Ms A Robinson v Nottinghamshire Healthcare NHS Foundation Trust: 2601526/2022
EMPLOYMENT TRIBUNALS
Case No 2601526/2022
Between
Ms A RobinsonClaimantNottinghamshire Healthcare NHS Foundation Trust Heard: Nottingham Tribunal Hearing CentreRespondent
Before
Employment Judge S ShoreNo Appearance for claimantMr G Price (instructed by Counsel) for respondentDate 11 December 2023
JUDGMENT
[1]The claimant did not meet the definition of ‘disabled person’ in section 6(2) of the Equality Act 2010.[2]The claimant’s claims of disability discrimination are therefore struck out in their entirety as the Tribunal has no jurisdiction to hear them.[3]The claimant did not present her claim for holiday pay within the period prescribed by law. It was reasonably practicable for her to have done so. Her claim for holiday pay is therefore struck out as the Tribunal has no jurisdiction to hear it.[4]The hearing listed for 7, 8, and 9 May 2024 is vacated. 1 of 14
REASONS
[1]The claimant was employed by the respondent, an NHS Trust, as a Temporary Staffing Administrator from 7 September 2020 until she resigned on 16 June 2022. The claimant’s contractual notice period was four weeks. Her effective date of termination of employment with the respondent was 15 July 2022.[2]The claimant started early conciliation on 16 June 2022 and obtained an early conciliation certificate dated 20 June 2022. She presented her ET1 on 6 July 2022. The claim form indicated claims of disability discrimination and failure to pay holiday pay by ticking the relevant boxes in paragraph8.1 of the ET1 [11]. In box8.2 of the ET1 [12], the claimant stated that a document was attached to the claim form. No copy of that document was received by the Tribunal with the ET1. No other details of the claim were provided.[3]On 11 July 2022, the Tribunal wrote to the claimant [23] requesting that she produce a copy of the document referred to in paragraph 8.2 of her claim form by 18 July 2022. The claimant did not respond by the date given.[4]The Tribunal also sent the parties a Notice of a Claim [19-22] dated 11 July 2022. On its own initiative, the Tribunal listed a final hearing for three days in May 2024. It also made case management orders that required the claimant to submit a Schedule of Loss and for the parties to exchange lists of documents and witness statements for the final hearing. The respondent was required to file its response by 8 August 2022.[5]Further, the Tribunal also sent the parties a separate Notice of Preliminary Hearing dated 11 July 2022 [24-25] requiring them to attend a preliminary hearing by telephone on 2 November 2022.[6]The respondent wrote to the Tribunal on 28 July 2022, noting that the claimant had not respondent to the request for the document made on 11 July and asked for an extension of time to present its ET3 to 31 August 2022, as there was nothing that it could realistically respond to.[7]The Tribunal wrote to the claimant and extended the time for her to produce the document to 3 August 2022. The claimant produced a screen shot of paragraph 8.2 of her case management agenda [30] on 1 August 2022.[8]On 5 August 2022, the Tribunal granted the respondent’s application to extend time to present its response to 31 August 2022 [34]. On 9 August 2022, the Tribunal sent the claimant a strike out warning for failing to provide the document referred to in paragraph 8.2 of the ET1 [35]. The claimant produced the document titled “Employment Tribunal” [37-46] in an email dated 9 August 2022 [36] 2 of 14[9]The respondent presented its ET3 [48-55] and Grounds of Resistance [56-66] on 31 August 2022. The respondent asserted that the claimant’s claims were out of time and did not concede that the claimant met the definition of disabled person in section 6 of the Equality Act 2010 at the times relevant to when the claims arose. The response was accepted on 2 September 2022 [68].[10]On 5 September 2022, Employment Judge Ahmed made an order [72-73] that the claimant provide further information about the disability upon which she based her claim of discrimination and to provide any medical or other evidence on which she wished to rely on the issue of whether she was a disabled person as defined by the Equality Act.[11]The claimant responded on 6 September 2022 by email [74] and an attached document [75-79]. She identified the mental impairment that she relied upon as ‘generalised anxiety disorder’. The claimant provided an Impact Statement.[12]By an email dated 17 October 2022 [80-81], the respondent set out its reasons why it did not concede disability.[13]A preliminary hearing was held before Employment Judge Heap on 2 November 2022, following which, a case management summary dated 2 November 2022 [85-91] was sent to the parties on 8 November 2022. In her case management agenda prepared for the hearing, the claimant identified claims of failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010 and of discrimination arising from disability under section 15 of the same Act. The claimant also identified a holiday pay claim that was not a claim of disability discrimination.[14]On the question of disability, the claimant said she would get a letter from her GP by 14 December 2022. EJ Heap decided that once that letter was produced, the respondent could reconsider its position on disability by 28 December 2022.[15]Insofar as the claims of disability discrimination were concerned, EJ Heap noted that the claimant may have some difficulties with the time limits involved.[16]EJ Heap also noted that the holiday pay claim appeared to be out of time.[17]On 9 November 2022, the claimant confirmed that her claims were accurately recorded in EJ Heap’s order at paragraphs 13, 16, 17, 24. and 25 of the case management summary.[18]On 1 December 2022, the claimant sent an email to the respondent [93] with a letter from her GP surgery dated 22 November 2022 attached [94-95]. On 28 December 2022, the respondent confirmed by email that disability remained in dispute [97-98]. In response, Employment Judge Butler listed a public preliminary hearing on 15 June 2023 that would be held: “To determine the question of disability and whether the Tribunal has jurisdiction to hear the holiday pay complaint.” 3 of 14[19]On 27 April 2023, the claimant sent an email to the Tribunal and respondent [101] attaching a request for reasonable adjustments dated 9 March 2023 [102- 104] to be made for the preliminary hearing and for other orders to be made:19.1 The claimant requested that she be provided with cross-examination questions in advance of the hearing;19.2 The claimant requested that a medical expert be jointly instructed to provide advice to the Tribunal as to whether she met the definition of disabled person; and19.3 That the joint medial expert be part-funded by HMCTS.[20]Unfortunately, the claimant’s application was not looked at until 9 June 2023, when Employment Judge Hutchinson wrote to the parties [453-454]. He apologised for the delay in responding and postponed the public preliminary hearing set for 15 June 2023, converting it to a preliminary hearing for case management.[21]The respondent responded to the claimant’s application on 9 June 2023 [455- 456], objecting to the postponement and to the claimant’s applications for adjustments and a joint medical report. A Notice of Preliminary Hearing was[22]The hearing on 15 June 2023 was before EJ Heap, who produced a case management summary dated the same date [460-464] that was sent to the parties on 23 June 2023.[23]EJ Heap refused the application for a joint medical expert report.[24]EJ Heap ordered that the claimant’s GP produce a further report that specifically dealt with the question of reasonable adjustments. Once that report was received, the Tribunal could then decide on what adjustments should be made.[25]A further preliminary hearing for case management was listed for 27 July 2023.[26]The claimant wrote to the Tribunal and respondent on 13 July 2023 [465] and attached a letter from her GP dated 13 July 2023 that addressed the question of adjustments. The letter recommended:26.1 Questions in advance;26.2 Regular beaks; and26.3 Not to be seen by the other party.[27]The respondent accepted the second proposed adjustment, but strongly objected to the other two suggested adjustments in an email dated 20 July 2023 [467-468]. 4 of 14[28]The preliminary hearing on 27 July 2023 was before Employment Judge M Butler, who produced a case management summary and Order dated 27 July 2023 that was sent to the parties on 3 August 2023 [the document was not in the bundle but was on the electronic file]. EJ Butler ordered that the respondent send the claimant a list of topics upon which questions would be asked, rather than a list of questions as requested. The request for frequent breaks was agreed, but the request for the claimant not to see people from the respondent was not deemed necessary.
Hearing
[29]The hearing started at 10:00am. We broke for lunch at 12:30pm, at the end of the evidence, and restarted at 13:30pm to hear closing submissions. The closing submissions ended at 13:50pm and I returned to deliver an oral Judgment and Reasons at 16:00pm The hearing ended at 16:30pm.[30]The Claimant is unrepresented. I reminded her that the Tribunal operates on a set of rules (I have set out a link to those rules below). Rule 2 sets out the overrunning objective of the Rules (their main purpose) which is to deal with cases justly and fairly. It is reproduced here: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far that is practicable –(a) Ensuring that the parties are on an equal footing;(b) Dealing with cases in ways that are proportionate to the complex that are importance to the issues;(c) Avoiding unnecessary formality and seeking flexibility in the proceedings;(d) Avoiding delay so far as compatible with proper consideration and the issues, and(e) Saving expense. The Tribunal shall seek to give effect to the overriding objective in interpreting or exercising any power given to it by these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.”[31]I was mindful of the claimant’s medical condition and took time to explain the procedure that we would use for the hearing and the order in which we would deal with matters. In addition to the claimant and Mr Price, the respondent’s solicitor and a member of its HR department were in attendance. The claimant raised no objection to them being at the hearing (which was a public hearing).[32]Th parties produced the following documents:32.1 A list of question topics that the respondent had sent the claimant; 5 of 1432.2 An agreed bundle of documents, with an index, that ran to 477 pages. Pages 105 to 452 were the claimant’s disability documents and medical records.32.3 A set of documents consisting of 10 pages which deal with the holiday pay issue that were sent to the Tribunal by the respondent at 18:42pm on the evening before the hearing.[33]If I refer to any pages in the bundle, I have usually added the relevant page numbers from the bundle in square brackets.[34]I read all the papers before the hearing and considered them again before making my decision. I also consulted the Employment Tribunal’s Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings (22 April 2020) and the Equal Treatment Bench Book on vulnerable people.[35]The claimant gave evidence on oath and adopted her Impact Statement, which was taken as read. Mr Price cross-examined the claimant carefully and in accordance with the Presidential Guidance. We took a break at 11:00am for 10 minutes. We took lunch after the claimant had finished her evidence.[36]I heard closing submissions after lunch and retired to make my decision. I delivered my Judgment and Reasons orally. I found that the claimant did not meet the definition of ‘disabled person’ and that her claim for holiday pay was out of time. Both were struck out.[37]Ms Robinson requested written reasons. I offer my sincere apologies to Ms Robinson and the respondent for the delay in producing this written Judgment and Reasons. I have had several personal matters to deal with since the hearing and have not found the time to complete the written reasons until now.
Law
[38]The relevant provisions of the legislation relating to the question of whether someone meets the definition of disabled person are found at section 6 of the Equality Act 2010: “(1) A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability. (3) In relation to the protected characteristic of disability – (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability. 6 of 14 (4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section – (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability: supplementary provision) has effect.”[39]Schedule 1 Part 1 of the Equality Act, para (2), states: “2(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.”[40]Also relevant is the burden of proof provision, set out at section 136 of the Equality Act 2010.[41]In terms of the applicable procedure, I had regard to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 and to the overriding objective there set out at Rule 2 (reproduced above).[42]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12 Equality Act 2010). I have taken the Guidance into account.[43]The Guidance at paragraph A8 states ‘It is not necessary to consider how an impairment is caused… What is important to consider is the effect of an impairment, not its cause.’[44]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and provides: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a 7 of 14 limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.”[45]Paragraphs B4 and B5 of the Guidance provide that: “An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effect on more than one activity, when taken together, could result in an overall substantial adverse effect. For example, a person whose impairment causes breathing difficulties may, as a result, experience minor effects on the ability to carry out a number of dayto-day activities such as getting washed and dressed, going for a walk, or travelling on public transport. But taken together, the cumulative result would amount to a substantial adverse effect on his or her ability to carry out these normal day-to-day activities.”[46]Paragraph B1 of the Guidance should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities. Paragraph D2 states that it is not possible to provide an exhaustive list of day-today activities.[47]Paragraph D3 Provides that: “In general, day-to-day activities are things that people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.”[48]Paragraph D16 provides that normal day-to-day activities include activities that are required to maintain personal well-being. It provides that account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, or personal hygiene.[49]The Equality and Human Rights Commission: Code of Practice on Employment (2011) at Appendix 1, sets out further guidance on the meaning of disability. It states at paragraph 7 that: “There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.”[50]At paragraph 16 it states: “Someone with impairment may be receiving medical or other treatment which. alleviates or removes the effects (although not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if the substantial 8 of 14 adverse effects are not likely to occur even if the treatment stops (that is, the impairment has been cured).”[51]In Goodwin v Patent Office [1999] IRLR 4, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are:51.1 Does the person have a physical or mental impairment? It is not in dispute in this case that the claimant had a mental impairment at the relevant time – generalised anxiety and panic disorder, which is a mental impairment. I should also say that nothing in this decision should be seen as casting any doubt on that fact.51.2 Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?51.3 Is that effect substantial?51.4 Is that effect long-term?[52]The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability.[53]The thrust of the respondent’s case at this hearing was that the claimant has not shown on the balance of probabilities that the impairment of her anxiety condition had a substantial adverse long-term effect on her ability to carry out normal day to day activities. Evidence and Findings Adverse Effects[54]The claimant’s Impact Statement (IS) [76-79] was in the format of answers to the standard questions asked in the order dated 5 September 2022 made by Employment Judge Ahmed [72-73] . In her IS, the claimant listed the effects of her impairment on her ability to carry out normal day-to-day activities, which included the following: “Where possible I ensure that I am accompanied places, this ranges from but is not limited to food shopping, doctor appointments, hospital appointments and dentist appointments; this is to avoid the feeling of anxiousness.”[55]I find that the evidence regarding doctor appointments was limited to the claimant’s assertion. She accepted that she was never accompanied into appointments. Her partner or her mother would accompany her to the surgery. The claimant said she cannot drive. I find that claimant has not shown on balance of probabilities that the effect was related to her impairment and not related to her family giving her a lift.[56]There was no evidence regarding hospital appointments other than the claimant’s assertion, so I make the same finding as for the doctor appointments. 9 of 14[57]I find that the claimant’s evidence regarding dental appointments did not meet the standard of proof required. The claimant accepted that the documentary evidence that she had not been to the dentist for 8 years between the ages of 18 and 26 was largely accurate. At the date of period covered by her employment, the claimant was 25 or 26 years old. She said she had been to the emergency dentist once and had been accompanied. I do not find this to be credible to the required standard of proof.[58]I find that the corroborative evidence regarding food shopping was limited to a CBT therapist recommending she visited a retail park. In line with my other findings about the credibility of the claimant’s evidence, I find that she does not meet the threshold of the standard of proof required.[59]The claimant also said in her IS [76] that “I can feel anxious and display physical symptoms of anxiety anywhere that I am, whether it is outside or inside my home. This affects my ability to complete household tasks such as cleaning, tidying, and getting dressed due to the physical effects my body feels when feeling anxious (heart palpitations, unable to breathe, fatigue etc.)”.[60]I find that the claimant has not proven this assertion on the balance of probabilities. I make that finding because of the scoring of various aspects of her impairment in CBT sessions between August 2021 and February 2022.[61]I find that the scores were recorded by the therapist after discussion with the claimant. They range from 0 to 8 where 0 = Not at all, 2 = Slightly, 4 = Definitely, 6 = Markedly, 8 = Very severe. The score for home management never exceeds 6. It exceeded 4 once. A score of 4 denotes “definitely”. Of 11 sessions, the total score is 32. That is an average of 2.90.