Employment Judge O’DempseyS Way (instructed by Counsel) for respondentDate 2 March 2022
JUDGMENT
[1]The Claimant’s claims for unfair dismissal, breach of contract and unlawful deductions from wages are dismissed, on being struck out under rule 37 of the Employment Tribunal Rules.[2]The Claimant’s claims for disability discrimination in relation to:(a) paragraphs 1-8 of the Claimant’s Employment Tribunal Statement of Particulars; and(b) paragraphs 19-20 of the Claimant’s Employment Tribunal Statement of Particulars are struck out under rule 37.[3]The Claimant’s claim that his dismissal was an act of disability discrimination is not struck out. 1. I do not make any order that the claimant should pay a deposit.
REASONS
[2]This is an application by the respondent to strike the claimant’s claims (or parts) out under rule 37 of the Tribunal Rules 2013 as having no reasonable prospects of success. Failing that there is an application that I should order a deposit be paid by the claimant as a precondition of his being able to pursue the claim any further.[3]At the start of the proceedings I checked to see whether the parties had all the relevant documents and it appeared that they did. Although this was the case, it emerged that the claimant had not been able to access the respondent’s skeleton argument due to the fact that the person who helps him with his sight problems as been ill. Nevertheless it was clear that about a week before the hearing the respondent’s skeleton argument and the authorities had been served on the claimant. The claimant had every opportunity to consider the arguments put forward in it.
The law
[4]The respondent relies on rule 37. This states: Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[5]The respondent in the alternative relies on rule 39, asking for a deposit order of £1000 to be made. This provides: Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.[6]In respect of the claim for unfair dismissal, section 108 of the Employment Rights Act 1996 is relevant. This provides 108 Qualifying period of employment. (1) Section 94 [the right not to be unfairly dismissed] does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination. Background to this application – the claimant’s claims[7]By a claim form presented to the tribunal on 25 September 2020 the claimant claims unfair dismissal and disability discrimination. The early conciliation notification was received by Acas on 24 August 2020 and the certificate issued 16 September 2020. He also claims that he is owed notice pay and arrears of pay. He says that he suffered a retina detachment as a result of surgery carried out in 2007. The claimant says that whilst on holiday in June 2019 his right eye swelled up and he had to consult a doctor. A doctor's report was sent to his line manager. When he returned to work his manager started to complain about his sickness absence. He told him that he has a detached retina with total right eye blindness and the medical advice was that he should seek medical attention and stay away from work to avoid the risk of lengthy infections.[8]He was invited to a meeting on 30 July 2019. He was told that his 40 hour contract was being changed and replaced with a part-time contract of 30 hours. He was told that he would be sacked if he failed to accept the alternative parttime work. He complains that his manager did this as soon as he knew that he had a disability. He said that he began to lose confidence and experiencing anxiety and panic attacks. He says that his manager continuously threatened his dismissal if he failed to accept the proposed changes. He submitted a grievance on 12 August 2019.[9]He had requested annual leave on 5 August 2019 which was 14 days before the date for the intended leave (19 August 2019 until 26 August). This was to enable him to attend a court hearing outside the UK. He returned on 27 August 2019. He explained that he needed to attend the court because originals of document needed to be signed in relation to his late mother's family affairs. He was the only one who had access to the safe. Human resources asked to have a meeting with his to investigate this matter. The claimant said he had had an emergency and requested five days as leave to appear in court. There was then an investigation. On 15 September 2019 the claimant insisted on the grievance investigation being carried out. The investigator asked for more time. However the grievance was not resolved. Four weeks later the claimant contacted the investigator again and he asked his to be patient.[10]On 27 November 2019 the claimant took a day of annual leave to attend a hospital review. However the manager emailed him asking where he was because he said that the claimant was supposed be on duty. It appears that the claimant’s supervisor had failed to update the staff rota. The claimant complains that this was the second time he was accused of being absent without leave.[11]The claimant says that the club manager and supervisor were looking for ways to get rid of him. Paragraph on 25 October 2019 the claimant applied for annual leave for 29 January 2020 he was going to return on 2 March 2020. He booked 10 days paid leave in 10 days unpaid leave so that he could travel abroad for family reasons.[12]The first 10 days ended on 14 February 2020. The claimant says that he informed his supervisor and human resources that his intended date of return to work was 2 March 2020. However the health of the claimant’s child was a problem and the claimant had stay over and support the baby and the mother for the child's recovery.[13]Whilst the claimant was abroad his supervisor sent physical mails to the home address in the UK. This included a letter serving a summary termination of his employment.[14]The claimant became aware of this on 27 February 2020 which was the day before his leave expired. He had asked a neighbour to pick up invoices and was informed of the termination letter. The claimant says that he asked for permission to stay and support the baby on 27 February 2020. He had also ldged a grievance on 12 September 2019 which had still had not been fully investigated.[15]A meeting was arranged for 24 March 2020 but on 22 March due to the pandemic the claimant's return flight to the UK was cancelled.[16]On 30 March 2020 the human resources department wrote to the claimant stating that he had been put on furlough until further notice. This letter states that the claimant would be paid a percentage of his pay (and in a later in relation to his “normal” pay).[17]The claimant complains that the supervisor refused to honour the furlough wages from 28 April 2020 until 9 September 2020. That is claimed either as a claim for breach of contract or unlawful deduction from the claimant’s wages.[18]The claimant complains of disability discrimination contrary to section 15 of the Equality Act 2010. He says that he was forced to work with swollen eyes and the supervisor did nothing to alleviate his situation.[19]The claimant also claims to have been unfairly dismissed and it became plain during the hearing that he is asserting that this an act of disability discrimination under section 15.[20]The respondent raises the question of whether the claims have been presented within the time limits applicable. It says that all of the claims apart from the claim relation to termination of employment are more than four months out of time. It says that it was reasonably practicable for the claimant to submit the unfair dismissal claim or unpaid wages claim before the time limit.[21]More fundamentally the respondent says that the claimant does not have the required period of qualifying period of continuous service for a claim of unfair dismissal under section 108 ERA 1996.[22]In relation to disability the respondent does not accept that the claimant is disabled (see paragraph 51 of the Grounds of Resistance).[23]It denies the substance of the claims. In relation to the alleged furlough payments the respondent says that letters were sent to the claimant in error the employment terminated before the dates of furlough. It says that the error was obvious.[24]On 13 November 2020 the respondent made an application to strike out the claim. On 7 March 2021 the tribunal sent out notice of the preliminary hearing and orders for it. The claimant was ordered to provide by 22 March 2021 why it was not reasonably practicable for him to present his complaint of unfair dismissal to the tribunal on or before 25 May 2020. He was also asked to provide details of why it would be just and equitable to allow any out of time discrimination complaints to be pursued. By 5 April 2021 he was to provide an impact statement relating to the disability. There were other directions relating to disclosure of documents and to the provision of a schedule of loss. The claimant provided an impact statement appears and his schedule of loss accordingly.[25]The claimant's opposition to the application to strike out was set out in writing to the tribunal and consists in matters which ought properly to be tested in evidence in relation to the question of whether it is just and equitable for the tribunal to extend time for his discrimination claim (as it relates to the termination of his employment). He pointed out that the UK government granted permission in August 2020 for UK residents stranded in Ghana to be flown back to the UK on specially arranged charter flights while the lockdown was still in place. The claimant returned on 21 August 2020 and started the claim against the respondent shortly afterwards.[26]The claimant says that while he was in Ghana he tried to contact law firms for representation but all of the offices were closed down because the pandemic. The claimant also points to the fact that he received the furlough letter on 27 March 2020 and he says "this meant my contract was still running that the respondent line management blocked my wages for all this period April to September 2020 whilst furloughed". Taken it its highest as I must at this point as it is an application to strike out, that appears to have caused at least confusion for the claimant, on his account.[27]On 14 April 2021 the respondent wrote to the tribunal concerning its application to strike out on the basis of the limitation problems with the claim. The claimant's reply to that was to ask for a fair hearing for both sides of the argument.[28]On 6 June 2021 the tribunal wrote to the parties stating that the preliminary hearing was to be an open one to deal with the following issues: Whether the claim should be struck out under rule 37 because: 1. there are no reasonable prospects of the claim of establishing that a final hearing that all any of the claims had been presented within the prescribed time limits. 2. the manner in which the proceedings are being conducted by the claimant been unreasonable; 3. the claimant has failed to comply with orders of the tribunal; and 4. the claim has not been actively pursued.[29]At the hearing Mr Way indicated that he was not pursuing 2-4.[30]On 16 June 2021 the case management order was made stating that by 30 June 2021 the claimant was to provide the respondent with a copy of the witness statement which must contain his full answer to the questions asked in the notice of the preliminary hearing dated 7 March 2021 and any other matter upon which the claimant intends to rely in support of his case that his claims have been brought within the time limits.[31]The hearing had been listed for 2 hours. Some of this was lost due to technical difficulties and although the claimant appeared willing at one point to have his evidence heard on the question of time limits due to the way in which the hearing progressed and the fact that we sat late (until nearly 5 pm), I did not consider it appropriate to determine any aspect on hearing evidence. Some time was taken up with trying to ensure that the claimant had the respondent’s skeleton argument before him so that he could read it. Discussion and conclusions[32]The claimant's claim for unfair dismissal is struck out on the basis that the claimant does not have sufficient qualifying service under the Employment Rights Act 1996. The claimant was employed on 27 May 2018. He was dismissed with immediate effect on 26 February 2020. The claimant appealed his dismissal and relies on this for the proposition that his employment continued until its determination on 9 September 2020. In the light of cases such as West Midlands Co-Op Society Ltd v Tipton [1986] ICR 192, that is not an arguable point as the appeal did not revive the other terms of his contract of employment for the purposes of unfair dismissal law.[33]The claimant's claim for breach of contract is also struck out because the claimant had no contract of employment at the time of the alleged breach of contract.[34]Viewed as a claim for unlawful deductions from the claimant's wages, the claim under section 13 must be struck out on the basis (i) that there was no contract of employment but even if I am wrong about that and there was a contract of employment survived (and forms the basis of what I am told is a contractual right to appeal) it operated by suspending all the terms of the contract except for the right of appeal. Thus at the time of the alleged deductions the sum properly payable was zero because there was no right to pay under the extant terms of the contract. There was, it appears, a conditional right to pay which would vest in the claimant if his appeal succeed, but at the time of the alleged unlawful deduction there was no right to pay (or a percentage of normal pay) as the dismissal had (at its highest) suspended all of these rights pending successful appeal.[35]So the ultimate problem for the claimant therefore is that even if the furlough letters revived his contract it was a contract in which his right to pay had been suspended. He had a right to 0 pay and the furlough letter promised to pay him hundred percent of his pay and later 80% of his pay but regardless of which percentage it was it was a percentage of no pay and therefore there were no sums properly payable under section 13 of the Employment Rights Act 1996. Consequently there were no deductions made from his wages.[36]For those reasons I have concluded that the claims mentioned above stand no prospect of success and must be struck out. The 2019 discrimination claims[37]Having heard further argument on the discrimination aspects of the claim it was submitted to me by Mr Way that I should strike out the claim based on discrimination under rule 37 because it has no reasonable prospect of success and in relation to the events in June and July 2019 (at paragraphs 1 to 8 of the particulars) I have reached the conclusion that they stand no reasonable prospect of success.[38]I consider that there is no prospect of a judge concluding taking the statement of evidence and the matters that the claimant has added to them concluding that it would be just and equitable to extend time in relation to these matters which are very substantially outside the time limit. I take into account that the judge making that assessment would need to consider all the circumstances but that would include matters such as the impact of the passage of time in relation to those meetings with supervisors. The claimant has also offered no explanation for his delay in relation to these events, save perhaps that he had a grievance, but that does not explain his delay.[39]I consider that there is no prospect of a judge finding that the that it would be just and equitable to extend time.[40]I take a similar view in relation to the matters set out in paragraphs 19 to 20 of the statement of particulars which relate to the failure to update the staff rota in 27 November 2019. It seems to me that the same arguments apply there and I have taken into account that a judge could take into account the fact that the claimant appears to have sought to try and resolve certain of these matters via a grievance but I cannot see that there is any prospect of a judge being persuaded his to extend time in those circumstances. Again no explanation appears to be offered by the claimant as to the delay that occurred at that time. The claim that is not struck out[41]In relation to the claim for disability discrimination concerning the dismissal of the claimant I do not strike that out. I do not consider that it has no reasonable prospects of success. I do not consider that prior to testing the claimant’s evidence on the question of why he did not bring the claim in time that it is possible to say either that it has no or little prospect of success. There was not sufficient time for this process and this made me somewhat hesitant to strike out the claim or order a deposit order given the importance in social policy terms of discrimination claims being determined on their merits where possible.[42]So I take a different view in relation to the attempt to strike out the claim relating to dismissal. I do not think that I can reach the conclusion that it is so weak a case on the question in particular of whether time should be extended that I can strike it out or make an order for a deposit on this point, as the effect of doing that would be very similar in the claimant's case.[43]In relation to the allegations surrounding the dismissal as acts of discrimination I conclude that it would not be appropriate to strike out the case at this stage but it would be appropriate for the limitation issue to be dealt with after evidence on it has been heard. I heard submissions as to whether that should be dealt with by way of a separate preliminary hearing or as a point taken at the full merits hearing. I made case management orders to deal with such a hearing having heard submissions from both parties on the point.
The law
[1]This was the hearing directed by Employment Judge O’Dempsey at a hearing on 16 July 2021.[2]The upshot of Judge O’Dempsey’s order was that the only surviving claim was a claim of discrimination in dismissal. Judge O’Dempsey summarised the position at paragraphs 41-43 of his reasons.[3]Mr Hill had not been counsel before Judge O’Dempsey and Judge O’Dempsey had not reserved the remainder of the hearing to himself, as he might well have done. I therefore could attach no weight to counsel’s understanding of what had been said or might have been said before Judge O’Dempsey. I explained to the claimant at the start of the hearing that Judge O’Dempsey’s findings were binding on the parties at this hearing.[4]In light of any ambiguity, the correct way to proceed seemed to me in stages. The first stage was for the claimant to clarify what the claims of disability discrimination actually were. The second was to hear and decide the limitation submission, namely whether it was just and equitable to extend time (Judge O’Dempsey had already ruled that the claim was brought out of time). At the third stage, if the claim survived that far, I would hear Mr Hill’s submission that it be struck out under Rule 37 on grounds of having no reasonable prospect of success.[5]This approach was agreed. I had a bundle of 164 pages. Mr Hill had submitted a brief skeleton argument, to which he attached authority, notably Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23.[6]At the first stage, I asked for clarification of the complaints of discrimination. In accordance with Judge O’Dempsey’s order, the claim was in relation to dismissal only. The respondent had, as directed, reconsidered its position on s.6, and by date of this hearing conceded that at the material time the claimant was a person with disability within the meaning of s.6 of the Equality Act, by virtue of being blind in one eye.[7]At the first stage, it seemed to me right to be proactive in explaining in lay terms the different forms of discrimination which might apply, and discussing the claimant’s factual allegations, with a view to identifying how the claim of dismissal might be analysed.[8]The claimant stated that he considered that he was dismissed because he had a visual disability. That is a claim of direct disability discrimination under s.13.[9]I explained the framework of s.15, and the claimant stated that he considered that he was dismissed because of two things arising in consequence of his disability. I understood the claims to be in relation to each separately. The first was his absences from work for hospital appointments; and the second was his difficulty in working in environmentally hazardous areas which might cause eye infection. Each was in theory a feasible claim under s.15.[10]I discussed with the claimant in outline the framework of potential claims under s.19 (indirect discrimination), s.20 (failure to make reasonable adjustments), s.26 (harassment, although that seems to me entirely theoretical where the sole complaint is about dismissal); and s.27 (victimisation for having done a protected act). I was confident that the claimant made no factual allegation which fell within the framework of any of those.[11]During this hearing the claimant returned repeatedly to what he in closing called the root cause of the whole dispute, which was that the respondent’s letters to him of 19 and 26 February 2020 (see below) were sent at his home address only in hard copy, and not by email, which he said was the respondent’s usual practice. He asserted that as his line manager knew that he was abroad, this was a source of major unfairness.[12]I did not go into the factual dispute about the respondent’s communication system, nor could I decide why the hard copy letters were sent. The complete answer to these points was furnished by the claimant himself. He said that he had asked a neighbour to check his post. The neighbour had visited the claimant’s flat, and told him on 27 February that a letter had come the previous day in which he had been informed of his dismissal.[13]It follows therefore that whatever the respondent’s systems, or indeed intentions, the claimant knew on 27 February that he had been dismissed the day before. That is the relevant factor for today’s purposes. I accept the logic that if he had seen the letter of 19 February, he would have been able to answer it and might have been in a position to avert his dismissal.[14]After clarification from the claimant of the framework for dismissal, the claimant was sworn. I asked him briefly a number of scene setting questions, and Mr Hill cross-examined for about 25 minutes. Mr Hill’s submissions lasted about 15 minutes, after which the Tribunal adjourned for lunch. After the adjournment, the claimant replied and after a further adjournment, I gave judgment. The claimant asked for written reasons.[15]This application proceeded under s.123(1) which sets the time limit as “three months starting with the date of the act to which the complaint relates”. That time limit is now subject to extension for early conciliation. In addition, the s.123 time limit can be extended if the discrimination is a continuing act or if it is just and equitable to do so.[16]I agree with Mr Hill that dismissal is a single event, which in this case took place on 27 February 2020, the day the claimant was notified of dismissal. Mr Hill made three broad points drawing on authority: that extension of time is an exception not an expectation; that the Tribunal should take account of all circumstances, notably the reasons and length of delay; and that time is not necessarily extended by pursuing an internal appeal.[17]The material facts are the following:17.1 The claimant was born in 1963, and began employment with the respondent as a cleaner in August 2018. He began a period of annual leave on 29 January 2020 and travelled to Ghana.17.2 There seems to have been at least some disagreement or misunderstanding; the respondent thought he was due back on 19 February and the claimant thought he was expected back on 2 March.17.3 On 19 February, the respondent sent the claimant a letter querying his failure to return and asking to be notified of the position by 26 February. The letter was sent to the claimant’s home in hard copy (118).17.4 On 26 February the respondent wrote to the claimant to say that as he had not been heard from, he had been dismissed that day. Likewise the letter was sent in hard copy (119).17.5 On 27 February there were two events. The claimant wrote to the respondent to explain that due to family circumstances his return would be delayed to about 24 March. Also that day, the claimant’s neighbour visited his home, and with his authority opened the letter from the respondent and read it to him, so that on that day the claimant knew he had been dismissed.17.6 On 4 March the claimant wrote to the respondent by email to appeal (121). That is an important letter, because, as Mr Hill said, it shows that the claimant was able to engage with the respondent on a formal matter of great importance to him (121). Correspondence continued about arrangements for the appeal to be heard, which in fact did not take place until 9 September.17.7 The claimant attempted to travel back from Ghana on about 22 March, but his flight was cancelled. For a period of months it was not possible to travel from Ghana to the UK.17.8 The bundle contained correspondence from the respondent which was received by the claimant but not addressed to him individually, in which the claimant was told that he remained employed and on furlough. Judge O’Dempsey has dealt with this correspondence in his judgment and I do not add to what he has said.17.9 The claimant gave evidence that he had had contact with a friend in the UK, who was a social worker, at some time which I understood to be in March or April.17.10 The bundle contained two letters from the claimant which I thought significant. They were written on 7 May and 8 May, (129 and 137) and addressed his rights under the then JRS and to further payments. I take those as a powerful indication that the claimant had sources of information and advice about employment rights in the UK, including furlough and JRS rights.17.11 The claimant was not able to return to the UK until 21 August, and he contacted ACAS on 24 August, by which time the claim was just under three months out of time.[18]My findings from the above are the following.18.1 I accept that the claimant was stranded in Ghana from early March until 21 August. For about the first three weeks of March he was detained by family emergencies and thereafter by lockdown requirements.18.2 The claimant had access to email and the internet while in Ghana.18.3 The claimant was able to manage formal and business matters. He was in contact with the respondent about his appeal, the furlough system, and his return arrangements. He mentioned casually in evidence having dealt with bills and his bank account online from Ghana. He accessed information about the JRS and furlough system.[19]I now turn to the factors on which the claimant said he relied in asking the Tribunal to extend time. I disregard two matters about which the claimant plainly had strong feelings because I think he was mistaken and they were not relevant. The first was his evident anger that the February letters had been sent by hard copy only, as he said and not also by email. I agree that that is an oddity of the case, which if the case had proceeded might have been relevant to the question of fairness. However, this was not a case of unfair dismissal, and as the claimant was told about the letters on 27 February, it was also not a source of prejudice to him.[20]Secondly, the claimant said that the respondent had dragged things out in order to prevent him from claiming in time. There was no evidence of that; in the circumstances of the first lockdown, the respondent could not foresee how matters would develop, and had no reason to drag things out.[21]The claim was presented on 25 September 2020. As the claimant did not have the benefit of the “stop the clock” extension, time to present this claim expired on 26 May 2020, and the presentation was therefore one day short of four months late.[22]I turn to the reasons for delay given by the claimant, whether in evidence at this hearing or in writing. I apply my own order to them, which is not order of priority.[23]The first question was did the claimant have knowledge of the time limit? It turned out that the claimant had brought a previous claim, but he could not remember if it was during the fees era or before. It may well have been many years previously. I can draw no inference about knowledge from that single event.[24]However, he gave a significant piece of evidence on this point. He said in cross-examination that while in Ghana he had made contact with a friend, whom he described as a social worker, who while not a lawyer he understood would be able to give him advice. In cross-examination he said (according to my note) “there are rules, and an extension can be allowed”. I intervened to ask the claimant the question, extension to what, but he did not reply. However, the inference is obvious. The claimant understood and was advised that there was a deadline to be complied with, but that there was possibility for an extension. I infer from that that before expiry of the primary deadline, the claimant was aware of the existence of time limits.[25]The claimant said, in a number of respects, that he was at a disadvantage because he was in Ghana, which he repeatedly described as a second country. I am not aware of any barrier in law or practice which prevents a person overseas from accessing the websites for ACAS or HMCTS (the Employment Tribunal). It is not unusual for claims to be presented online from outside the UK.[26]In any event, once the national lockdown started, on 23 March 2020, the precise location of the claimant was irrelevant. It did not matter whether he was in Ghana or Glasgow: he was not permitted to access a public office, or a solicitor’s practice, and had to proceed online. His location made no difference.[27]The claimant stated that he had no access to help. However, the majority of claimants exercise their statutory right not to be represented by lawyers. The Tribunal is well aware of the volume of material available online, including guidance about the early conciliation and Tribunal process. The material online, particularly for example on the ACAS website, is written in plain English and readily accessible. Completion of the Early Conciliation Certificate and the ET1 can readily be undertaken online.[28]This is not a matter of my interpretation of systems with which I may be familiar; it is the experience of the Tribunal, which sees thousands of cases each year presented by members of the public who are unrepresented, may not have a full formal education, and are often using a second or third language.[29]I attach weight to three indications that the claimant was able to use online systems to manage matters while in Ghana. The first was his email of 4 March 2020 in which he appealed, and subsequent email trails in which he pursued his rights of appeal; secondly his evidence was that he had asked his neighbour to go into his home and among other things to open bills so that he, the claimant, could manage his finances online; and the third was the two striking emails of 7 and 8 May, in which he wrote to the respondent in detail about his rights under the JRS and the then furlough scheme (129- 137). Those emails showed that he had sufficient internet use to research furlough and JRS developments, with or without assistance. It seemed to me that if the claimant were able to manage these matters, he was well able to manage early conciliation and the ET1 procedure.[30]In his written statement, the claimant said that he had been unable to obtain help from a lawyer in England, and that he had contacted “a couple” of law firms. In cross-examination, when Mr Hill put to him that that did not indicate a great degree of effort, the claimant said that the number of firms he had contacted was more than 10. I would not interpret “a couple” as no more than two, although that is the normal usage, but I would expect it to mean no more than three or four, and certainly not more than 10. I infer that the claimant realised a weakness in his evidence, and amended the evidence to address the weakness. I do not accept that the claimant tried to consult about a dozen law firms. It may well be that he made 2 or 3 attempts and then gave up.[31]I do not accept that the legal profession, as the claimant put it, closed down with the lockdown. On the contrary, although it was not easy to do so, practitioners and advisers found ways to convert their systems and to work remotely.[32]Drawing these points together, it seems to me that Mr Hill’s submission, which was that before expiry of limitation, the claimant decided that he would take the risk of leaving matters until he returned to the UK, was probably well made. The claimant did not of course know when he would be able to leave Ghana. He expected, perhaps as a result of inaccurate advice, that he could get an extension.[33]I accept that the extension provision is an exception, and in all the circumstances of this case, I cannot see that the case for extension has been made out. I add that if the claims were, on their merits, seemingly so compelling as to give rise to an interest of justice in their being heard as a matter of social policy, that would be an additional factor. I make no ruling on their merits beyond stating that I could not see an interest in justice in allowing the extension of time in this case as a matter of discretion. On the contrary, the events appeared to present as a combination of muddle, misunderstanding and miscommunication, and however one may wish to criticise those factors, they fall far short of discrimination in relation to visual impairment.[34]The extension of time is refused and the claim is therefore struck out.