The Respondent’s contentions[22]Ms White pointed out as follows: -22.1 Until 29 May 2018 the Claimant had not mentioned anything about a claim of race discrimination.22.2 When he had made his original claim to the Tribunal he had been in receipt of legal advice and as at 11 January 2018 there had been no mention of suffering from race discrimination.22.3 In the Claimant’s letter of 29 May 2018 he had not particularised his complaints.22.4 The first time that he had particularised complaints of race discrimination were on 16 November 2018.22.5 These had been further particularised once the Claimant had his current representative on 5 December 2018.22.6 Although the claimant mentions unfavourable treatment and the persons who he says were perpetrators he names no comparator and even at the hearing today he was not able to properly identify who his comparators were simply saying when questioned that there were 2 colleagues named Katarena and Crowe.22.7 Time is relevant to my consideration because the race discrimination complaints are hugely out of time. Page 4 of 622.8 Even now the Respondent could not respond to the claims because they have not been particularised as discrimination complaints.
The relevant law
[23]Rule 30 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 gives me the power to deal with applications for case management orders which includes the power to allow the Claimant to amend his claim.[24]The case of Selkent Bus Company Limited v Moore [1996] ICR 836 gave guidance as to how I should approach applications for leave to amend. The case emphasised that in deciding whether I should exercise my discretion I must carry out a balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Those factors include: -24.1 The nature of the amendment. Amendments vary from correction of clerical and typing errors to making entirely new factual allegations which change the basis of the existing claim.24.2 The applicability of time limits if a new claim or cause of action is proposed it is essential for me to consider whether the claim or cause of action is out of time and if so whether the time limit should be extended.24.3 The timing and manner of the application. I should not refuse solely because there has been a delay in making it. This is a discretionary factor and I must consider the reasons why the application was not made earlier and why it has now been made. In particular whether there has been a discovery of new facts or new information appearing from documents disclosed on discovery.[25]I remind myself that the above-mentioned factors are not an exhaustive list and in particular I can consider such matters as whether on the face of it the claim has reasonable prospect of success. My conclusions[26]I am satisfied on the balance that it would not be just and equitable to allow the Claimant to amend his claim to add a claim of race discrimination.[27]Even at the stage of this hearing where he appeared represented by an experienced lay representative he could not identify to me why he had said that he had suffered less favourable treatment rather than unfavourable treatment. Until the hearing today he had not named any comparators and it was only when I asked his representative about who his comparators were that he came out with 2 first names only of individuals who he said were his comparators. Apart from not being Black African he could not explain to me why these were appropriate comparators.[28]He still cannot explain to me why he considers that his complaints amount to less favourable treatment than his comparators being unable to identify the particular circumstances of any comparators who he says that he was treated less favourably than. Page 5 of 6[29]His explanation for the timing of his application was that he had met a former colleague at a library on 29 May and only then realised that he had been discriminated against because of his race.[30]At no stage during the course of his employment has he ever complained that he has suffered from race discrimination either formally or informally.[31]Any claim of race discrimination is entirely a new claim and a new cause of action. It is not simply a relabelling of the current claim as described by his representative. His representative says that the matters are “already pleaded”. They are not. They relate to matters that occurred in March/April 2017. They are events that occurred almost 2 years ago.[32]I am satisfied that if I allowed the claim there would be considerable prejudice to the Respondent. Witnesses would have to be asked about a race discrimination complaint which has not been raised with them at any time before by the Claimant. There is no documentary evidence in respect of these complaints and people would have to rely on their memory.[33]The Employment Tribunal works to strict time limits. A complaint of discrimination has to be raised within 3 months of it occurring for good reason. The burden is on the Claimant to establish that it would be just and equitable to extend the time. The Claimant has provided no good reason to me as to why I should extend the time in this case.[34]Whilst the Claimant has some limitations on his understanding of English it is a relevant factor that when he made his claim to the Tribunal on 11 January 2018 he was represented by a solicitor and he had not mentioned to his solicitor at the time that he felt that he had suffered race discrimination.[35]I am satisfied that he only thought about making a claim of race discrimination at the end of May 2018, some 4 months after he had presented his claim and 13 months after the events had occurred.[36]In the circumstances I am satisfied that it would not be in accordance with the overriding objective and the interests for the Claimant to be allowed to amend his claim to add a fresh claim of race discrimination and the application is therefore refused.
The relevant law
[1]This hearing follows on from an attended Preliminary Hearing conducted by myself on 13 December 2018 when I refused the application made by the Claimant to amend his claim to include a claim of race discrimination.[2]At that hearing we identified that the complaints of disability discrimination were out of time. This hearing had been set to determine whether the Tribunal has jurisdiction to hear the claims. This involves a 2 stage process namely: -2.1 Were the claims presented in time ie within the 3 months’ time limit set out in Section 123 of the Equality Act 2010 (“EQA”).2.2 If the claims or any of them were out of time would it be just and equitable to extend time and allow the claims to proceed to a hearing.
Evidence
[3]I heard evidence from the Claimant only and there was an agreed bundle of documents before me. Where I refer to page numbers it is from that bundle. Page 1 of 7
Relevant Facts
[4]The Claimant was employed by the Respondent as a Warehouse Operative from 3 August 2009. He says that he suffers from a number of complaints and in particular: -• Stomach problems• A chest infection[5]He says that this amounts to a disability as defined in Section 6 of the EQA.[6]He made his complaint to the Employment Tribunal on 11 January 2018 and listed the following matters: -6.1 That on 7 April 2017 his sickness payments were suspended.6.2 That on 29 April 2017 he was issued with a verbal warning.6.3 That he was not allocated duties which would not require him to bend.6.4 He complained about the process of dealing with this procedure.[7]He acknowledged that he has not been at work since August 2017.
The Facts
[8]The Claimant commenced his employment as a Warehouse Operative on 3 August 2009.[9]On 29 March 2017 he went off sick. He met with Danny Binks on 1 April 2017 to discuss this matter. A note of that discussion is at page 143 of the supplemental bundle. The Claimant does not dispute that the note is accurate. It confirms that he had been off work since Wednesday 29 March 2017 and says: “He still has severe pain to his left side of chest he claims. He states he went back to GP Thursday as pain on left side so bad, they sent him to hospital again but as hospital couldn’t find him a bed to wait on he returned home.”[10]A decision was made by Sharon Hammond the General Manager to withhold his sick pay following a meeting between the Claimant and Sharon Hammond on that day. The letter confirming the outcome of that meeting is at page 145 of the supplemental bundle. The reason for this was that Ms Hammond believed that the Claimant was abusing the company sick pay scheme. He was told of his right to appeal.[11]On 10 April 2017 the Claimant complained about the with-holding of the company sick pay (“CSP”). His letter is at page 146 of the supplemental bundle.[12]The Claimant returned to work on 26 April 2017. Page 2 of 7[13]On 29 April 2017 there was a meeting between the Claimant and his Line Manager at which they discussed the reason for his absence which was his chest infection. The notes of the meeting are at pages 151-2. The decision to confirm the withholding of his sick pay was confirmed to him on 5 May 2017 (page 155). The reason for that decision was that the Claimant had refused to undertake alternative duties as recommended by occupational health which could have facilitated his return to work. He had seen occupational health on 12 April 2017 and the notes in respect of that are at pages 148-9.[14]The Claimant was then subjected to a disciplinary investigation in respect of his abuse of the company sick pay and a meeting was held with him on 9 May 2017. The notes of the meeting are at pages 156-9. A typed version is at pages 160-2. There was then a further meeting on 23 May 2017 and the note of that is at page 163-5. The decision was to issue him with a verbal warning.[15]The Claimant decided to appeal against this verbal warning on 24 May 2017 (page 166). An appeal hearing was conducted on 30 May 2017 and the notes are at page 167-8.[16]The Claimant was again referred to occupational health on 8 June 2017. The report is at page 169 and confirms that the Claimant was deemed to be fit to return to his full substantive role. It says: “On days when his pain levels are significant there may be a decrease in his performance and pick, however on days when he has no pain, there is no medical reason why he cannot deliver a full and effective service and achieve his pick rates.”[17]The report went on to say that it was imperative that the Claimant eat the right food as certain foods were known to trigger stomach ulcer pain and he had been advised regarding some actions that he could take to assist with his own management of the condition.[18]On 9 June 2017 he raised a formal grievance (page 170). He wanted an apology letter and an acknowledgement that the process was wrong and an agreement that they would not do so again.[19]At this point the Claimant notified ACAS of his potential claim on 9 June 2017. He was issued with an ACAS early conciliation certificate on 5 July 2017. At that stage he could have issued his claim to the Employment Tribunal.[20]On 18 July 2017 the Claimant had a meeting with Natali Hersey, HR Business Partner for the Respondent. She conducted a review of his file following an issue raised by the GMB (his trade union) about the stopping of the company sick pay. She wrote to the claimant on 19 July 2017 (page 172 of the supplemental bundle). At the review she decided that it was not appropriate for him to have been issued with a verbal warning. She apologised on behalf of the company and confirmed that they would be reinstating his CSP with immediate effect. Page 3 of 7[21]It finally said: “We also discussed information given to yourself by your department Manager, after reading this information I can only apologise for the way this has come across and I can guarantee you that in no way did we intend to treat you unfairly, again I can only apologise and can promise you that the appropriate action will be taken with all involved.”[22]That appeared to be satisfactory to the Claimant and concluded the matter regarding his CSP.[23]On 29 August 2017 the Claimant raised further grievances against: -• Danny Binks (page 173)• Shaun Wells (pages 174-5)• Matt Turner (page 176)• Ashley Johns (page 177)• Atul Madwdia (page 178)• Tony Ash (page 179)[24]At that time the Claimant was represented still by his trade union. He met with Natali Hersey on 7 September 2017 with his representative to discuss this. It was agreed that the Claimant would provide Ms Hersey with a list of his grievance points against each of the people he had complained about. She did not hear anything from him and wrote to him on 9 October 2017 asking him to provide her with those details within 7 days (page 180).[25]The Claimant’s response to this was a short letter of 10 October 2017 (page 181) which did not provide any details of the allegations against each of the Managers other than the briefest detail.[26]However, a grievance hearing was held on 3 November 2017. This was conducted by Mark Stafford, Warehouse Operations Manager. His letter of 16 November 2017 sets out the details of that meeting and Mr Stafford’s conclusions (page 183-8). At that meeting the Claimant was again represented by his trade union. The Claimant had a right to appeal against that decision and did so on 1 December 2017 (page 189).[27]His grievance appeal hearing was conducted on 22 February 2018.[28]In the meantime, the Claimant submitted his application to the Tribunal finally on 11 January 2018. At that stage he was being advised by a solicitor. His complaint was of 3 matters namely: -28.1 The withholding of his sick pay. This had occurred on 7 April 2017.28.2 That withholding the sick pay resulted in his membership of the share scheme being cancelled. Page 4 of 728.3 The Respondent’s had refused to allocate him work which would not require him to bend. His claim form makes no mention of any complaint about the delays in procedure.[29]The Claimant had been on long term sick since July 2017.[30]In his witness statement to the Tribunal dated 15 November 2018 (pages 67-72) he says that he acknowledges that he had forgotten to issue his complaints. In the final paragraph he says: “On 5 July 2017 I was issued with an ACAS early conciliation certificate (first certificate) but due to my health conditions (post-traumatic stress disorder) and also I was preparing to have a “helicobacter pylori test” to investigate my long term stomach pain, I forgot to submit my claim to the Tribunal up to December 2017 when I was asked by my GP about the resolution of my employment matters.”
The Law
[31]Section 123 EQA provides: “(1) 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. (3) For the purpose 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.”[32]The burden of proof is on the Claimant to establish that it would be just and equitable to extend time. I have to be persuaded that I should exercise my discretion to extend time presenting a complaint provided I think it would be just and equitable to do so. I referred myself to the cases of:-• Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434• Chief Constable of Lincolnshire Police v Caston [2010] IRLR• British Coal Corporation v Keeble and Others [1997] IRLR 336 Page 5 of 7[33]I must look at all the circumstances of the case and in particular: -• The length of and reasons for the delay• The extent to which the cogency of the evidence is likely to be affected by the delay• The extent to which the party sued as co-operator with any request for information• The promptness with which the Claimant acted once he or she knew of the facts giving rise to the cause of action• The steps taken by the Claimant to obtain appropriate replies once he or she knew of the possibility of taking action My Conclusion[34]In this case I am satisfied that the last act complained of was in fact 30 May 2017. In this case the Claimant had obtained an ACAS certificate on 5 July 2017. The period of time between notification of his claim and the issuing of the certificate between 9 June 2017 and 5 July 2017 should not be counted in calculating the time. I am therefore satisfied that time ran out for him on 24 September 2017.[35]I am satisfied that the Claimant has not provided any adequate explanation for failing to issue his claim by 24 September 2017. His explanation that he simply forgot is not at all satisfactory.[36]I am satisfied that he had intended to proceed with a claim in July 2017 but after the meeting with Ms Hersey and her letter of 19 July 2017 retracting the warning reinstating his sick pay and apologising he had no intention or pursuing a claim. He simply then changed his mind.[37]I am satisfied that any health issues he had do not excuse his failure. It should not have prevented him from completing a claim form and submitting a claim. In deciding this I note: -• He was able to attend a grievance meeting on 3 November 2017• He was able to attend the appeal hearing on 1 December 2017• He was able to attend the grievance appeal hearing on 12 December 2017[38]He still then delayed until 11 January 2018 before he submitted his claim.[39]I am satisfied in this case that: -39.1 The length of the delay is substantial and the claim is over 3 months out of time.39.2 The reason for the delay that he forgot to make a claim is not credible. I am satisfied that he simply changed his mind.39.3 I am satisfied that the cogency of the evidence is likely to be affected by the delay. The events took place almost 2 years ago now. Page 6 of 739.4 There is no evidence that the Respondent has done anything but cooperate with any request for information.39.5 At the time of going through his grievance the Claimant was advised by his trade union.39.6 He subsequently had access to legal advice.39.7 He knew of facts giving rise to the cause of action in June 2017 when he contacted ACAS. His delay in submitting his claim until 11 January 2018 is inexcusable.39.8 Strict time limits apply to all claims before the Employment Tribunal and I am satisfied that it would not be just and equitable to extend time in this case.