Mrs E Lew-Gorzynska and Mr I Lew-Gorzynski v David Cargill House: 4105998/2022 and 4105999/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105998/2022, 4105999/2022, 4102119/2023

Venue Glasgow

Hearing 23 June 2023

Between

Mrs E Lew-Gorzynska and Mr I Lew-GorzynskiClaimant

David Cargill HouseRespondent

Before

Employment Judge M Robison

Mr G Cunningham (instructed by Counsel) for respondent

Date 11 July 2025

JUDGMENT

The Employment Tribunal has no jurisdiction to hear the second claimant’s claim (number 4105999/23) on the grounds that it is time barred. That claim is therefore dismissed. The first claimant’s claim proceeds, having been combined with her subsequent claim number 4102119/2023.

REASONS

[1]This preliminary hearing was listed on 6 March 2023, to consider the following: “whether or not the Tribunal has jurisdiction to hear the second claimant’s claims, or any of them, on the basis that the claims are time-barred; and in doing so, to consider whether there were any post-termination acts alleged by the second claimant, or a series of continuing acts, which operated to extend the time limit for presentation of his claims”.

[2]This claim relates to claims for breaches of both the Equality Act 2010 and the Employment Rights Act 1996 being pursued by the first claimant and the second claimant, who are mother and son, and who both worked for the respondent.

[3]The second claimant was dismissed on 18 April 2022 and pursued an unsuccessful claim for unfair dismissal (4103524/2022). The first claimant had pursued a successful claim for unpaid wages (4100160/2022) while still employed by the respondent, subsequently lodged this claim, after which she resigned and lodged a further claim (4102119/2023) claiming unfair constructive dismissal. That claim was combined with this one in an order made by the Employment Tribunal on 30 June 2023. Postponement request

[4]Prior to this hearing, on 19 June 2023, the second claimant sought a postponement of this hearing on the grounds that he had not received the notice of hearing. That however had been refused on the basis that he had known that this hearing was to consider the above question since the preliminary hearing on 6 March 2023 which he had attended in person, and that it related to the narrow issue of time bar only.

[5]At the outset of the hearing, the claimant pointed out that he had applied for a postponement and indicated that he was not prepared for this hearing. He had not lodged any productions. He repeated his position throughout his evidence. At one point the first claimant interjected to renew the application for a postponement.

[6]I did not grant a postponement of the hearing, because there had been no change in circumstances since the decision to refuse the postponement had been made on 19 June 2022.

[7]At the outset of the hearing, the second claimant also advised that he had understood that this hearing was to relate only to whether the discrimination claim was time barred. However, it is clear from EJ Macleod’s note following the preliminary hearing on 6 March 2023 that this hearing was listed to consider time bar in respect of all of the claims.

[8]The second claimant also stated at the outset that he thought that the decision would be based on legal submissions only, and he had not appreciated that he would require to give evidence, and had not prepared to do so. I explained to him that given the legal questions which I had to determine, it was necessary for him to give evidence to explain his position.

[9]During evidence, the second claimant advised that he was not prepared to answer some questions because he had understood that the only issue to be considered was whether his discrimination claims were time barred. However, as I advised, his evidence related to the factual background in respect of which there was no requirement for preparation, and he did ultimately answer the questions he was asked.

[10]During the course of giving evidence the second claimant referred to letters which he said that he had on his laptop but he had not lodged. He also referenced further alleged acts of post-employment discrimination which took place after the ET1 was lodged and it transpired he had referenced in the further particulars, but without giving details. He advised that he wished to amend his claim to add those details.

[11]I considered however that it was appropriate to proceed to conclude the second claimant’s evidence and to deal with the matter raised at this hearing.

[12]I advised that if I considered following the conclusion of the hearing that it was not possible to make a decision based on the evidence that I had heard and the paperwork lodged to date, that I would reconsider my position. I also advised that if the claim were to proceed, the second claimant would be entitled to make an application to amend to add any further allegations of discriminatory treatment.

[13]As it transpired, the hearing was adjourned at the conclusion of the evidence of the second claimant because he became unwell, as fully narrated in the note issued on 27 June 2023 following this preliminary hearing. No further witnesses were due to be called in any event.

[14]I directed that written submissions should therefore be lodged, so that the second claimant had a further week to provide written submissions, which both he and the respondent did on 30 June 2023.

[15]Further and in any event, I decided that I could make the decision based on the material I had before me. With regard to the letters which the second claimant referenced, although he had not lodged them, there was no challenge to their existence or content in cross examination. I was prepared to accept the evidence of the second claimant about them and their content in its entirety.

[16]Further, an opportunity to amend to add details about an alleged act of discrimination which took place after the ET1 form had been lodged would make no difference to the question of whether the ET1 form itself had been lodged out of time.

[17]Reference is made in this judgment to productions which were lodged by the respondent. Findings in fact

[18]Based on the evidence that I heard at this hearing and the productions lodged, I make the following relevant findings in fact.

[19]The second claimant was employed by the respondent from around 2011. He was dismissed on 18 April 2022.

[20]On or around 19 April 2022, he wrote to the chair of the trustees of the respondent, Mr Norman Fyfe, alleging that documents had been forged by managers employed by the respondent in an employment tribunal claim pursued by his mother (the first claimant) against the respondent relating to unpaid wages (4100160/2022). The consent judgment relating to that case (held in Glasgow on 22 March 2022) was lodged at page 151.

[21]The second claimant received no response from Mr Fyfe or the respondent to the letter dated 19 April 2022. He sent another letter about a month later, around 20 May 2022, advising that he had not had a response, and attaching the letter again.

[22]On 27 June 2022, the second claimant lodged a claim for unfair dismissal, notice pay, holiday pay and breach of contract (4103524/2022).

[23]On or around 11 or 12 August 2022, the second claimant wrote again to Mr Fyfe, repeating the allegations that he had previously made that two managers of the respondent had forged documents. Mr Fyfe replied by e-mail stating that he would not comment on Tribunal matters.

[24]Also on 11 or 12 August 2022, the second claimant sent another letter in which he reported to Mr Fyfe his belief that his mother (the first claimant, who was then still employed by the respondent) was being bullied, harassed and discriminated against at work.

[25]By e-mail dated Friday 12 August 2022, Mr Fyfe advised that he would investigate the matter.

[26]On Monday 15 August 2022, Mr Fyfe advised that having investigated the matter that he had found nothing to support the allegations which the second claimant had made about his mother’s treatment.

[27]The second claimant was surprised to receive that response so quickly, because he thought that it would not be possible to investigate such a serious allegation in one working day, and he would expect that both he and his mother would have been interviewed.

[28]On or around 15 August 2022, the second claimant wrote to Mr Fyfe, disagreeing with the conclusion he reached following the investigation.

[29]Mr Fyfe replied within a day or two that that was the final response of the committee and the decision stands.

[30]The second claimant’s position is that it was at that time that he realised that he had been discriminated against because he had reported his allegations to the manager that line managers employed by the respondent had been forging documents and discriminating against his mother. He believed that he had not been treated the same as other employees in the workplace.

[31]On 22 September 2022, the second claimant then made an application to amend his claim for unfair dismissal (4103524/2022) to add a claim for race discrimination. That application to amend (which the second claimant described as to change the label) was heard on the first day listed to hear the final hearing in that case, that was 26 October 2022. That application was refused in an oral judgment issued that day (page 153).

[32]That case then proceeded to a final hearing, heard 27 and 28 October and 8 and 9 December 2022, after which the second claimant’s claims for unfair dismissal, wrongful dismissal, and holiday pay were dismissed (page 153).

[33]Following the first two days of the final hearing, the second claimant requested and was sent written reasons in regard to the refusal of the amendment dated 31 October 2022.

[34]On 7 November 2022, the first and second claimants contacted Acas to initiate early conciliation in relation to these claims.

[35]On 9 November 2022, early conciliations certificates were issued (page 33 and 34).

[36]On 12 November 2022 the first claimant lodged this claim in regard to her own claim as well as that of her son (the second claimant) on one claim form (described as a “multiple” because there was more than one claimant) (page 8).

[37]These claims included allegations by both claimants that they had been discriminated against because of their race by the respondent.

[38]The second claimant knew that there was a three month time limit for lodging such claims, but understood this ran from the date of the last act of discrimination, which he alleged was the letter from Mr Fyfe dated 15 August 2022.

[39]From that date until after 26 October 2022, the second claimant was preparing for the final hearing in his unfair dismissal case (4103524/2022), in respect of which he was representing himself. It was only after that that he had time to consider his position and to lodge this claim alleging discrimination.

[40]Following a case management preliminary hearing in relation to this claim, at the request of EJ Hoey (page 50), the second claimant lodged further particulars of his claim in February 2023 (page 72). This included further details of his race discrimination claims as well as details about claims for protected interest disclosure detriment, unauthorised deductions from wages and breach of contract. Tribunal deliberations and decision

[41]It is submitted by the respondent that the claims sought to be pursued by the second claimant in this case are all time barred.

[42]The second claimant was dismissed on 18 April 2022. He lodged a claim for unfair dismissal, as well as wrongful dismissal, breach of contract and unpaid holiday pay, on 27 June 2022 (4103524/22). He sought to add claims for race discrimination but his application to amend to include such claims was refused (see decision of EJ Maclean 31 October 2023).

[43]He subsequently lodged this claim (4105999/22) in a “multiple” with his mother as the lead claimant (4105998/22). An ET1 was lodged on 12 November 2022 which referenced only race discrimination. Further particulars were lodged in February 2023 on the direction of EJ Hoey when the second claimant provided further details of the race claim, but also added claims of protected disclosure detriment, deductions from wages and breach of contract.

[44]As discussed at the hearing, the legal tests in relation to the claims for discrimination and the other claims are different. I therefore considered the discrimination claims first, that is the provisions of the Equality Act 2010, before considering the other claims under the Employment Rights Act 1996. Time bar - discrimination

[45]In regard to the discrimination claims, section 123 of the Equality Act 2010 requires that proceedings are brought within three months of the date of the act of discrimination alleged.

[46]With regard to the date of the discrimination being complained about, in this case the second claimant’s claims are contained in the ET1 and further particulars, listed separately from the claims being pursued by the first claimant, his mother.

[47]The ET1 references only a claim for race discrimination in regard to the holding of the disciplinary hearing and in being dismissed following that hearing (page 32).

[48]The second claimant makes further reference to allegations of discrimination in the further particulars, which he says continued for 11 years, but he specifically references incidents (without giving details) between 2017 and January 2022, that is when he was still employed by the respondent.

[49]However, the second claimant also makes allegations that he was discriminated against after he was dismissed. He alleges that the last act of discrimination was the letter which Mr Fyfe sent to him dated 15 August 2022, which was a reply to the second claimant’s letter alleging that his mother had been discriminated against, harassed and bullied. Post-employment discrimination

[50]The second claimant argues that there was a continuing course of conduct, such that the discrimination which he alleges occurred on 15 August 2022 was the last act in a series of acts of discrimination which amount to a continuous course of discriminatory conduct.

[51]He thus relies on section 123(3) of the Equality Act 2010, which states that for the purpose of determining time limits, conduct extending over a period is to be treated as done at the end of that period.

[52]The second claimant seeks to rely on alleged discrimination which occurred after he was dismissed as the last act of conduct extending over a period. The claimant relies on section 108 of the Equality Act 2010 which allows a claimant in certain circumstances to pursue a claim after the end of the employment relationship.

[53]In particular, section 108(1) of the Equality Act 2010 relates to “relationships which have ended” and states that a person must not discriminate against another if “the discrimination arises out of and is closely connected to a relationship which used to exist between them; and conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act”.

[54]Thus discrimination which takes place after a claimant has left their employment is covered by the Equality Act 2010, and section 108 makes it clear that a person will discriminate against another where any discrimination arises out of and is closely connected to a relationship which used to exist between them. There is therefore no doubt that on the face of it the second claimant can pursue claims of discrimination after his employment has ended, and that the last act in the series could potentially occur after he had been dismissed.

[55]In this case the second claimant references being discriminated against by management and states in the ET1 that that the last discriminatory act took place on August 15. Although as Mr Cunningham argued there was little detail or specification relating to what was being referenced in either the ET1 or subsequent further particulars lodged, it was apparent from the papers lodged and from the second claimant’s oral evidence that this is a reference to the reply from Mr Fyfe following his letter of complaint dated 12 August 2022.

[56]The second claimant’s position therefore is that the discrimination continued after he had left employment. Although he said in his ET1 that the last act of discrimination was 15 August, he references in his further particulars events subsequent to his dismissal that he relies on five different acts of discrimination post dismissal, as follows: the letter of April 2022 sent to Mr Norman Fyfe, the second letter to him in August 2022, a threatening e-mail in the respondent’s name in September 2022, the opinion of the respondent from his ET3 that he is being harassed by the second claimant, and refusal of entry to the premises in December 2022 and January 2023.

[57]Mr Cunningham argues that in general there is insufficient specification of the acts identified to satisfy the statutory test under section 108, in particular:a. none of the correspondence identified has been lodged with the Tribunal;

b. the second claimant did not give oral evidence about it during the hearing;

c. it is not clear whether the April letter was before or after the dismissal;

d. there is no specification of how the respondent not replying to that letter could constitute discrimination;

e. this is a letter which the second claimant wrote in April 2022 in which he alleges that certain managers employed by the respondent had forged documents in relation to his mother’s previous claim (41000160/22) in respect of which there was a consent judgment issued 22 March 2022;

f. correspondence from the second claimant to the respondent could not constitute acts of the respondent;

g. it is not possible to construe the letter from Mr Fyfe dated 15 August as conduct amounting to discrimination against the second claimant;

h. There is no specification of the actual conduct which took place in September 2022, neither is the actual date identified;

i. The refusal of entry to the building appears to be the same conduct previously identified.

[58]I therefore had to consider whether the alleged last act of discrimination on August 15 could amount to discrimination if proved. It is self-evident however that the last act in the series must itself be found to be an act of discrimination, otherwise they cannot form part of the continuing act.

[59]With regard to the operation of section 108, it is not sufficient merely to show a close connection between the two parties, but it must relate to a relationship which used to exist between them (See Butterworth v Police and Crime Commissioners Office for Greater Manchester

2016 ICR 456

EAT).

[60]While in principle I accept acts of post-employment discrimination could form part of a continuing act of discrimination, for section 108 to be properly relied on in this case, the second claimant would require to show that any alleged discrimination arises out of and is closely connected to a relationship which used to exist between them, and which would otherwise have constituted discrimination if it has occurred during his employment.

[61]In this case the second claimant argues that the sending of the letter of August 15 is an act of post-employment discrimination. Although the claims are lacking in detail, it is clear, and the second claimant confirmed in evidence that, the letter and its contents relate to his mother’s case and how she was allegedly treated and not how he was treated. The discriminatory treatment that he alleges took place during his employment is different. In this case, the letter of August 15 is a response to an allegation made by the second claimant about his mother’s previous employment tribunal decision. It does not relate to his employment relationship with the respondent. Even if the second claimant was not employed by the respondent he could well have written that letter on behalf of his mother.

[62]I conclude therefore that this act does not relate to their relationship as employer/employee. I conclude that the acts relied on cannot properly be categorised as post-employment discrimination by the respondent of the second claimant. There is no reasonable prospect of the second claimant successfully establishing that this was an act of discrimination against him.

[63]Although the claimant has referenced other acts of post-employment discrimination, these are not specified and in any event he states in terms that the letter of 15 August 2022 was the last act of discrimination, the claimant did not mention in evidence any of the other incidents which might be categorised as post-employment discrimination. Continuing act

[64]Even if the letter of 15 August 2022 could in principle form the basis of a claim for post-employment discrimination by the second claimant, the second claimant would also require to prove that this forms a course of conduct following on from discrimination which he alleges took place in respect of his dismissal and treatment prior to that.

[65]The second claimant’s position is that the discrimination, which he alleges he was subjected to during employment, continued after he had left employment.

[66]As noted above, section 123(3) states that for the purpose of determining time limits, conduct extending over a period is to be treated as done at the end of that period.

[67]The second claimant in this case alleges that letters written in April and August 2022 and the response or lack of response to them are aspects of continuing discrimination against him following his dismissal. His position is that the last act of discrimination, before lodging his claim, took place on 15 August 2022, which would make the claim in time.

[68]The second claimant must establish that there is a continuing act, and the test is whether there has been a continuing state of affairs as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed (see Hendricks v Commissioner for Police for the Metropolis

[2003] ICR 530

at 545, para [52]).

[69]The question is whether there is continuing discrimination or a series of distinct acts. Where there is a series of distinct acts, time will begin to run when each act is completed. Continuing acts would imply a continuing state of affairs.

[70]Here the second claimant relies on his allegedly discriminatory disciplinary hearing and dismissal and subsequent reply to a letter relating to his mother’s claim. These acts are not however connected in any way. One relates to treatment of him and the other relates to treatment of his mother. Thus it cannot be said that the reply to the letter forms part of a continuing act of discrimination against him because there is no link between the letter and his treatment by the respondent. If the reply to the letter is capable of amounting to discrimination at all, it may be discrimination against the first claimant, it does not relate to the second.

[71]Relying on Pugh v The National Assembly for Wales

UKEAT/0251/16

at [50]), Mr Cunningham argued that the Tribunal should reject any argument that the acts constitute conduct extending over a period because the averments do not disclose a good arguable case or prima facie case of such conduct.

[72]I agreed that an act which cannot in principle amount to discrimination against the second claimant cannot form part of a continuing state of affairs. As discussed above, the second claimant’s case as evidenced by him does not disclose a prima facie case of discriminatory conduct against him. Date of the last act of discrimination

[73]If then the last act of discrimination alleged in relation to a claim by the second claimant is properly his dismissal, which he alleges is discriminatory, then the last act of discrimination must be the date of his dismissal which was 19 April 2022. On the face of it then, he should have lodged any claims relating to any alleged discrimination occurring during his employment within three months of that date, that is by 17 July 2022.

[74]Acas early conciliation was not intimated until 7 November 2022. This is after the primary time limit, and therefore the second claimant cannot avail himself of any early conciliation extensions.

[75]The claim in this case was lodged on 12 November 2022. The claim was therefore lodged some four months outwith the three month limit in regard to any alleged acts of discrimination taking place during his employment.

[76]On the face of it, this claim was lodged out of time. Just and equitable extension

[77]In terms of section 123(1)(b) of the Equality Act 2010, where the claim is not brought within three months of the last act of discrimination, the Tribunal has discretion to extend time by such other period as the Tribunal considers just and equitable.

[78]A Tribunal has a very general broad discretion on the just and equitable question and can have regard to all relevant facts and circumstances. Mr Cunningham referred the Tribunal to examples of factors given in guidance in British Coal Corporation v Keeble

1997 IRLR 336

), namely:a. Prejudice;

b. The length of, and reasons for the delay;

c. The extent to which the cogency of evidence is likely to be affected by the delay;

d. The extent to which the party sued has co-operated with requests for information;

e. The promptness with which the claimant acted once he knew the facts giving rise to the cause of action; and

f. The steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action.

[79]The Court of Appeal in Southwark London Borough Council v Afolabi

2003 ICR 800

confirmed that these factors are guidance for tribunals, but two factors are almost always relevant when considering the exercise of any discretion whether to extend time: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent.

[80]Mr Cunningham submitted that the length and reason for the delay in this case favours refusing an extension of time. The reason given by the second respondent was that he was too busy attending to his unfair dismissal claim. The allegations of discrimination go back 11 years, which the Tribunal should take into account.

[81]While I noted that the second claimant references (in his further particulars lodged February 2023) discrimination going back 11 years, he gives examples only of incidents between 2017 and 2022 while he was at work. While the second claimant now argues that his disciplinary hearing and dismissal were discriminatory, he lodged a claim for unfair dismissal on 27 June 2022 but did not include any claim for discrimination.

[82]With regard to the reasons for the delay, these appear to be two-fold. Principally, the second claimant’s position is that it was not until he received the letter of 15 August 2022 that he came to believe that he had been discriminated against. It is unclear what it was that made him come to that view, because the correspondence related to treatment of his mother. In any event, he did not at that time seek to lodge a claim for discrimination because he said that he was too busy preparing for the hearing in his unfair dismissal claim. The claimant did however seek to amend his unfair dismissal claim to include a claim for discrimination, but he did not intimate such a claim until 22 September 2022.

[83]Although the amendment was refused, it is accepted that the test applied by a Tribunal to decide whether an amendment should be accepted, and the test to determine whether a new claim has been lodged in time, are different.

[84]I consider it to be significant that the second claimant now claims he has been discriminated against for 11 years and references incidents from 2017. He lodged a claim of unfair dismissal in June 2022, but did not include any reference to these alleged acts of discrimination.

[85]The second claimant confirmed in evidence that he was aware of the three month time limit for lodging claims. He had already lodged and was pursuing a claim for unfair dismissal in this Tribunal which he had lodged in time. He could have, but did not, include a claim for discrimination at that time.

[86]I take account of the fact that although the second claimant claims he was discriminated against for the whole period of his employment, he apparently did not recognise that any of the conduct that he claims he was subjected to might be discriminatory until August 2022. It is unclear what it was about the reply on 15 August 2022 that led him to believe that previous treatment may have amounted to discrimination. The claims which the claimant now makes that he was discriminated against lack detail and specification.

[87]An employment tribunal is entitled to consider the merits of the claim and the prospects of success when deciding whether it is just and equitable to extend time. In this case, I take account of the fact that the claimant himself did not recognise his treatment as discriminatory after 11 years in the job, that he only came to believe that he was being discriminated against when he got a reply to a letter after he had been dismissed which related to his mother’s claim and not his own, and he has failed to set out full details of the alleged discrimination in the ET1 and further particulars. While the second claimant claims discrimination, he took no steps to lodge a claim, although he was aware that he could lodge a claim in the employment tribunal from at least June 2022 when he lodged his claim for unfair dismissal.

[88]On the matter of prejudice to the respondent, I accepted that the respondent will be prejudiced if the claimant is now permitted to pursue a claim for discrimination which he alleges stretches back for 11 years, and in respect of which he relies on incidents from 2017. Even if the claimant had provided details of the instances on which he seeks to rely, it is inevitable that the cogency of evidence will have been affected by the delay in lodging the claim.

[89]In all these circumstances, I conclude that it would not be just and equitable to extend time in this case.

[90]However, I consider it appropriate to point out that the letters which the second claimant wrote after his dismissal apparently relate to treatment of his mother, the first claimant. The first claimant’s claim will proceed and the allegations that the incidents which the second claimant complains about after he was dismissed will be considered in the context of her claim, given they are referenced in the first claimant’s ET1 and further particulars. Accordingly these incidents will be aired in the Tribunal, although in the claim pursued by the first claimant and not the second claimant. The other claims

[91]The second claimant was invited by EJ Hoey to provide further specification of other claims it is understood that he had advised he intended to pursue at a case management preliminary hearing which took place on 16 January 2023.

[92]These claims relate to public interest disclosure detriment, unauthorised deductions and breach of contract. The claimant did not reference these claims in his ET1 but included them in the further particulars which he lodged in February 2023. It is apparent from the further particulars that these allegations relate primarily to treatment of the second claimant during the period of his employment. As noted above the claimant was dismissed on 18 April 2022.

[93]Complaints about detriment following a protected disclosure under section 48 of the Employment Rights Act 1996 must be lodged within three months of the detriment which a claimant claims to have suffered as a result of making the protected disclosure. The second claimant in his further particulars references disclosures which he made in 2021 and 2022, including the letters to Mr Fyfe in April and August 2022. Whether those letters could be categorised as a protected disclosure is a matter that would require to be determined, but in any event the claimant makes no reference to any detriment which he has suffered as a result of these disclosures. Given the claimant’s employment was terminated in April 2022 and no reference is made to any detriment suffered subsequently as a consequence of making the disclosures, it is apparent that the latest time would run would be from the date of the termination of his employment.

[94]Claims for unlawful deductions from wages (under section 13 of the Employment Rights Act 1996) must also be lodged within three months of the date of the last deduction. Again the last possible time when a deduction would be made would be when the claimant’s employment was terminated in April 2022.

[95]A breach of contract claim must also be lodged within three months of the date of termination of the contract giving rise to the claim (Article 7 of the Employment Tribunals (Extension of Jurisdiction Scotland Order 1994).

[96]It is apparent therefore that these claims should have been lodged within three months of the termination of the claimant’s employment, which was 18 April 2022, and therefore they should have been lodged by 17 July 2022. On the face of it, these claims have been lodged out of time.

[97]In regard to each of these types of claims, the Tribunal is given discretion to allow late claims where it was not reasonably practicable to lodge a claim, provided the claim was lodged within a reasonable time thereafter.

[98]Where the claim is lodged out of time, the tribunal must consider whether it was not reasonably practicable for the claimant to present the claim in time, the burden of proof lying with the claimant. If the claimant succeeds in showing that it was not reasonably practicable to present the claim in time, then the tribunal must then be satisfied that the time within which the claim was in fact presented was reasonable.

[99]The Court of Appeal set out the correct approach to the test of reasonable practicability (Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

). Lord Justice Underhill summarised the essential points as follows:a. The test should be given “a liberal interpretation in favour of the employee” (Marks and Spencer plc v Williams-Ryan

[2005] EWCA Civ 479

, which reaffirms the older case law going back to Dedman v British Building & Engineering Appliances Ltd

[1974] ICR 53

);

b. 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 claimant to present his or her claim in time: see Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

….

c. If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will [not] have been reasonably practicable for them to bring the claim in time (see Wall’s Meat Co Ltd v Khan

[1979] ICR 52

); but it is important to note that in assessing whether ignorance or mistake are reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made;

d. If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman)…

e. The test of reasonable practicability is one of fact and not law (Palmer).

[100]The claimant lodged these claims more than four months out of time. Even then these claims were not included in the ET1 which was lodged in November 2022, but they were added through further particulars which were lodged in February 2023.

[101]In this case the claimant said in evidence that he was aware of the three month time limit.

[102]It is particularly significant that in this case that the claimant lodged a claim for unfair dismissal within the three month time limit. That included a claim for breach of contract. It cannot therefore be said then that it was not reasonably practicable or reasonably feasible to have lodged the claim in time when the claimant had managed to do so within the correct time limits for the unfair dismissal claim. The claimant otherwise gave no reason in evidence why had lodged these particular claims late.

[103]I conclude that these claims were lodged out of time, that the claimant could have presented these claims within the three month time limit, and therefore this Tribunal has no jurisdiction to hear them.

Conclusion

[104]I conclude that all the claims which the second claimant seeks to pursue are time barred and therefore this Tribunal does not have jurisdiction to hear them so the second claimant’s claim is dismissed.

[105]This claim will proceed in respect of the first claimant’s claim only, which has been combined with a further claim lodged by the first claimant (4102119/2023), in respect of which a case management preliminary hearing will take place on 26 July 2023.

[1]The respondent runs a care home. The claimant was employed by the respondent as a member of its domestic staff from June or July 2011 until his dismissal on 18 April 2022. On 7 November 2022, he notified ACAS of the current claims under the early conciliation rules. On 9 November 2022, ACAS issued an early conciliation certificate. On 12 November 2022, jointly with his mother, the claimant presented an application to the Employment Tribunal in which he made claims of race discrimination. A Preliminary Hearing (“PH”) was held on 23 June 2023 to determine the issue of time bar and a judgment was sent to the parties dated 17 July 2023. The claimant appealed to the Employment Appeal Tribunal on the ground that he had not had proper notice of the PH. In a judgment dated 24 February 2025, the claimant’s appeal was upheld; the Employment Tribunal’s judgment of 17 July 2023 was set aside and the case remitted to a different tribunal to consider the issue of time bar in relation to the claimant’s complaints of new. Nature of this PH

[2]A PH on time bar takes one of two forms: It either determines substantively whether or not a claim is in time or it determines whether or not a claim should be struck out as having no reasonable prospect of success on a time point. In E v X, L and Z (

UKEAT/0079/20/RN

) (at paragraph 50) the EAT (Ellenbogen J) reviewed the authorities starting with Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA and distilled the key principles to be applied. The following principles are relevant to the present case: “4) It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated, or

(2) substantively to determine the limitation issue: Caterham [Caterham School Limited v Mrs K Rose

UKEAT/0149/19/RN

[12]Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham;” 3. At the CMPH before EJ Macleod on 6 March 2023, the respondent stated that the claimant’s case was time barred because his employment terminated in April 2022 but the claim was not presented until November 2022. The claimant's position was that there had been: “a series of continuous acts which followed the termination of his employment, which extended the period within which he was permitted to present his claim, and accordingly the claim is not time barred.” EJ Macleod decided to list a PH on time bar. He stated at paragraph 14 of his Note: “The purpose of the Preliminary Hearing (Open) is to consider whether or not the Tribunal has jurisdiction to hear the second claimant's claims, or any of them, on the basis that the claims are time barred; and in doing so, to consider whether there were any post-termination acts alleged by the … claimant or, or a series of continuing acts, which operated to extend the time limit for presentation of his claims.” Thus, my understanding of the remit of this PH is that it is to determine substantively whether or not the claims are time barred. This is consistent with the Notice of Hearing in this case, which did not refer to strike out on the ground of no reasonable prospects of success. It is also consistent with the remit from the EAT which set aside the Judgment on time bar in this case dated 17 July 2023 and ‘remitted the preliminary issue of time bar to be decided of new by a different judge’. Issues 4. At the start of the hearing, I went through with the claimant the claims he is making in this case, by reference to the Note of the CMPH before EJ Hoey on 16 January 2023, which was in the bundle of documents (55). The heads of claim set out there are:(i) detrimental treatment for making a protected disclosure;

(ii) direct race discrimination (section 13 Equality Act (“EqA”);

(iii) indirect race discrimination (section 19);

(iv) harassment related to race (section 26);

(v) victimisation (section 27); and

(vi) unauthorised deductions from wages. (The claimant indicated that some of the claims in the PH Note had actually been litigated in earlier proceedings, so I have not included them). By order dated 16 January 2023, the Tribunal ordered the claimant to fully particularise his claims. In a statement (67) by the claimant in response to that order for full written specification, he states: at (68) that he is making a claim of having been subjected to detriment(s) on the ground of having made protected disclosures; and at (72) that he is making a claim of unauthorised deductions from wages. He confirmed that the latest such deduction occurred in March 2022. These claims are not foreshadowed at all in the claimant’s ET1 and no application to amend appears to have been made in respect of them. 5. With regard to the race discrimination claims, from the pleadings and further particulars, it appeared that, in circumstances where the claimant’s employment ended on 18 April 2022 and the claim was notified to ACAS on 7 November 2022 and presented to the tribunal on 12 November 2022, the main issues arising for determination in the context of time bar in the discrimination claim are: (i) whether the post-employment act(s) upon which the claimant relies come under section 108 Equality Act 2010 (EqA) (relationships that have ended); (ii) if so, whether (incorporating the s.108 acts) there was ‘conduct extending over a period’ into the primary limitation period for the purposes of section 123(3); (iii) whether the claimant only became aware of discrimination on or around 15 August 2022 and what caused him to become aware; (iv) if none of the above, whether it is just and equitable to extend time. 6. With regard to the public interest disclosure detriment claim, section 48 Employment Rights Act 1996 (“ERA”) applies to time limits. Section 23 ERA applies to time limits in claims for unauthorised deductions from wages. Evidence 7. The claimant gave evidence on his own behalf. The parties lodged a joint bundle of documents which are referred to by page number. Findings in Fact 8. The following material facts were admitted or found to be proved:- 9. The claimant was employed by the respondent as a member of domestic staff in their care home in the West End of Glasgow from June or July 2011 until his dismissal for misconduct on 18 April 2022. 10. On or about 20 April 2022, the claimant wrote a letter to the respondent in the following terms: “The Committee David Cargill House 6/7 Great Western Terrace Glasgow G12 0UP In light of current situation, I would like to inform you that people participating in modifying the content of legal documents in an illegal way are Linda ArnottMcKenzie and Abi Jebbari, from what is known to me they are still employed at David Cargill House, and they did not bear any responsibility for this. I would like to explain that the illegal document was officially submitted to the Employment Tribunal case number: (4100160/2022 Mrs E Lew-Gorzynska v David Cargill House). It is known to me that there are other cases in which there is no truth in documents and not only. In regard to this I believe that it is very dangerous, from employers’ point of view and his best financial interests and also residents to whom financial documents the above-named people have access to. 11. This letter referred to Employment Tribunal case 4100160/2022, which was a claim that had been brought by the claimant’s mother in 2022, seeking payment of company sick pay. The case had resulted in a judgment by consent in March 2022 awarding the claimant’s mother the sum of £282, being one week’s unpaid sick pay. 12. The claimant did not receive a reply to his letter of 20 April 2022 at that time.

[13]On 27 June 2022, the claimant presented claim number 4103524/2022 to the Employment Tribunal in which he claimed unfair dismissal, notice pay, holiday pay; breach of contract and failure to provide a written statement of terms and conditions of employment (91). The claims were resisted.

[14]After presenting his Employment Tribunal claim 4103524/2022, the claimant searched on the web-site of the Office of the Scottish Charity Regulator (“OSCR”) looking for information about the respondent. He found some of the respondent’s annual return statements, which stated the identity of the chairman and committee members/ trustees of the respondent. The claimant noted that the name of the chairman of the trustees was Norman Fyfe and that he was a solicitor. The claimant had never met Mr Fyfe and did not know of his existence until this point. He googled him and obtained the name of his firm and his firm email address.

[15]On 11 August 2022, the claimant emailed Mr Fyfe at his law firm email address (156). The subject heading of his email was: “Complaint on the David Cargill House management”. The message was sent with high importance. The email stated: “Good afternoon Mr Fyfe, Please see attached 2 letters regarding the above. Waiting to hear back from you. Kind Regards

[16]Attached to the email were a copy of the letter the claimant had sent addressed to “The Committee” on 20 April 2022 and a further letter (157) addressed to “Norman Fyfe, Trustee of David Cargill House – Committee” dated 11 August 2022 in the following terms: “In light of the ongoing Employment Tribunal case regarding my unfair dismissal, I would like to inform you that my mother is still currently employed at David Cargill House since 2007. This is a difficult situation for both parties involved, it’s in no one’s interest to intensify the situation, with this in mind I would like to address to you directly as a person co-responsible for the Committee. On the 10th of August 2022, Linda Arnott-McKenzie one of your employed managers, once again took action to humiliate and harass my mother Ewa Lew-Gorzynska. She is a witness in my case against the management, who dismissed me as a result of their unfair and unlawful action. On 20th April 2022, I have written to David Cargill House – Committee, that these two people have submitted and operated with a modified document in front of the Employment Tribunal in the first case, which you have left without any reply. My mother smokes cigarettes and during her 30-minute unpaid break, she like to be left alone. In David Cargill House, you can’t smoke in the back garden. She goes outside the workplace on a public road and that’s where she spends her break. In the above date of 10th August Linda McKenzie, with the use of Sharon (housekeeper) informed my mother that she cant sit outside (on her privately bought stool), but she has to walk up and down the back public lane, she also needs to close the gate and when she wants to get back in she would have to walk all the way round to get to the front of the terrace, ‘this is apparently for the good of residents, families and neighbours’. Linda does not have any right to interfere with my mother’s free time, she abuses her powers, and her demands are arrogant and derogatory. This also bears signs of bullying and ethnicity discrimination with the fact that my mother doesn’t speak very good English and does not know the local Law. This is deliberate and purposeful bullying, at the same time I would like to point out that the above-named Employment Tribunal cases were brought up only by the action of the 2 managers who are employed by the Committee, and they create confrontational situations, and are disloyal, employees who have already left in big numbers say the atmosphere is ‘toxic’. Rather than speaking and try to reach compromise, they hide evidence, deny facts and they use their position to force ‘their truth’. In this way they cause the cases to go to the Employment Tribunal, because the employee does not have any other means of protection. I want to inform you that in case of any future attempts of bullying and harassment against my mother by any of the managers, we will have to take further actions. I would also like to attach the first letter dated 20th April 2022 which I believe you as the Committee have not received since I have not had any reply. Iwo Lew-Gorzynski”.

[17]By return email dated 11 August 2022 (159) Mr Fyfe responded to the claimant in the following terms: “I am acknowledging your email as requested. I cannot comment on any matters before the Employment Tribunal. I shall respond to your allegations once the matter has been investigated. Norman Fyfe”

[18]At 12:43 on Monday 15 August 2022, Mr Fyfe sent to the claimant an email in the following terms: “Subject: FW: Complaint on the David Cargill House managment [sic] Further to my email below, I have investigated the issues. I have to respectfully advise you that I have found no substance to the allegations you raised in your letter. There is a designated smoking area provided for employees which your mother does not use. Sitting at the back door at the back gate is not appropriate as the back door has been left open on occasion which is a safety hazard for the residents and smoking at the back gate interferes with residents visiting. As far as the mention in your letter of bullying and ethnicity discrimination, these are categorically denied. As stated below, I cannot comment on any matters before the Tribunal but all communications regarding that must be sent to WorkNest direct. Yours sincerely, Norman A. Fyfe”

[19]The claimant responded to Mr Fyfe by email dated 15 August 2025 (162) which he sent at 13:23 attaching a letter dated 15 August 2022 in the following terms: “I have to respectfully advise you that your response is not completely accurate. There is not a separate smoking area for employees. The area you mention is the same area commonly shared by the residents. Currently there is 2 residents who use it, and recently there was around 6 or 7 who are no longer here. In this way management of David Cargill House, passed down the care responsibilities for smoking residents onto the smoking employees during their free time. These residents expected constant conversation and attention from employees, additionally those residents were spitting, vomiting, and even sometimes doing their physical needs, for example AM who Rosemary witnessed. My mother has right to a 30-minute uninterrupted break. She tried to smoke in the garden, somewhere behind stairs but Linda forbids this as smoke was going onto the window. Sitting next to the gate has never been a problem. Doors are often left open for prolong periods of time when the delivery drivers drop supplies off to the kitchen or the house, nobody monitors this, and this is not related to my mother. When my mother was sitting at the door at least that’s when she looked out for that. It’s insulting by Linda to suggest that my mother must walk up and down the lane, and I won’t agree with you that this was not an attempt to harass her because this is not the first incident which was initiated by Linda when my claim was filed to the Employment Tribunal. Currently my mother (after 15 years of working at DCH) is sitting on the side of the wall, and she walks round to get entrance to the building. The same pattern happened when my mother put in a claim for her unlawful deduction of sick pay and that’s when I started having my problems. To your information I was not writing about my claim in the Tribunal but my mother’s case which finished in March with a positive outcome to my mother. If you had the authority to investigate this complaint, then I would also like to remind you that my mother, even though she is entitled to from her written contract she still has not received her Bank Holiday. She has asked for an explanation a few good years ago, but like always the letter was left unresponded. This year Abi, in response to my mother’s letter said, she needs to send him her contract. I believe the escalation done by Linda is not needed for anyone, this is a minor situation which should have been solved rationally.

[20]Mr Fyfe responded the following day by email at 08:39: “Thanks – your comments are noted, but the Committee’s position remains as advised below. Regards, Norman Fyfe”

[21]On or about 22 September 2022, the claimant made an application to amend his unfair dismissal claim (4103524/2022) to incorporate claims of race discrimination (harassment and direct discrimination). The application to amend was opposed and was argued before the Tribunal on 26 October 2022 (the day before the unfair dismissal hearing was due to start). An oral judgment was given refusing the application. The claimant requested written reasons, which were provided. The hearing of the unfair dismissal claim went ahead on 27 and 28 October 2022. It did not finish and was continued to 8 and 9 December 2022.

[22]On 7 November 2022, the claimant notified ACAS of the current claim under the early conciliation rules. On 9 November 2022, ACAS issued an early conciliation certificate. Jointly with his mother, the claimant presented his application in this case (4105999/2022) to the Employment Tribunal on 12 November 2022 in which he made headline claims of direct race discrimination (section 13 EqA); Indirect race discrimination (section 19 EqA); and harassment related to race (section 26 EqA). He stated that his direct discrimination comparators were Ms Arnott-McKenzie and Mr Jabbari, the deputy manager and manager respectively of the respondent care home. He stated: “11. My comparator of direct discrimination is two managers of David Cargill House Linda Arnott-McKenzie and Abi Jabbari, who knowingly used falsified documents in a case (4100160/2022) concerning the sickness benefit of my mother, who is also an employee of David Cargill House. // 12. I pointed out to the person controlling and managing the management about the possibility that Abi and Linda may have committed a crime. It was first sent by letter signed on April 20, 2022. Addressed to the management committee, which is the supervisory body over the management board, and David Cargill House. //a. I informed that the persons conducting proceedings in my case should at least have disciplinary proceedings, because in other proceedings they had the audacity and handed over the fabricated document to the court, hiding documents and putting into circulation false documents. Therefore, they should have been excluded from my case as unreliable and potentially fabricating allegations.

b. the notification remained unanswered and lawyer Norman Fyfe has not taken any action.”

[23]There were the following obvious material differences between the circumstances relating to the claimant’s case and the circumstances relating to each of the two managers (Mr Jebbari and Ms Arnott-McKenzie) whom the claimant had named as direct discrimination comparators: At the time of writing his letter to Mr Fyfe on 11 August 2022, the claimant was an ex-junioremployee who had been dismissed by the respondent for misconduct after an internal disciplinary procedure. The claimant did not know Mr Fyfe, had never met him and had no relationship with him. He had written to him out of the blue making allegations about the respondent’s two most senior employees some months after the end of his employment. He was at that time involved in an unfair dismissal litigation against the respondent in which the respondent was being represented by Worknest, solicitors. By contrast, the two managers were (at that time) current senior employees of the respondent who were likely to have been known by or to Mr Fyfe. They had not been dismissed for misconduct.

[24]In a Note following a CMPH on 16 January 2023 (51), EJ Hoey made orders for full specification of the claimant’s claims. In his response (67), which was sent to the tribunal under cover of an email dated 16 February 2022, the claimant gave details of a protected disclosure detriment claim. He asserted that he had made protected disclosures on 24 May 2021, 1 February and 3 January 2022. He further asserted “Another disclosure was sent on 20th April 2022 to Mr Norman Fyfe (Chair of the committee of David Cargill House); Final disclosure was sent on the 15th August 2022 to Mr Norman Fyfe (Chair of the committee of David Cargill House).” The detriment(s) alleged to have been done on the ground of the disclosure(s) are not explicitly specified in the further particulars but they appear from the claimant’s answer at paragraph 15 to be: “Unlawful deduction of a monthly wage in a tax year, lack of wage increase due to not being promoted.” The period of loss arising is stated at paragraph 17 to be: “since the start of employment”. (The detriments alleged appear to pre-date some of the disclosures.) Since these are detriments that can only arise during employment, the latest possible date(s) must be April or May 2022 (as the possible date when payment might have been due).

[25]With regard to his claim of unauthorised deductions from wages, the last deduction was said to have been made in March 2022 (72).

[26]With regard to his claim for direct race discrimination, the claimant set out an unparticularised list dating back to 2017 and in one instance to 2011. He included in the list: “M) Letter to Fyfe (partner in a law firm) and a (trustee and chair of committee in David Cargill House) on which he did not reply to – April 2022”; and “N) 2nd Letter to Fyfe (partner in a law firm) and a (trustee and chair of committee in David Cargill House) in his response he refused to take action with regard to information about forgery and bullying carried out against my mother (unfair treatment) – August 2022.” With regard to the claimant’s claim for indirect discrimination, no cogent claim was set out. The harassment claims did not give names or (except in one case) dates but did state “Being banned from the building after being dismissed is post-employment harassment”. [The claimant did not give any evidence about this at this PH.] The specification of victimisation claims did not indicate which were the protected acts and which the detriments. They appeared to span a period between 2007 and 2023.

[27]The Judgment of EJ Bradley in the claimant’s claim for unfair dismissal (4103524/2022) (91) was sent to the parties on 22 February 2023. The claimant’s claim for unfair dismissal did not succeed. The Judgment stated (103 - 4) that the decision to dismiss the claimant was taken by an external HR consultant, Ms Mellor, a fellow of the Chartered Institute of Personnel and Development. The most serious allegations of misconduct upheld by her against the claimant related to the treatment of residents and of particular concern was the treatment of a resident in a wheelchair. An incident had been witnessed by two members of staff who had alleged that the claimant had ‘flipped back the resident’s wheelchair and moved it from side to side “not gently”’. The claimant did not exercise his right of internal appeal against his dismissal. Mr Fyfe died in January 2024. Applicable Law

[29]Section 108 Equality Act 2010 provides so far as relevant as follows: “108 Relationships that have ended(1) A person (A) must not discriminate against another (B) if— (a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.

(2) A person (A) must not harass another (B) if— (a) the harassment arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the harassment would, if it occurred during the relationship, contravene this Act.”

[30]Section 123(3)(a) Equality Act 2010 provides: “123 Time limits(1) Proceedings on a complaint within section 120 may not be brought after the end of – (a) The period of 3 months starting with the date of the act to which the complaint relates, or (b) Such other period as the employment tribunal thinks just and equitable.

(2) ….

(3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

[31]Section 23 Equality Act 2010 states: “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”

[32]Section 136 Equality Act 2010 provides: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[33]Section 48(3) Employment Rights Act 1996 (“ERA”) relates to whistleblowing claims and states: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented –(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

[34]Section 23 ERA relates to claims for unauthorised deductions from wages and states: “23 Complaints to employment tribunals.(1) A worker may present a complaint to an employment tribunal — (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), ……..

(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or …………………. (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.” Discussion and decision Discrimination claims Whether the post-employment acts upon which the claimant relies come under section 108 EqA (Relationships that have ended)

[35]The claimant brings claims of race discrimination under the Equality Act 2010. The Act prohibits discrimination in the field of employment. The statutory protection is given to prospective and existing employees and also to exemployees in the circumstances set out in Section 108 of the Act. The claimant was employed by the respondent from 2011 until 18 April 2022, when his employment ended. The respondent argues that the claimant’s case is time barred because he did not notify ACAS under the early conciliation rules until 7 November 2022. Accordingly, they argue, all acts prior to 7 August 2022 are out of time.

[36]The claimant submits that there has been conduct extending over a period for the purposes of section 123(3) EqA (which must be treated as done at the end of the period). He states that he is entitled under section 108 EqA to rely upon certain post-employment acts and that the last act relied upon was the letter from Mr Fyfe on 15 August 2022. Accordingly, the claimant submits that the claim is not time barred. To determine this issue it is first necessary to consider whether the post-employment correspondence the claimant relies on meets the test in section 108 EqA.

[37]The claimant’s employment ended on 18 April 2022. Section 108 EqA concerns relationships that have ended. Subsections (1) and (2) deal with discrimination and harassment respectively. In spite of section 108(7), postemployment victimisation is also unlawful. The relevant terms of section 108 are set out above. Mr MacDougall referred to the guidance on the application of section 108 in Chapter 28 Volume 5 of the IDS Employment Law Handbook ‘Discrimination at Work’ at paragraphs 28.16 and 28.17: “28.16 As discussed under ‘Protection under Equality Act 2010 - Section 108’ above, a post-employment claim has two elements. The claimant must show that:• he or she has been subjected to prohibited conduct, i.e. discrimination, harassment or victimisation... that would have contravened the EqA if it occurred during the employment relationship.., and

• despite the termination of the employment relationship, there was still a sufficiently close connection between the prohibited conduct and that relationship. Sections 108(1)(a) and (2)(a) of the Equality Act 2010 (EqA) require that the prohibited conduct ‘arises out of and is closely connected to’ the employment relationship. This phrase is not defined in the EqA nor was it defined when it appeared in the predecessor discrimination enactments. However tribunals have interpreted in the light of the analysis set out by the House of Lords in Rhys- Harper versus Relaxion group plc and other cases

2003 ICR 867

,HL. 28.17 In Rhys-Harper their Lordships stated that the obligation on an employer not to discriminate covers all ‘incidents’ of the employment relationship that occur after termination and cited examples such as contractual obligations in relation to confidentiality, restrictive covenants, pensions or bonuses. ‘Incidents’ of the employment relationship will also include other, non-contractual benefits such as the opportunity to obtain a reference or to have recourse to an internal appeal against dismissal. Though the House of Lords rejected an arbitrary temporal limitation on the reach of discrimination law, Lord Hobhouse accepted that the further removed the conduct is in time from the employment, the more difficult it may become to show that there was a sufficient connection between the two.”

[38]The claimant’s submission is that: “The time limit for making a claim starts with the occurrence of the last discriminatory act, which in this case is 15 August 2022.”

[39]To bring that alleged act under section 108, the claimant requires to show that:(a) the discrimination arises out of and is closely connected to a relationship which used to exist between them; and

(b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act. Application of section 108(1)(a)

[40]The claimant submitted that “In cases of post-employment discrimination under Section 108, the time limit starts to run from the date of the discriminatory act after termination of employment, not from the date of termination. The general rule is that time runs from the date of the discriminatory act itself.” Whilst that is correct as a statement of law, the claimant must show that the post-termination act upon which he relies (Mr Fyfe’s letter of 15 August 2022) meets the test in section 108.

[41]I considered carefully the terms of the correspondence between the claimant and Mr Fyfe from 11 to 16 August 2022 against the test set out in section 108(1)(a) EqA. Mr Fyfe’s email of 11 August was in response to an email from the claimant to which he had attached his letter of 20 April 2022 addressed to “The Committee” (155) and his letter of 11 August 2022 addressed to Mr Fyfe himself. The claimant’s letter of 20 April 2022 alleged that in an Employment Tribunal case (4100160/2022) brought by the claimant’s mother seeking payment of sick pay, the respondent’s manager and deputy manager had “modified the content of documents in an illegal way”. It referred to an “illegal document” having been “officially submitted to the Employment Tribunal” in his mother’s case. In his evidence in chief, the claimant said that the letter was him ‘flagging to Mr Fyfe’ the issue involving his mother. He described the letter as a whistle-blowing disclosure. I note here that as the claimant accepted in cross examination, the letter is not addressed to Mr Fyfe and that it was not sent to Mr Fyfe personally until the claimant attached it to his letter on 11 August 2022.

[42]The claimant’s submission on this point was that the same decision makers had been involved in his unfair dismissal and they had remained involved after his employment ended. He did not establish this in evidence. The judgment of EJ Bradley in the unfair dismissal claim was lodged and stated (103 - 4) that the decision to dismiss the claimant was taken by an external HR consultant, Ms Mellor, a fellow of the Chartered Institute of Personnel and Development and that the claimant had not exercised his right of internal appeal.

[43]With regard to Mr Fyfe, the claimant’s evidence was that he had never met him and it was clear from his evidence that he did not know of Mr Fyfe’s existence until he had searched the web-site of OSCR after presenting his unfair dismissal claim on 27 June 2022. The claimant also submitted that there had been persistent discriminatory attitudes but there is nothing on the face of Mr Fyfe’s letter of 15 August suggestive of discrimination.

[44]In his letter of 11 August 2022, the claimant referred to alleged incidents involving his mother’s employment. In his evidence before me at this PH, the claimant stated unprompted on several occasions that both letters concerned issues involving his mother. Mr Fyfe responded by email the same day (11 August) saying he would respond to the allegations once the matter had been investigated. On Monday 15 August 2022, Mr Fyfe sent an email to the claimant to say that he had investigated the issues and “I have to respectfully advise you that I have found no substance to the allegations you raised in your letter.” He then detailed what he had found out about the claimant’s mother’s issue with the smoking area which the claimant had raised. Finally, he stated: “As far as the mention in your letter of bullying and ethnicity discrimination, these are categorically denied.” He stated he could not comment on any matters before the Tribunal and that all communications regarding that were to be sent to the solicitors dealing with the case. The claimant sent Mr Fyfe a further letter dated 15 August 2022. The letter was almost entirely concerned with issues involving the claimant’s mother’s continuing employment relationship with the respondent. Indeed, for the avoidance of doubt he stated: “To your information I was not writing about my claim in the tribunal but my mother's case which finished in March with a positive outcome to my mother.” He was equally clear about that in his evidence. Thus, it appeared to me that the acts complained of were not closely connected to his own former employment relationship with the respondent. They were concerned with the claimant’s mother’s ongoing employment relationship with the respondent. Thus, the claimant fails to establish the close connection with his own employment required by section 108(1)(a).

[45]Since both limbs of the test require to be met, that is really an end of the section 108 argument as far as the direct discrimination claim is concerned. However, in case I am wrong about this, I will also address the question of whether per section 108(1)(b), the correspondence from Mr Fyfe in August 2022 would have been an act of direct discrimination in contravention of the EqA if it had occurred during the employment relationship. Application of section 108(1)(b) (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.

[46]I considered whether the claimant had proved facts from which the tribunal could conclude that Mr Fyfe’s letter of 15 August 2022 constituted direct discrimination which would - if it had occurred during the claimant’s employment – have contravened the EqA. I had before me the claimant’s oral testimony and the joint bundle of documentary evidence which included the correspondence complained of.

[47]In his evidence in chief, the claimant stated his view of Mr Fyfe’s email of 15 August 2022 in the following terms. “What I took from that was that different treatment was applied to me during my dismissal claim and proceedings compared to the two managers that were directly employed by Norman Fyfe and the Committee - Abi Jabbari who was the care home manager and Linda Arnott McKenzie, who was the deputy manager. That was the starting point when I realised this was discrimination by Mr Fyfe who’s the chair of the committee and on top of that a partner in a solicitors’ firm because after informing him of the issues that were raised in the two letters, there was no repercussions. Even though Mr Fyfe says there was an investigation, the key witness, that would have been my mother, who the complaint involved, wasn’t questioned. There was no deeper investigation. Nobody was questioned. Nobody was suspended until the claim was looked at. Obviously Mr Fyfe said he did the investigation in one day from the 11th to the 15th, which, for quite serious allegations of bullying, harassment, document forgery, it’s quite severe to do an investigation in that short period of time and without asking any key witnesses that were involved. ……. In my case I was suspended immediately. There was X number of papers that were witness statements but they were not really witness statements as they were not signed. 43 or 44 people were questioned in my original dismissal claim, based on some allegations from God knows who, God knows where because that was never verified. So there was different treatment in my case compared to the allegations I sent to Mr Fyfe about his two managers. That was the 15th of August”.

[48]Put shortly, the claimant’s position was that Mr Fyfe’s letter of 15 August 2022 disclosed race discrimination because the claimant (who is Polish) was making allegations against the respondent’s manager and deputy manager (who are British) and no disciplinary action had been taken against them, whereas when allegations were made against him, they had been fully investigated and had resulted in his disciplinary dismissal. Thus he had concluded that there had been direct race discrimination in that he had received less favourable treatment than his comparators, the two managers. In essence, he was saying that his right to claim direct race discrimination only crystallised when he received Mr Fyfe’s letter of 15 August 2022 suggesting that his allegations were not being thoroughly investigated. I did not accept the claimant’s evidence or submission on this for the following reasons: The claimant was suggesting that on receipt of Mr Fyfe’s email of 15 August 2022, he suddenly became aware that he had been discriminated against by Mr Fyfe (whom he had never met and of whose existence he was unaware until June or July 2022) for a period of up to 11 years. Viewed objectively as a response to the claimant’s allegations in his letter of 11 August 2022, there is nothing about Mr Fyfe’s email that could credibly give rise to that reaction. Mr Fyfe’s email of 15 August 2022 looks like the sort of email a lawyer might write in the circumstances – courteous, yet firm. There was nothing overtly discriminatory about it. It was sent to the claimant in response to emails/ letters from him. The claimant had requested a response and Mr Fyfe had sent him one. Nothing in Mr Fyfe’s email had anything to do with the claimant’s race. The only allusion to race was a categoric denial of the claimant’s allegations about his mother’s treatment. As Mr MacDougall says, the claimant and his mother were long-standing employees of the respondent and there was a notable absence of any complaints of discrimination made during the period of the claimant’s employment prior to dismissal. Indeed, the claimant had presented an ET1 to the tribunal on 27 June 2022 claiming unfair dismissal and other heads of claim and he did not make any claim of race discrimination in it. As he appeared to accept, at that stage he did not believe himself to have been discriminated against.

[49]There are a number of other problems with the claimant’s evidence: Firstly, Mr Fyfe’s letter states: “I have investigated the issues.// I have to respectfully advise you that I have found no substance to the allegations you raised in your letter. //There is a designated smoking area provided for employees which your mother does not use….” Thus, the issues that Mr Fyfe appears to be saying he has investigated are those the claimant raised concerning his mother’s smoking arrangements.

[50]Secondly, even if the letter can be read the way the claimant suggests, and even if he is saying that it was at this point that his right to claim discrimination crystallised (as discussed below), it is unclear how a letter indicating a difference in treatment between himself and the two most senior managers of the respondent could give rise to a claim of direct or indirect discrimination in the circumstances. Under section 23(1) EqA, in order for the two managers to be comparators for the purposes of sections 13 or 19, on a comparison of cases (the claimant’s case and those of each of the two managers) there must be no material difference between the circumstances relating to each case. That is manifestly not the case here. At the time of writing his letters, the claimant was an ex-junior-employee who had been disciplined and dismissed for misconduct after an internal procedure. He did not know Mr Fyfe. He had never met him and had no relationship with him. By August 2022, he was involved in unfair dismissal litigation against the respondent in which the respondent was being represented by Worknest, solicitors. He had written to Mr Fyfe out of the blue making allegations about the respondent’s two most senior employees some months after the end of his employment. The two managers were (then) current senior employees who were likely to have been known by or to Mr Fyfe. Although the claimant had alleged misconduct against the managers, his circumstances were such that his allegations might have been regarded with some circumspection. Mr Fyfe sadly died in January 2024, so it will never be possible to ask him why he replied in the way he did but there is nothing unusual about his email.

[51]Thirdly, even if the comparators had been appropriate, in a claim of race discrimination, it is not usually sufficient for a claimant to show only a difference in race and a difference in treatment. There would ordinarily need to be something more, suggesting that race was the reason for the treatment. As Mr MacDougall submitted, the evidence given by the claimant amounted at its highest to his subjective belief that the content of Mr Fyfe’s email of 15 August 2022 was sufficient to demonstrate race discrimination. However, the tribunal would have to be satisfied that there was an objective basis on which the emails could be categorised in that way. There is absolutely no basis for doing so. Under section 136 EqA, the initial burden of proof is - or would be if it occurred during his employment - on the claimant to establish facts from which the tribunal could decide, in the absence of any other explanation, that the respondent contravened the Act. The claimant has not established that Mr Fyfe’s email to him of 15 August 2022 was a discriminatory act which would, if it occurred during his employment have contravened the EqA for the purposes of section 108(1)(b). Thus the claimant has not met the test in section 108(1)(b) in respect of his claim of direct discrimination either. (He gave no evidence about any claim of indirect discrimination and no cogent case of indirect discrimination was set out in his further particulars). Application of section 108(2) – harassment

[52]In his ET1 (33) and further and better particulars (71), the claimant stated that he was claiming in respect of harassment related to race and he appeared to suggest that one of his harassment claims was a post-employment claim under section 108, although no date is provided for this in the section on harassment (71). The claimant did not mention this in his evidence. Alleged post-employment victimisation

[53]The claimant argues (in his response to Mr MacDougall’s submissions): “Protected Act Victimization Under Section 27 EQA: The respondent's treatment of the claimant's April 2022 correspondence also constitutes victimization under s.27 EQA. The claimant's letter alleging document falsification and discrimination constituted protected acts under s.27(2)(d) as allegations that the respondent breached the EQA. The subsequent categorical denial without investigation, and the committee's endorsement of this position, constitutes detriment because of these protected acts.”

[54]In Rowstock Ltd v Jessemey

2014 ICR 550

CA, the Court of Appeal held that section 108(1) EqA should be read as though the words: “In this sub-section discrimination includes victimisation” were added at the end. Thus, postemployment victimisation is unlawful, subject to the same conditions under 108(1)(a) and (b) as other discrimination. As I understand it, the claimant is arguing that his letter dated 20 April 2022 was a post-termination protected act under section 27(2)(d) EqA.: “(d) making an allegation (whether or not express) that A or another person has contravened this Act.” Given its content, it is difficult to see how the claimant’s letter of 20 April 2022 could constitute a protected act under the EqA. There is no allegation or implied allegation of discrimination. It is also difficult to see how Mr Fyfe’s email of 15 August 2022 could be a detriment to which the claimant was subjected because he sent the letter of 20 April 2022, when it was sent in direct reply to a letter the claimant sent Mr Fyfe on 11 August. However, for the reasons given above, the letter does not meet the test in section 108(1)(a). It is not closely connected with the claimant’s former employment relationship. It concerns the claimant’s mother’s employment relationship. This argument falls at the first hurdle. Whether the claimant only became aware of discrimination on 15 August 2022 and what caused him to become aware?

[55]In his submissions, the claimant stated: “Late Discovery Precedent: The principle that late discovery of discriminatory facts can extend limitation periods is established in cases like Teva (UK) Ltd v Heslip EAT 0008/09, which recognized that employees may bring complaints even after believing treatment was unfair, upon discovering additional discriminatory facts. Here, the claimant's discovery in August 2022 of Fyfe's actual decision-making role and the institutional backing for discrimination denial revealed the true discriminatory nature of his treatment.”

[56]In certain circumstances, a cause of action might only crystallise at a later date. In the IDS Handbook ‘Discrimination at Work’ November 2022 edition referred to above, at paragraph 35.41 the example is given of promotion cases, where it is the date of promotion of a comparator (rather than the date the employee was rejected) that sets time running. The paragraph states: “The situation may also arise where a comparator for the purposes of direct discrimination only comes into existence at a later date and the claimant, prior to this, had reasonably taken the view that he or she had no cause of action or that it was unlikely that he or she would establish a prima facie case without a comparator – Clarke v Hampshire Electro-Plating Co Ltd

1992 ICR 312

, EAT.” This is essentially the argument the claimant makes in this case. However, for the reasons given above in the discussion about section 108(1)(b), this argument does not succeed on the facts of this case. Conduct extending over a period under section 123(3)(a) EqA

[57]Section 123(3)(a) provides that: “Conduct extending over a period is to be treated as done at the end of the period.” The claimant relies on this section and submits that he has been subjected to a course of conduct extending over a period from the beginning of his employment until after the end of his employment, with the last act occurring on 15 August 2022. He therefore submits that his claim is in time. For the reasons given above, I have concluded that the post-employment correspondence of 15 August 2022 relied upon by the claimant as the last act in the period does not meet the requirements of section 108(1)(a) and (b). It does not amount to unlawful discrimination. In the case of South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

, the EAT held that if an alleged act is found not to amount to unlawful discrimination, then it cannot form part of 'conduct extending over a period', so that if (as here) the only alleged act that is 'in time' does not succeed, other acts occurring previously will be out of time for the purposes of section 123(3)(a). The claimant’s submissions on “deliberate concealment”

[58]The claimant makes a number of arguments alleging ‘deliberate concealment’. In support of these, he refers to sections 129 – 30 of the EqA. That part of the Act (including sections 129-30) applies to “Equality of Terms”, that is, claims for equal pay. It is not relevant in the present case. Whether it would be just and equitable to extend time for the discrimination claims

[59]As Mr MacDougall submits, the tribunal has the power under section 123(1)(b) to extend time if it is just and equitable to do so. Whilst tribunals have a wide discretion to allow an extension of time under the ‘just and equitable’ test, the exercise of the discretion is still the exception rather than the rule and it is for the claimant to persuade the Tribunal that it should be exercised. The IDS Handbook on ‘Practice and Procedure:1: Employment Tribunals (November 2023 edition) sets out at paragraph 5.130 the factors listed in section 33 of the English Limitation Act 1980, and considered in British Coal Corporation v Keeble and others

1997 IRLR 336

. The EAT held that the court should consider the prejudice which each party would suffer as a result of the decision reached, and should have regard to all the circumstances of the case, in particular: the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has co-operated with any requests for information; the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action. Subsequently, in Southwark London Borough Council v Afolabi

2003 ICR 800

, the Court of Appeal confirmed that whilst the factors in Keeble provide a useful checklist for tribunals, it need not be adhered to slavishly.

[60]I have taken into account the claimant’s evidence and submissions and the submissions of Mr MacDougall. I have also had regard to all the circumstances of the case. With regard to the acts complained of prior to the claimant’s dismissal, Mr MacDougall submitted that the tribunal is entitled to take account of the merits of the claim. He stated that there are no pleadings in the ET1 about any overt acts of discrimination and that the ‘elephant in the room’ is that the claimant (and indeed his mother) were long standing employees of the respondent; yet there is a notable absence of any complaints of discriminatory acts made during the period of his employment prior to dismissal. He submitted that in those circumstances it is not a compelling claim to make the allegation that all of a sudden the respondent would decide to carry out acts and omissions motived by race.

[61]Since the claimant has failed to establish that Mr Fyfe’s email dated 15 August 2022 met the test of a post-termination act of discrimination for the purposes of section 108 for the reasons given above, it follows that the length of the delay must date back to at least the termination of the claimant’s employment on 18 April 2022. Thus, the race discrimination claim should have been presented by 17 July 2022 plus early conciliation allowance. ACAS was - in fact - notified on 7 November 2022. Accordingly, the delay was around three and a half months. In some cases, the acts complained of are said to date back to the beginning of the claimant’s employment in 2011.

[62]The reasons given by the claimant for the delay and for his failure to mention race discrimination dating back 11 years as a head of claim in the ET1 he presented on 27 June 2022 were (as already discussed) that on receipt of Mr Fyfe’s email of 15 August 2022, he suddenly became aware of discrimination by Mr Fyfe (whom he had never met and of whose existence he was unaware until June or July 2022) for a period of up to 11 years. Viewed objectively as a response to the claimant’s allegations in his own letter, there is nothing about Mr Fyfe’s email that could credibly give rise to that reaction and I did not accept the claimant’s evidence or submissions on this for the reasons given above.

[63]The extent to which the cogency of the evidence is likely to be affected by the delay is a significant factor in this case. As Mr MacDougall submits: there are two types of prejudice that a respondent may suffer if the limitation period is extended, firstly, the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence (which is neutral as far as the balance of prejudice is concerned). However, the second type of prejudice is the forensic prejudice that a respondent may suffer if the limitation period is extended by many months or years. This is caused by such things as fading memories, loss of documents, and losing touch with witnesses. As Mr MacDougall submits, the claimant places Norman Fyfe at the centre of his claim for discrimination as the ET1 makes clear (24-25). Sadly, Mr Fyfe died in January 2024. Whilst a limited objective assessment could be carried out on the basis of the documents alone, Mr MacDougall submits that the loss of the ability to have Mr Fyfe present oral evidence would be of significant prejudice to the respondent.

[64]Taking all these circumstances into account, I have considered the prejudice each party would suffer if the discretion were exercised or not exercised. The prejudice to the claimant in not extending time is that he loses the opportunity to litigate the claims. With regard to the potential merits of the claims, I note that at the point when he presented his unfair dismissal claim on 27 June 2022, he did not believe he had race discrimination claims. The prejudice to the respondent in extending time is increased by the following factors:(i) the person the claimant has placed at the centre of his allegations has died and this will seriously affect the respondent’s ability to defend themselves;

(ii) The delay in presenting the case is around three and a half months.

(iii) The reasons given for the delay were not persuasive.

(iv) The claimant did not show that he acted promptly once he knew of the alleged facts giving rise to the cause of action. On his evidence, he waited from 15 August until 22 September 2022 to make an application to amend his unfair dismissal claim and a further 6 weeks thereafter to raise the current claim. Balancing the respective prejudice to the parties in all the circumstances, I am not persuaded that it would be just and equitable to exercise the discretion. It follows that the claimant’s discrimination claims are out of time and the Tribunal has no jurisdiction to hear them. Whistle-blowing detriment claims

[65]The claimant did not address the whistle-blowing detriment and unauthorised deduction from wages claims in his initial written submissions until prompted by Mr MacDougall, whereupon he requested time to make further written submissions on them. He agreed that he would be able to submit them by 1pm on Wednesday 25 June and he met this deadline.

[66]As mentioned earlier, these claims are not in the ET1. They were introduced in the claimant’s further particulars which were sent to the tribunal under cover of an email dated 16 February 2023 (69). As there has been no amendment, they have not become part of his claim. I address them here for the sake of completeness.

[67]In his further particulars (69), the claimant asserted that he had made protected disclosures on 24 May 2021, 1 February and 3 January 2022. He further asserted “Another disclosure was sent on 20th April 2022 to Mr Norman Fyfe (Chair of the committee of David Cargill House); Final disclosure was sent on the 15th August 2022 to Mr Norman Fyfe (Chair of the committee of David Cargill House).” The detriment(s) alleged to have been done on the ground of the disclosure(s) are not explicitly specified in the further particulars but they appear from the claimant’s answer at paragraph 15 to be: “Unlawful deduction of a monthly wage in a tax year, lack of wage increase due to not being promoted.” The period of loss arising is stated at paragraph 17 to be: “since the start of employment”. Since these are detriments that can only arise during employment, the latest possible date(s) must be April or May 2022 (as the possible date when payment might have been due).

[68]The claimant put forward a case in his written submissions which differed from his further particulars. Since his submissions came after the hearing, and as he did not cover any of them in his evidence, the new particulars do not assist and I have considered time bar on the basis of the particulars already lodged. The last date of the alleged detriments would appear to be 15 August 2022. The claimant accordingly required to present a claim to the tribunal within three months (plus early conciliation if bringing a separate claim) or by way of an application to amend by 14 November 2022. No such application has been lodged. The claimant’s further particulars were submitted on 16 February 2023 and there has been no amendment. The claim is accordingly out of time. Was it not reasonably practicable for the claimant to present his whistleblowing claims in time?

[69]Addressing the issue of extension of time, sections 48(3) places the onus on the claimant to show that presentation of his claim in time was not reasonably practicable. That imposes a duty on him to explain precisely why it was that he did not contact ACAS on or before midnight on 14 November 2022 to present his complaint or amend the claim by that date. In order to establish that it was not reasonably practicable to present an application in time a claimant will ordinarily have to be able to point to some impediment or hindrance which made timeous presentation not reasonably practicable in the sense of not reasonably feasible. What is reasonably practicable is a question of fact. If the claimant succeeds in showing that presentation in time was not reasonably practicable, the second leg of the test provides that the tribunal must then be satisfied that the complaint was presented within such further period as it considers reasonable in the circumstances. The claimant did not present evidence on this. The claim, (if it is a claim) is time barred. Claims of unauthorised deductions from wages

[70]This claim was also not in the claimant’s ET1 or added by amendment. The claimant referred to his further particulars submitted on 16 February 2023 (72), which show that the last date when an alleged deduction was made was March 2022. So far as the Employment Tribunal’s jurisdiction is concerned, this claim is or would be time barred. The claimant did not present any reason in his evidence suggesting that it was not reasonably practicable to present the claim in time. The claim is therefore also time barred.