[62]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and provides: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist. among people. A substantial effect is one that is more than a minor or trivial. effect.” I find that the claimant has not shown on the balance of probabilities that the impairment had the substantial effect alleged by the claimant.[63]The claimant’s evidence in chief was that “I have issues with sleeping that are still on-going to this day.” The claimant said that anxious feelings keep her awake and that she took days off work due to having no sleep the previous night.[64]I find that sleeplessness can be a substantial adverse effect, but that the claimant has not shown on the balance of probabilities that it is in this case. The claimant had the opportunity in her IS to specify when she had missed work because of sleeplessness. In answer to cross-examination questions, she said she had told her manager on 2 occasions that she hadn’t slept and wasn’t able to work. This was the first time that I could see that these incidents had been 10 of 14 raised by the clamant. Equality of footing includes notifying the other side what case they face. The respondent could have called its own evidence to rebut an allegation that included names and dates. I do not find the effect to be substantial (i.e., more than trivial).[65]The connection between the impairment and sleeplessness is not corroborated by the medical notes. I find that the sleeplessness was not a substantial (more than trivial effect) because of the rare occasions it affected the claimant’s work (if I was to accept her evidence at its highest, which I don’t) and because the claimant accepted in cross examination that she was given coping strategies when the problem first arose of going to bed early and not using her mobile phone late at night, which she used to good effect, but then admitted that she had stopped using.[66]I find that the claimant has not proven to the required standard that her anxiety had a substantial adverse effect on her ability to drive. She accepted that she took lessons and took a driving test. I find it unlikely that if she experienced the symptoms she described that she would have carried on taking lessons to the point that she was able to take a driving test.[67]The claimant asserted that the effect of her impairment included struggling to communicate. I find the claimant’s IS to be vague. I find that she has not shown on the balance of probabilities that the adverse effect contended for was substantial. I again refer to the CBT scores where in 11 sessions, the score never exceeded 7 (17 August 2021, the first session) and totalled 25. The average is 2.27. I do not find the effect to be substantial (i.e., more than trivial). Effect of Medication and Treatment[68]I find that the claimant took one Sertraline tablet and stopped taking it because of an adverse reaction. I find that the claimant was prescribed Amitriptyline for a shoulder injury. I do not find that the claimant’s oral evidence that her GP said it would help with anxiety meets the required standard of proof. That evidence was not corroborated in any of the medical evidence.[69]The claimant took Mirtazapine for a few weeks until she stopped because she felt that the positive effect was outweighed by the side effects. I find that there is insufficient evidence for me to conclude that medication has any effect on my assessment of the adverse effect of the impairment on the claimant’s ability to carry out normal day to day activities. CBT[70]The claimant was offered CBT of three separate occasions in 2018-2019 and agreed that apart from 5 sessions at the end of 2019, she refused all the other sessions offered in that period. I find that this is indicative of the claimant deciding that she did not need or want the sessions until late 2019.[71]It was agreed evidence that the claimant had no further CBT sessions between 2019 and April 2021. I therefore find that there is no effect of CBT that needs to be ignored in that period. 11 of 14[72]Regarding the sessions between 17 August 2021 and 9 February 2022, I repeat my finding that the scores recorded in the report [254-369] recorded the claimant’s condition in the preceding two weeks. I make that finding because the claimant said in answer to a question that the therapist would ask how she had been getting on since the last appointment. I find it highly unlikely that the therapist would only be interested in how the claimant felt on the day of the appointment. Relevance of Face Masks[73]I find that the claimant has shown that she has had the mental impairment of generalised anxiety and panic disorder since it was diagnosed on 1 March 2018. I find that the medical records show that this impairment did not reach the threshold of having a substantial adverse effect on her ability to carry out normal day to day activities before April 2021 for the reasons set out above.[74]I find the claimant’s evidence that the requirement to wear face masks by the respondent was not the sole exacerbator of her impairment not to be credible. I make that finding because:74.1 The claimant had no contact with her GP about anxiety between 11 December 2018 [143] and 15 May 2020 [130];74.2 The issue of having to wear a face mask at work was clearly the thing that caused the claimant to request adjustments;74.3 The issue of having to wear a face mask at work was the thing that she mentioned to her GP on 22 April 2021 as a stressor. The GP Recorded in the notes: “…wants exemption letter for wearing face mask as she gets panic attacks and anxiety when she tries to wear one as feels can’t breathe , she does have a background of anxiety and has been on meds for that, she is currently working from home as cant wear face mask .”74.4 The GP notes for the appointment on 25 May 2021 [125] state: “…struggling with Anxiety - Been ongoing for some 3-4years. peaked up more recently Currently Stemming from- issues at work with regard to facemask wearing, make her feel 'can’t' breath - work asking her to wear one. A lot of things happening, Aware things get to her. uses distraction to help…”74.5 The GP notes for the appointment on18 June 2021 [124] state “Allowed to work from home.”74.6 After the above appointment, there is nothing about anxiety until 9 June 2022 [114], when the notes record: “Requests letter of exemption from wearing a face mask on a flight.” 12 of 14[75]I find the claimant’s oral evidence that she had a general flying anxiety to be an attempt to deflect the questions that were around the effects of being required to wear a face mask. It was new evidence offered for the first time in crossexamination.[76]I appreciate that the claimant’s perception and experience is important and I understand why she feels that she meets the definition. The burden of proof is on the claimant to show she meets the definition.[77]In making my decision, I made the findings of fact above and then looked at the totality of the effects that the claimant says her anxiety condition had on her ability to carry out normal day-to-day activities. I am unable to find that she meets the burden of proof upon her to satisfy the legal test in section 6 of the Equality Act 2010. I do not dispute that she has a mental impairment, but I do not find that it had a substantial adverse effect on her ability to carry out normal day-to-day activities as she asserts.[78]If the claimant does not meet the definition of disabled person, her claims of disability discrimination cannot proceed and are struck out in their entirety. Holiday Pay[79]A claim for unpaid holiday pay can be brought under the Working Time Regulations 1998 or the Employment Rights Act 1996 (as an unauthorised deduction from wages). The test of whether a claim is in time or not is the same for both versions of the claim:79.1 Was the complaint made within the time limit in the Working Time Regulations 1998 or the Employment Rights Act 1996?79.2 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages/holiday pay from which the deduction was made?79.3 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?79.4 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?79.5 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[80]I find that the claimant’s claim relates to her assertion that she had to use three days’ annual leave while her laptop was being repaired in 2021, which meant that she did not have enough leave left to take time off over Christmas 2021. It was not specified at this hearing when the claimant wanted to take the three days, so I have applied the most generous interpretation of “Christmas” and find that this would end no later than 7 January 2022. 13 of 14[81]The additional documents provided on the morning of the hearing show that the claimant raised a grievance about having to use her annual leave on 25 October 2021. The claimant stated that the requirement to take annual leave was unlawful and an act of disability discrimination. She did not pursue the claim as an act of discrimination in her Tribunal proceedings. The grievance was copied to the claimant’s trade union representative.[82]The grievance was rejected on 28 October 2021. The claimant appealed on 5 November 2021. The appeal was rejected on 17 November 2021.[83]It is somewhat of a moot point as to whether the claim arose when the claimant was required to take the annual leave or was denied the annual leave she wanted to take at Christmas. I have worked on the last date that the claim would have crystallised as 7 January 2022.[84]It was not disputed that the claimant started early conciliation on 16 June 2022 or that she presented her claim on 6 July 2022.[85]I find that the claimant offered no explanation as to why the claim was presented when it was. She was a trade union member and could have sought advice. I find that it was reasonably practicable for the claim to have been brought in time. It was not brought in time, so the claim must be struck out.