Mrs S SarkarClaimantLyca Media II LimitedRespondent
Before
Employment Judge S Shore
Members
Ms J HenryMr L BowmanMr A Miah (instructed by Counsel) for claimantMr P Michell (instructed by Counsel) for respondentDate 16 May 2024
JUDGMENT
The unanimous judgment of the Employment Tribunal is that:-(1) The claimant’s claim of unfair dismissal under section 94 and section 95(1)(c) of the Employment Rights Act 1996 (“ERA 1996”) fails. The claimant was not an employee of the respondent as defined in section 230 of the Employment Rights Act 1996. The Tribunal had no jurisdiction to hear the claim because the claim was not presented within the prescribed time limit in section 111(2) of the Employment Rights Act 1996 and the claimant did not prove on the balance of probabilities that it was not reasonably practicable to have brought the claim in time.(2) The claimant’s claim of breach of contract (failure to pay notice pay) under Article 3 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 (“the Order 1994”) fails. The claimant was not an employee or worker of the respondent as defined in section 230 of the ERA 1996. The Tribunal had no jurisdiction to hear the claim because the claim was not presented within the prescribed time limit in Article 7 of the Order 1994 and the claimant did not prove on the balance of probabilities that it was not reasonably practicable to have brought the claim in time.(3) The claimant’s claims of direct discrimination because of the protected characteristic of race under section 13(1) of the Equality Act 2010 (“EqA 2010”) fail. The claimant was not an employee of the respondent as defined in section 83 of the EqA 2010. The Tribunal had no jurisdiction to hear the claim because the claim was not presented within the prescribed time limit in section 123 of the Equality Act 2010 and the Tribunal does not find it just and equitable to extend time.(4) The claimant’s claims of indirect discrimination because of the protected characteristic of race under section 19 of the Equality Act 2010 fail. The claimant was not an employee of the respondent as defined in section 83 of the EqA 2010. The Tribunal had no jurisdiction to hear the claim because the claim was not presented within the prescribed time limit in section 123 of the Equality Act 2010 and the Tribunal does not find it just and equitable to extend time.(5) The claimant’s claims of unauthorised deduction from wages (the failure to pay holiday pay) under section 13 of the ERA 1996 fail. The claimant was not an employee of the respondent as defined in section 83 of the EqA 2010. The Tribunal had no jurisdiction to hear the claim because the claim was not presented within the prescribed time limit in section 23 of the ERA 1996 and the Tribunal does not find it just and equitable to extend time.(6) The claimant’s claim for an award under section 38 of the Employment Act 2022 (“EA 2002”) fails. The claimant was not an employee or worker of the respondent.(7) As the Tribunal has dismissed all the claimant’s claims, there is no requirement to hold a remedy hearing.(8) The claimant’s claims had no reasonable prospects of success and she conducted the proceedings unreasonably by continuing with them after the respondent sent her costs warnings on 29 April 2024 and 9 May 2024.(9) The claimant (the paying party) shall pay the respondent (the receiving party) a contribution to the receiving party’s costs of £2,000.00.
REASONS
[1]The claimant’s employment status and dates of employment are in dispute. Her case is that she was employed as a Radio Presenter, by the respondent, which is a company that operates three radio stations, from 1 February 2019 to 3 June 2021.[2]The respondent says that the claimant was an independent contractor who entered a verbal contract with it to present radio shows that began on 1 February 2019. In early January 2021, the respondent appointed a new Chief Executive Officer: Raj Baddhan, who reviewed the business. In a meeting with the claimant towards the end of January 2021, Mr Baddhan advised the claimant that she would be temporarily removed from her show on 5 February 2021. That was the date of the claimant’s last show for the respondent.[3]The claimant complained about being removed from her show on 1 February 2021 in an email to the respondent’s Group HR Manager, Alexander Yohanan. The respondent says that it treated the claimant’s complaint as a grievance.[4]After a grievance meeting on 5 February 2021, the claimant’s grievance was dismissed on 3 March 2021. The claimant appealed the decision on 10 March 2021. On 3 June 2021, the claimant says that the respondent wrote to her “terminating her employment without notice.” The claimant asserts that this date was the effective date of termination (“EDT”) of her employment.[5]The claimant said she was unfairly dismissed. She identified as being of Indian origin and said she speaks with an Indian accent. She said that she was replaced on her radio show by a presenter with an English accent.[6]The claimant regarded the respondent’s actions as direct and indirect race discrimination.[7]The claimant claimed holiday pay accrued but not taken as an unauthorised deduction from wages. She asserted that she was never paid holiday pay.[8]The claimant also claimed notice pay as a breach of contract claim under Article 3 of the Order 1994.[9]The respondent’s defence was that the claimant was not an employee or worker as defined in section 83 of the EqA 1996 or section 230 of the ERA, so is not entitled to bring a claim for unfair dismissal, unauthorised deduction from wages or breach of contract. It denied race discrimination.[10]On her own case, the claimant was dismissed on 3 June 2021. She started early conciliation with ACAS on 19 August 2021 and obtained an early conciliation certificate on 30 September 2021. The claimant’s ET1 [2-13] and Statement of the Claim [14-20] was presented on 28 October 2021. For the purposes of these Reasons, we note that the ET1 and Statement of the Claim were drafted by solicitors and that the claimant has been represented by solicitors throughout these proceedings and was represented by counsel at the preliminary and final hearings.[11]On 11 November 2021, the claimant’s claim was acknowledged by the Tribunal. On the same date, the Tribunal sent the parties a Notice of Claim that required the respondent to file an ET3 by 8 December 2021. On 22 November 2021, the Tribunal gave notice of a telephone preliminary hearing to take place on 16 May 2022. The respondent presented its ET3 and Grounds of Resistance on 8 December 2021 [21-33]. The response was accepted on 28 January 2022.[12]The preliminary hearing was postponed to 10 June 2022 and further postponed to 26 September 2022.[13]Before the preliminary hearing, the parties providing case management agendas for the hearing. The claimant submitted two documents titled “Annex – Medical and Rehab for Soma Sarkar.pdf” [not produced for this hearing] and “Additional Information Soma Sarkar” [46-50]. Counsel for the claimant confirmed that the second document was not produced in support of an application to amend the claimant’s claim: it was produced to give further details of it.[14]I presided over the preliminary hearing and made a case management order dated 28 September 2022 that was sent to the parties on 30 September 2022 [51-76].[15]The claimant is making the following complaints:15.1 Unfair dismissal;15.2 Direct race discrimination (contrary to section 13 of the Equality Act 2010) about the following:15.2.1 The respondent suspending the claimant on 6 February 2021 and temporarily replacing her with Ms Radio Walli;15.2.2 The respondent’s failure to properly investigate the claimant’s grievance;15.2.3 The respondent’s failure to reinstate the claimant to her show; and15.2.4 The respondent’s dismissal of the claimant on 3 June 2021 and permanently replacing her with Ms Radio Walli.15.3 Indirect race discrimination (contrary to section 19 of the Equality Act 2010) by applying a PCP that put the claimant at a particular disadvantage because of her race (Indian origin).15.4 The PCP was replacing presenters with Indian accents with presenters with British accents.15.5 Unauthorised deduction from wages in respect of holiday pay for the entire period of the claimant’s employment.15.6 Failure to provide a written statement of terms and conditions of employment contrary to sections 1 and 4 of the Employment Rights Act 1996.[16]I made the following orders at paragraphs 13 and 14 of the case management order [53]: The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below. If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 4:00pm on Monday 24 October 2022. If you do not, the list will be treated as final unless the Tribunal decides otherwise. If the claimant withdraws her claim of indirect race discrimination, then the issues relating to that claim can be deleted without further reference to the Tribunal.[17]Neither party wrote to the Tribunal to dispute the accuracy of the claims or List of Issues in the Case Summary of the order.[18]The final hearing was converted to a remote video hearing after neither party objected to the suggestion from the Tribunal.[19]The respondent uploaded the bundle, witness statements, index to the bundle and a wav file of a telephone message left by Raj Baddhan on the claimant’s mobile on 6 February 2021.
The law
[20]The statutory law in this case is contained within the ERA 1996, the EqA 2010. and the Order 1994. We reproduce below sections 98(4), 111(2), and 230 of the ERA 1996 and sections 13, 26, 27, 123 and 136 of the EqA 2010.[21]For the purposes of the unfair dismissal claim, the relevant sections of the ERA 1996 are section 98, section 111(2), and section 230. Section 98 Employment Rights Act 1996(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it- (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) Relates to the conduct of the employee, (c) Is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical, or professional qualification relevant to the position which he held.(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[22]Section 111(2) deal with time limits in unfair dismissal claims: “… an employment tribunal shall not consider a complaint … 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.”[23]Section 230(3) of the Employment Rights Act 1996 (“ERA 96”) provides in part; 230 Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under) — (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.[24]The relevant sections of the EqA 2010 for the claims of direct and indirect discrimination are: 13. Direct discrimination A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. The relevant protected characteristics are— … (a) race; … 19. Indirect discrimination A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. A provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim. 83 Interpretation and exceptions (1)This section applies for the purposes of this Part. (2)“Employment” means— (a)employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;… 123. Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 136. Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal;…[25]The relevant statutory law for the breach of contract (notice pay) claim is Articles 3 and 7 of the Order 1994: Extension of jurisdiction 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;(b) the claim is not one to which article 5 applies; and(c) the claim arises or is outstanding on the termination of the employee’s employment. Time within which proceedings may be brought 7. Subject to article 8B, an employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented— (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or (b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b). (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.[26]The relevant statutory law for the unauthorised deduction of wages claim is sections 13 and 23 of the ERA 1996: 13 Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction… 23 Complaints to employment tribunals. (1)A worker may present a complaint to an employment tribunal — (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3)Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2). (4)Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. (4B) Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j). (5)No complaint shall be presented under this section in respect of any deduction made in contravention of section 86 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deduction of political fund contribution where certificate of exemption or objection has been given).[27]We were referred to precedent cases by Mr Miah and Mr Michell in their closing submissions. We considered all the case law that was presented before making our decision.
The issues
[28]The issues in the claim were set out in the case management order of dated 28 September 2022 [51-76] with the additional issues submitted with the claimant’s application to amend her claims to include the complaints of victimisation [88-89].[29]It was agreed that the issues in the case were: 1. Employment status1.1 Was the claimant an employee of the respondent within the meaning of section 230 of the Employment Rights Act 1996?1.2 Was the claimant an employee of the respondent within the meaning of section 83 of the Equality Act 2010?1.3 Was the claimant a worker of the respondent within the meaning of section 230 of the Employment Rights Act 1996? 2. Time limits2.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 20 May 2021 may not have been brought in time.2.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?2.2.2 If not, was there conduct extending over a period?2.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?2.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.2.4.1 Why were the complaints not made to the Tribunal in time?2.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?2.3 Was the unfair dismissal / unauthorised deductions / breach of contract made within the time limits in section 111 and 23 of the Employment Rights Act 1996/ Article 7 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Oder 1994? The Tribunal will decide:2.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination / date of payment of the wages from which the deduction was made?2.3.2 If not, in the unauthorised deduction of wages claim, 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?2.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?2.3.4 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? 3. Unfair dismissal3.1 Was the claimant dismissed?3.2 If the claimant was dismissed, what was the reason or principal reason for dismissal? If it is found to have employed and dismissed the claimant, the respondent will say that the reason was some other substantial reason (SOSR), namely a business reorganisation.3.3 Was it a potentially fair reason?3.4 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? 4. Remedy for unfair dismissal4.1 Does the claimant wish to be reinstated to their previous employment?4.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?4.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.4.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.4.5 What should the terms of the re-engagement order be?4.6 If there is a compensatory award, how much should it be? The Tribunal will decide:4.6.1 What financial losses has the dismissal caused the claimant?4.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?4.6.3 If not, for what period of loss should the claimant be compensated?4.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?4.6.5 If so, should the claimant’s compensation be reduced? By how much?4.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?4.6.7 Did the respondent or the claimant unreasonably fail to comply with it?4.6.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?4.6.9 If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?4.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?4.6.11 Does the statutory cap of fifty-two weeks’ pay apply?4.7 What basic award is payable to the claimant, if any?4.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 5. Wrongful dismissal / Notice pay5.1 What was the claimant’s notice period?5.2 Was the claimant paid for that notice period?5.3 If not, did the claimant do something so serious that the respondent was entitled to dismiss without notice? 6. Direct race discrimination (Equality Act 2010 section 13)6.1 The claimant identifies as being of Indian origin.6.2 Did the respondent do the following things:6.2.1 Suspend the claimant on 6 February 2021 and temporarily replace her with Ms Radio Wali;6.2.2 Fail to properly investigate the claimant’s grievance;6.2.3 Fail to reinstate the claimant to her show; and6.2.4 Dismiss the claimant on 3 June 2021 and permanently replace her with Ms Radio Wali.6.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. The claimant says she was treated worse than Ms Radio Wali.6.4 If so, was it because of race?6.5 Did the respondent’s treatment amount to a detriment? 7. Indirect discrimination (Equality Act 2010 section 19)7.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 7.1.1 Replacing presenters with Indian accents with presenters with British accents.7.2 Did the respondent apply the PCP to the claimant?7.3 Did the respondent apply the PCP to people who were not of Indian origin and spoke with an Indian accent or would it have done so?7.4 Did the PCP put people who were not of Indian origin and spoke with an Indian accent at a particular disadvantage when compared with people who were not of Indian origin and did not speak with an Indian accent?7.5 Did the PCP put the claimant at that disadvantage?7.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 7.6.1 TBC7.7 The Tribunal will decide in particular:7.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;7.7.2 could something less discriminatory have been done instead;7.7.3 how should the needs of the claimant and the respondent be balanced? 8. Remedy for discrimination8.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?8.2 What financial losses has the discrimination caused the claimant?8.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?8.4 If not, for what period of loss should the claimant be compensated?8.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?8.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?8.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?8.8 Did the respondent or the claimant unreasonably fail to comply with it?8.9 If so, is it just and equitable to increase or decrease any award payable to the claimant?8.10 By what proportion, up to 25%?8.11 Should interest be awarded? How much? 9. Unauthorised deductions9.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted?9.2 Were the wages paid to the claimant from 28/10/19 less than the wages she should have been paid because no holiday pay was paid?9.3 Was any deduction required or authorised by statute?9.4 Was any deduction required or authorised by a written term of the contract?9.5 Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?9.6 Did the claimant agree in writing to the deduction before it was made?9.7 How much is the claimant owed? 10. Failure to provide written statement of terms and conditions (Section 38 Employment Act 2002)10.1 When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars?10.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.10.3 Would it be just and equitable to award four weeks’ pay?
The Hearing
[30]The hearing started at 10:00am on the first day. We had not completed our reading but wished to speak to the representatives about preliminary matters.[31]The parties had produced a joint bundle of 300 pages. If we refer to a document from the bundle, we will record the page number(s) of the document in square brackets. The parties confirmed that there were no additional documents. We raised the matter of the wav audio file with the parties. Mr Michell did not think it would be relevant. Mr Miah took a different view. We indicated that the Tribunal would not usually listen to an audio file. If a party wished to produce it, they would have to draft a transcript and seek the agreement of the other side. The claimant produced a transcript on the second morning and we gave it page number 302.[32]It was not clear from the papers we had read whether the claimant had withdrawn her indirect discrimination claim. Mr Miah indicated that it was withdrawn.[33]The parties agreed that the timetable that was included in the case management order was appropriate for the hearing. It was agreed that the hearing would deal with liability and then move to remedy if and when the claimant had won one or more of her claims.[34]Mr Miah stated that the claimant required no reasonable adjustments. We then adjourned to complete our reading at 10:06am and asked the parties to return at 11:45am.[35]On the resumption, Mr Miah raised two matters: 35.1. He had spoken to Mr Michell in the break and had informed him that the claimant intended to proceed with the indirect race discrimination claim. 35.2. The claimant wished to use the wav audio recording.[36]Mr Michell said that this meant that the claimant would seek to rely on a spreadsheet that had been created to address the race and accent of the employees of the respondent. The spreadsheet was produced later in the day and was agreed by the claimant. It was given page number 301. The respondent also provided a time sheet that was signed by the claimant that we gave the page number 303.[37]The claimant gave evidence on affirmation. Her evidence in chief was a witness statement dated 10 February 2023 that consisted of 8 pages. Mr Miah suggested that the claimant’s Statement of the Claim [14-20] was a witness statement. It was not and had not been exchanged as such.[38]The claimant had difficulty accessing the final version of the bundle that became apparent very soon after cross-examination began. It took some time to remedy the situation and we took an early lunch to enable Mr Miah to assist the claimant to upload the correct version of the bundle. We gave Mr Miah permission to speak to the claimant about uploading the bundle and are grateful for his assistance.[39]It was obviously difficult for the claimant to give evidence and we empathised with her situation. The claimant became upset several times. We allowed the claimant to take time to compose herself and took regular breaks. The claimant was cross-examined by Mr Michell. The Tribunal asked some questions and Mr Miah asked re-examination questions. The claimant finished her evidence at 3:45pm and we took a break.[40]We returned and heard evidence on affirmation from Jayanta Sarkar, the claimant’s husband. His evidence in chief was a witness statement dated 24 February 2023. Mr Sarkar was cross-examined by Mr Michell. The Tribunal had no questions for the witness. Mr Miah asked re-examination questions and the witness’ evidence ended at 4:16pm. He was released with the agreement of the[41]We then heard evidence from Mokshika Sharma, who was a former colleague of the claimant’s at the respondent and who gave evidence on affirmation. Her evidence in chief was a witness statement dated 24 February 2023 that consisted of three pages. Mr Michell recorded the respondent’s challenge to her evidence but asked no cross-examination questions. The Tribunal asked no questions. The witness was released with the agreement of the respondent.[42]We ended the day at 4:20pm and asked the claimant to provide the transcript of the wav audio file by 10:00am the following morning. Mr Miah said he anticipated being 90 minutes in cross-examination of the respondent’s sole witness, Mr Baddhan. We discussed closing submissions with Mr Miah and Mr Michell and asked them to sort out the arrangements between themselves.[43]The claimant provided the transcript of the wav audio file on the second morning of the hearing as requested.[44]We started at 10:00am. There were no preliminary matters. Rajinder Baddhan gave evidence on affirmation. His evidence in chief consisted of a witness statement dated 13 March 2023 that consisted of 4 pages and 21 paragraphs. Mr Michell asked the witness a supplementary question about the schedule of radio presenters [301] that had been produced the previous day. Mr Miah crossexamined the witness. The Tribunal had no questions for the witness. Mr Michell asked him some questions about the awards won by the presenters that the witness had brought into the respondent’s radio stations. Mr Baddhan ended his evidence at 11:52am.[45]Mr Miah indicated that he was going to make oral submissions. Mr Michell had prepared written submissions and was ready to send them. We broke for 30 minutes to enable Mr Michell to send his submissions and for Mr Miah and the Tribunal to consider them.[46]We resumed at 12:25pm, when Mr Miah said he was ready. Mr Michell spoke to his written submissions until 12:31pm. Mr Miah then made submissions until 1:20pm.[47]We indicated to the parties that we would consider our decision on liability and asked them to return at 1:00pm on the third day.[48]We delivered our oral judgment and reasons at 2:00pm on the third day. At the end of the Judgment and Reasons, the respondent made an application for costs which we heard. We ordered the claimant to pay the respondent a contribution of £2,000.00.[49]As the Tribunal dismissed all the claimant’s claims, a remedy hearing was not required.[50]Note from EJ Shore - The claimant requested written reasons on 17 June 2024. It is entirely my responsibility that it has taken far too long to produce these Reasons, for which I can only offer my sincere and profuse apologies to the parties, the representatives, and my colleagues. At the time of the hearing, I had to deal with several personal matters that reduced the time I had available to complete what were complicated reasons in a complex case, whilst also fulfilling my obligations to ongoing hearings and family duties.[51]On 17 June 2024, the respondent noted a typographical error in paragraph (9) of the Judgment sent to the parties. It was a typographical error and has been amended under the slip rule. Findings of Fact Preliminary Comments
Findings of Fact
[52]All findings of fact were made on the balance of probabilities. If a matter was in dispute, we will set out the reasons why we decided to prefer one party’s evidence over the other. If there was no dispute over a matter, we will either record that with the finding or make no comment as to the reason that a particular finding was made. We have not dealt with every single matter that was raised in evidence or the documents. We have only dealt with matters that we found relevant to the issues we have had to determine. No application was made by either side to adjourn this hearing to complete disclosure or obtain more documents or call additional evidence, so we have dealt with the case based on the documents produced to us, the witness evidence produced, and the claim as set out in the List of Issues. Undisputed Facts[53]We should record as a preliminary finding that some relevant facts were not disputed, not challenged, or were agreed by the parties. We therefore make the following undisputed findings of fact: 51.1. On 1 February 2019 the claimant joined the respondent as a Radio Presenter. The respondent says she was a freelancer (a self-employed contractor). The claimant says she was an employee. 51.2. The respondent operates three radio stations. This case is only concerned with Lyca Radio, where the claimant worked, and Dilse Radio, which was renamed Lyca Gold in August 2021. It was agreed that Lyca Radio played more contemporary Asian music and Dilse played more traditional Asian music. At all times, all the presenters of both stations were of either British Indian, British Pakistani, Indian or Pakistani heritage. 51.3. The claimant was never given any form of written contract with the 51.4. No documents were produced (letters, emails, messages etc.) that contained any details of the terms of the agreement between the parties from 1 February 2019 to 5 February 2021. 51.5. The parties agreed that the claimant was paid £12.50 per hour for her work. 51.6. The claimant was never paid for any time she spent preparing for her broadcasts. 51.7. The claimant never made a written claim for and was never paid holiday pay while working as a presenter. 51.8. The claimant sometimes substituted for other presenters. 51.9. The claimant was paid gross (without deduction of income tax or National Insurance) throughout her work with the respondent. 51.10. At the start of her work with the respondent, the claimant worked seven days per week. At the end of her time with the respondent, the claimant worked five days per week presenting a show on weekdays between 7:00pm and 10:00pm. 51.11. The claimant’s remuneration was calculated using a time sheet that recorded her hours of work (e.g., [164]). The claimant sometimes signed the time sheets (e.g., [303]). 51.12. The respondent then created a document called “Freelance Presenters Invoices” (e.g., [163]) that recorded the period covered by the invoice, the hours worked in the period and a calculation of remuneration made by multiplying the hours worked by the hourly rate of £12.50. We were not shown any examples of an invoice that the claimant had signed. 51.13. The claimant said she made numerous requests for a contact of employment. No documents were produced that corroborated those requests. 51.14. Mr Baddhan’s evidence that the usual situation in the radio industry was that Presenters were freelance self-employed individuals was not challenged. 51.15. The claimant said she made requests for holiday pay. No documents were produced that corroborated such requests. 51.16. On 4 January 2021, the respondent appointed Rajinder Baddhan as Chief Executive Officer. Mr Baddhan gave unchallenged evidence that he was active in the Asian broadcasting industry and ran a website Biz Asia Live that covered the industry. He said that he had listened to the respondent’s stations and thought their output was “deary”. We appreciate that the claimant did not agree with this assessment, but Mr Baddhan was not challenged on his opinion. 51.17. Mr Baddhan’s unchallenged evidence was that the respondent needed to change its image and that he developed a positioning strategy for Lyca Radio and Dilse Radio. He felt that Lyca Radio and Dilse radio were overlapping so decided to create a retro station from Dilse Radio, renaming it Lyca Gold. He also decided to rebrand Lyca Radio as a station that played modern contemporary music. 51.18. Mr Baddhan’s unchallenged evidence was that he wanted to effect the rebrand of Lyca Radio first and then make the changes at Dilse. His strategy at Lyca Radio was to bring in new presenters who he wanted to have more energy and a higher public profile than the presenters who were at Lyca Radio. 51.19. In January 2021, Mr Baddhan produced an advert for new presenters for Lyca that was shared on the WhatsApp group for the respondent’s presenters. The advert was for new presenters and Mr Baddhan suggested that the existing presenters share it with their WhatsApp communities. The claimant said that she did not see the WhatsApp messages and knew nothing of it. The advert was also placed on Biz Asia Live. 51.20. Mr Baddhan met the claimant in late January 2021. No notes were kept of the meeting. Mr Baddhan told the claimant that she was to stop presenting her weekday show from 7-10pm on 5 February 2021. The claimant presented her last show on 5 February 2021 and never presented for Lyca Radio again. 51.21. Lyca Radio replaced the claimant with a Presenter who works under the name “Radio Walli”. 51.22. On 1 February 2021 the claimant sent an email to Alexander Yohanan, the respondent’s Group HR Manager, about the termination of engagement [87- 89]. In the email, the claimant: 51.22.1. Referred to herself as a “freelancer” three times; 51.22.2. Said that she had been told “…not to come for work from 5th of Feb 21 onwards by the new CEO of Lyca…”; and 51.22.3. Said that “It is a sin to terminate someone so committed because of no apparent reason…” 51.23. On 2 February 2021, Mr Yohanan replied to the claimant [86] and said he would investigate her complaint. 51.24. On 5 February 2021, the claimant met with Garima Srivastava, HR Generalist for the Lyca Group of Companies. The respondent treated the claimant’s email of 1 February 2021 as a grievance. No notes were kept of the meeting. 51.25. On 8 February 2021, the claimant emailed Mr Yohanan [85-86] with further information. The email was headed “Grievance on sudden Dismissal from Service”. The email notified Ms Srivastava that the claimant had received many messages about her removal from her show and complained that the decision did not make commercial sense for the station. The claimant wrote: “Hence the feeling of being discriminated on grounds other than performance is really hurting & hard to reconcile.” [85] 51.26. The claimant did not specify the nature of the discrimination alleged. 51.27. Ms Srivastava emailed the claimant with the grievance outcome on 3 March 2021 [117-118]. The grievance was not upheld. Ms Srivastava made the following points: 51.27.1. The claimant’s contract with Lyca Radio had not been terminated on 5 February 2021. She had been removed from her slot while Mr Baddhan reviewed the operation of the station. 51.27.2. As a freelancer, the respondent was entitled to use the claimant’s services as and when it required them. 51.27.3. Mr Baddhan had treated other presenters at Lyca Radio in the same way that the claimant had been treated. It was agreed that three other Presenters had also been replaced at the same time as the claimant. 51.27.4. The claimant had appeared to alleged race and/or religious belief discrimination. This was rejected. 51.27.5. Mr Baddhan was complimentary about the claimant’s work but was keen to take the station down a new direction. He planned to review the operation and contact the claimant once he had done this. 51.28. On 10 March 2021, the claimant sent an email to Mr Yohanan [117] with a letter of appeal attached [119-120]. In her letter, the claimant: 51.28.1. Denied that Mr Baddhan had told her that her suspension was temporary and that she had been told to leave on 5 February 2021. 51.28.2. Strongly objected to “…the conjecture that I alleged discrimination on grounds of race or religion as the reason for the cessation of my service.” 51.28.3. Stated that “I have always maintained that the cessation was on grounds which were strictly not based on performance as it is understood that the Presenter who replaced me used to do radio shows either on very late nights or on late weekends but definitely not on prime evening like me and this act of ignoring an established Radio Presenter of 2 years for a not similarly placed person can only happen when the new person is related to the CEO somehow, irrespective of race or ethnicity of the person concerned… Indeed it can be construed as a clear case of discrimination on grounds of an attempt to take care of one’s own and known.” The claimant also mentioned nepotism. 51.29. The claimant was invited to an appeal hearing on 30 April 202, which she attended. We were provided with no notes of the meeting. 51.30. After chasing a response, the claimant was advised of the outcome of the grievance appeal on 3 June 2021 in an email from Mr Yohanan [129]. The appeal was rejected on three grounds: 51.30.1. There was no evidence of the claimant being an employee or being offered an employment contract. She was self-employed. 51.30.2. As the claimant was not an employee, the grievance policy did not apply to her. 51.30.3. Her request for reinstatement would not be possible. 51.31. The claimant started early conciliation with ACAS on 19 August 2021 and obtained an early conciliation certificate on 30 September 2021. The claimant’s ET1 [2-13] and Statement of the Claim [14-20] was presented on 28 October 2021. The ET1 and Statement of the Claim were drafted by solicitors. The claimant has been represented by solicitors throughout these proceedings and was represented by counsel at the preliminary and final hearings. 51.32. The respondent presented its ET3 and Grounds of Resistance on 8 December 2021 [21-33]. Disputed Facts Employee/Worker Status 52. The burden of proof is on the claimant to show that she was a worker or employee. 53. We find that the claimant’s evidence in chief on the issues of whether she was a worker or an employee of the respondent lacked detail and specificity. The claimant’s assertions about her status in her witness statement are as follows: 53.1. She considered Lyca Radio to be her employer and she was their employee. 53.2. She was always told what to do. 53.3. She had to provide her programme plan and contents to her senior for approval. In cross examination, the claimant said she had to do this for every single broadcast. 53.4. She was always controlled by her senior and provided WhatsApp group chats as evidence of the alleged control asserted by Sunil Rohira [ 140-162]. 53.5. Most of the proofs were with the respondent.[54]We find that there are no contemporaneous documents that corroborate any of the claimant’s assertions above. We find that the WhatsApp messages do not evidence control being asserted by the respondent.[55]In his closing submissions, Mr Miah submitted that: 55.1. The respondent allowing the claimant to raise a grievance was indicative of an employment relationship. 55.2. The respondent had full control of the claimant. 55.3. The respondent set her working hours and pattern. 55.4. The claimant worked defined time slots: 7:00pm to 10:00pm on weekdays. 55.5. The Invoices were not signed by the claimant. 55.6. There was an implied term in the claimant’s contract that she could not work for a competitor. 55.7. The draft contract produced by the respondent that Mr Baddhan said was produced around January or February 2021 [184-191] contained clauses that were there to exclude Presenters from alleging they were employees, so we should draw the inference that the respondent accepted that the claimant was an employee.[56]We repeat our findings above on matters that were not in dispute: 56.1. The claimant was never given any form of written contract with the 56.2. No documents were produced (letters, emails, messages etc.) that contained any details of the terms of the agreement between the parties from 1 February 2019 to 5 February 2021. 56.3. The parties agreed that the claimant was paid £12.50 per hour for her work. 56.4. The claimant was never paid for any time she spent preparing for her broadcasts. 56.5. The claimant never made a written claim for and was never paid holiday pay. 56.6. The claimant sometimes substituted for other presenters. 56.7. The claimant was paid gross (without deduction of income tax or National Insurance) throughout her work with the respondent. 56.8. Mr Baddhan’s evidence that the usual situation in the radio industry was that Presenters were freelance self-employed individuals was not challenged. 56.9. At the start of her work with the respondent, the claimant worked seven days per week. At the end of her time with the respondent, the claimant worked five days per week presenting a show on weekdays between 7:00pm and 10:00pm. 56.10. The claimant’s remuneration was calculated using a time sheet that recorded her hours of work (e.g., [164]). The claimant sometimes signed the time sheets (e.g., [303]). 56.11. The respondent then created a document called “Freelance Presenters Invoices” (e.g., [163]) that recorded the period covered by the invoice, the hours worked in the period and a calculation of remuneration made by multiplying the hours worked by the hourly rate of £12.50. We were not shown any examples of an invoice that the claimant had signed. 56.12. The claimant said she made numerous requests for a contact of employment. No documents were produced that corroborated those requests.[57]We find the claimant’s evidence about her tax status as contradictory, inconsistent, and evasive. She refused to acknowledge the obvious fact that was shown on the documents that she was paid gross for her work. No income tax or National Insurance was deducted.[58]We find that the respondent did not exercise much control over the claimant. We make the following relevant findings: 58.1. The claimant worked the same hours for the same hourly rate throughout her engagement with the respondent. This leans towards a worker or employee relationship. 58.2. The respondent had a house style of programming that it delivered at Lyca Radio. The claimant played music that fitted the house style. We find that it would be illogical for the claimant to play music that was not in the house style. This is not a matter of control by the respondent. It is a matter of common sense. 58.3. We do not find that the claimant has shown on the balance of probabilities that she had to submit a programme plan for every broadcast. We make that finding because we found the claimant’s written evidence to be inconsistent with her oral evidence. The claimant produced no documentary evidence in support of her assertion. She was represented by solicitors throughout who made on application to the Tribunal for specific disclosure of the collaborative documents that the claimant said the respondent had. No application as made to this Tribunal to adjourn for further disclosure to take place. 58.4. We do not find that it is a matter of control that the claimant presented her show at the same time every weekday. The Respondent operated a radio station. We find it to be a matter of common sense that a presenter presents their show at the same time on the same days. 58.5. The respondent provided the tools and equipment for the claimant’s work. Given this equipment is to deliver a live broadcast for the Respondent it is a matter of common sense that the respondent’s equipment was used, 58.6. We find that there was nothing tying the claimant to the respondent and that she was free to work for other organisations. We make that finding because there was no agreement (written or verbal) in place that imposed any restrictions on the claimant’s ability to work elsewhere. We reject Mr Miah’s suggestion that there was an implied restriction as being inconsistent with a long line of common law. 58.7. Mr Baddhan’s evidence that the usual situation in the radio industry was that Presenters were freelance self-employed individuals was not challenged. 58.8. The claimant was paid gross. There was no reasonable expectation by the claimant that the respondent would be responsible for paying her tax and NI. 58.9. The claimant was never paid holiday pay. We find that she did not prove on the balance of probabilities that she made oral requests for holiday pay. We make that finding because we found the claimant’s evidence to be implausible. She says she made repeated requests for holiday pay and was told that it would be sorted out. However, she made no reference to the failure to pay holiday pay in her grievance or grievance appeal. The claimant produced no documentary evidence in support of her assertion. She was represented by solicitors throughout who made on application to the Tribunal for specific disclosure of the corroborative documents that the claimant said the respondent had. No application as made to this Tribunal to adjourn for further disclosure to take place. We find it highly unlikely that the claimant would not have put a complaint about holiday pay in writing if she genuinely believed she was entitled to it. 58.10. We would add that the same applies to the claimant’s assertions about being paid for preparation time, but she makes no claims for such payments in these proceedings. 58.11. We find that there was no mutuality of obligation between the respondent and the claimant. 58.12. We find that the respondent allowed its presenters to substitute others to do their work. It was agreed that the claimant substituted for Ms Sharma. Applying the findings to the law and the issues[59]Applying our findings to the multi-factual tests outlined in cases such as Autoclenz we find that our factual findings lean heavily towards the claimant being a self-employed contractor and not an employee or worker.[60]As the claimant was not a worker or an employee of the respondent (under either the definition in section 230 of the ERA 1996 or section 83 of the EqA 2010, all her claims fail at that point. Time Limits[61]The burden is on a claimant to show that their claims were presented in time. We find that the clock began to run on the claimant’s claims for unfair dismissal, breach of contract and unauthorised deduction from wages on 5 February 2021. We make that finding because of the findings of fact made above that are repeated here. 61.1. On 1 February 2021 the claimant sent an email to Alexander Yohanan, the respondent’s Group HR Manager, about the termination of engagement [87- 89]. In the email, the claimant: 61.1.1. Referred to herself as a “freelancer” three times; 61.1.2. Said that she had been told “…not to come for work from 5th of Feb 21 onwards by the new CEO of Lyca…”; and 61.1.3. Said that “It is a sin to terminate someone so committed because of no apparent reason…” 61.2. On 2 February 2021, Mr Yohanan replied to the claimant [86] and said he would investigate her complaint. 61.3. On 5 February 2021, the claimant met with Garia Srivastava. The respondent treated the claimant’s email of 1 February 2021 as a grievance. No notes were kept of the meeting. 61.4. On 8 February 2021, the claimant emailed Mr Yohanan [85-86] with further information. The email was headed “Grievance on sudden Dismissal from Service”. The email notified Ms Srivastava that the claimant had received many messages about her removal from her show and complained that the decision did not make commercial sense for the station. 61.5. The claimant never submitted a further invoice or demand for payment. We find that the most likely interpretation of the facts we have fond was that the claimant regarded her work with the respondent to have ended on 5 February 2021.[62]We find no error in Mr Michell’s submissions on the law:[63]“Matters relevant for an ET to consider include whether or not the claimant was or ought reasonably to have been aware of the right to claim unfair dismissal etc, and the time limit for bringing a claim. further Northamptonshire County Council v. Entwistle [2010] IRLR 740 (para 5, per Underhill LJ). If the claimant ought reasonably to have known of their right to claim, it will probably be held that it was reasonably practicable to present a claim within the time limit, whether they in fact knew of the right or not. See Porter v. Bandridge Ltd [1978] 1 WLR 1145.[64]The question of what the substantial cause of the failure to present the claim within time was, and whether there was any "substantial fault" on the part of the As to the meaning of "not reasonably practicable", the issue is pre-eminently one of fact for the ET. Whether something is ‘reasonably practicable’ is “a concept which comes somewhere between whether it is reasonable and whether it is physically capable of being done” (per HHJ Shanks, Stratford on Avon DC v. Hughes [2020] 12 WLUK 628). The burden of proof is always on the claimant, who must convince the tribunal that they fall within the exception to the general rule that claims are to be presented within the allotted time.[65]A mistaken belief that an unfair dismissal claim need not be brought until after an internal appeal procedure has been exhausted1 cannot of itself render it not reasonably practicable to commence proceedings. “It will depend on what enquiries the claimant ought to have made and what knowledge [they] ought to have acquired”. Per Richardson J, Inchcape Retail Ltd v. Shelton (UKEAT/0142/19/JOJ).[66]If the claimant instructs solicitors to act on their behalf and through their default the claim is not presented in time, the ET will consider that it was reasonably practicable for the claim to be presented in time, and will not entertain the claim. Dedman v. British Building and Engineering Appliances Ltd [1973] IRLR 379.[67]What amounts to a ‘further reasonable period’ for the purposes of S.111(2)(b) ERA is also essentially a matter of fact. The extent of the delay is just one of the circumstances tribunals will need to consider. In Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10 Underhill P commented that the question of whether the period between expiry of the time limit and the eventual presentation of a claim is reasonable requires an objective consideration of the factors causing the delay, and of what period should reasonably be allowed in those circumstances for proceedings to be instituted. Such an assessment must always be made against the general background of the primary time limit and the strong public interest in claims being brought promptly.[68]In Nolan v Balfour Beatty Engineering Services EAT 0109/11 the EAT reiterated this point, stating that tribunals, when considering whether to extend time under S.111(2)(b) ERA, should always bear in mind the general principle that litigation should be progressed efficiently and without delay.”[69]We find that the claimant instructed solicitors throughout. She offered no reason why the claims were presented when they were. Her submission was that they were in time. We reject her submission and find that it was reasonably practicable for her to have submitted her claims of unfair dismissal, breach of contract and unauthorised deduction from wages within the statutory time limit. The Tribunal has no jurisdictions to hear the claims.[70]Regarding the EqA 2010 claims, we find no fault in Mr Michell’s expression of the law.[71]“Section 123 EqA provides that (subject to s140B EqA) proceedings ought to be brought within three months of the act of the date to which the complaint relates, or such other period as the ET thinks just and equitable.[72]When the discriminatory act is said to be a dismissal, time runs from the effective date of termination. See e.g. Gloucester Working Men’s Club & Institute v. James [1986] ICR 603.[73]Conduct “extending over a period” is to be treated as done at the end of the period- s.123(3) EqA. Just and equitable extension[74]As regards any ‘just and equitable extension’ pursuant to s.123(1)(b) EqA, the onus is (again) on the claimant to satisfy the ET that they should be treated as a suitable exception to the general rule that claims are to be brought in time. Robertson v Bexley Community Care [2013] IRLR 434. “It is… of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[75]Factors such as the reason for delay, whether the claimant was aware of their rights to make a claim, the conduct of the employer, the length of the extension sought, and the balance of prejudice as between the parties, are all material. Tribunals do not need to follow a formulaic approach to factors which may be relevant, especially when no reliance is placed on them. Chohan v. Derby Law Centre [2004] IRLR 685.[76]Other points to note for present purposes are: 76.1. A failure to provide a good excuse for the delay in bringing a relevant claim will not inevitably result in an extension being refused. Concentrix CVG Intelligent Contact Ltd v Obi [2023] IRLR 35, per HHJ Auerbach at [49]– [50]. However, lack of good reason is important. As is put in Harvey: “even without a formal rule, the absence of a good reason for the delay is likely to weigh heavily in the balance of whether it would truly be 'just and equitable' to extend time”. 76.2. If there is forensic prejudice to a respondent, that will be “crucially relevant” in the exercise of the discretion, telling against an extension of time. It may well be decisive. But the converse does not follow. If there is no forensic prejudice to the respondent, “that is (a) not decisive in favour of an extension, and (b), depending on the ET's assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the ET sees the facts.” Miller v. MoJ [2016] UKEAT/0003/15. 76.3. The weakness of a claim - even if it is not hopelessly weak - may be a relevant factor to take into account when deciding if it is just and equitable to extend time. See Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 (26 April 2022, unreported) at [63]. Relevance must surely be close to determinative where a claim has no reasonable prospect of success (especially where an assessment of the merits is made after the ET has heard evidence).”[77]We find that all the claimant’s claims were presented out of time. The claimant cannot benefit from the ASAC EC extension. The claimant offered no explanation as to why the claims were presented when they were. The claimant did not explain why she chose to start early conciliation on 19 August 2021.[78]We find that the claimant had been advised by solicitors throughout and deem that she was aware of the relevant time limits and that the claimant has failed to provide a good excuse for the delay in presenting her claims. We find that the claimant has not shown a reason why the Tribunal should extend time on the just and equitable basis. The Tribunal therefore does not have jurisdiction to hear the claims under the EqA 2010. Costs[79]An Employment Tribunal may make a costs order against a party under Rules 74-78. We were mindful of the Presidential Guidance on General Case Management that orders for costs are not the norm. Rule 76(1) states: “A tribunal may make a costs order or a preparation time order, and shall consider whether to so where it considers that:(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.”[80]Mr Michell’s applied for a costs order in favour of the respondent after we dismissed all the claimant’s claims. In support of the application, he referred us to an email dated 29 April 2024 from the respondent’s representatives to the claimant’s representative marked “Without Prejudice Save as to Costs”. The email: 80.1. Set out Rule 76(1); 80.2. Asserted that the claimant was not an employee of the respondent; 80.3. Denied liability for the claims generally; 80.4. Made an offer of £5,000.00 in full and final settlement of the claimant’s claims; and 80.5. Indicated that if the claimant rejected the offer, the respondent reserved the right to make a costs claim and estimated its costs to be in the region of £25,000.00.[81]The respondent sent a second without prejudice email dated 9 May 2024 to the claimant that: 81.1. Referred to a medical report dated 26 February 2024 commissioned by the claimant in which it was noted that the claimant believed she had been dismissed on 5 February 2021; 81.2. That undermined the claimant’s assertion about a later EDT; 81.3. The claimant’s claims were out of time; 81.4. The respondent would pay £10,000.00 in full and final settlement of the claimant’s claims; and 81.5. If the offer was rejected, the respondent reserved the right to apply for a costs order. The estimate of £25,000.00 was repeated.[82]We heard brief oral submissions from the representatives.[83]We made the following findings: 83.1. The claimant’s claim to be an employee and/or worker was weak and had little prospect of success; 83.2. The claimant’s claims were all out of time and her own evidence undermined her case to the contrary; 83.3. The value of the claimant’s claim was nowhere near the sum set out in the claimant’s Schedule of Loss. £5,000.00 and £10,000.00 were both reasonable offers; 83.4. The claimant was earning £26,000 per annum [300].[84]In all the circumstances, we found that the claimant’s conduct was unreasonable in continuing her claims after the respondent’s email of 29 April 2024.