Mr K Dean – deceased Represented by Mr W Storey v E.SURV Ltd: 3300069/2025
EMPLOYMENT TRIBUNALS
Case No 3300069/2025
Between
Mr K Dean – deceased Represented by Mr W StoreyClaimantE.SURV LtdRespondent
Before
Employment Judge M WarrenMs N Gyane (instructed by Counsel) for respondentDate 27 February 2026
REASONS
[1]Mr Dean’s employment with the Respondent ended upon his retirement after 26 years’ service, on 31 May 2023. He sadly died on 8 August 2024. These proceedings were issued by his Brother-in-Law, Mr Storey, on 10 January 2025. The claims are of disability discrimination, detriment for having made protected disclosures, breach of contract and unpaid wages in respect of a dispute over shares.[2]Mr Dean was a Surveyor and was latterly employed as Learning and Development Technical Partner.[3]The disability relied upon is Pseudobulbar Dysarthria, a motor speech disorder caused by damage to the corticobulbar pathways in the brain. Mr Dean was tragically subsequently diagnosed with Motor Neurons Disease.[4]The case came before Employment Judge Davey on 12 November 2025. She arranged for it to be listed for a five day Hearing in November 2027 and made case management orders. She listed today’s Public Preliminary Hearing to deal with issues of time, disability, a possible Deposit Order and a possible stay in respect of the breach of contract and wages claim, (see below).[5]The claim of detriment for making protected disclosures was dismissed upon withdrawal. The Issues for Today[6]There was some ambiguity as to the basis on which I was to consider the issue of time today. EJ Davey wrote at paragraph 7 of her Hearing Summary: “… To determine the Respondent’s application for strike out, or in the alternative, deposit orders, with reference to all the claimant’s complaints because of time limits. If appropriate, the tribunal will then determine whether the claimant was a disabled person at the material time and whether to stay or dismiss the complaints of breach of contract and unauthorised deductions from pay.”[7]From this I was unclear whether I was to decide whether or not it is just and equitable to extend time, (the claims are clearly out of time) or if I am to decide whether the Claimant has no reasonable prospects of success in persuading the Tribunal that hears this case, that it is just and equitable to extend time. There is an important distinction although thankfully, as no question of whether there is a continuing act arises, it is not as important a distinction as it might have been.[8]Ms Gyane clarified for me the application for strike out which was before EJ Davey and which she listed for today, was on the basis that the Claimant has no reasonable prospects of persuading the trial Tribunal that it is just and equitable to extend time. Ms Gyane confirmed that is the application she pursues before me today.[9]As to the issues in the case, these were identified by EJ Davey in her Hearing Summary on 12 November 2025, to which reference will need to be made to understand some aspects of this decision. Evidence[10]I had before me today a paginated and indexed bundle of documents running to page 357. I had written submissions from Ms Gyane and from Mr Storey a document entitled, “Just and Equitable Extension – Skeleton Argument”. Additionally, upon receiving Ms Gyane’s submissions, Mr Storey prepared a further document entitled, “Claimant’s Written Submissions in Reply (late)”.[11]I also had two witness statements from Mrs Dean dated 28 October 2025 and 12 January 2026. I read those statements and took their content into account, but I did not hear formal evidence from Mrs Dean. Ms Gyane confirmed that she had no wish to cross examine her.[12]At the outset of the hearing, the parties confirmed to me that the foregoing represent all the documents that I should have before me.[13]I did also have a bundle prepared by Mr Storey entitled, “Just and Equitable Supplemental Bundle” but I believe that all the documents therein are replicated in the above mentioned hearing bundle prepared by the Respondents. I have certainly looked at all the documents to which I have been referred. The Law Time
The Law
[14]Section 123 of the Equality Act requires that any complaint of discrimination must be brought within three months of the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable.[15]In determining whether it is just and equitable to extend time, in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 the Court of Appeal clarified that there was no requirement to apply any check list under the wide discretion afforded tribunals by s123(1). The only requirement is not to leave a significant factor out of account, (paragraph 18). Further, there is no requirement that the tribunal must be satisfied that there was a good reason for any delay; the absence of a reason or the nature of the reason are factors to take into account, (paragraph 25).[16]The limitation act checklist is illustrative of the sort of factors that might be relevant, but not determinative and is not to be used as a checklist, see Adedeji v United Hospitals Birmingham NHS Foundation Trust [2021] ICR D5 . The discretion is a broad one, meaning that all relevant factors should be considered, including in particular the length and any reason for, the delay. Those illustrative factors are the relative prejudice to the parties, the length and reason for delay, the impact on cogency of evidence, cooperation in the provision of information, promptness of action by the claimant when aware of relevant facts, steps taken to obtain advice.[17]In the case of Robertson v Bexley Community Services [2003] IRLR 434 the Court of Appeal stated that time limits are exercised strictly in Employment Law and there is no presumption, when exercising discretion on the just and equitable question, that time should be extended. Nevertheless, this is a matter which is in the Tribunal’s discretion.[18]That has to be tempered with the comments of the Court of Appeal in Chief Constable of Lincolnshire v Caston [2010] IRLR 327 where it was observed that although Lord Justice Auld in Robertson had noted that time limits are to be enforced strictly, his judgment had also emphasised the wide discretion afforded to Employment Tribunals. Lord Justice Sedley noted that in certain fields such as the lodging of notices of appeal in the EAT, policy has led to a consistently sparing use of the power to extend time limits. However, this has not happened and ought not to happen in relation to the discretion to extend time in which to bring Tribunal proceedings which had remained a question of fact and judgment for the individual Tribunals.[19]More recently in Jones v Secretary of State for Health and Social Care 2024 EWCA Civil 1568 the Court of Appeal suggested that there was much to be said for focussing less on Bexley and more on some of the other Court of Appeal authorities, such as those summarised by Leggatt LJ in Morgan.[20]The potential merits of the case may, with caution, be taken into account. See Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022 ]EAT 132.[21]An ongoing disciplinary or grievance process is a factor to take into account, but Parliament did not provide that such a process should halt the running of time, see Robinson v Post Office [2000] IRLR 804. In that case, the Claimant had been advised about the time limit and ignored the advice. The EAT decision in Robinson was endorsed by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116. Strike Out[22]Employment Tribunals Rules of Procedure, rule 38 provides that: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).[23]Where a tribunal is dealing with an application to strike out a claim by reference to time limits, (rather than simply determining whether it is just and equitable to extend time) the approach to be taken is explained by HHJ Auerbach in Caterham School Ltd v Rose [2019] UKEAT/0149/19/RN (paragraphs 58 to 61), Ellenbogen J in E v X [2020] UKEAT/0079/RN, (paragraphs 45 to 47) and HHJ Taylor in Mesuria v Eurofins Forensic Services Limited [2025]EAT103 at paragraphs 15 to 17. The test to be applied is whether the Respondent can show that the Claimant has no reasonable prospect of successfully arguing that it would be just and equitable to extend time. It is not that there are, “no” prospects, but that there are no “reasonable” prospects of so arguing.[24]Strike out is a draconian step and there is a public interest in discrimination cases being heard and not struck out, Anyanwu v Southbank Student Union 2001 ICR 391.[25]When exercising discretion one must always seek to balance the relative prejudice to the parties and apply the overring objective: 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 as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A 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 co-operate generally with each other and with the Tribunal.[26]The burden of proof lies with the Claimant. Facts[27]Mr Dean had 26 years’ service with the Respondent.[28]On 22 September 2022, he indicated that he wished to retire on 31 May 2023, (page 229).[29]In the winter of 2022, Mr Dean developed problems with his speech. In a letter from a Doctor Tucker dated 7 December 2022, they referred to a two week history of Dysarthria and evidence of Pseudobulbar Dysarthria. The letter refers to further investigations.[30]From the List of Issues, one can see that the complaints in this case are about Mr Dean’s Manager, Mr Harry, forming a view that Mr Dean had a cognitive impairment and that the Respondent had failed to make reasonable adjustments to accommodate him. Precisely when these acts of discrimination are said to have occurred, (crucial for calculating time) is not clear. There are no dates in the particulars of claim attached to the Claim Form and no dates provided in the List of Issues.[31]From Mr Storey’s grievance of 23 January 2023, (page 180) it seems that Mr Dean alleged that Mr Harry had stated in a meeting with Human Resources on 19 December 2022, that Mr Dean’s cognitive ability was impaired, conveyed to Mr Dean via his wife in a telephone conversation between his wife and Human Resources on 20 December 2022. In respect of that allegation, time runs from 19 December 2022 and expired on 18 March 2023.[32]There is no mention in the grievance, (or indeed in any of the subsequent correspondence) of reasonable adjustments. Mr Storey had been absent from work between 14 November and 7 December 2022. His case must therefore be that the Respondent should have made reasonable adjustments on his return to work and before his absence from work began again on 28 December 2022 due to, “stress and loss of sleep”, (page 181) from which absence he did not return to work. On that basis, time begins to run on the reasonable adjustments claim from when the Respondent might reasonably have been expected to have implemented reasonable adjustments, something that would have to be determined by a Tribunal after hearing evidence, but which is likely to have been by 28 December 2022, in which case time would have expired on 27 March 2023.[33]It might be said the decision on adjustments might reasonably have been made at some point after 28 December 2022, but it would certainly have been within a matter of weeks of that date. I note at page 167 of the Bundle, a text message which I understand to be dated 20 December 2022, which corroborates Mrs Dean, (Julie) when she says that she was told that concerns had been raised about Mr Dean’s cognitive ability on 20 December 2022.[34]I note the contents of an email from a Ms Bridget of Human Resources on 28 December 2022, responding to an email from Mr Dean of 27 December 2022 raising a complaint about Mr Harry, in which she writes, “Firstly, I hope that you and the family had a wonderful Christmas. I have read through your grievance and I am really disappointed that you feel that you have to formalise this. Having had a conversation with both Ashley and Andy I am of the opinion that they only want to do what is best for you – which is why I contacted Julie. We are concerned about you and want you to enjoy the remainder of your time with the business ahead of your retirement and want to support you.”[35]On 16 January 2023, Mr Dean wrote a long email about historic complaints that had been made against him, (page 188).[36]On 23 January 2023, Mr Dean raised a formal grievance, (page 180) which runs to two pages.[37]On 1 February 2023, Mr Dean’s Consultant Dr Tucker wrote, “Mr Dean is under my care, with Pseudobulbar Dysarthria. This condition has affected Mr Dean’s speech, however, he has fully intact executive and cognitive function. … I would not have any concern about his capacity to continue his employment in his current capacity. Please let me know if I can provide any further information to assist.”[38]On 22 February 2023, Mr Dean wrote a long, (five page) email about his grievance to the person dealing with it, (page 210).[39]On 22 March 2023, Mr Dean was provided with an outcome to his grievance, (page 223) and I note (at page 228) expressions of apparently genuine concern with regard to his wellbeing.[40]On 24 March 2023, Mr Dean wrote again about the complaints that had been made against him, (page 235).[41]On 28 March 2023, Mr Dean wrote a cogent email to appeal the outcome of his grievance, including that the Respondent should have contacted his Consultant or an Occupational Therapist, (page 231).[42]On 5 April 2023, Mr Dean sent a cogent email about his appeal, (page 242).[43]On 14 April 2023, Mr Dean was informed that his appeal against the grievance outcome was not successful, (page 251) and again I note references to apparently genuine concern as to his wellbeing.[44]On 12 May 2023, Mr Dean wrote seeking an apology from Mr Harry, (page 261).[45]On 21 May 2023, (page 259) Mr Dean sent a cogent email to Mr Harry and to another HR Manager.[46]On 31 May 2023, Mr Dean retired as planned.[47]On 1 June 2023, Mr Dean wrote to solicitors seeking advice. I have been provided with an email chain, which starts at page 273. He seeks advice in relation to the suggestion that his cognitive ability was impaired. He attaches correspondence. One would have thought the solicitors would have been alerted to the potential time issue, although I cannot be sure because I do not see what correspondence was attached. The solicitor’s reply on 12 June 2023, to the effect that Mr Dean would be charged £500 for two hours’ worth of work.[48]On 14 June 2023, Mr Dean emailed the solicitors to accept that proposal.[49]On 17 June 2023, Mr Dean had a stroke and his communications with the solicitors ceased.[50]On 17 July 2023, Mr Dean wrote to the Chief Executive Officer of the Respondent company Mr Goodhall, (page 282). It is a cogent letter complaining about the way that he has been treated and threatening legal action if he is not offered some compensation. During submissions today, Mr Storey said in answer to a point made by Ms Gyane, this letter had in fact been written by the family along with Mr Dean. However, I note that in his written submissions at paragraph 15, Mr Storey prays this letter in aid, without mentioning that it was anything other than authored by Mr Dean.[51]Mr Storey’s written submissions at paragraph 11 speak of Mr Dean’s condition deteriorating from late 2023 to 2024.[52]I note the content of the MND Specialist Nurse letter dated 21 December 2023, (page 291) which refers to Mr Dean as remaining fully independent with all activities of daily living. It speaks of some recent changes to his cognition. He has no useful speech and is nil by mouth following a recent hospital admission.[53]Mrs Dean had Power of Attorney for Mr Dean from about February 2024.[54]Sadly, as noted above, Mr Dean died on 28 August 2024.[55]On 12 September 2024, Mrs Dean wrote to the Chief Executive Officer of the Respondent threatening legal action in respect of the way that Mr Dean had been treated, (no mention of a failure to make reasonable adjustments) (page 296).[56]On an uncertain date in October 2024, Mrs Dean wrote a text to the Human Resources Manager threatening legal action and to go to solicitors, (page 289).[57]On 25 October 2024, Mrs Dean wrote to Mr Jeremy Vine in his capacity as Patron of the MND Association, (page 299) and to the CEO of the MND Association, (page 304) about the way she said the Respondent had treated Mr Dean.[58]On a similar theme, she wrote to the TV presenter Kevin Maguire on 26 October 2024, (page 309).[59]On 15 November 2024, Mrs Dean wrote about the way Mr Dean had been treated by his employer to her local MP Mya Ellis, (page 314).[60]Early Conciliation was between 19 and 21 November 2024.[61]Some time after that, Mr Storey attempted to issue Tribunal proceedings in the name of Mr Dean. The claim was rejected because Mr Dean was deceased.[62]On 10 January 2025, Mr Storey successfully issued these proceedings in his capacity as Executor of Mr Dean’s estate.[63]Mrs Dean and Mr Storey as Executors of the estate, obtained a Grant of Probate on 14 March 2025.
Conclusions
[64]This is not the usual case where time begins to run from the termination of employment, where one is looking for potential continuing acts.[65]Time has undoubtedly expired. The question is, whether Mr Storey has any reasonable prospect of persuading the trial Tribunal that it is just and equitable to extend time.[66]It is clear from the extensive correspondence recited above, that between 7 December 2022 and Mr Dean’s stroke on 17 June 2023, a period of six months, there was no impediment to his issuing proceedings to complain of discrimination; a period of three months beyond the likely expiry of the time limit.[67]On 17 July 2023, Mr Dean was able, whether with the assistance of his family or otherwise, to articulate threats of legal proceedings. There is therefore a period of a further number of months when there was no impediment to his embarking on a discrimination claim. That point appears to have been reached some time around about December 2023, a year later, when one considers the content of the MND Specialist Nurse’s letter.[68]It is clear from the correspondence recited, that Mrs Dean herself had in mind legal proceedings. She has had Power of Attorney from February 2024. However, I would accept that by then the situation would have been so distressing for her, I am sure that such things would have been furthest from her mind.[69]However, once again from September 2024 when Mrs Dean started writing with threats of legal action to the Chief Executive Officer and writes a number of letters to third parties about the case, Mr Dean’s estate is in a position where rather than writing these letters, it could have pressed on with issuing legal proceedings in the Employment Tribunal. I note that Mr Storey writes in his submissions at paragraph 22, that it is only after exhausting reasonable attempts to obtain engagement, did he contact ACAS. That unfortunately, I am sorry to say, is a mistake. Pursuing grievances, appeals, correspondence with Chief Executives or outside agencies, is not sufficient justification for the delay in the issue of proceedings, although it is a factor to keep in mind.[70]Of course it is right to say that Mr Dean’s illness in June 2023 and subsequently from around about December 2023 until his death, are absolutely good reasons for delay. However, there are other periods of delay when those reasons do not apply.[71]Cogency of evidence will undoubtedly have been impacted. The events in question are December 2022, the Trial is scheduled for November 2027, five years later. It is not the parties fault that outrageous delays in listing give rise to this situation, but nonetheless, we are where we are. Where we are is that in November 2027, if this case proceeds, people will be asked to remember what happened five years earlier.[72]Mr Storey says that everything is well documented. I am sorry to say that it is not. There are documents relating to the allegation that Mr Harry questioned Mr Dean’s cognitive abilities, but there is absolutely nothing on the question of reasonable adjustments.[73]The Respondents will be prejudiced by the fact that three key witnesses are no longer in their employment, including Mr Harry and two other key witnesses: Mr McKiver, who would have dealt with the reasonable adjustments issue and Mr Sexton, who would have dealt with evidence relating to the grievance and appeal. Of course it is true these individuals can be traced and called to Tribunal by Witness Summons, but in practical terms, a Respondent is inevitably disadvantaged when it has on its hands, reluctant and uncooperative witnesses.[74]The Respondent will also be prejudiced by the fact that sadly, it will not be able to cross examine Mr Dean. On its own, that is not at all a bar to a case proceeding, but it is a factor. The Respondent will not be able to put to Mr Dean its arguments and challenge him about the reasonable adjustments it is argued the Respondent should have put in place.[75]The merits of the case are also a relevant factor.[76]It does not appear to have been suggested at the time that reasonable adjustments should have been put in place. Mr Dean was absent from work after 28 December 2022, it may well have been that reasonable adjustments would have been considered had it been proposed that he would have returned to work, but for his retirement.[77]In relation to the complaint about Mr Harry, I can see how it might have been that a person for perfectly genuine motives, may have had concerns about Mr Dean’s cognitive abilities, albeit those concerns were ill founded.[78]On the subject of the merits, I see real difficulty in Mr Dean’s estate establishing that he was disabled at the relevant time, i.e. in December 2022 when the condition has just manifested itself. I am not sure that they are going to be able to show that at that time, (before the MND diagnosis) it might have been foreseeable that the condition was likely to last more than 12 months. There will also undoubtedly be difficulties given the passage of five years, in hearing cogent evidence on whether the Respondents knew or ought reasonably to have known that at the time.[79]In his written submissions, Mr Storey misunderstands what lies behind the tests for an extension of time on just and equitable grounds. It is not a question of whether or not Mr Dean abandoned his claims, it is a question of whether he pursued them either in time or within such time that the Tribunal considers it just and equitable that it should extend the time limit. That Mr Dean pursued matters internally through a grievance, a grievance appeal, consulted with a solicitor and wrote to the Respondent subsequent to his stroke, all indicate that he could have pursued his legal claim within the required time frame. Similarly, those dealing with Mr Dean’s estate, instead of writing to third parties, could have pursued the legal claim at that time.[80]I would not criticise the estate of Mr Dean for the delay between the issue of the ACAS Certificates and the issue of these proceedings, given the aborted attempt to issue the proceedings in the name of Mr Dean alone.[81]This is a very sad case. Mr Dean’s family are very angry. Instinctively at first blush, one might think that this is a case where it would be just and equitable to extend time however, detailed analysis of events, time frames and consideration of whether a fair trial is possible, leads one inevitably to the conclusion that Mr Storey has no reasonable prospects of persuading a Tribunal that it is just and equitable to extend time.[82]I therefore strike out the disability discrimination claim on that basis. Further Conduct of the Case – next Public Preliminary Hearing[83]Before retiring to consider my decision, I arranged with the parties and the Listing Team for this case to be listed for a further one day Public Preliminary Hearing by Cloud Video Platform (CVP) before an Employment Judge sitting alone, on 7 May 2026. I did so on the basis that one day would be required to deal with the question of whether or not Mr Dean had at the material time been a disabled person in accordance with the Equality Act 2010. That question no longer arises.[84]Now that the disability discrimination claim has been struck out, the claims remaining are of breach of contract and unpaid wages. As I understand it, this relates to a dispute regarding shares. The claims are not dealt with in the List of Issues in EJ Davey’s Hearing Summary. According to the Particulars of Claim attached to the ET1, the complaint is that during his 26 years of employment, Mr Dean acquired £9,000 worth of shares as part of an Employee Incentive Share Scheme. It is said that after he retired, he contacted the Respondent in respect of those shares, to be told that because he had not cashed them in whilst still in employment, he had forfeited them.[85]In their Grounds of Resistance, the Respondent argues that the Tribunal does not have jurisdiction to hear these claims as a consequence of Mr Dean’s death, because wages claims are not saved by s.206 of the Employment Rights Act 1996 and because Mr Dean died before the issue of proceedings, the claim is not saved by paragraph 9(1) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[86]A further issue for the Claimant is that the time limit is as with the discrimination claim, a three month time limit. The test for allowing proceedings to continue notwithstanding that they have been issued outside three months, is more stringent than that for discrimination claims. The test is whether it was reasonably practicable for the claim to have been brought in time and if not, whether it was issued within such further time as the Tribunal considers reasonable. These claim will therefore face a more severe test than for discrimination, albeit that time will run from a different date, from the termination of employment.[87]This raises a further issue, which is that it seems to me that it is far from clear whether the issue over the shares falls within the definition of wages for the purposes of s.13 of the Employment Rights Act 1996 and whether it is a breach of contract claim which arises or is outstanding on termination of employment, as required under the Extension of Jurisdiction Order.[88]I therefore direct that the Public Preliminary Hearing on 7 May 2026 shall be to consider: 88.1. Whether the Claimant’s claims for breach of contract and unlawful deduction of wages should be struck out either: 88.1.1. On the grounds that the Tribunal does not have jurisdiction to consider those claims, or 88.1.2. The Claimant has no reasonable prospects of success in respect of those claims, or 88.2. Whether a Deposit Order should be made in respect of those claims on the grounds that there is little reasonable prospects of those claims succeeding. Case Management Orders[89]Subsequent to the hearing, I received an email from Ms Dyane, copied to Mr Storey, asking that Case Management Orders for preparation for Final Main Hearing made by EJ Davey be stayed until after the next Public Preliminary Hearing. Mr Storey wrote to object.[90]Having struck out the discrimination claim, it is plainly appropriate that the previous Case Management Orders should be revoked. I revoke them.[91]If the Tribunal allows a breach of contract and unlawful deduction from wages claims to proceed on 7 May 2026, the Employment Judge on that occasion can make such Case Management Orders as are appropriate. Final Main Hearing in November 2027[92]I have decided to leave the Final Main Hearing in November 2027 in the list for the moment. It will be for the Employment Judge at the Public Preliminary Hearing on 7 May 2026 to decide, or make enquiries with the Listing Team, whether those five days are required, if fewer days are required whether a more proximate hearing date could be allocated in place of those dates in November 2027, or whether one of those dates or some of those dates in November 2027 should be utilised. Approved by: