Miss K Davis v Royal Free London NHS Foundation Trust: 3307209/2023 Miss K Davis v Royal Free London NHS Foundation Trust: 3307209/2023

EMPLOYMENT TRIBUNALS

Case No 3307209/2023

Between

Miss K DavisClaimant

Royal Free London NHS Foundation TrustRespondent

Before

Employment Judge S Moore

In person for claimant

Mr P Smith (instructed by counsel) for respondent

Date 22 August 2025

JUDGMENT

The claim is dismissed. It has been brought out of time and the Tribunal has no jurisdiction to hear it.

REASONS

[1]This Preliminary Hearing was listed to determine:a. Whether the complaint of failure to make reasonable adjustments was presented within the time limit in s.123 Equality Act 2010?

b. Would it be just and equitable to extend the time limit for presenting the complaints of direct disability discrimination, discrimination arising in consequence of disability, disability related harassment, breach of duty to make reasonable adjustments and victimization or any of them?

c. Whether the Claimant is disabled within the meaning of s.6 Equality Act 2010?

Factual Background

[2]The Claimant has been employed by the Respondent as a Band 5 Staff Nurse since 8 March 2011. She remains employed but has been away from work on long-term sick leave since 25 November 2022.

[3]Briefly, the chronology of events at it appears from the Claim Form is as follows:

[4]On 22 October 2014 the Claimant was involved in a road traffic accident and sustained a whiplash injury. On returning to work she experienced pain in her right shoulder when attempting to move a bariatric patient on Larch Ward and was subsequently off work for a period of six weeks.

[5]In mid-November 2020 the Claimant again began to experience pain in her right shoulder.

[6]In or about February 2021 the Claimant was informed she had been referred to Occupational Health and was redeployed to Virtual Nursing duties.

[7]From May 2021 the Claimant was redeployed to work in a Covid 19 Vaccination Clinic.

[8]On 6 October 2021 the Claimant was involved in a second similar road traffic accident.

[9]In January or February 2022 the Claimant was informed the Vaccination Clinic was coming to an end.

[10]The Claimant wanted to return to work on Larch Ward and on 14 February 2022 she went to Larch Ward but was instructed to leave.

[11]On 23 February 2022 it was arranged the Claimant would work with the Clinical Governance Team but shortly afterwards the Claimant was signed off with stress and anxiety for 6 weeks.

[12]On 18 May 2022 the Claimant started working at the Education Centre. However in July 2022 the Claimant was told her role in the Education Centre had finished and she was to report to the Complaints Department.

[13]On or about 31 August 2022 the Claimant returned to Larch Ward. However, difficulties arose and on 27 September 2022 she started working at a Vaccination Clinic at the Royal Free Hospital.

[14]On 23 November 2022 the Claimant asked for a temporary parking permit at the Royal Free hospital but was told other people were in the queue so it would be unfair and on 24 November 2022 she was told the Vaccination Clinic was coming to an end and it would be better if she transferred back to Larch Ward.

[15]On 25 November 2022 the Claimant submitted a fit note citing the reason for absence as “neck, back and shoulder pain exacerbated by stress at work” and she has not returned to work since.

[16]On 15 December 2022 a manager, Rajitha, informed the Claimant she was going to arrange a sickness meeting.

[17]On 12 February 2023 the Claimant raised grievances against six of her colleagues for bullying and harassment and disability discrimination.

[18]ACAS conciliation took place between 24 April 2023 and 5 June 2023.

[19]On 22 June 2023 the Claimant brought this claim alleging disability discrimination. Procedural Background

[20]On 25 January 2024 a Preliminary Hearing took place before EJ George.

[21]At that hearing the Claimant said she was a disabled person as a result of asthma, Chronic Obstructive Pulmonary Disease, Spondylosis, Scoliosis, Anxiety and Depression, a supraspinatus tear to the right shoulder and PTSD.

[22]On 14 June 2024 a further Preliminary Hearing took place before EJ Wood. A Final Hearing was listed in Watford from 5 January 2026 to 23 January 2026. Following that hearing EJ Wood took the unusual step of producing a List of Issues himself, covering complaints of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment, and victimisation.

[23]This List of Issues was further refined by the parties and a Final List of Issues was agreed, which is undated but appears in the bundle of documents at p. 214.

[24]On 12 March 2025 a third Preliminary Hearing took place, again before EJ George, at which this Public Preliminary Hearing was listed. EJ Goerge noted that taking into account the period of Early Conciliation (24 April – 5 June 2023) and that the claim was presented on 22 June 2023, it appeared that any act said to have taken place on or before 24 January 2023 was outside the primary 3-month time limit.

[25]Listing this fourth Preliminary Hearing, EJ George noted that, on the basis of the agreed List of Issues:a. The last alleged act of direct disability discrimination was 15 December 2022; (paras 3.1.20 and 3.1.21 of the List of Issues);

b. The last alleged act of discrimination arising from disability happened in September 2022 (para 4.1.12 of the List of Issues);

c. The last alleged act of disability harassment was on 15 December 2022 (para 6.1.17 of the List of Issues);

d. The last alleged act of victimisation was not dated but since the Claimant started a period of long-term sickness absence due to neck and back problems on 25 November 2022 that it was argued by the Respondent that time must have started no later than that date.

[26]As regards the claim for reasonable adjustments, the Respondent also argued that the time by when the Claimant ought reasonably to have concluded that it was in breach of a duty to make reasonable adjustments must have been before 24 January 2023.

[27]EJ George considered that it might be that time had also started to run in the reasonable adjustment complaint on or before 24 January 2023, but that question had yet to be determined. She stated that her intention was to leave it open to the judge at the Preliminary Hearing to decide whether or not it was practicable to determine that issue, and (if it were concluded that time had started to run on or before 24 January 2023 ) whether it was just and equitable to extend time for the presentation of that complaint.

[28]She pointed out that there were weighty reasons to consider the time issue as a Preliminary Issue, given that the claim was listed for 15 days and much of it, on the face of it, appeared to be out of time and the Respondent was publicly funded.

[29]EJ George also made orders requiring the parties to compile a bundle of agreed documents by 30 June 2025 and for the parties to send each other witness statements setting out evidence relevant to the preliminary issues which would be considered at the PH. The parties were informed these statements should include evidence about why the claim was not presented sooner and whether it would be just and equitable to extend time. The Claimant was also informed that her statement should include confirmation that the contents of her statement on the impact of the impairments she relies on are true.

[30]Those orders were complied with and formed the basis of the evidence before me.

[31]During the course of the hearing the Claimant was assisted by her daughter, Amara. This was very helpful as the Claimant said at the outset she could not hold up the bundle of documents or individual pages and nor could she lean over the pages, as to do either caused her pain. Amara was able to assist by holding the pages up for the Claimant so she could read them, and she also helped to locate certain documents. I would not, however, let Amara assist the Claimant answer Mr Smith’s questions in cross-examination, as it was important that the Claimant’s evidence was not influenced by her daughter’s input. If the Claimant did not understand a particular question she was told to ask Mr Smith to repeat or rephrase it – and he did this on many occasions – and if the Claimant did not know or remember the answer to any question she was told simply to say so, and she did.

[32]When it came to making submissions, however, I did allow Amara to assist the Claimant, and despite her young age she did so very effectively and very professionally. She is to be highly commended for that.

[33]It is also appropriate to record that while the Claimant remained respectful of the Tribunal proceedings, on occasions she became extremely vocal and emotional – particularly when recounting what she perceived to be the Respondent’s treatment of her and the deterioration of her health. It was also clear that the Claimant was battling pain throughout the hearing. On occasions she had to close her eyes or rest her head on her arms to manage her pain or walk around the room. However we took a number of short breaks and the Claimant did not at any stage say she did not feel well enough to continue the hearing. Indeed she showed great determination to see it through.

[34]At the outset of the hearing, I said I would consider the first two issues first, since if I were to find that the claim had been brought out of time and the Tribunal has no jurisdiction to hear it (which I have so concluded) the third issue falls away in any event. Conclusions (1) Whether the complaint of failure to make reasonable adjustments was presented within the time limit in s.123 Equality Act 2010? The Relevant Principles

Conclusions

[35]Time limits are not technicalities; they go to the jurisdiction of the Tribunal. That is to say a Tribunal does not have statutory power to hear a claim that has been brought out of time.

[36]As regards the relevant time limit for the complaints made by the Claimant in this case, the relevant provision is s.123 Equality Act 2010 (“EqA”). This provides so far as is relevant: “(1) Subject to [[section] 40B],] 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]Accordingly it is apparent that the primary time limit – leaving aside extensions for the purpose of ACAS conciliation – is 3 months. It is part of the policy of the legislation to impose relatively early cut-off dates for claims of discrimination, many of which are brought at a time when the employment relationship is still subsisting. The purpose of the short time limit is to resolve disputes swiftly and while the matters complained of are still relatively fresh in the minds of the parties. That objective is often undermined by the length and complexity of employment disputes and the delay in getting a hearing date, but it nevertheless remains an important one.

[38]Section 123 EqA also makes particular provision for conduct extending over a period, providing in s.123(3)(a) that it is to be treated as done at the end of that period.

[39]However, in the case of a complaint of failure to make reasonable adjustments the fact that an employer fails to comply with a duty to make reasonable adjustments does not mean the discrimination is regarded as conduct which simply continues so that the cause of action does not crystallise and cause the time limit to start running. Rather the time limit starts to run in one of the following ways.

[40]First, the employer may make a positive decision not to make the reasonable adjustment in respect of the matter that is putting the employee at a substantial disadvantage. In those circumstances time starts to run from the date of that decision (s.123 (3)(b) EqA), regardless of the fact that the consequences of the decision may well continue, from the employee’s perspective, well beyond that date.

[41]Secondly, where the employer does not make a positive decision a notional date at which time starts to run is imposed by the court in accordance with s.123(4) EqA. That notional date will accrue if the employer does an act that is inconsistent with complying with the duty or, if the employer does not act inconsistently with the duty, the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply with the duty.

[42]This concept of a notional date at which time starts to run is explained more fully in Fernandes v Department of Work and Pensions

[2023] EAT 114

. HH J Beard stated at [34]: “In the absence of a finding that the employer has made a specific decision not to alleviate a disadvantage there must be judicial analysis to identify the notional date. It appears to me that this analysis must begin with the identification of the feature which causes disadvantage. This could be a PCP but could also be a physical feature or auxiliary aid. This will be a fact which dates the start of the disadvantage. The next element to be considered is when it would be reasonable for the employer to have to take steps to alleviate the disadvantage. This is a factual finding and will vary. For instance, the date by which it would be reasonable to have to provide a chair could depend on whether a chair is already commercially available or the chair in question must be purpose built. That date would also amount to a finding of fact as to when a breach occurred. As such it would also assist the judge in identifying the notional date. The ET would then have to ask if there are facts which would allow it to conclude that the employer has acted inconsistently with the duty to make adjustments, if there are, then the notional date would arise at that point. Finally, if there is no inconsistent act, there will come a time when it would be reasonable for the employee, on the facts known to them, to conclude that the employer is not going to comply with the duty.” Application to the Present Case

[43]Turning to the complaints of failure to make reasonable adjustments in the present case, paragraph 5.2 of the List of Issues identifies the alleged PCPs (provision, criterion, or practice) in the following way: “Did the Respondent have the following PCPs:5.2.1 Requiring the Claimant to perform her normal terms and conditions;

5.2.2 To carry out duties which included physically demanding tasks such as walking around the hospital, lifting objects, and handling patients;

5.2.3 Requiring staff to be shadowed by another member of staff;

5.2.4 Requiring staff to work at a hospital without free and unrestricted parking;

5.2.5 Requiring those who wear a nurse’s uniform on ward to be capable of doing CPR.”

[44]As regards PCP 5.2.1, I have to say that I consider this alleged PCP to be drafted so broadly as to be practically meaningless. Further, it is apparent from the chronology set out in the Claim Form that the Respondent didn’t have a general PCP of requiring the Claimant to perform her normal terms and conditions, in that over the years she was transferred from working on wards to doing Virtual Nursing duties, working in Vaccination Clinics, the Education Centre and the Complaints Department.

[45]In evidence the Claimant said that this PCP was really a complaint about the fact that she couldn’t re-position bariatric patients because of her shoulder injury and needed an adjustment made so that she didn’t need to do this.

[46]This complaint appears to be reflected in the part of her Claim Form where she complains that after she returned to work at Larch Ward in 2014 following her first car accident she was allocated a bay of patients, one of whom had a BMI of 45, and although she told her manager at the time she was concerned she couldn’t manage these patients due to her shoulder pain, she was advised to do her best. However while repositioning the bariatric patient she felt a sharp pain in her right shoulder and was then off work for six weeks. However, if the Claimant’s case is that the Respondent was under a duty to make an adjustment of not requiring her to reposition bariatric patients in 2014 the time limit in respect of that complaint would have started to run in 2014 when the Respondent acted inconsistently with that duty by requiring her to do so, and the complaint is therefore, on the face of it, more than eight years out of time.

[47]I note that the Claimant returned to Larch Ward in August and September 2022. She does not say in her Claim Form that she was required to reposition bariatric patients during this period, but assuming in her favour that she was, and that by requiring her to do so the Respondent was in breach of the duty to make reasonable adjustments, the latest point the time limit in respect of that complaint could have started to run is 26 September 2022, which is the date, according to the Claim Form, when the Claimant moved from Larch Ward to the Vaccination Clinic at the Royal Free Hospital. Accordingly, on that interpretation the complaint is, on the face of it, about 6 months out of time.

[48]The Claim Form also states that on 24 November 2022 the Claimant was told the Vaccination Clinic was coming to an end and any reasonable adjustments would be easier to accommodate in her substantive post in Barnet Hospital (Larch Ward). However, the Claimant never returned to Larch Ward because she went off sick on 25 November 2022, so she could not have been put at a substantial disadvantage by any PCP about moving bariatric patients in Larch Ward then. Accordingly, the duty on the Respondent to alleviate any such disadvantage simply did not arise and accordingly there can have been no breach of the duty to make reasonable adjustments capable of giving rise to a complaint of failure to make reasonable adjustments at this point of the chronology.

[49]Turning to PCP 5.2.2, it was put to the Claimant in cross-examination that she was no longer required to do physically demanding tasks after she was re-deployed from Larch Ward to Virtual Nursing duties, which according to the Claim Form took effect on 1 March 2021. The Claimant disagreed. She said that Virtual Nursing required her to walk to different wards and carry an iPad to facilitate Zoom and video calls, and that sometimes she had to manoeuvre patients into position to facilitate such calls. Further, even when she was deployed to the Covid 19 vaccination clinics, which according to the Claim Form, happened between May 2021 and January 2022 and again between September and November 2022, she was required to lift up patients’ arms so they could receive the vaccine.

[50]Accordingly, if the Claimant’s case is that that the Respondent failed in its duty to make adjustments to avoid the disadvantages to which she says she was put by the requirement to walk around the hospital, lift objects such as iPads and handle patients’ limbs, I consider it would have been reasonable for the Claimant to conclude that the Respondent was not going to comply with that duty when (or shortly after) she was deployed to Virtual Nursing duties in March 2021 and/or at the very latest when (or shortly after) she was first deployed to a Covid 19 vaccination clinic in May 2021.

[51]Accordingly, I consider that time began to run in respect of a complaint based on alleged PCP 5.2.2 in June 2021 at the latest, which means, on the face of it, it is approximately 21 months out of time.

[52]Turning to PCP 5.2.3, first I note that in my judgment the Claimant has no reasonable prospect of establishing that the Respondent has a general policy that staff must be shadowed by another member of staff, as a matter of common sense that is extremely unlikely to be the case. However, leaving that to one side, it appears from the Claim Form and the Claimant’s answers in cross-examination that this complaint relates to the period in March 2021 when the Claimant was assigned to Virtual Nursing and, according to the Claim Form, the Claimant was instructed to shadow someone called Wendy for a few days.

[53]Accordingly, time must have begun to run in respect of a complaint based on alleged PCP 5.2.3 in or about March 2021, which means, on the face of it, it is approximately 2 years out of time.

[54]Turning to PCP 5.2.4, the Claimant’s case is that she needed a parking space at the Royal Free hospital when she was working at the Vaccination Clinic again. In her Claim Form she says that on 21 November 2022 she sent an email to Dee in the Parking Services requesting a permit but was told the Royal Free was not willing to give her a permit and she should not be driving. The Claimant says she then informed Dee that Occupational Health didn’t say she couldn’t drive and Dee said she would need to see the Occupational Health Report to issue a parking permit. On 23 November 2022 the Claimant says she asked her manager, Pindi, for a parking permit but was told that other people were also waiting in the queue for a permit so it would be unfair if the Claimant was given one before them. The Claimant further says in her Claim Form that when she told Pindi she couldn’t come to work without the permit she was told to take annual leave. On 24 November 2022, Pindi then told the Claimant that she had a parking permit at Barnet hospital and that any reasonable adjustments would be easier to accommodate if the Claimant worked there in her substantive post. In cross-examination the Claimant accepted that Pindi told her she couldn’t get her a parking permit at the Royal Free Hospital and that she (the Claimant) was then off sick from 25 November 2022.

[55]In the light of the above, I consider that time began to run in respect of a complaint based on alleged PCP 5.2.4 on 24 November 2022 on the basis that by that date the Respondent had made the decision it was not going to provide the Claimant with a parking permit for the Royal Free hospital (s.123(3)(b) EqA) and/or Pindi did an act inconsistent with the alleged duty to provide the Claimant with a parking permit at the Royal Free by telling the Claimant it would be easier to accommodate her reasonable adjustments if she transferred back to Barnet hospital (s.123(4)(a) EqA).

[56]Accordingly, on the face of it, this complaint is approximately 4 months out of time.

[57]As regards PCP 5.2.5, the nature of this complaint is confused as the Claimant was adamant in cross-examination that she is and has always been capable of administering CPR, so the alleged PCP would not, in any event, have put her at any disadvantage. It appears the complaint relates to an allegation in the Claim Form that the Claimant was not allowed to wear her nurse’s uniform when working in the Virtual Nursing between 1 March 2021 and mid 2021 because a manager, Tracy, believed during that period of time that the Claimant was not capable of doing CPR. Any substantial disadvantage to which the Claimant was put by the alleged PCP and corresponding duty on the Respondent to make a reasonable adjustment to avoid that disadvantage must have arisen during that period, and the latest point at which the Claimant must have known the Respondent was not going to comply with that duty, and time started to run in respect of the complaint, must have been at the end of her period working in Virtual Nursing, namely mid 2021.

[58]Accordingly, this complaint is, on the face of it, approximately 18 months out of time.

[59]It follows from the above that all the complaints of failure to make reasonable adjustments have been brought out of time. (2) Would it be just and equitable to extend the time limit for presenting the complaints of direct disability discrimination, discrimination arising in consequence of disability, disability related harassment, breach of duty to make reasonable adjustments and victimization or any of them?

[60]The starting point is that claims should be brought within the primary 3- month time limit and that extending time is the exception rather than the rule. This does not mean that exceptional circumstances are required before the time limit can be extended, simply that there is no presumption in favour of extending time and that it is for a claimant to convince the Tribunal that it is just and equitable to do so.

[61]In exercising its judgment the Tribunal has a broad discretion however the starting point should be the length of and reasons for the delay.

[62]As regards the complaints of direct discrimination, there are 17 allegations dating between October 2014 and 15 December 2022 (all but one of them dating from March 2021 to 15 December 2022).

[63]As regards the complaints of discrimination arising from disability, there are 11 allegations dating from February 2021 to September 2022.

[64]As regards the complaints of disability related harassment, there are 18 allegations dating from February 2021 to 15 December 2022.

[65]As regards the complaints of victimisation, there are three undated allegations in the List of Issues.

[66]The first allegation is that the Claimant was redeployed which must necessarily have occurred before the Claimant went off sick on 25 November 2022.

[67]The second allegation is that the Respondent told the Claimant her career was over and threatened to dismiss her. In the Claim Form the Claimant makes an allegation of someone called Amy making a similar comment to her on 25 February 2021, of colleagues on or around 18 May 2022 telling her she was “at the end of the road career wise”, in July 2022 of the Claimant being concerned she would be permanently redeployed and dismissed under the sickness policy, and in November 2022 to the Claimant being concerned that the Respondent was disregarding her disability and using it as a tool to dismiss her.

[68]The third allegation is that the Respondent falsely interpreted the Claimant’s attendance record by counting days of deployment as sickness absence. This allegedly happened on 29 November 2022 when a manager, Rajitha, referred the Claimant to the Occupational Health Team (although the Claimant didn’t find out about it until a meeting of 3 January 2023).

[69]The dates of the complaints of failure to make reasonable adjustments have been addressed above.

[70]Accordingly, all of the discriminatory conduct of which the Claimant complains fell within the period between 2014 and 15 December 2022. Assuming, in the Claimant’s favour, all of the complaints should be taken holistically together and regarded as constituting discriminatory conduct extending over a period within the meaning of s.123(3)(a) EqA, the length of the delay is therefore just over 3 months (the claim should have been brought by mid-March 2023 and was in fact brought on 22 June 2023).

[71]I consider this to be a significant delay, notably it is of greater length than the primary 3-month time-limit itself.

[72]As for the reasons for the delay, the Claimant relies on the fact she was unwell and she further says she attempted to resolve matters without going to the Tribunal by submitting a grievance.

[73]It is common ground that the Claimant was unwell at the relevant time between January and June 2023, and that very unfortunately she became even more unwell and in the event was sectioned for a period of time in December 2023.

[74]Her fit notes describe her being signed off work with “Shoulder pain and Stress at Work” (25/11/22), “neck, back and shoulder pain exacerbated by stress at work” (03/02/23); and “low mood as a result of a current work issue” (25/04/23 and 26/05/23). A letter from the Honeypot Medical Centre to the Department of Work and Pensions dated 18 January 2023 refers to the Claimant having long term back pain as a result of car accidents in October 2014 and October 2021, being under a pain specialist clinic and having a great deal of pain in her day to day physical job and personal self-care.

[75]There is also a report from a Mrs Jessica Roberts, a clinical psychologist, dated 1 February 2023, that was prepared for the purposes of litigation that is ongoing in respect of the Claimant’s second car accident. That report states that the Claimant was experiencing symptoms of Post Traumatic Stress Disorder, that she suffered from depression, a Generalised Anxiety Disorder and Situational Anxiety Disorder which severely affected her cognitive and emotional function.

[76]However, although the Claimant says she was too unwell to bring her Tribunal claim in time, the fact is that on 12 February 2023 she submitted a 22 page grievance, amounting to a detailed chronological account of all the discriminatory treatment to which she says she had been subjected since October 2014, together with 50 appendices. It is hard to see how, if the Claimant was able to put together such a lengthy and structured document for the purposes of lodging a grievance, she could not submit her Claim Form. This point is made all the stronger by the fact that when the Claimant did lodge her Claim Form she simply used her grievance as her grounds of claim, which shows that submitting the Claim Form required the Claimant to do very little more work than she had already done for the purpose of her grievance.

[77]The Claimant said that having the emotional strength to lodge a Claim Form and start legal proceedings is different from the emotional strength needed to lodge a grievance. I accept this may well be true. However, there would be more force in this point if the Claimant then submitted her Claim Form at a time when her health was improving. In fact, the Claimant’s evidence was that her health, particularly, her mental health, continued to deteriorate throughout the grievance process (she says because of delays by the Respondent dealing with her grievance, although the Respondent does not accept it was responsible for those delays). There is therefore no logical reason why, if the Claimant was mentally strong enough to submit her Claim Form in June 2023 she was not able to start ACAS conciliation and submit her Claim Form earlier than she did and within the time limit.

[78]As regards the Claimant’s second reason for lodging the claim late, the fact she says she sought to obtain internal redress by lodging a grievance, I note that according to the authorities delay caused by a Claimant awaiting completion of an internal procedure may justify an extension, but it is only one factor to be considered in any particular case.

[79]On the facts of this case I note, that in the event the Claimant didn’t await the outcome of the grievance procedure but commenced Early Conciliation in April 2023 in any event.

[80]Further, I find on the evidence that the Claimant knew or could reasonably have been expected to know about the 3 month time limit from relatively early in January 2023 and therefore that she could reasonably have been expected to know that by waiting to bring a Tribunal claim until after she had pursued her grievance she was running the risk that any such claim would be out of time.

[81]In this respect the Claimant said that at a meeting with Occupational Health on 3 January 2023 she was alerted to the existence of ACAS and the possibility of bringing a Tribunal claim. She initially said that she thought she spoke to someone at ACAS within a couple of days of 3 January 2023, but then said she couldn’t remember when she spoke to ACAS but that she had gone on the ACAS website within a few days where she remembered seeing information about the Employment Tribunal and time limits and saw that the time limit was three months plus one day. She said her daughter had supported her, and that she had seen literature on time limits and that ACAS had sent her literature on time limits. The Claimant also agreed that by the time she came to write her grievance she understood the key concepts of discrimination such as failure to make reasonable adjustments. In mid-January 2023 she was also given the name of Annette Heslop from UNISON by Ivor Dore of the Respondent in Employee Relations and she subsequently joined UNISON.

[82]The Claimant also said she “spoke to loads of solicitors”, although she couldn’t remember the dates. She said ACAS gave her lists of solicitor firms and also there was one firm of solicitors, Lawrence and Co, with which she had been familiar since childhood and had known for many years as a client.

[83]In the light of this evidence I consider the Claimant either knew or it would have been reasonable for her to have found out in early January 2023 that it was incumbent on her to start ACAS conciliation and get her claim lodged quickly, particularly since she had not been at work since 25 November 2022 so must have known that most of the acts of discrimination of which she was complaining had occurred prior to that date.

[84]Accordingly, while I place some weight on the fact the Claimant says she sought to resolve matters by lodging an internal grievance, I do not consider this a compelling factor.

[85]I turn now to the matter of prejudice.

[86]As regards what might be called the obvious prejudice to the Respondent of meeting a claim otherwise defeated by a limitation defence, this is very significant. The case is listed for 15 days and the complaints make allegations against many individuals, all of whom will be required to give evidence. The bundle just for this Preliminary Hearing runs to 800 pages. Further the fact that the Claimant is not represented and has significant physical and mental health issues means that preparation for the hearing is unlikely to be straightforward and the burden will fall on the Respondent. The Respondent is publicly funded and the cost of preparing for and attending the hearing will be very substantial.

[87]As regards what has been termed “forensic prejudice” - that is the later a claim is brought the further back in time the evidence needs to go - I note that the delay of 3 months means there is some, albeit limited, prejudice caused by the delay in hearing the complaints that arose at the end of the period over which it is said the discriminatory conduct occurred. However, much more significantly, the Claimant’s complaints are not restricted to the matters that allegedly occurred in November and December 2022. To the contrary, the Claimant’s first complaint (chronologically speaking) is in respect of an alleged incident in October 2014 – more than ten years ago - and the Claimant makes numerous complaints about what she says happened to her, and what was allegedly said to her, throughout 2021 and 2022. The Final Hearing is listed for January 2026 and if that hearing goes ahead the Respondent’s witnesses (assuming they are still employed by the Respondent or otherwise available to give evidence) will be crossexamined about actions and conversations that took place many years earlier. Although it is true that the substance of the Claim Form is the same grievance that the Claimant lodged with the Respondent on 12 February 2023 – so that the Respondent knew then the behaviours and actions being challenged by the Claimant - many of the complaints were by that date already historic. These are allegations which could have been complained about at the time they occurred and which the Respondent will now face very significant prejudice defending so long after the event.

[88]As regards the prejudice caused to the Claimant if the claim is not permitted to proceed, clearly she loses the prospect of having her complaints heard in the Tribunal and, in principle at least, potentially being awarded compensation – perhaps significant compensation.

[89]That is something to which I have given anxious thought.

[90]However, as regards the merits of the claim, while my view is necessarily impressionistic, based only on what I have read and heard during the course of this Preliminary Hearing, I am doubtful as to whether the Claimant would succeed – or would succeed in being awarded significant compensation – at a Final Hearing. Although a lot of judicial time has been devoted to identifying the issues, discussions during the course of the hearing about the claim, particularly the reasonable adjustments complaints, revealed that many of the complaints are still confused and in my judgment, in some respects, hopeless. Further, the chronology shows that the Respondent made repeated efforts to find areas where the Claimant could work despite her physical limitations (eg Virtual Nursing, Vaccination Clinics, Education Centre etc) and while the Claimant’s case is that these efforts were insufficient and the support she was given inadequate, the fact that she says she struggled with tasks requiring even minimal physical exertion (such as carrying iPads and lifting patients’ arms for vaccinations) suggests that perhaps the situation was an impossible one for all concerned.

[91]Furthermore, as Mr Smith pointed out, the Claimant (or her insurers) are in the process of litigation in respect of her second car accident, in which she is claiming compensation for the loss of her entire nursing career. There is therefore the possibility of the Claimant being awarded significant compensation from that process.

[92]Accordingly, in the light of the above and putting all the factors in the balance, I am not satisfied that it is just and equitable to extend time in respect of any of the complaints.

[93]I should add that I have considered whether it would be just and equitable to extend time in respect of the matters complained about in November and December 2022, where the forensic prejudice to the Respondent would not be so great. However, I have decided against this course of action. Those complaints form only the very tip of the iceberg of complaints in this case and the benefit to the Claimant of allowing them to proceed would be relatively small. Further, it is likely that in order to hear them the Tribunal would need to understand the context of how they came about and it is likely that evidence in respect of most the Claimant’s chronology would end up before the Tribunal in any event. In short I consider it would be difficult to contain the litigation to the matters complained about in November and December 2022 and the risk that would come with attempting to do so is not worth the relatively modest benefit to the Claimant of allowing those very limited complaints to proceed.

[94]It therefore follows that since all the complaints have been brought out of time the Tribunal has no jurisdiction to hear them. The claim is dismissed. Approved By: