Miss N McIntyre v Mitie Ltd and Vigilante Security: 3306383/2024
EMPLOYMENT TRIBUNALS
Case No 3306383/2024
Between
Miss N McIntyreClaimant(1) Mitie Limited (2) Vigilante Security RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge GeorgeDate 13 May 2025
JUDGMENT
[1]The claim against Mitie, the first respondent, is struck out under Rule 38 on the basis that it has no reasonable prospect of success.[2]The claim against Vigilante will proceed.
REASONS
[1]Following a period of early conciliation in respect of the first respondent (Mitie) between 18 May 2024 and 22 May 2024, and a period of early conciliation in respect of the second respondent (Vigilante) between 29 April 2024 and 10 June 2024, the claimant presented a claim form on 3 July 2024. Mitie entered an in time response on 1 November 2024 by which, among other things, they argued that the claim against them was out of time because any acts for which they were responsible were said to have occurred during employment which started on 27 October 2021 and ended on 7 June 2023.[2]The hearing was listed to consider an application to strike out the claim under rule 38. I had an electronic hearing file of 71 pages and page numbers in these reasons refer to that file. The Law relating to strike out[3]The power to strike out a claim on the ground that it has no reasonable prospect of success comes from what is now Rule 38 Employment Tribunal Procedure Rules 2024. it is a power to be exercise sparingly particularly where there are allegations of discrimination or whistleblowing.[4]In the case of Anyanwu v South Bank University [2001] IRLR 305 HL, the House of Lords emphasised that in discrimination claims the power should only be used in the plainest and most obvious of cases. It is generally not appropriate to strike out a claim where the central facts are in dispute because discrimination cases are so fact sensitive. The same point was made by the Court of Appeal in the protected disclosure case of Ezsias v N Glamorgan NHS Trust [2007] I.C.R. 1126 CA where Maurice Kay LJ said this at paragraph 29 “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the employment tribunal to decide otherwise. In essence that is what Elias J held. I do not consider that he put an unwarranted gloss on the words “no reasonable prospect of success”. It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”[5]Furthermore, there is a public interest in ensuring that allegations of discrimination are heard and determined after appropriate investigation of the circumstances because of the great scourge that discrimination, whether on grounds of race or other protected characteristic, represents to society.[6]That said, where it is plain that a discrimination claim has no reasonable prospects of success (interpreting that high hurdle in a way that is generous to the claimant), then the tribunal does have and, in a plain and obvious case, may use the power to strike out the claim so that the respondent and the tribunal system are not required to spend any more resources on a claim which is bound to fail: Anyanwu para.39 per Lord Hope. Such an example is given in the quotation from Ezsias.[7]Another such a case might be one which the tribunal has no jurisdiction to hear because it was not presented within the time specified in the legislation. This claim against Mitie includes complaints under the Equality Act 2010 (EQA) and the Employment Rights Act 1996 (ERA). The Law relating to time limits[8]Section 123 EQA provides that, subject to the effect on time limits of early conciliation, proceedings on a complaint within Part 5 of the EQA (which relates to employment) 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.”[9]The discretion in s.123(2) to extend time is a broad one but it should be remembered that time limits are strict and are meant to be adhered to. The burden is on the claimant to persuade the Tribunal that the discretion should be extended in her favour: Robertson v Bexley Community Services: [2003] I.R.L.R. 434 CA. There is no restriction on the matters which may be taken into account by the tribunal in the exercise of that discretion and relevant considerations can include the reason why proceedings may not have been brought in time and whether a fair trial is still possible. The tribunal should also consider the balance of hardship, in other words, what prejudice would be suffered by the parties respectively should the extension be granted or refused?[10]In British Coal Corporation v Keeble [1997] IRLR 336 the EAT advised that tribunals should consider, in particular, the following factors:(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 had cooperated with any requests for information;(d) the promptness with which the claimant had acted once he or she had known of the facts giving rise to the cause of action; and(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she had known of the possibility of taking action.[11]However, the factors to be taken into account depend upon the facts of a particular case and should not be considered mechanistically when exercising what is a broad general discretion: Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23, CA.. It is not necessary that the Tribunal should be satisfied that there is a good reason for the delay before finding that it is just and equitable to extend time although the explanation will always be relevant: Abertawe Bro Morgannwg University v Morgan [2018] I.C.R. 1194 CA. Furthermore, one of the most significant factors to be taken into account when deciding whether to set aside the time limit is whether a fair trial of the issue is still possible (Director of Public Prosecutions v Marshall [1998] ICR 518). In Baynton v South West Trains Ltd [2005] ICR 1730 EAT, it was observed that a tribunal will err if, when refusing to exercise its discretion to extend time, it fails to recognise the absence of any real prejudice to an employer. This is part of considering the balance of prejudice and in doing so, the Tribunal may have regard to the potential merits of the claim: Rathakrishman v Pizza Express (Restaurants) Ltd [2016] I.R.L.R. 278.[12]Claims of automatic unfair dismissal brought under the ERA are also subject to time limits. So, by s.111 of the ERA, again, by reason of s.111 (2 A), subject to the effect of early conciliation, “the 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 complaints to be presented before the end of that period of three months.”[13]When the Tribunal is considering whether it has jurisdiction to consider a complaint of unfair dismissal which was not presented within three months of the effective date of termination, The burden of proof in relation to both stages of s.111(2) of the ERA is on the claimant. ‘Reasonably practicable means more than merely what is reasonably capable physically of being done but less than simply reasonable. When considering the claimant’s explanation for the delay, the employment tribunal needs to investigate what was the substantial cause of the claimant’s failure. Examples of situations where it might not be reasonable practicable to present the claim in time were given by Brandon L.J. (as he then was) in Walls Meat Co Ltd v Khan [1979] I.C.R. 52 CA at paragraph 44, ‘‘The performance of an act. . .is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike: or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his soli- citors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.’’[14]I am not making a decision today about whether the complaints under the EQA or ERA were presented within the time limits, but I set out the law on time limits because the question for me today is whether there are no reasonable prospects that if this case was to proceed to trial, the claimant would show that the tribunal had jurisdiction to consider them. I need to consider whether the claim, on the face of it, appears to have been presented out of time and whether there are no reasonable prospects that were those time limits issues considered on their merits, the claimant would show either, that it was not reasonably practicable for her to present the ERA complaints in time and that they had been presented within a reasonable further period, or that it was just and equitable to extend time for the EQA complaints. Discussion and decision[15]I have spent time today trying to clarify the claims both against Mitie, the first respondent, and against Vigilante, the second respondent. So far as Vigilante are concerned, it appears that the claim was served on them at the address given by the claimant in the claim form. This, on the face of it, complies with the requirements for service in rule 84 Employment Tribunal Procedure Rules 2024. There is no indication on the paper file that the documents to the second respondent have been returned as undelivered. There has been no response but, regrettably, that was not picked up at the initial consideration stage.[16]Ms McIntyre has explained that she sought to complain within the same claim form in respect of the actions of two different employers where she was employed in sequential periods of employment.[17]I note that the factual matrix set out in box 8.2 of the claim form does not appear to give any details of specific acts said to be unlawful discrimination by Vigilante. However, the claim against them will proceed. I am going to list another hearing in the claim against Vigilante to consider whether Ms McIntyre needs and should have permission to amend her claim to add the factual details that she has explained to me in the hearing today. Details of those are set out in the case management orders from today’s hearing. Vigilante will need to be warned that the lack of response means that they are at risk of a judgment being entered against them. That is not something I can deal with today.[18]I go on to explain what the claim against Mitie appears to be. Their application for an order striking out the claim as against them is made on the basis that there are no reasonable prospects of the claimant showing that the claim was presented in time and therefore the tribunal has no jurisdiction to consider it.[19]The claimant, in her claim form at box 8.1, ticked boxes indicating complaints of unfair dismissal, gender reassignment discrimination, disability discrimination, whistleblowing and other payments. She also complained about being sacked for something she knew she did not do or say, and being bullied by other officers. It is important to bear in mind that this single claim form covered sequential employment by two different respondents,[20]I have spent time clarifying with Miss McIntyre about what she meant by all of the factual matters that she referred to. The majority of her factual narrative refers to actions about Mitie. I have not established which factual allegation, which alleged act, is said to amount to which legal head of claim in relation to them.[21]The claimant found the hearing quite challenging. She has been diagnosed with autism and has disclosed learning difficulties. She referred in her argument to experiencing mental health problems and self-harming as a result of her experiences. She also referred to experiencing financial challenges and arrears of rent. She did not ask for any particular adjustments apart from being listened to. My sense is that for her to focus on particular question is challenging and she described finding formal communications difficult to understand.[22]I have been shown a letter of dismissal which suggests an effective date of termination of 7 June 2023. The claimant did not put dates of her employment in the claim form and did not appear to disagree with that date. She was unclear about when she had been dismissed when I took her orally thorough the chronology but so far as I have been able to understand there is no significant disagreement about that date.[23]The respondents point out that she does not have two years’ service for an ordinary unfair dismissal claim. Although the whistleblowing claim box is ticked, it is not clear, and I have not clarified with the claimant what communication she was relying on as a public interest disclosure or protected disclosure. Focus in the discussion today has been on the dates of the acts complained of. When we worked through the factual narrative in the claim form, the claimant confirmed that all of the separate matters she is complaining about were things that had happened before her dismissal. In addition, she is complaining about her dismissal and, in fairness to her, the respondent has presumed that she may be arguing that the appeal against dismissal was also unlawful discrimination.[24]She had had sent to her in advance of today’s hearing, the electronic documents that the respondent was relying on and she was told on 7 March (three weeks before the hearing) that this issue would be considered today. However, the question of whether the claim should be stuck out on this basis had been raised at a much earlier stage. In their grounds of response, received by the tribunal on 1 November 2024 and sent out to the claimant at some point after that, the respondent made clear that it would raise this issue.[25]On 20 November 2024 the respondent wrote to the claimant to ask her to explain her reasons for delay, taking the opportunity to find out what those may be before making, on 27 November, an application to strike out the claim in the same terms it has been argued before me today.[26]In those circumstances, I am satisfied that the claimant has had a reasonable opportunity to respond to this argument and I did not understand her to argue to the contrary.[27]She responded to the questions about her reasons for delay in the document that is at page 46. Within that she confirmed that at the relevant period she had had access to internet at home although not at work. She appears to have been able to use a smartphone or something similar for this hearing and explained that her wife had suggested to her that she look into bringing an employment tribunal claim.[28]She disclosed to the respondent that she had asked the HR Department for advice but her explanation to me today did not suggest that that in fact was advice about going externally to the employment tribunal.[29]The reason that she said for the delay was phrased the following terms. She said “I had to put my claim more than once as ACAS never got it so they asked me to.” She has expanded on that at the hearing but in broad terms, the same explanation was given.[30]Medical evidence in the hearing file, which was disclosed relevant to the question of whether or not she was disabled at the relevant time, does not support a medical or health reason for the delay in presenting the claim. Indeed, Ms McIntyre’s response is that she did not delay in presenting the claim.[31]The letter of dismissal suggests an effective date of termination of 7 June 2023. I am also told by the respondent that the appeal was on 19 June 2023. The claimant explained to me today that she had initially contacted ACAS within a short space of time after her dismissal by Mitie. She said “I did it within the time period which I didn’t know there was a time period” and then she said “If there’s something to do with the link or the website that’s not working it’s not my problem”. She also explained that there were other things she was occupied with at the time; looking for another job because she could not afford to be out of work and she explained she does her best, she has a learning disability and finds it embarrassing to ask people for assistance with paperwork.[32]In that, she deserves an enormous amount of sympathy and consideration and also some leniency. I have to consider taking that into account at this preliminary stage and, bearing in mind that it is only in rare cases that discrimination cases meet the test of no reasonable prospect, and that there is public interest in those claims proceeding, whether this case has no reasonable prospects of success because of the time point.[33]As explained to me, it does not appear that the focus of the claimant’s complaint against Mitie was in fact disability discrimination rather than that she was dismissed for something that she did not do. Potentially she refers to having made a complaint about the behaviour of another manager that was in fact then attributed to her. Nevertheless, when looking at the explanation for the delay, the claimant in fact insists that she presented the claim in time and technical difficulties meant that presentation was incomplete or ineffective. She said she chased and chased for information and was told to present it again. However, she has told me no dates for this original action or for the chasing.[34]I am satisfied that there are no reasonable prospects of the claimant showing that the claim was presented in time. In fact, it clearly was not. The contact to ACAS in respect of this respondent – as set out in the certificate the claimant referred to in the claim form - was on 18 May 2024 and the certificate was issued on 22 May 2024 with the claim form being presented on 3 July. So, on any view, based on an effective date of termination of 7 June 2023, or even an appeal date of 19 June 2023, we are talking about contact to ACAS about 10 months after the date complained of and, therefore, about seven months after contact should have been made.[35]The question about whether it was not reasonably practicable for the claimant to present the claim in time is one that is construed fairly strictly in the sense that it is not a question of whether it was reasonable for her to act in the way that she did but whether there was some impediment that prevented her presenting the claim in time. Given the very partial explanation that the claimant has presented so far, I do not think that, if that question was considered by a tribunal, there would be reasonable prospects of them finding that it was not reasonably practicable for her to present the claim or to contact ACAS by 6 September or by 18 September 2023. That later date is the last date by which a whistleblowing detriment claim based on the appeal should have been conciliated – viewing matters in as favourable way as possible to the claimant. Any Employment Rights Act 1996 claims should be struck out on the basis that there is no reasonable prospect of success.[36]The question of whether there are no reasonable prospects of the EQA complaints succeeding is a different one. I need to consider a broader range of circumstances because a broader range of circumstances would be relevant were a tribunal considering an application for a just and equitable extension of time.[37]The claimant explained that the reason she brought this particular claim form when she did was because bailiffs had attended to take enforcement action in respect of an alleged debt owed to Mitie. As I say, I think that considerable latitude needs to be given to the claimant’s explanation because of the challenges that she clearly experiences with the process. However, she has not dated the time at which she took the alleged initial action while insisting that she acted promptly; at most she said it was within days of dismissal. If so it is hard to understand why there apparently no communication available with ACAS before the EC certificate.[38]She has not satisfied me that she acted promptly and then experienced barriers to successfully presenting the claim which explain the seven month delay between when she should have contacted ACAS and the date on the early conciliation certificate. The fact that there was a trigger for presenting the claim would need to be considered within that chronology because if, as appears to be the case, she let things lie for whatever reason until chased for an alleged debt owed to Mitie, then part of the reason for delay would appear to be voluntary. The claimant states that she experienced challenges but is insufficiently specific about how that explains the reason for delay. I remind myself that there does not have to be a good reason for delay but the apparent lack of a sufficient explanation is a weighty matter in the present case.[39]It is an uncommon case in which the judge can be satisfied at a preliminary hearing that there are no reasonable prospects that a claimant would show at a final hearing that it was just and equitable to extend time for a discrimination complaint. The length of the delay is from September 2023 when contact with ACAS should have been made, to 18 May 2024, which is a considerable passage of time; some seven months. I see no evidence to substantiate the claimant’s assertion that she did, in fact present it in time, or that she attempted to do so within a couple of days of being dismissed. It seems improbable that technical problems with ACAS would have continued for the whole of that period. The claimant is in challenging personal circumstances but I do not think that the realisation that she was being pursued for an alleged debt said to be owed by her to Mitie is a valid explanation for having delayed in bringing a claim – it may explain why she started the claim but not why she delayed before doing so. When she did look into what was necessary to bring a claim she was able to find the relevant information and to present the claim. The medical evidence produced in connection with the disability discrimination claim does not offer any explanation for the delay; the claimant has not relied on her disability or health as a reason for delay.[40]I am persuaded that there are no reasonable prospects that she would show it was just and equitable to extend time for the Equality Act claims. It does not necessarily follow that I should strike out the claim against Mitie. I do take into account that there is hardship for the claimant in being deprived of the opportunity to bring her complaints – including those of discrimination – to be considered on their merits. However, the respondent is disadvantaged by late notification of imprecisely worded allegations. There are likely to be challenges for them and their witnesses caused by the initial delay of seven months because they have to start to investigate allegations so long after the event. The tribunal also ought not to have to spend scarce resources considering claims where there are no reasonable prospects of it being found that it has jurisdiction to hear them. The Equality Act complaints will be struck out as well.[41]The claim against Mitie is struck out but the claim against Vigilante will proceed. Approved by: