Employment Judge FraneyIn person for claimantMr S Hills (instructed by Solicitor) for respondentDate 4 March 2024
JUDGMENT
The claim is dismissed. It was presented outside the time limit specified by section 123(1)(a) Equality Act 2010 and it is not just and equitable to extend time under section 123(1)(b).
REASONS
[1]These are the written reasons for the judgment given orally with reasons at the conclusion of the hearing on 15 October 2018 and sent out to the parties in writing on 17 October 2018.
Introduction
[2]The claim form in this case was presented on 3 April 2018. It raised complaints of age discrimination, disability discrimination and sex discrimination contrary to the Equality Act 2010. It concerned events during the claimant's employment as a sales adviser between November 2016 and 2 September 2017, when her employment was terminated by the respondent.[3]It was identified upon receipt that the claim was potentially out of time. On 3 May 2018 the respondent filed a response form making that point, but also denying any discriminatory treatment of the claimant. It said that she had been dismissed because she had failed successfully to complete her extended probationary period.[4]The matter was listed for a preliminary hearing in public to decide whether the claim was presented within time.[5]The precise scope of the allegations of discriminatory treatment was not clear from the claim form itself or from some further documents which the claimant subsequently supplied, but at the outset of the hearing the claimant confirmed that the last act of discrimination upon which she relied was the decision to dismiss her on 2 September 2017. For the purposes of this time limits hearing I assumed in her favour that if all the evidence were heard she would be able to show a discriminatory course of conduct extending over a period ending with that date. It therefore followed that I approached this issue on the basis that the primary three month limitation period expired on 1 December 2017.
Evidence
[6]Mr Hills had prepared a bundle of documents running to approximately 125 pages. A significant number of these documents were documents which the claimant had supplied. The claimant also provided four further sets of documents which were copied and distributed at the start of the hearing. Any reference to page numbers is a reference to the bundle; I will refer to the other documents individually as appropriate.[7]I also had the benefit of oral evidence from the claimant. She had not prepared a witness statement but I took her through her evidence about why the claim was not brought in time, and she answered questions from Mr Hills.
The Law
[8]The discrimination complaints were brought under the Equality Act 2010. The time limit for such complaints is found in section 123 as follows:- “(1) Subject to Sections 140A and 140B proceedings on a complaint within Section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable.”[9]The case law on the application of the “just and equitable” extension includes British Coal Corporation –v- Keeble [1997] IRLR 336, in which the Employment Appeal Tribunal (“EAT”) confirmed that in considering such matters a Tribunal can have reference to the factors which appear in Section 33 of the Limitation Act 1980. As the matter was put in Keeble:- “that section provides a broad discretion for the court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances and in particular, inter alia, to –(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any request for information;(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”[10]In Robertson –v- Bexley Community Centre (T/A Leisure Link) 2003 [IRLR 434] the Court of Appeal considered the extent of the discretion. The Employment Tribunal has a “wide ambit”. At paragraph 25 of the judgment Auld LJ said:- “it is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[11]Subsequently in Chief Constable of Lincolnshire –v- Caston [2010] IRLR 327 the Court of Appeal in confirming the Robertson approach confirmed that there is no general principle which determines how liberally or sparingly the exercise of discretion under this provision should be applied.[12]In Department of Constitutional Affairs –v- Jones [2008] IRLR 128 the Court emphasised that the guidelines expressed in Keeble are a valuable reminder of factors which may be taken into account, but their relevance depends on the facts of the particular case. Other factors may be relevant too. At paragraph 50 Hill LJ said:- “The factors which have to be taken into account depend on the facts, and the selfdirections which need to be given must be tailored to the facts of the case as found”. Relevant Findings of Fact[13]Based on the witness evidence and documents I found the relevant facts to be as follows. Dismissal[14]The claimant was employed as a part-time sales adviser at the respondent’s store at Cheshire Oaks retail park until 2 September 2017 when her employment was terminated in the course of a meeting about her probationary period. She was shocked to be dismissed. She was not given any formal letter of dismissal and believed that the real reasons had not been explained to her.[15]The claimant had not previously been involved in an Employment Tribunal case and had no idea about Employment Tribunals and time limits. She had, however, heard of ACAS, and telephoned ACAS within a few days of dismissal. The claimant was still upset and did not present herself properly or explain what she wanted, and ACAS suggested that she contact the Citizens Advice Bureau (“CAB”). She made an appointment to see the CAB in Chester in September 2017.[16]As well as the CAB, the claimant contacted the Equality Advisory & Support Service (“EASS”) which she believed was a Government agency. They gave her general advice but nothing about Employment Tribunals or time limits.[17]The claimant was also applying for other work. She expected to be able to get other retail jobs at the Cheshire Oaks site without difficulty, but she had an unhappy experience at an interview at the retailer All Saints on 21 September 2017. Her application was unsuccessful.[18]The claimant is an internet user. She explained that she does not use the internet for shopping but does use it for research and pursuing her interests. CAB Advice and Early Conciliation[19]The claimant visited the CAB in Chester in late September 2017. No advice could be given unless she could see their employment law adviser. It took several weeks to sort this out.[20]She eventually had an appointment with him on 30 November 2017. She recalled his first name was Brian. He advised her of her right to bring a claim in the Employment Tribunal, but explained to her that she needed to go to ACAS first and that she was almost at the end of the time limit for doing so. In his presence she telephoned ACAS and initiated early conciliation. She gave full details to ACAS of how she had been treated. The fact that early conciliation began that day was confirmed by ACAS in a certificate at page 54. The early conciliation period lasted until 30 December when the certificate was issued by email to the claimant. December 2017[21]The claimant had had a very difficult December. Another job interview at Cheshire Oaks was unsuccessful. This setback affected her confidence. She had an incident in a car park where her car was damaged and she had to pursue a claim following that. This was very difficult to deal with. She also suffered from a bout of flu during December 2017, as later confirmed by her GP in a letter of 11 June 2018 (page 35). This left her feeling extremely debilitated.[22]Perhaps most significantly, the claimant sadly suffered three family bereavements in a short period around this time. The last was particularly traumatic: her aunt unexpectedly choked on some food on New Year’s Eve. She was badly affected by these experiences. She was unable to see her family as usual over Christmas. The funerals were very difficult for her. January – April 2018[23]Accordingly, although the claimant received the ACAS certificate by email on 30 December 2017, she did not consider it until a few days into January 2018. The effect of the ACAS certificate was that the last date for lodging her claim within time was extended to 30 January 2018.1 However, I accepted her evidence and found as a fact that she thought that by contacting ACAS she had done all she needed to. 1 Section 140B(4) Equality Act 2010.[24]As a result the claimant was expecting to hear from the Tribunal about the progress of her case. Her friend, Karen, would ask her what was happening with the case from time to time. Eventually the claimant became concerned enough to contact ACAS again in mid-February 2018. She spoke to the conciliation officer, Mr Murphy. It became apparent that there was a form she should have filled in and that there was now a time limit problem.[25]She escalated the matter to his manager, David, and managed to speak to him at the very end of March 2018. He talked her through the procedure and explained how she would have to lodge her Tribunal claim online. She had problems doing the form online and it took most of a day to get it done with some help from ACAS. That was on 3 April 2018. Submissions[26]At the conclusion of the oral evidence Mr Hills submitted that the claimant had failed to show any grounds on which it would be just and equitable to extend time. He emphasised that even the effect of the bereavements and the flu over Christmas should still have enabled the claimant to have lodged her claim by the end of January, within a month of the early conciliation certificate. He said it must have been the case that the employment law adviser at the CAB told the claimant that after the ACAS form was issued she would have to take a further step, even if this had not registered with her. The delay would have an adverse impact on the cogency of the evidence. Even if the claimant could reasonably be allowed a bit more time than the end of January, she was still a further two months late in getting her claim lodged. She was able to use the internet and could have ascertained her legal rights.[27]In reply the claimant said that it would be just and equitable to extend time. She emphasised the impact on her of the dismissal, the struggles she had to find work, the awful period she had over Christmas with her illness and the three family bereavements, and said she was not in a fit state to deal with matters properly until getting back in touch with ACAS in late February or early March. She emphasised that she understood that going to ACAS for early conciliation was all she had to do, and it came as a shock when ACAS explained that she needed to lodge the Tribunal form herself. She reminded me of the medical evidence from her doctor at page 35 which confirmed that she had been “down and depressed”, unable to carry out normal duties and had a lot of difficulty dealing with forms and communicating with people. Discussions and Conclusions[28]I considered the factors identified in Keeble and other factors of relevance here. Length of Delay[29]The early conciliation provisions meant that the primary time limit expired on 30 January 2018. The claim form was not presented until over two months later on 3 April 2018. The primary time limit, ignoring early conciliation, is only three months so a delay of a further two months is a significant period. This was not a case where the claim was just a few days late. Reason for the Delay[30]I accepted the claimant's evidence that she was not aware of her legal rights until she saw the employment law adviser at the CAB who explained the position and made sure she rang ACAS whilst she was in a meeting with him. Initiating early conciliation “stopped the clock”.[31]After the certificate was issued on 30 December 2017, and time started to run again, the claimant was struggling with her loss of confidence following two unsuccessful job applications, a period of illness due to flu, and most significantly three bereavements in her family in a short space of time. The letter from her GP in June 2018 confirmed that she was suffering from depression and not able to function properly or to deal with filling in forms, although the letter was silent as to when that began and how long it lasted.[32]However, I was satisfied that the real reason she did not pursue her claim by the end of January 2018 was that she did not realise that once ACAS issued her certificate she still had to lodge a Tribunal claim herself. She was under the misapprehension that she had done everything she needed to do by contacting ACAS to start early conciliation and by giving ACAS all the information about how she had been treated at work. Even though her friend Karen asked her what was happening, it was not until late February or early March that she contacted the conciliation officer at ACAS, Mr Murphy. That was about two months after the early conciliation certificate was issued. The misapprehension was corrected, and following escalation to his manager, David, the claim was presented in early April 2018. Impact of the Delay on the Evidence[33]This case turns on evidence about events in late 2016 and early to mid-2017. The details of the claim which the claimant has provided on the claim form and in subsequent correspondence raise a number of instances of what the claimant considers to be discriminatory treatment or harassment on the shop floor. It is unlikely there is any written record, as no formal grievances were pursued at the time. The claimant said in submissions that she does have a log of these matters but there is no basis for thinking the respondent’s witnesses kept a log in the same way.[34]The claimant also says that where she was sent written records of meetings they were not accurate. There is therefore likely to be an important and substantial conflict of primary fact as to what happened. It follows that the fact that the claim has been delayed is likely to have a significant impact on the ability of witnesses to recall matters. Promptness of Action[35]The claimant did act promptly by trying to get advice in September 2017 from the CAB, having spoken briefly to ACAS first of all, but her efforts were hampered in that period by the need to see the employment law adviser at the CAB who was much in demand. Once she saw him she moved very promptly and initiated early conciliation the same day.[36]Similarly, once the claimant had the position about lodging a claim explained to her at the end of March by David from ACAS she acted very promptly at that stage.[37]Even so, there was a failure to act promptly, in my judgment, after the early conciliation certificate was issued at the end of December 2017. The claimant assumed (wrongly) she had done all she needed to do, but still did not take any steps to contact ACAS (or research its website) to check that for at least six weeks and possibly almost two months, despite queries from her friend, Karen, about what was happening. Steps to Get Professional Advice[38]The claimant did seek advice from the CAB but did not get proper informed advice until 30 November 2017. Similarly, with ACAS it appeared that the position was clear to her only after she escalated matters to the manager David at the end of March 2018. Medical Position[39]The GP letter from June 2018 (page 34) supported the claimant's case in that it confirmed the flu in December, the three bereavements at that time, and that the claimant was left down and depressed, unable to carry out normal duties and had a lot of difficulties dealing with forms and communicating with people. There were some physical problems which added to the stress overall.[40]Even so, during December the claimant was able (with difficulty) to take steps to sort out the consequences of the damage to her car in the car park and also to attend the interview for a job in December. The GP letter was not specific as to the period for which these difficulties lasted. It said nothing, for example, about how the claimant was by late January 2018.[41]Putting those matters together I accepted the claimant's evidence about how difficult December was. I accepted this was still affecting her into January, but I also accepted Mr Hills’ argument that the claimant had not shown that she was unable to take action until late March. The medical evidence was not specific about when the claimant was affected, and there were other aspects of her life which she was able to deal with in that time.[42]In my judgment despite those medical issues there was delay in going to ACAS in the New Year once the certificate was issued. This was due to a misapprehension that the claimant had done all she could. However, I accepted Mr Hills’ submission that the employment law adviser at the CAB (“Brian”) must have advised her of the need to lodge a Tribunal claim after early conciliation ended. He was an employment law specialist. Unfortunately, it is clear that the claimant genuinely had not properly understood the position. That was an error, but her chance to correct it was missed in January 2018 when she could have made steps to find out whether she needed to do anything further. To that extent the claimant bears responsibility for the fact this claim has been presented out of time.[43]In addition, this is a case where the delay will have an impact on the cogency of the evidence. If time is extended the witnesses will be asked to recall incidents that happened in late 2016/early 2017. I appreciate that by her delay in early 2018 the claimant has added only two months to the overall passage of time, but that is not an insignificant period. Consequently, the delay has had an adverse impact on the ability of the respondent to defend itself fairly.[44]Taking into account all these factors, and applying the test set out in the legislation, I decided the claimant had failed to show it would be just and equitable to extend time. Even acknowledging the very difficult circumstances affecting her in late 2017 and early January 2018, the claimant was responsible for the claim being lodged late, and the delay has adversely affected the respondent’s chances of defending itself fairly against her allegations. As a consequence, the claims were dismissed.
Introduction
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing her claim because it was brought out of time. That application was contained in a six page document attached to an email of 31 October 2018 with some copy documents attached.[2]Written Reasons for my judgment were subsequently sent to the parties on 8 November 2018.[3]On 21 November 2018 Regional Employment Judge (“REJ”) Parkin wrote to the claimant asking her if she was making a complaint of judicial misconduct, and seeking confirmation that her application for reconsideration had been copied to the respondent as the rules require.[4]There is no reply on the Tribunal file, but the claimant lodged an appeal with the Employment Appeal Tribunal on 29 November 2018 using the same documentation. The lodging of an appeal does not prevent a Tribunal dealing with a reconsideration application, not least because if the application succeeds the appeal might become unnecessary.[5]On 18 December 2018 I instructed that the Tribunal should send a copy of the application to the respondent and that the respondent had until 11 January 2019 to make any comments.[6]On 8 January the respondent indicated by email it was happy for me to proceed as I saw fit. The claimant also supplied some further comments by email of 8 January, suggesting that REJ Parkin had dealt with the hearing on 15 October 2018, not me. I took this material into account as well as the claimant’s original application.[7]References in square brackets (e.g. [25]) are references to paragraph numbers from the Written Reasons.
The Law
[8]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[9]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[10]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay.[11]Achieving finality in litigation is part of a fair and just adjudication. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016. It has also been the subject of comment from the then President of the Employment Appeal Tribunal in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 (paragraph 34) in the following terms: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” The Application[12]The claimant raises a number of different points in her application which I will address in turn. Respondent’s representative[13]The claimant says that the identity of the respondent’s representative was not the same as the person she believed would be attending. Unsettling as this might be for a litigant representing herself, it does not provide any grounds for reconsidering the judgment. Identity of Judge[14]In her initial application the claimant complained that the Judge should have been REJ Parkin but that I replaced him. That is due to a misunderstanding on her part. The hearing was never listed before REJ Parkin. When the file was transferred to the North West region a letter of 21 June 2018 informed the parties that REJ Parkin had directed that there would be a preliminary hearing to determine the time limit issue. The letter did not say that the hearing would be before him.[15]The original date for the hearing was 31 August 2018. As REJ he controls listing matters, and in that capacity decided that it would be postponed because of a lack of judicial resource. That was confirmed to the parties by email of 30 August 2018. Again that email was not intended to be an indication that REJ Parkin was going to deal with the hearing personally.[16]It was rearranged for Monday 15 October 2018. The electronic copy of the final cause list retained on the Tribunal’s systems shows that it was allocated to me, and my name appeared on the cause list displayed on the public notice boards in Alexandra House. I introduced myself by name to the representatives at the start of the hearing, as I do at every hearing. The claimant did not tell me that she expected REJ Parkin to be hearing the case. Had she done so I would have explained the position. This provides no grounds for reconsidering my judgment.[17]Further, in her email of 8 January 2019 the claimant appears to suggest that the hearing was conducted by REJ Parkin not by me. That is simply incorrect. The claimant is unfortunately confused about this. Lack of Concern[18]The claimant next complains that I showed no concern for the fact she had been unwell, and did not enquire how she got to Manchester, despite the medical evidence in the bundle.[19]At the start of the hearing I had not read the bundle of documents, but only the Tribunal file. After an initial discussion lasting about 15 minutes I adjourned to read the documents, and the hearing resumed about half an hour later. I was concentrating on the factual and legal issues with which I had to deal, and I regret if the claimant was offended by what she wrongly perceived as a lack of concern on my part for her wellbeing. Had she shown any signs of being injured or unwell during the hearing I would have raised that with her. Conduct of Mr Hills[20]The claimant complains about the way Mr Hills conducted the case for the respondent. Part of my role was to ensure that the questioning remained appropriate and I was satisfied that this was the case. I do not recall any “badgering” of the claimant, outbursts or improper accusations on his part.[21]The claimant also alleges that I “conferred with Mr Hills”. I did engage in discussion with Mr Hills, as indeed I did with the claimant, but I took care to explain to the claimant what was being discussed if it was not absolutely plain. I had no contact with Mr Hills save during the public hearing in front of the claimant. Medical Evidence[22]The claimant suggests that I disregarded the medical evidence. On the contrary I was careful to take it into account. I took account of the letter from her General Practitioner in June 2018 - see [31] and [39]. Bereavements[23]The claimant suggested that I was “unkind and cruel” in relation to her bereavements. I reject that contention. I acknowledged the significance of the bereavements at [31] and took their impact on the claimant into account at [41]. I recognised the “very difficult circumstances” affecting the claimant at the time at [44]. Timescales[24]In a section of her reconsideration application headed “timing of appeal” the claimant suggests that I prevented her checking her mobile telephone and that it would have made a difference to my understanding about the timings.[25]In fact the timescale she sets out there was broadly the timescale I understood her to be putting forward. I found as a fact that she contacted ACAS again in mid February 2018 [24] and that she did not get any advice until the very end of March 2018 [25]. Other Factual Issues[26]The claimant also relies on discussions about whether events had been documented and the effect of the car incident in November 2017. The points raised by the claimant were points that I took into account in making my decision.
Conclusions
[27]Broadly, therefore, the points raised by the claimant in her application of 31 October 2018 either provide no grounds for reconsideration of the judgment, or were matters which were taken into account at the time.[28]That leaves the overarching allegation of bias on my part, which is not a matter which is suitable for reconsideration by the Judge who made the decision. The claimant will have to pursue that issue in her appeal.[29]For these reasons I am satisfied that despite the points made by the claimant there is no reasonable prospect of the original decision being varied or revoked. I reject the application for reconsideration.
Conclusions
[1]The claimant was employed as a Sales Adviser by Jaeger Retail Limited between November 2016 and September 2017.[2]On 3 April 2018 she presented a claim form complaining of age discrimination, disability discrimination and sex discrimination.[3]The response form of 3 May 2018 denied that there had been any discrimination but said that the claim had been presented out of time.[4]The question of time limits was set for a preliminary hearing on 15 October 2018. I heard the case and decided that it was not just and equitable to extend time. The claim was dismissed.[5]My written Judgment confirming that was sent to the parties on 17 October 2018. The Written Reasons for that Judgment were sent out on 8 November 2018.[6]The claimant applied for reconsideration of my judgment in October 2018. I rejected that application in a Judgment and Reasons sent to the parties on 23 January 2019. Appeal to the Employment Appeal Tribunal[7]On 29 November 2018 the claimant had filed an appeal against the October 2018 judgment.[8]The appeal was heard by the Employment Appeal Tribunal on 1 November 2019. The appeal was allowed, and the matter was remitted to a differently constituted Tribunal for a re-hearing of the time limit point. Appeal to the Court of Appeal[9]Regional Employment Judge Parkin held a case management hearing by telephone on 9 April 2020 to make progress in the Employment Tribunal case. The respondent had indicated that it was planning to appeal to the Court of Appeal, and by agreement the case was stayed until the conclusion of that process.[10]On 1 July 2020 I succeeded Judge Parkin as Regional Employment Judge. I asked the parties for an update, and I was told that permission to appeal had been granted by the Court of Appeal and a hearing date was awaited. I confirmed on 15 August 2020 that the case would remain stayed in the Employment Tribunal until the outcome of that appeal to the Court of Appeal.[11]The appeal was withdrawn in February 2021 (see below) but the Tribunal was not informed of that. Administration[12]On 19 November 2020 the respondent went into administration.[13]Under schedule B1 of the Insolvency Act 1986 that meant that any legal proceedings against the company were stayed and could only proceed if permission were granted by the court dealing with the insolvency, or by the administrator.[14]This was confirmed to the claimant (through her then representative, Mr Jones) by a letter of 25 March 2021. The letter said: “You should decide whether to ask the Administrator for such consent or whether to apply to the court for such permission. If you obtain the consent of the Administrator or the permission of the court, you should send a copy to this office immediately. Otherwise an Employment Judge will consider your claim in 6 months. You will then be asked whether you have applied to the Administrator or to the court and, if so, with what result. If no such application has been made (or if it has been refused) the Judge may then ask you to give reasons why your claim should not be struck out because it is not being actively pursued.”[15]On 22 October 2021 I wrote to both sides asking for an update on the progress of the appeal and whether to consent to proceed was to be granted by the administrators. The claimant replied promptly saying that the administrators had declined to give consent for the claim to proceed, and that she had taken advice on potentially applying to the court for permission but understood that would expose her to a risk of costs, which she could not afford. She asked that if the claim could not proceed, it should remain stayed to await the possibility that the respondent might come out of administration.[16]In November 2021 the claimant provided to the Tribunal a copy of an order sealed by the Court of Appeal on 3 February 2021 which showed that the appeal by the respondent had been withdrawn.[17]That meant that the only proceedings which were stayed as a consequence of the administration were the proceedings remitted to the Employment Tribunal.[18]In the months that followed letters of the following dates were sent by the Employment Tribunal confirming that the stay would remain in place:•10 March 2022•3 August 2022•5 January 2023•18 May 2023•18 August 2023[19]I was prepared to allow the case to remain stayed as I recognised that the claimant was hoping the respondent would come out of administration and the stay could be lifted. The case would have been progressed in the Employment Tribunal in 2020 had the respondent not sought to appeal to the Court of Appeal prior to going into administration and then withdrawing the appeal.[20]However, during all this time the respondent company remained in administration. The case did not proceed. Final Strike Out Warning[21]On 18 January 2024 the Tribunal wrote to the claimant saying that the respondent remained in administration, all proceedings were stayed, and it did not appear that the claimant had taken any steps to get permission for the claim to be pursued. The letter continued: “In the circumstances Regional Employment Judge Franey proposes to strike out the claim because it has not been actively pursued. If the claimant objects she should make written representations within 28 days, or request a hearing at which she can do so.”[22]There was no reply from the claimant. She did not object or request a hearing in order to do so.[23]The power to strike out a claim arises under rule 37 of the Employment Tribunal Rules of Procedure 2013. Rule 37(1)(d) enables a Tribunal to strike out all of a claim on the ground that it has not been actively pursued.[24]The claimant had approached the administrators who said they would not consent to it proceeding. The only way in which the claim could then be actively pursued would be by the claimant making an application to the court. She has chosen not to do so in the hope that the company might come out of administration.[25]The company has now been in administration, and these proceedings stayed, for well over three years.[26]The claimant has not actively pursued this case and in the absence of any objections from the claimant, or any indication that she is going to apply to the court for permission, it is now struck out.