Mr S Millin v Priory Group / Partnerships in Care Ltd and East Point Care Ltd: 3303719/2024
EMPLOYMENT TRIBUNALS
Case No 3303719/2024
Between
Mr S MillinClaimant(1) Priory Group / Partnerships in Care Ltd (2) East Point Care LtdRespondent
Before
Judge DobbieDate 25 April 2025
JUDGMENT
[1]The claim for unfair dismissal (against the Second Respondent) is struck out because it is out of time and it was reasonably practicable for the Claimant to have brought it within the time limit.[2]The claims for race and sex discrimination (against both Respondents) are struck out because they are out of time and it would not be just and equitable to extend time in respect of them.
REASONS
[1]Per the case management order sent to the parties on 27 February 2025 [59-62], the matter was scheduled today for a public preliminary hearing to determine whether time should be extended in respect of the claims and if so, to make directions for a full merits hearing.[2]The claims pleaded by the Claimant in the claim form were as follows:(1) Unfair dismissal against the Second Respondent;(2) Direct discrimination under s.13 Equality Act 2010 (EqA) against both Respondents because of race and sex, for various acts listed in the claim form (and repeated in more detail in the particulars of claim) all occurring in September and October 2019. The Claimant’s representative clarified that the aspect of race relied on was skin colour, describing the Claimant as black. Procedure, documents, and evidence[3]In advance of the hearing, I was provided with:(a) A bundle of 396 pages;(b) A witness statement for the Claimant;(c) An updated / augmented witness statement for the Claimant, which he asked me to use in substitution for the earlier version.[4]At the outset of the hearing, enquiries were made of the Second Respondent because no one attended in person or by the video link that had been provided to the parties. (The Second Respondent had attended the hearing in February 2025 at which EJ Freshwater listed today’s hearing.) The tribunal clerk called the telephone number on the file for the Second Respondent and informed me the line ‘went dead’ each time. She therefore sent an email to the email address provided in the ET3 form and got no reply.[5]I made enquiries of the Claimant and First Respondent as to any contact they had had with the Second Respondent. Both informed me that the Second Respondent had not engaged in any preparation for today’s hearing and they had not heard from them since the last hearing in February. I adjourned for a short while to allow time for the email from the tribunal to be received and read by the Second Respondent and for Counsel for the First Respondent to contact his instructing solicitors to see if she had any alternative email address or phone numbers. Upon reconvening, Counsel informed me that his solicitor had sought to contact the Second Respondent in the break, using the telephone number on the most recent email and the different telephone number on the ET3 – one was a ‘dead’ line and the other went to voicemail. I was therefore satisfied that the Second Respondent knew of the hearing (since Mr Chingwalu attended the hearing in February 2025 when this hearing had been listed). I also confirmed with the tribunal administration that the Second Respondent had been sent the video link yesterday, 23 April 2025, and had been re-sent it this morning. Further, various attempts had been made to contact the Second Respondent to no avail. I therefore decided (after waiting 45 minutes to see if the Second Respondent might join or reply to the email) to proceed with the hearing in accordance with my power to do so under Rule 47 of the ET Rules 2024.[6]Evidence was heard from the Claimant under oath and he was cross examined by Dr Courcha. I allowed Mr Nthini a short break to consider any re-examination questions he wished to ask and he did so. Dr Courcha then made closing submissions and I allowed Mr Nthini a 30-minute break to gather his thoughts and address me in reply. Given that Dr Courcha had raised the issue of the merits of the substantive discrimination claims as being relevant to the just and equitable extension of time, I specifically invited Mr Nthini to address me on that if he so wished, and he did so. I then decided to reserve judgment to allow time for me to review all of the evidence and because a written judgment with Reasons could then be provided to the Second Respondent.
Findings of Fact
[7]The First Respondent was the end user of the Claimant’s labour and the Second Respondent was an agency providing staff to entities such as the First Respondent.[8]The Claimant started working for the First Respondent in March 2018 through a different agency. From about 17 August 2018, he continued providing services to the First Respondent, but through the Second Respondent. He worked at the First Respondent’s Ellingham site working with adolescents and young adults with complex needs (including developmental disorders and mental illness) in the role of Nurse in Charge.[9]On 1 September 2019, there was an incident in which one resident young person attacked another whilst the Claimant was on shift. The Claimant was accused of having falsified his observation records and he was told not to return to the First Respondent. He says he was dismissed by the Second Respondent. I make no finding in respect of that, because I am not determining the question of the Claimant’s status vis a vis the Respondents. However, all agree that after the incident, he did not return to work for the First Respondent and the Second Respondent did not place him elsewhere.[10]There was an internal investigation and the matter was referred to the LADO (Local Authority Designated Officer) for investigation.[11]In October 2019, the matter was referred to the DBS but the Claimant says he did not learn of this until late July 2020.[12]The matter was also referred to the NMC but I have not been given precise dates for that. It is suggested that the Claimant self-referred on 12 November 2019, but I do not have full information in respect of that. I am aware that there were ultimately two separate NMC processes.[13]On 29 August 2020, the Claimant contacted Olliers solicitors for assistance with the DBS process [201] and thereafter instructed them to act for him. On 19 October 2020, the Claimant was barred by the DBS from working with both children and adults [319].[14]At some point prior to the DBS process having concluded, the Claimant sought the assistance of Mr Nthini. He was unsure on the precise date, but given that he stated Oliiers had taken material from Mr Nthini’s documents (which Mr Nthini drafted for NMC proceedings) and used them in the DBS process, Mr Nthini must have been involved since approximately September / October 2020. Mr Nithini is not a lawyer. In November 2020, the Claimant, with the assistance of Mr Nthini, made an appeal to the Upper Tribunal in respect of the DBS barring decision. He parted ways with Olliers solicitors at this point and in late 2020 pursued a complaint against them which resulted in them refunding him the fees he had paid to them.[15]By about late 2020, the Claimant reports that he was suffering anxiety and low mood. In January 2021, he consulted his GP and was prescribed Citalopram in respect of this. I have no earlier medical records in respect of this. From January 2021, it would appear that the Claimant regularly reported mental health symptoms and received medication and counselling.[16]The Claimant gave evidence that his marriage started to fall apart after he lost his job. I noted that in the February 2021 GP records, he is reported to have described that his wife is “supportive” [211] suggesting that things were stable at that time. But I accepted that it was a difficult time for his family having recently moved to Norwich and let a property to then be in financial difficulty in meeting rent payments and school fees for his children. His wife was studying and not earning money. Some time after January 2021 (and By August 2021, according to the medical records [213]) the relationship must have become strained because the Claimant had to go and live with his aunt and there was an acrimonious separation from his wife leading to divorce proceedings. In February 2022, a Decree Nisi was made [77]. However, the financial aspect of the divorce continued until much later, as did discussions about custody and contact.[17]On 2 April 2022, the Claimant was informed that his appeal against the DBS barring decision had been successful and the matter remitted to the DBS to make a fresh decision [72]. On 18 May 2022, the Claimant was removed from the DBS barred list and was therefore permitted to undertake regulated activity thereafter in respect of children and adults.[18]On 17 October 2022, the Claimant started working full time in a new caring role working with adults. Indeed, there are various references in the GP records to the Claimant having been at work prior and struggling to attend work, including in August 2021 [213] and April 2021 (where it stated “been off work this week… does not feel fit to work” [212]). Therefore, he must have been doing some work (albeit perhaps not full time) by no later than April 2021.[19]On 21 August 2023, NMC Fitness to Practice proceedings were held in respect of the Claimant. On 1 September 2023, the outcome of these proceedings was notified to the Claimant [219]. At least one set of NMC proceedings (I have been informed there were in fact two such proceedings) continued past the date that the Claimant submitted his ET1, and were not concluded until September 2024. (The first NMC process concluded in December 2023).[20]On 4 March 2024, the Claimant commenced ACAS Early Conciliation (EC) [1]. He received the EC certificate on 6 March 2024. He presented his claim on 5 April 2024 [3].
The law
[21]I reminded myself of the relevant legislation and caselaw. Unfair dismissal claim[22]Under s.111 Employment Rights Act 1996 (ERA) it states: 111 Complaints to employment tribunal. (1)A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months[23]As such, time can be extended only if the tribunal is satisfied of two matters:(1) that it was not reasonably practicable for the Claimant to have presented the claim in time; and(2) that it was presented within a reasonable period after which is became practicable to present it.[24]The onus at both stages lies with the time-barred claimant: ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ Porter v Bandridge Ltd [1978] ICR 943.[25]In Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean ‘reasonable’, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’.[26]In Lowri Beck Services Ltd v Brophy 2019 EWCA Civ 2490, CA, Lord Justice Underhill set out the essential points established in the case law:(a) the test should be given a liberal interpretation in favour of the employee;(b) the statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was ‘reasonably feasible’ for the employee to present his or her claim in time;(c) if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable. If it is not, then it will have been reasonably practicable for the employee to bring the claim in time. However, it is important to note that, in assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have made;(d) if the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee;(e) the test of reasonable practicability is one of fact and not of law.[27]Where a claimant is generally aware of his or her rights, ignorance of the time limit will rarely be acceptable as a reason for delay. This is because the claimant will generally be taken to have been put on inquiry as to the time limit. Indeed, in Trevelyans (Birmingham) Ltd v Norton 1991 ICR 488, EAT, Mr Justice Wood stated that when a claimant knows of his or her right to complain of unfair dismissal, he or she is under an obligation to seek information and advice about how to enforce that right.[28]The EAT reiterated in Cygnet Behavioural Health Ltd v Britton [2022] EAT 108 (at §53) that: ‘A person who is considering bringing a claim for unfair dismissal is expected to appraise themselves of the time limits that apply; it is their responsibility to do so.’[29]A claimant’s complete ignorance of the right to claim unfair dismissal may make it not reasonably practicable to present a claim in time, but the ignorance must itself be reasonable. As Lord Scarman commented in Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA, where a claimant pleads ignorance as to his or her rights, the tribunal must ask further questions: ‘What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?’[30]In Porter, the majority of the Court of Appeal, having referred to Lord Scarman’s comments in Dedman, ruled that the correct test is not whether the claimant knew of his or her rights but whether he or she ought to have known of them.[31]A debilitating illness may prevent a claimant from submitting a claim in time. In Schultz v Esso Petroleum Co Ltd 1999 ICR 1202, CA, the claimant had been too depressed to instruct solicitors during the last six weeks of the three-month time limit. The Court of Appeal held it was not reasonably practicable for the claimant to have presented his claim in time. Although it was necessary to consider what could have been done during the whole of the limitation period, attention should be focused on the closing stages rather than the earlier ones. In this case the disabling illness took place at the end of the period in question and it was not reasonably practicable for him to have presented the claim in time.[32]However, mere stress, as opposed to illness or incapacity, is unlikely to be sufficient. In Asda Stores Ltd v Kauser EAT 0165/07 a checkout operator, was summarily dismissed on 22 June 2006 on suspicion of stealing from the tills. She presented her claim late, after the end of police enquiries into the matter. The EAT held it was not sufficient that she was, as the tribunal had found, ‘very stressed’ and ‘in some turmoil’ during the period of the police enquiries. According to Lady Smith, something more than mere stress was required to avoid the effect of the statutory time limit.[33]According to IDS Employment Law Handbooks, Vol 10, Ch 5, §5.89: ‘Employment tribunals will usually expect to see medical evidence if illness is relied on as a reason for extending the time limit, particularly if the claimant has taken legal advice and was aware of the limitation period. Such evidence must not only support the claimant’s illness, it must also demonstrate that the illness prevented the claimant from submitting the claim in time. In Pittuck v DST Output (London) Ltd ET Case No.2500963/15 P argued that a delay in the internal appeal had prevented him from presenting his claim timeously. When the tribunal judge asked him if there were any other reasons, P stated that he had been on medication for a few months which had impaired his thinking. The judge believed him but noted that P had no further evidence to convince him that he was so impaired as not to be reasonably able to bring his claim in time. In fact, the judge noted that P ‘had done some things well during that period’.’[34]The test is not satisfied simply because the complainant was focussed upon other proceedings even where there is link between the two: Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488 and Per Lord Denning MR in Walls Meat Co Ltd v Khan [1978] ICR 52 at §53: ‘It seems to me that the reaction of the ordinary man who is … charged with theft would be: “It's no good my claiming for unfair dismissal whilst this charge is still outstanding against me. I will wait and see what happens to it before making a claim”. If that be his state of mind, then he is time-barred as soon as three months have elapsed without his presenting a claim. It was reasonably practicable for him to present his complaint of unfair dismissal within three months. His only reason for not doing so was because of the outstanding charge. This is not an acceptable reason for saying that it was not “reasonably practicable” to present his claim within the three months.’[35]Similarly in Cygnet Behavioural Health Ltd v Britton [2022] IRLR 906 the EAT (Cavanagh J) concluded that the ET’s indulgence of a further two months beyond the primary limitation was perverse, stating at §64 that: ‘…just as with an internal appeal, the fact that a FTP [fitness to practise] investigation was underway is no reason or justification to refrain from bringing a claim or at least to ask someone what the time limits are.’ Discrimination claims[36]Under s.123(1) EqA it states: 123 Time limits (1) Subject to section 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. [] (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.[37]As such, under s.123(1)(b) EqA, the test for extending time is the just and equitable test, which is very different than the test under s.111 ERA for unfair dismissal claims.[38]In some instances, a series of matters can aggregate to what is regarded as a ‘continuing act’ with time running from the last act in the series. In other cases, a single act can itself be regarded as continuing in nature (there being a distinction to be drawn between cases in which there is a one-off act that itself continues and one which occurs on a single date but merely its consequences continue). In the present case, the Claimant accepted that the acts / omissions all occurred in late 2019. There was no suggestion of any ongoing or continuing act.[39]Under the just and equitable formula, the Tribunal has ‘a wide discretion to do what it thinks is just and equitable in the circumstances ... they entitle the [employment] tribunal to take into account anything which it judges to be relevant’ (Hutchison v Westward Television Ltd [1977] IRLR 69).[40]In British Coal Corporation v Keeble and ors 1997 IRLR 336, the EAT suggested that in determining whether to exercise the discretion to allow the late submission of a discrimination claim, tribunals would be assisted by considering the factors listed in s.33(3) of the Limitation Act 1980 (LA), in particular:(a) the length of, and reasons for, the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued has cooperated with any requests for information;(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[41]This list under s.33 LA is not to be adhered to slavishly or elevated to a legal requirement but is merely a guide (Southwark London Borough Council v Afolabi [2003] ICR 800).[42]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 15 640, the Court of Appeal confirmed this, stating that it was plain from the language in s.123 EqA that Parliament chose to give tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list.[43]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ in the Court of Appeal, at §37 confirmed, that: “…rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”[44]In Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434, the Court of Appeal confirmed that a tribunal has a wide discretion when considering whether it is just and equitable to extend time. However, it also stated that time limits are applied strictly in employment cases, and there is no presumption in favour of extending time. In fact, tribunals should not extend time unless the claimant convinces them that it is just and equitable to do so. The exercise of discretion to extend time should be the exception, not the rule (§25).[45]In Polystar Plastic Ltd v Liepa [2023] EAT 100, the EAT confirmed that although there is no formal burden of proof under section 123(1)(b) EqA 2010, it is for a party asserting a positive case to establish the matter in issue. Therefore, when a claimant applies to extend time under section 123(1)(b), it is for them to show that the extension is just and equitable. However, this does not mean that a claimant must always put forward a good reason for their delay, or that time cannot be extended in the absence of an explanation for the delay from the claimant.[46]In Mechkarov v Citibank NA [2016] ICR 1121, the EAT stated that when considering whether it is just and equitable to extend time, tribunals must weigh up the relative prejudice that extending time would cause.[47]Guidance as to the approach to prejudice was given by Laing J at §12 in Miller and ors v Ministry of Justice and ors (EAT, 15 March 2016, unreported): ‘There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses.’[48]The first form of prejudice is regarded as ‘customarily’ relevant: DCA v Jones [2007] IRLR 128. However, the second (forensic prejudice) ‘will be “crucially relevant” in the exercise of the discretion, telling against an extension of time. It may well be decisive’ Miller at §17.[49]The strength of the claim may be a relevant factor when deciding whether to extend time. In Lupetti v Wrens Old House Ltd 1984 ICR 348, EAT, the EAT noted that tribunals may, if they think it necessary, consider the merits of the claim, but if they do, they should invite the parties to make submissions on this point.[50]In Kumari v Greater Manchester Mental Health NHS Foundation Trust 2022 EAT 132, a litigant in person presented complaints out of time. In reaching its decision not to extend time, the tribunal weighed in the balance its view that the merits of the complaints appeared to be weak (although not so weak that they had no reasonable prospect of success). This was not overturned on appeal. The EAT noted (at §63): ‘It is permissible, in an appropriate case, [for a tribunal] to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a minitrial, or become drawn into a complex analysis which it is not equipped to perform.’
Conclusion
[51]It is common ground that the claims are out of time by approximately 4.5 years, given that ACAS EC ought to have commenced in about December 2019 or January 2020, but was commenced in March 2024, with the claim form presented in April 2024.[52]For the unfair dismissal claim, I firstly have to consider whether it was reasonably feasible for the Claimant to have presented his claim within time (i.e. by about December 2019 / January 2020, allowing for ACAS EC).[53]Whilst I am most sympathetic to the Claimant’s predicament from late 2019 onwards, and the many processes he has been involved in and the family turmoil he has suffered, I note that he was not under any DBS or NMC process initially and indeed he was unaware of any formal (DBS) proceedings until July 2020. The Second Respondent’s internal process must have concluded by October 2019, by which time the LADO involvement must have concluded and the referral to the DBS was made. Therefore, from September 2019 he was aware of his employment having been terminated and of the facts giving rise to the claims and there were no formal processes demanding his time.[54]During this time, the Claimant was not working, his marriage appears to have been reasonably stable (as above) and there is no record that he was suffering mental health problems at this early time (the earliest suggestion of such indicates these symptoms commenced in autumn / winter of 2020, as above). As such, the reasons advanced by the Claimant for not having brought claims sooner, namely that he was overwhelmed by multiple formal processes, suffering mental health issues and dealing with the breakdown of his marriage did not apply at this time.[55]In his witness statement he asserted at §44 that in respect of this earlier period ‘I could not make a claim within a reasonable period because I only received it [notification of the DBS referral] around 24 July 2020… it was not possible for me to pursue the matter then because I was dealing with NMC referrals at the time’. Whilst, of course, he cannot have brought claims about a DBS process he did not know existed at that time, this did not haver any bearing on his ability to bring claims for unfair dismissal based on a dismissal which he knew had occurred. Hence, from the date of dismissal in September 2019 (or at the latest mid October 2019 when the referral was made to the DBS), to July 2020, the Claimant’s explanation for not bringing the dismissal claim is not apt.[56]I have considered the Claimant’s evidence to the tribunal that he was not aware of ACAS EC or how to bring claims at this earlier time and that he did not learn of this until some later date (which he could not pinpoint even to a broad date range) when he says Mr Nthini informed him he had a right to bring claims to the tribunal for dismissal and discrimination. He stated this was after the proceedings in the Upper Tribunal but he could not be any more precise.[57]As such, I have been given no satisfactory explanation as to why the Claimant did not seek this information from September 2019 onwards. He is an intelligent man who has obtained qualifications and is computer literate. He should and could have searched his rights in respect of dismissal at any time and did not do so. His failure to do so is not reasonable. Therefore, I find that his ignorance of his legal rights is not reasonable.[58]I have considered the Claimant’s explanation about his personal life and his mental health, but as stated above, these appear to have deteriorated some time later and not at or during this earlier time.[59]As such, I find that it was reasonably practicable for him to have brought the claim for unfair dismissal in time.[60]Even if I am wrong in respect of that conclusion, I also find that there were times after expiry of the time limit when it was reasonably feasible for the Claimant to present his claims. Indeed, from January to July 2020, the above reasoning applies and this is a period of some 5-6 months when he did not seek to assert his rights when it was reasonably feasible for him to do so.[61]I have also considered that even when he was suffering anxiety and depression (from late 2020 onwards) he was still able to work, indeed from October 2022, he did so full time. He was also able to and did seek legal advice in respect of the DBS process and could have done the same in respect of any tribunal claims. Indeed, he even pursued his solicitors by way of a complaint after the DBS process (and before the appeal to the Upper Tribunal).[62]Therefore, whilst I do accept that the Claimant was under stresses and strains in his professional and personal life, and it was certainly a difficult time for him, including a recognised diagnosis of depression for which he needed treatment, he prioritised other matters over bringing a tribunal claim. This included the DBS and NMC processes, and also the complaint to his solicitors. Given that he was able to pursue all of those matters and attend work full time, it would appear that him not investigating or bringing tribunal claims was a matter of priorities at the time. I do not criticise the decisions he took in that regard - he decided which matters were most pressing. However, on the evidence before me I am bound to find that at various stages it was reasonably practicable for the Claimant to advance tribunal proceedings and he did not do so.[63]As to his ignorance of the right to bring claims, which I have held above was itself unreasonable, the Claimant delayed even after he was aware of the right to bring claims. Even after commencing ACAS EC, he waited a further month to present his claims. Discrimination claims[64]I have reminded myself of the guidance in Hutchison that I have a wide discretion and can take into account anything I deem to be relevant. I have had regard to the Keeble factors, as indicated below, but have not adhered to them slavishly (per Afolabi): Length of, and reasons for, the delay[65]I have already addressed the length of delay. The reasons for delay are many and various. I have cited §44 of the Claimant’s statement in respect of the period from September 2019 to July 2020 above.[66]More broadly, the Claimant primarily relies on the fact that he was (understandably) overwhelmed with formal processes (DBS proceedings, two sets of NMC proceedings, divorce proceedings etc), that this all contributed to a decline in his mental health and his marriage was falling apart leading to turmoil in his personal life and in respect of his children and living accommodation. He also stated he was not aware of his right to bring claims in the tribunal or how to do so until Mr Nthini advised him of this some time after the Upper Tribunal appeal.[67]I do accept that the Claimant was indeed overwhelmed and struggling with poor mental health from about late 2020 onwards, as set out above. I have held above that it was reasonably feasible that he could have brought his claims within the time limit and certainly by July 2020 (before he was embroiled in any formal proceedings etc) and this applies equally to his discrimination claims. However, the test for extending time under EqA is different and discretionary, therefore despite this finding, does not itself bar the claims from proceeding. I have to consider all the circumstances and decide whether it is just and proper to extend time based on all those circumstances and in accordance with the Overriding Objective and the other cases set out above. The extent to which the cogency of the evidence is likely to be affected by the delay[68]There was no evidence from the Respondents as to this. However, it stands to reason that the longer a hearing is from the events in questions, the less likely that witnesses will be able to adequately recall the events. I have considered that a trial in respect of this smatter would likely be listed for late 2026 at the earliest and that would therefore be approximately 7 years after the events in question.[69]There was no grievance raised in respect of the matters, but the reasons for referring the Claimant to the LADO and the DBS are documented. This would mitigate the extent of degradation in the cogency of the evidence, but not nullify it.[70]Further, given that the claims require the tribunal to determine why certain actions were taken (i.e. was it because of race or sex?) there would need to be consideration of the evidence of the decision makers and any evidence generated by them, such as internal emails / messages / meeting notes they had with one another. The First Respondent tells me that the First Respondent ceased operating from the Ellingham site and that the staff based there have either left or been moved to other sites. Further, that digital documents are deleted after a certain period and therefore it is likely that documents will have been deleted. This was based on submissions and assertions in the pleaded Reply, but I received no evidence in respect of this. I therefore gave it less weight than if evidence of this had been given and did not consider this to be one of those cases where there was a decisive forensic prejudice against extending time. Rather, I simply weighed in the balance the fact that there is likely to have been some degradation or loss of evidence due to the passage of time. The promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action[71]The Claimant knew of the acts at the time they occurred in late 2019, and of the DBS referral in July 2020. The steps taken by the Claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[72]As set out above, the Claimant stated that he was unaware of the right to bring claims until after the appeal against the DBS decision. However, I have already found that this ignorance was unreasonable in respect of someone with the Claimant’s attributes and abilities. The Claimant was able to and did seek advice or research his position in respect of NMC proceedings, DBS proceedings, divorce proceedings and insurance claims following an accident in 2021.[73]The right to sue an employer that dismisses an employee unfairly is widely known and even reported in the popular press. Similarly, the fact that discrimination is unlawful in the workplace is very widely known and reported on. Had the Claimant undertaken any research at all, he would have quickly discovered his rights and the time limits pertaining to such claims. Therefore I find that he took inadequate action to explore any such rights. Merits[74]I have reminded myself that it is not appropriate to conduct a mini trial on disputed facts. I have also heeded the warnings on considering the merits of discrimination claims, per Kumari. However, I do consider it is appropriate to consider the merits of the claims when deciding whether to extend time for them.[75]Under s.13 EqA, direct discrimination is defined as ‘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’. Under s.23 EqA, the comparator can be real or hypothetical, but the tribunal is required to find that a person in the same material circumstances (other than the protected characteristic) was or would have been treated more favourably.[76]In the course of the evidence, the Claimant referred to various people he says committed more serious acts than he was accused of but who were not referred to the DBS (although most of them were referred to the NMC) and were thus treated more favourably than he was.[77]However, he did not advance any basis for inferring that the reason for the less favourable treatment of himself was because of race or sex. In closing submissions, I asked Mr Nthini about this and he stated that the basis of the discrimination claims was solely because others had been treated more favourably, but there was nothing separate or additional to that which might enable a tribunal to infer that race or sex was the reason for the difference in treatment.[78]Mr Nthini named various people who he relied on as evidential comparators or real comparators. Of the seven people named, Mr Nthini stated three were black. Given that the Claimant relied on these people as comparators, this undermined his case that his race was the reason he was treated less favourably than these people – he was saying that these three black people were treated more favourably than he was. Four of the seven people named were men. As such, for the sex discrimination claim, it would appear that the Claimant was relying on comparators who were also male and he says treated more favourably than him. This undermined his case that his sex was the reason for the way he was treated.[79]As such, quite aside from the issue of the Claimant’s employment status, which I did not consider, I considered there to be real obstacles for the Claimant to surmount in respect of substantive merits of the discrimination claims. Prejudice[80]Prejudice is a key consideration and despite is being last in my list this is no indication of its importance. Indeed, I consider it to be of great importance.[81]It goes without saying that the prejudice to the Claimant of not extending time is that he cannot pursue claims that he wishes to pursue. There is also a public policy in discrimination claims being heard. However, the prejudice asserted by his representative was that until age 100 years the LADO would inform prospective employers of its finding. I informed the Claimant that even if his claims proceeded and even he won all of them, the tribunal had no power to alter the LADO’s policies and practices.[82]In respect of the Respondents, have considered the two types of prejudice described in Miller. In respect of the first (the prejudice of facing a claim that might otherwise be time barred) I consider this to be more weighty where the delay is greater. Allowing a claim to proceed when it is a few days, weeks or months out of time is less prejudicial than one that is years out of time. This is partly because the passage of time is more likely to cause forensic prejudice in such cases (but I discount that element under this limb of prejudice to avoid double counting when considering the second aspect / type of prejudice).[83]The other consideration is the fact that Parliament has decided to set short time limits for employment tribunal claims to be presented. Time limits are strictly enforced and there is a public policy in finality of litigation. Extending time limits for claims that are years out of time frustrate these objectives.[84]As to the second type of prejudice (forensic prejudice), I have already addressed above how the passage of time is likely to have affected: retention of documentary evidence; witness memories; and availability / identification of relevant witnesses.[85]Taking all of the above matters into account, weighing them in the balance as I am required to do, I find that it would not be just and equitable to extend time and I therefore decline to exercise my discretion to do so. The length of the delay, the likely impact on evidence, the merits of the claims, the balance of prejudice, and the fact that I have held that Claimant should have acted far sooner than he did, all lead to a conclusion that it would not be just and equitable to extend time.[86]Therefore, the Tribunal does not have jurisdiction to consider the claims, and they are struck out. Approved by: