[1]The claims of unfair dismissal, unlawful deduction from wages and whistleblowing are dismissed for want of jurisdiction as they are out of time.
REASONS
[1]There is a long and convoluted history to this case. I have set out an outline below which has been extracted from the respondent’s documents but which I did not understand as being disputed except where noted: Date Event 1. 08.01.2023 First alleged incident, Captain Prabhu ‘commented on the claimant’s breasts, suggesting they appeared to be fake’. 2. 08.01.2023 Second alleged incident Captain Prabhu, ‘grabbed the claimant by her waist whilst in the hot tub and pulled her on to his lap.’ 3. 09.01.2023 Third alleged incident, Captain Prabhu in response other crew raising he still appeared to be intoxicated ‘Oh well, it’s only a short flight’. 4. 08.04.2023 Respondent submits Limitation for the above claims expire 5. 06.05.2023 Fourth alleged incident, Adrian Evans making derogatory comments about the claimant’s mother. 6. 05.06.2023 The claimant raised the incidents to her line manager Katy Rosaci. 7. 05.06.2023 The claimant’s email at 18:11, requests that her Solicitor is copied in tim@meadowsandmoran.co.uk 8. 19.06.2023 The claimant’s ‘Formal complaint’ coping in Meadows & Moran-Solicitors. 9. 05.08.2023 Respondent submits Limitation for the ‘fourth’ alleged incident expires 10. 13.11.2023 The claimant instructs Britton and Time Solicitors 11. 27.05.2024 The claimant’s employment terminated 12. 08.07.2024 Claimant’s ACAS EC Certificate is issued 13. 23.09.2024 Claimant’s ET1 is presented by email 14. 23.09.2024 Claimant submits representative sends ET1 by first class post 15. 07.10.2024 Respondent submits Limitation in relation to the claimant’s claim unfair dismissal under Section 103a of the Employment Rights Act 1996 expires and in relation to the claimant’s claim regarding unlawful deductions of wages. 16. 29.10.2024 Claimant’s representative contact ET 17. 30.10.2024 ET contacted Claimant to request documents 18. 30.10.2024 Claimant emails ET to provide documents 19. 04.11.2024 Return claim form notice is sent to Claimant 20. 06.11.2024 Claimant writes to ET asking whether posted claim form has been received 21. 15.11.2024 ET confirms receipt of ET1 date stamped 11.11.2024 22. 07.02.2025 ET3 and Grounds of resistance submitted 23. 21.10.2025 Claimant submits application for date of receipt of ET1 to be amended[2]The issues to be decided at this hearing are as set out in a letter from the Tribunal dated 19 January 2026 which included the following:[3]A letter from the Tribunal dated 17 December 2025 set out the following:[4]Preceding these letters there was some discussion at the CMRH that took place on 7 October 2025 about the claim form having been rejected and the claimant making an application for re-instatement under rule 14. For example, paragraph 4 of the orders in the case management summary set out:[5]Paragraph 3 of the case management summary sets out:[6]I asked the parties at the start of proceedings before submissions some questions so that I could understand if the rule 14 issue had fallen away in light of the letters from the Tribunal post dating the CMRH. Mr Britton said that it was not accepted that the claim was presented out of time and his submissions focused on this (not rule 14). At the apparent end of his submissions, I asked Mr Britton if he had concluded his submissions. He said that he had unless I wanted submissions on other issues. I said that it was up to him how he argued his case but that the tribunal letter of 19 January 2026 sets out that the issues to be considered include the reasonably practicably test and the just and equitable test in relation to extension of time. He then made some submissions on the reasonably practicable test.[7]During Ms Simcott’s submission she stated that she had made a written submission. This had only been sent to my e-mail address during the course of the hearing and I had not noticed it and neither had Mr Britton been made aware of that e-mail from this morning. On his request we took a break for about 20/25 minutes for him to read the submissions. After the end of Ms Simcott’s submissions, I gave him the opportunity to make further submissions which he did.[8]When I said that I would reserve judgement as we had reached the end of submissions at 12:15 and I did not consider that that was sufficient time for me to make my decision, Mr Britton asked if he could make written submissions after the hearing. I said that there could be no further submissions. This case has been listed for some time, there was considerable correspondence from the parties about the issues, I took care at the start of the hearing to try to understand the positions of the parties and I gave them opportunity to make submissions and respond during the hearing. Further, it was only after the end of the hearing when I said that I would reserve judgment, that Mr Britton requested the opportunity to put forward written submissions. He did not say why he then needed time to prepare written submissions.
The hearing
[9]The hearing preceded on submissions only. Mr Britton had sent to the tribunal a witness statement bundle running to 15 pages and comprising 3 witness statements which had statements of truth and which were signed by each witness. There was a statement by the claimant, a statement by Mr Lindsay, a former solicitor of Britton and Time Solicitors, and a statement by Mr Britton. I had also been sent two exhibit bundles running to 65 pages each. At the start of the hearing when I asked if Mr Britton was intending to call witnesses and how many, he stated that he did not intend to call any witnesses and he did not call any witnesses during the hearing. It was Mr Britton’s choice not to call any witnesses. Was the claim in time? 23 September 2024 Presentation of claim via email[10]It is the claimant's position that an ET1 with ground claims was send on 23 September 2024 to the following:10.1 London south employment tribunal via e-mail on 23 September 2024 using the following email addresses:10.1.1 Londonsouthet@hmcts.gsi.gov.uk10.1.2 Londonsouthet@justice.gov.uk10.2 Employment Tribunals Central Office, PO Box 10218, Leicester, LE1 8EG by first class post.[11]It is not disputed that the Presidential Practice Direction that was in force at that time set out 3 prescribed methods of presentation of the claim, these are as follows:11.1 Online by using the online submission service provided by HMCTS accessible at www.employmenttribunals.service.gov.uk11.2 By post to the Employment Tribunals Central Office (England & Wales) PO Box 10218, Leicester, LE1 8EG.11.3 By hand to a designated Employment Tribunal office within business hours (between 9am and 5pm Monday to Friday excluding public holidays – see overleaf for designated offices)[12]By the date of this hearing there has been new Presidential Guidance which includes an “exceptional” presentation method by email to etsubmissionengwal@justice.gov.uk and it goes on to state that this method of service is only available where there is a fault with the online submission and a claim will not be “validly presented unless accompanied by a screenshot of the error message generated by the online submission service confirming a system malfunction at the relevant time.” It is not alleged that the new Presidential Guidance was applicable to this case.[13]I find that the purported presentation by email on 23 September 2024 of the ET1 and claim form was not valid and was not in time. Quite simply the email addresses were not a valid method of service.[14]For completeness, I note that there is no screenshot of the portal and the problems with it. I recognise that I have a witness statement from Mr Lindsay that says that there were problems with the respondent’s account with the portal. 23 September 2024 Presentation of claim via post[15]I must consider if the posting of the ET1 and claim form on 23 September 2024 was presentation of the claim.[16]There is no record of these documents being received by the Employment Tribunal. Certainly no evidence of receipt and processing has been provided to me. For the reasons set out below, I do not accept that this claim I am hearing today is the claim that was submitted on 23 September 2024.[17]The claimant’s submission is that the witness statement and documentary evidence including the repeated chaser emails by Mr Lindsey and mention of sending the letter, when combined with the metadata established that he did send the documentation to the Employment Tribunals Central Office at the correct address on 23 September 2024. This is sufficient for presentation of the claim.[18]The respondent disputes this. The respondent argues that there is no evidence of postage being paid, no evidence of a disbursement relating to postage, the claim is that the documents were sent via first class post but there is no recorded delivery or similar receipt of postage. In summary, there is insufficient evidence to establish presentation of the claim.[19]I have read Mr Lindsay’s witness statement closely. He was not called as a witness and so he was not cross examined and his evidence was not tested. When a witness is not called to appear as a witness at the having, it can undermine the weight that I can give that evidence.[20]Mr Lindsay statement at paragraph 3 in relation to the e-mail to London South Employment Tribunal is drafted in the first person and repeatedly says “I submitted”, “I explained”. However, paragraph 4 which addresses sending the claim via post is drafted in the passive tense and says “a copy of the claim was also sent by first class post… the covering letter was created and dated on 23 September 2024.” I consider the difference in wording in those paragraphs to be noteworthy. The witness statement does not set out Mr Lindsey sent the claim via post. It does not set out any actions that Mr Lindsay did in relation to posting the claim. It does not explain the post arrangements. It is vague.[21]It is said that an accompanying letter was send with the postal ET1. The bundle includes a document which sets out meta data about when the covering letter to the claim form was created. This sets out that it was created on 23 September 2024 at 2:42 PM by Mr Lindsey and that it was modified on 6 November 2024 at 7:54 AM. A copy of the letter is in the bundle. It has the correct address on it for the Employment Tribunal Central Office, it is dated the 23rd of September 2024 and it sets out that the ET1, grounds of complaint and early conciliation certificate were enclosed and that the submission was being made by post because “our account is currently not working”.[22]The claimant relies on a chain of e-mail correspondence in which reference is made to the submission by post of the ET1. These documents are in outline:22.1 An e-mail dated 29 October 2024 from Mr Lindsey to the London South Employment Tribunal chasing a response to the presentation of the claim. This does not mention presentation by post;22.2 An e-mail dated 30 October 2024 from Mr Lindsey which sets out “Due to our HMCTs portal not working for submission, it was sent by email and post”. This is the first mention of the postal service in the email and letter correspondence.22.3 An e-mail dated 6 November 2024 from Mr Lindsey to London South Employment Tribunal including the following “could you please check for receipt of the version sent by post? It is dated the same day, and a copy of attached to help with the search.”22.4 A letter dated 6 November 2024 address to the Employment Tribunal Central Office from Britton and Time solicitors including “a version of our client's claim form was submitted by post and e-mail due to our claims portal not working.”[23]The correspondence of 6 November 2024 to London South Employment Tribunal may have been precipitated by a letter from the Employment Tribunal dated 4 November 2024 which is titled “returned claim form notice”.[24]Mr Britton did not accept that the “returned claim form notice” was a rejection of the claim because it did not use the word rejection. I consider that is it plain on the face of it that it is rejection on the basis that an incorrect service method was reached. However, no arguments were made under rule 14 and I consider this was not pursued at the hearing.[25]I find that the claimant has failed to establish that the postal claim was presented in time ie on or around 23 September 2024. I am not satisfied that the documentation was posted to the Employment Tribunal Central Office before 7 October 2024 (the latest date by which any of the claims could be in time as accepted by the claimant) and in fact that it was not posted until 6 November 2024.[26]I recognise that I have the witness statement from Mr Lindsay but it does not say he posted it and the witness statement is vague about how it was posted. I would have reasonably expected more detail about the postal arrangements and who did what. Mr Lindsay did not appear as a witness for his evidence to be tested. I recognise he is a solicitor and I do not allege that he is lying, his witness statement simply does not set out that he did any actions in relation to the posting. I do not have sufficient evidence to establish that the claim form was posted.[27]Mr Britton’s witness statement sets out in the Background that “Mr Lindsay sent the Claim by post …” however there is no explanation as to how he reached that view. I find that Mr Britton’s evidence adds very little.[28]There is no receipt for the postage and there is no record of the postage paid. I was asked to accept that the Employment Tribunal Central Office simply mislaid the documentation and that is why there is no record of it having been received. The Tribunal Office has procedures in place to ensure post is stamped in due to its importance and I consider it is most unlikely that it has been lost without a trace.[29]Overall, I am not satisfied, on the evidence available to me, that the claimant has established that the claim form was posted to the correct address on 23 September 2024 or any date before 7 October 2024.[30]The claimant has not established that the claim was presented by post around 23 September 2024. Presentation of 11 November 2024 claim[31]I must state that the claim form of September 2024 which it is alleged has been posted, is not the claim pursued under this claim number 3311709/20/24. I consider that it is plain on the face of the documentation that this claim 3311709/20/24, arises from the presentation of the claim form and grounds of claim date stamp received by the Tribunal on 11 November 2024.[32]That is the date on which the claim form has been stamped by the tribunal. This corresponds with when the claim form was said to have been sent by the claimant which is the sending by post with the covering letter dated 6 November 2024 referred to above.[33]Therefore, I consider that this claim is out of time (it was presented on 11 November 2024 and the last date for the claim to be in time was 7 October 2024) and I must go on to consider the reasonably practicable and just and equitable tests. The Reasonably Practicably test[34]The test I must apply is set out in section 111 of the ERA this is, was it “reasonably practicable for the complaint to be presented before the end of that period of three months.” This is called the reasonably practicable test.[35]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:35.1 the test should be given a liberal interpretation in favour of the employee35.2 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.35.3 if an employee misses the time limit because he is ignorant about the existence of a time limit, or mistaken about when it expires in his 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. When assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his adviser should have made35.4 if the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee35.5 the test of reasonable practicability is one of fact and not of law.[36]In Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA, the Court of set out 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’. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: ‘The relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.[37]The Tribunal has a discretion and there are a number of factors that I must consider. The length of the delay and the reasons for the delay and then whether the delay has prejudiced the respondent for example by difficulties investigating the claim because the claims are not fresh are two factors which I must consider. I have to do consider the balance of prejudice, the explanation for the delay, the length of the delay, whether incorrect advice was given and relied on, ignorance of right, ignorance of facts, the effect of any disability or illhealth and the merits of the claim.[38]The key issue here is that any mistake or unreasonable ignorance on the claimant’s advisor’s part is attributable to her.[39]I must consider if this situation falls within the Dedman principle set out in R J Dedman v. British Building And Engineering Appliances Ltd [1973] IRLR 379 as affirmed by the Court of Appeal in Marks & Spencer plc v Williams-Ryan [2005] IRLR 562. Mr Britton did not raise this issue but he did refer me to Lowri Beck Services Ltd v Brophy [2019] EWCA Civ 2490 at para [12] which summarises the relevant authorities and references Dedman. Paragraph [12](4) sets out the approach to be taken when a skilled adviser, such as a solicitor, is instructed in employment tribunal proceedings. Any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee.[40]Mr Britton’s submissions on reasonably practicable were very brief as his position was that the claim was in time. At the end of his submissions, I specifically asked him if he wanted to make submissions on reasonably practicable and just and equitable. We took a 25 minute break during the hearing so that he could read and consider the respondent’s written submissions and I gave him the opportunity to respond to them orally after the end of the respondent submissions. I had also asked him if he was calling any witnesses and it was his choice not to call any witnesses.[41]Britton and Time Solicitors are the claimant’s legal advisors, the evidence before me is that solicitors had conduct of the matter. The claimant’s position is that she handed over her case entirely to them. I consider that is reasonable of the claimant. The only evidence about the dates of presentation of the claim and attempted presentation of the claim are from the solicitors.[42]For the Dedman principle to apply, it must be established that the professional advisor was at fault. The authorities use the term fault and negligence interchangeably and there is no requirement to apply technicalities about the concept of negligence as one would in a civil claim. If the claimant or the advisor is able to show that the mistake or ignorance of the adviser was reasonable there was no fault and the Dedman principle does not apply and the claimant is able to argue that it was not reasonably practicable to lodge the claim in time.[43]I have found that the claim presented in this claim was received by the Tribunal on 11 November 2024 after posting on 6 November 2024. This is out of time. Therefore, I must consider the claimant’s advisors conduct relating to not submitting the claim in time.[44]I consider that this case bears some similarities to the case of BLISS Residential Care Ltd v Fellows [2023] EAT 8, [2023] IRLR 528. In that case the errors of the solicitor were first sending the ET1 to the wrong postal address and second resubmitting it by post rather than online meaning that it was out of time when it did arrive.[45]I found that the email/post 23 September 2024 attempts to present the claim did not result in valid presentation of a claim. This claim was presented on 11 November 2026. This claim is out of time. The questions which arise are around the solicitors considering that the 23 September 2024 acts resulted in a validly presented claim and if their continued belief in this was reasonable until around 6 November 2024 when they took steps to present this claim (i.e. post it).[46]Mr Lindsay, as a solicitor, can be expected to know what the Presidential Direction said. By emailing the claim to London South ET, it indicates he did not know it or read it carefully. Sending the ET1 via email could not be in compliance with the Presidential Direction and is not reasonable conduct. Continuing to rely on having emailed it and not checking the Practice Direction through out the period in question is not reasonable conduct.[47]However, in this case it is asserted that the ET1 was sent on 23 September 2024 via one of the methods in the Presidential Direction namely by post to Employment Tribunal Central Office. I have set out above that I am not satisfied that is what in fact took place, there is little evidence of posting, there is no evidence of receipt, Mr Lindsay’s witness statement is remarkably vague and the section about posting is written in the passive and does not set out actions he or anyone else took to post it.[48]Despite there being 14 days left of the time limit (from 23 September until 7 October 2024) when Britton & Time Solicitors could have attempted to submit the ET1 via the portal in the event that the issue with it had resolved (and I consider it is likely that the issues with the portal would not persist for 14 days as though issues do arise, these are limited). There is no evidence this was done. There was nothing which prevented them from repeatedly trying to access the portal and submitting this claim before 7 October 2024.[49]As I have found there was fault in not presenting the claim by post or email on 23 September 2024, I find there is no other conclusion than that continued belief that the claim had been presented until alerted otherwise by the Tribunal on 4 November 2024 was not reasonable. I recognise that Mr Lindsay chased London South Employment Tribunal before the expiry of the time limit but I do not consider that that, in all the circumstances, can support the continued erroneous belief.[50]I find that the Dedman principle applies.[51]The claim was not submitted within the primary time limit because of an unreasonable error on the part of a skilled legal adviser. It was reasonably practicable for the claim to have been submitted within the primary time limit. It was a mistake by a legal advisor not to have presented the claim in time.[52]I find that it was reasonably practicable to present the claim in time, that it was not done was the fault of legal advisor’s and as such I do not extend time.[53]The claim’s relating to unfair dismissal, wages act claims and whistleblowing are dismissed for want of jurisdiction as they are out of time. The Just and Equitable test[54]I must apply s 123 of the Equality Act 2010 which grants me a discretion to grant an extension of time I consider it “just and equitable” to do so.[55]Harvey’s sets out “Where these words appear it has been held that 'Parliament has chosen to give the employment tribunal the widest possible discretion' (per Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] IRLR 1050, [2018] ICR 1194 at [17]). As stated by the Court of Appeal in that case, s 123 does not prescribe the factors which should be taken into account when exercising the discretion. The discretion is broader than that given to tribunals under the 'not reasonably practicable' formula (which itself has – not without controversy – been stated to require a 'liberal interpretation in favour of the employee', see para [193] ff): Hawkins v Ball and Barclays Bank plc [1996] IRLR 258, EAT”[56]It is a question of fact for the tribunal to decide, there is not a presumption of an extension and the burden is on the claimant to persuade me that it is just and equitable to extend time. Factors relevant to my discretion include:56.1 Length of and reasons for the delay56.2 Prejudice each party would suffer as a result of the grant or refusal of the grant of an extension;56.3 The potential merits of the claim56.4 Fault of a legal advisor56.5 Ignorance or mistake by a claimant[57]There are other potential factors but I do not consider that they are relevant in this case and they have not been pleaded.[58]The Dedman principle does not apply to the just and equitable tests as set out in Virdi v Comr of Police of the Metropolis [2007] IRLR 24, where the EAT held that if it is the claimant's solicitors who are at fault in presenting the claim, then such fault cannot be laid at the door of the claimant.[59]The length of the delay is 35 days. The reasons for the delay are as set out above which is failings by the claimant’s legal advisors.[60]The claimant would suffer the prejudice of not being able to bring any claims under this ET1 to the Tribunal in light of my findings above. This is very considerable prejudice. The prejudice to the respondent is that they will need to defend a claim that they otherwise would not with all the consequent expense and actions.[61]This is a very early stage of the proceedings and it is a little difficult to understand the merits of the claim in light of the complete lack of evidence before me. The comments and actions by the claimant’s colleague in January 2023 are serious matters. If they are proved to have happened, they will almost inevitably be discriminatory. It is also submitted that other discriminatory actions arise from dealing with the grievance that the claimant made arising out of those events and that these all form part of a course of continuing conduct. I consider that the course of continuing conduct argument has some potential issues. It is obvious that if the January 2023 acts are not part of a continuing course of conduct they will be out of time by approximately 20 months which is a very considerable period of time. It is quite possible time would not be extended for such a long delay given that the claimant has herself set out that she had instructed Britton & Time Solicitors in November 2023 and received advice from Meadows and Moran Solicitors in June 2023.[62]Reading the grounds of claim it is difficult to determine that there are continuing acts. The claimant was off sick from 7 October 2023 until May 2024, the respondent’s position is that it dealt with her complaints. The claimant accepts she was told this by the respondent and during her sick leave there was considerable correspondence between her solicitors and the respondent. It seems but it is not quite clear that the dismissal is said to be a detriment following a protected act.[63]I note that there has not even been a list of issues agreed in this case which places me in some further difficulties as it is unclear what the claims are.[64]Overall, I am concerned about that the discrimination complaints are many months out of time and there could be difficulties in arguing the dismissal was a detriment (it is not entirely clear this is argued).[65]I do not consider that I can fairly decide whether the discrimination claims are in time in these circumstances. I do not consider that this is what this hearing was scheduled for and it is well established that preliminary hearings are not the most appropriate forum for such decisions. I consider that the just and equitable consideration of extending time for me today is limited to the issues with presenting claim, not for me to conclusively decide if the discrimination claims are out of time for reasons not related to a failure to present the claim in time.[66]Weighing the seriousness of the allegations of discrimination, the issues with the continuing act argument, the failures relating to timely service only being attributable to the claimant’s legal advisors and the prejudice to both parties. I have decided to extend time in relation to the discrimination and victimisation claims in relation to the claims not being in time only because of a failure to validly present the claim form in time. To be clear this decision does not bind the final tribunal on deciding if claims are out of time because they are not part of a continuing act and therefore are otherwise out of time for reasons not related to the specific presentation of claim issues I have considered today. Approved by: