Employment Judge G HughesIn person for claimantMr J Arnold (instructed by Counsel) for respondentDate 20 July 2026
JUDGMENT
[1]The complaint of indirect sex discrimination was presented outside the time limit prescribed by section 123 Equality Act 2010.[2]The Tribunal finds that there was no conduct extending over a period within the meaning of section 123(3)(a) Equality Act 2010.[3]The Tribunal declines to extend time on just and equitable grounds pursuant to section 123(1)(b) Equality Act 2010.[4]The complaint of indirect sex discrimination is therefore dismissed.[5]Having determined the substantive limitation issue identified at paragraph4.1 of Employment Judge Brace's Record of Preliminary Hearing following the hearing conducted on 29 May 2026, the alternative issues identified at paragraph4.2 of that Record do not arise and require no determination. - 1 -[6]The Claimant's remaining complaints of constructive unfair dismissal, statutory redundancy payment and unauthorised deductions from wages are unaffected by this Judgment and will continue in accordance with the existing case management directions, including the Preliminary Hearing for Case Management listed on 28 August 2026.
REASONS
[7]This matter came before me for a public Preliminary Hearing listed pursuant to the Record of Preliminary Hearing issued following the hearing conducted by Employment Judge Brace on 29 May 2026. The hearing was listed for one day.[8]The Claimant appeared in person. The Respondent appeared by Mr Arnold of Counsel.[9]I was provided with an agreed hearing bundle extending to page 87 together with the Claimant's witness statement dated 1 July 2026, and a skeleton argument prepared for the Respondent. The Claimant gave evidence under affirmation. She adopted her witness statement as her evidence and, having been afforded the opportunity to do so, gave further oral evidence relevant to the limitation issues before the Tribunal. She was then cross-examined by the Respondent. I also asked a limited number of questions for the purpose of clarification. Thereafter I heard oral submissions from both parties.[10]Before turning to the issues which fall for determination, it was important to identify clearly what this hearing concerned and, equally importantly, what it did not concern.[11]The Tribunal presently has before it complaints of constructive unfair dismissal, statutory redundancy payment, unauthorised deductions from wages and indirect sex discrimination. Those complaints were identified by Employment Judge Brace at the Preliminary Hearing conducted on 29 May 2026.[12]I was not conducting a Final Hearing. I was not required to determine whether the claimant was constructively dismissed. I was not required to determine whether the respondent acted reasonably or unreasonably in relation to any of the matters described within the claim form, and I was not required to determine whether the claimant ultimately succeeds in her complaints of unfair dismissal, redundancy pay or unauthorised deductions from wages.[13]Accordingly, the purpose of this hearing was considerably narrower. The sole question before me was whether the complaint of indirect sex discrimination was brought within the time limit prescribed by section 123 Equality Act 2010 and, if not, whether there - 2 - exists any lawful basis upon which the Tribunal may nevertheless entertain that complaint.[14]Limitation provisions are not a matter of mere procedural formality. Parliament has determined that complaints under the Equality Act 2010 should ordinarily be brought promptly. The Tribunal therefore possesses jurisdiction to determine discrimination complaints only where the statutory requirements are satisfied. Before any Tribunal can consider the substantive merits of a discrimination complaint it must first be satisfied that the complaint is properly before it. The Issues for Determination[15]The issues for determination were identified by Employment Judge Brace in the Record of Preliminary Hearing following the hearing conducted on 29 May 2026. The purpose of this hearing was to determine the following issue:15.1 Given the date the claim form was presented and the dates of early conciliation, was the complaint of indirect sex discrimination made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:15.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?15.1.2 If not, was there conduct extending over a period?15.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?15.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable?15.1.5 The Tribunal will decide:15.1.5.1 Why were the complaints not made to the Tribunal in time?15.1.5.2 In any event, is it just and equitable in all the circumstances to extend time?15.2 In the alternative:15.2.1 Should the complaint of indirect sex discrimination be struck out because the Claimant has no reasonable prospect of establishing that there was discriminatory conduct over a period or that it would be just and equitable to extend the time limit for bringing the claim? - 3 -15.2.2 If not, should the Claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with that complaint, because they have little reasonable prospect of establishing those things?[16]It follows that the Tribunal is required to answer a sequence of questions. The just and equitable discretion only arises if the complaint was not presented within the primary limitation period. Equally, if I were satisfied that there was conduct extending over a period and that the claim was presented within three months of the end of that period, the issue of discretion would not arise. The issues must therefore be considered sequentially. Preliminary Matter – Equal Pay[17]Before turning to the factual background, I briefly address one procedural matter.[18]At the hearing before Employment Judge Brace there was some uncertainty as to whether the Claimant contended that her pleadings already contained a complaint under the equal pay provisions of the Equality Act 2010. The Respondent disputed that proposition. Employment Judge Brace therefore directed the Claimant to clarify her position.[19]Following those directions, the Claimant wrote to the Tribunal on 12 June 2026 and stated: "I will not be seeking to amend my claim to bring an Equal Pay claim."[20]In those circumstances, I find that no complaint under the equal pay provisions of the Equality Act 2010 falls for determination within these proceedings. The Claimant expressly confirmed that she does not seek to amend her claim to bring such a complaint and no application to amend remains before the Tribunal. Any issue concerning equal pay therefore falls outside the scope of the present proceedings and no determination is required in relation to it.
Factual Background
[21]There is relatively little dispute regarding the underlying chronology. The Claimant commenced employment with the Respondent on 31 July 2023. Her employment ended on 1 December 2025. ACAS Early Conciliation commenced on 30 December 2025 and concluded on 7 January 2026. The claim form was thereafter presented on 8 January 2026.[22]The complaint presently under consideration concerns the Respondent's April 2024 pay review exercise. As recorded by Employment Judge Brace, the Claimant's case is that the Respondent applied a service-related criterion when determining entitlement to the April 2024 pay award and that the operation of that criterion placed women - 4 - employed within HR at a particular disadvantage when compared with men. The Respondent disputes that contention, both factually and legally.[23]Before those issues can be considered it was necessary to determine whether the complaint is properly before the Tribunal at all.
Findings of Fact
[24]Having considered the oral and documentary evidence, I make the following findings of fact relevant to the issues before me24.1 The Claimant was employed by the respondent as Group Head of HR Services between 31 July 2023 and 1 December 2025.24.2 The complaint of indirect sex discrimination concerns the Respondent's April 2024 annual pay award process.24.3 The Claimant's case is that a service-related criterion was applied when determining entitlement to the April 2024 pay award and that the operation of that criterion disadvantaged women employed within HR.24.4 The Claimant became aware in April 2024 that she had not received the relevant pay award.24.5 The Claimant raised concerns about that matter at or around the time of the April 2024 pay exercise.24.6 The Claimant accepted in evidence that she was aware in April 2024 that Employment Tribunal claims are generally subject to a three-month time limit.24.7 The Claimant further accepted that, as part of her role, she dealt with Employment Tribunal claims, worked alongside external employment lawyers, had prior familiarity with Tribunal proceedings and was aware of the victimisation provisions contained within the Equality Act 2010.24.8 The Claimant did not commence ACAS Early Conciliation until 30 December 2025. Proceedings were presented on 8 January 2026.24.9 The Claimant's witness statement explained the delay principally on the basis that she feared consequences for her employment and career if the issue were pursued further.24.10 In oral evidence the Claimant additionally explained that the matter had been raised internally, that she believed the issue might ultimately be resolved, that certain senior personnel subsequently left the business and that she felt uncomfortable pursuing the issue further during her employment.24.11 The Claimant accepted in cross-examination that she makes no complaint in these proceedings concerning the April 2025 pay review exercise. - 5 -24.12 I find as a fact that the complaint before the Tribunal concerns the application of the April 2024 pay award criteria to the Claimant.
The Applicable Law
[25]The starting point is section 123 Equality Act 2010. Section 123 provides that proceedings on a complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates, or such other period as the Employment Tribunal thinks just and equitable. The section further provides that conduct extending over a period is to be treated as done at the end of that period.[26]In many cases the first task for a Tribunal is therefore to identify the act complained of and the date upon which it occurred. If proceedings are commenced within three months of that act, subject to any extension brought about by the Early Conciliation provisions, jurisdiction will ordinarily exist. Where proceedings are commenced outside that period, the Claimant must generally establish either that there was conduct extending over a period or that it is just and equitable to extend time.[27]Whether conduct extends over a period is frequently a fact-sensitive exercise. The starting point remains Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530. The Court of Appeal explained that the relevant distinction is between an ongoing situation or continuing state of affairs on the one hand and a succession of isolated or unconnected acts on the other. Not every sequence of events amounts to conduct extending over a period. The question is whether there existed a continuing discriminatory state of affairs. In Aziz v FDA [2010] EWCA Civ 304 the Court of Appeal observed that whether the same or different individuals are involved may be relevant to that assessment, although it is not determinative.[28]Not every situation in which the consequences of an earlier decision continue to be felt will amount to conduct extending over a period within section 123(3)(a). In Barclays Bank plc v Kapur [1991] ICR 208 HL, the House of Lords recognised the distinction between an unlawful state of affairs that continues over time and a completed act which merely produces continuing consequences. The task for the Tribunal is therefore to identify whether the claimant relies upon an ongoing discriminatory state of affairs or whether the complaint is, in substance, directed at a discrete decision taken at an earlier point in time.[29]If conduct extending over a period is not established, the Tribunal may nevertheless extend time if it concludes that it is just and equitable to do so. The authorities make clear that this is a broad discretion. However, it is equally clear that the burden of persuading the Tribunal to exercise that discretion rests firmly upon the claimant.[30]In Robertson v Bexley Community Centre (t/a Leisure Link) [2003] EWCA Civ 576; [2003] IRLR 434, the Court of Appeal emphasised that a Tribunal has no jurisdiction to entertain a discrimination complaint presented outside the statutory time limit unless persuaded to extend time on just and equitable grounds. More recently, in Jones v Secretary of State for Health and Social Care [2024] IRLR 275 - 6 - EAT, the Employment Appeal Tribunal emphasised that Robertson should not be treated as creating any presumption against extension. The proper principle remains that the Tribunal possesses a broad discretion but that the burden of persuading the Tribunal to exercise that discretion rests upon the claimant. Similar observations concerning the burden upon a claimant were made in Polystar Plastics Ltd v Liepa [2023] EAT 100.[31]More recently, in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the Court of Appeal emphasised that there is no rigid checklist which a Tribunal must mechanically apply. Underhill LJ described the assessment as involving a very broad general discretion. The proper task is to consider all matters which bear upon the justice and equity of the particular case. Whilst particular attention will commonly be given to the length of the delay and the reasons advanced for it, those considerations are not exhaustive. The Tribunal is required to stand back and evaluate all circumstances relevant to the fairness of granting or refusing an extension.[32]Finally, the Employment Appeal Tribunal held in Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 that where appropriate a Tribunal may also have regard to the apparent merits of the underlying complaint. A strong case does not automatically justify an extension and a weak case does not automatically preclude one. Nevertheless, the apparent merits may form part of the overall evaluative exercise.[33]In Mesuria v Eurofins Forensic Services Ltd [2025] IRLR 846 EAT, the Employment Appeal Tribunal emphasised the distinction between determining a limitation issue as a matter of substance and considering whether a claim should be struck out because it has no reasonable prospect of being found to be in time. Different tests apply to those exercises. Where a Tribunal determines limitation substantively it is required to make findings of fact and determine the jurisdictional issue itself. Submissions[34]On behalf of the Respondent, and by way of summary, Mr Arnold submitted that the complaint of indirect sex discrimination was fundamentally a complaint concerning the application of the April 2024 pay award criteria.[35]He submitted that the relevant act complained of occurred in April 2024 and that the Claimant was aware at that time that she had not received the pay award.[36]It was submitted that proceedings were not commenced until January 2026 and were therefore substantially outside the primary limitation period prescribed by section 123 Equality Act 2010.[37]The Respondent further submitted that this was not a Hendricks continuing act case. Reliance was placed upon Barclays Bank plc v Kapur and it was argued that the April 2024 decision was a discrete act producing continuing consequences rather than conduct extending over a period. - 7 -[38]It was submitted that the Claimant had advanced no satisfactory explanation for the delay in commencing proceedings and reliance was placed upon the Claimant's senior position within the Respondent's organisation as Group Head of HR Services and it was submitted that she would have been familiar with workplace processes and legal rights.[39]It was further submitted that real prejudice flowed from the passage of time. Particular reliance was placed upon the departure from the business of two individuals who had been involved in the relevant pay award process.[40]Finally, it was submitted that the apparent merits of the underlying complaint were weak because the respondent disputes both the existence of any group disadvantage and any suggestion that the relevant criterion unlawfully disadvantaged women.[41]Accordingly, the Respondent submitted that the complaint should be dismissed as being out of time and that there was no proper basis upon which the Tribunal should exercise its just and equitable discretion.[42]The Claimant submitted, by way of summary, that the Respondent's annual pay review processes continued after April 2024. She relied upon those continuing processes, together with what she contended was an ongoing approach to remuneration, in support of her argument that there had been conduct extending over a period.[43]The Claimant further submitted that she did not initially pursue proceedings because she hoped that the matter would be resolved internally. She relied upon assurances she says were given to her and upon her concern that pursuing matters further might adversely affect her career. She also relied upon the departure of senior personnel and her understanding that the issue remained unresolved.[44]The Claimant therefore invited the Tribunal to conclude either that there had been conduct extending over a period or, alternatively, that it was just and equitable to extend time. Conclusions Was the Complaint Presented Within the Primary Limitation Period?
Conclusions
[45]I begin by considering whether the complaint was presented within the primary limitation period prescribed by section 123 Equality Act 2010.[46]The Respondent's case is that the act complained of was the operation of the April 2024 pay award criteria and its application to the Claimant.[47]There is no dispute that the Claimant did not receive the relevant pay award in April 2024.[48]There is similarly no dispute that ACAS Early Conciliation commenced on 30 December 2025, concluded on 7 January 2026 and that the claim form was presented on 8 January 2026. - 8 -[49]The Respondent therefore submits that the complaint was presented substantially outside the primary limitation period.[50]The Claimant does not contend that proceedings were presented within three months of the April 2024 pay award decision. Rather, her case is that there was conduct extending over a period and, alternatively, that time should be extended on just and equitable grounds.[51]I find that the complaint was not presented within the primary limitation period prescribed by section 123 Equality Act 2010. The Claimant was aware of the act complained of in April 2024. ACAS Early Conciliation was not commenced until 30 December 2025 and proceedings were not presented until 8 January 2026. Was There Conduct Extending Over a Period?[52]I next consider whether the Claimant has established conduct extending over a period within the meaning of section 123(3)(a).[53]In approaching that question I remind myself of the distinction identified in Hendricks between a continuing state of affairs and a series of discrete acts and in determining that issue I have considered carefully the competing characterisations advanced by the parties.[54]The Respondent submits that the complaint concerns a single pay decision taken in April 2024. It submits that there was no alleged continuing discriminatory state of affairs and that no further discriminatory decisions were subsequently made.[55]Reliance was placed upon Barclays Bank plc v Kapur and it was said that any continuing financial consequences experienced by the Claimant were consequences of the April 2024 decision rather than fresh alleged discriminatory acts.[56]The Claimant relied upon the existence of annual pay review processes, subsequent pay exercises and what she contended was an ongoing approach to remuneration. I do not accept that those matters establish conduct extending over a period within the meaning of section 123(3)(a).[57]The complaint before me concerns the application of the April 2024 pay award criteria to the Claimant. The Claimant accepted in evidence that she makes no complaint in respect of the April 2025 pay review exercise. In substance, the complaint is directed towards a discrete decision taken in April 2024.[58]Whilst the financial consequences of that decision may have continued thereafter, continuing consequences are not the same thing as a continuing discriminatory state of affairs.[59]I therefore conclude that this case is properly characterised as a one-off act with continuing consequences rather than conduct extending over a period. - 9 - Is it Just and Equitable to Extend Time?[60]Having reached my conclusions regarding the primary limitation period and conduct extending over a period, I turn to the Claimant's application for a just and equitable extension. The Claimant bears the burden of persuading the Tribunal that such an extension ought to be granted.[61]In determining that issue I have considered the entirety of the evidence together with all relevant factors identified by the authorities. The Length of Delay[62]The Respondent submits that the delay is substantial. On its analysis the alleged discriminatory act relied upon occurred in April 2024 whereas proceedings were not commenced until January 2026. It was submitted that the lapse of approximately one year and eight months between the alleged act and presentation of proceedings is itself a significant factor weighing against extension.[63]The Claimant did not dispute that a substantial period had elapsed between the April 2024 pay award decision and the commencement of proceedings. However, she submitted that the significance to be attached to that delay must be considered in light of the circumstances which she says existed during that period. In particular, she relied upon what she described as continuing internal discussions concerning the issue, assurances that matters would be resolved, her concerns about the impact of pursuing the issue whilst still employed by the Respondent and her belief that the matter remained unresolved. She submitted that the mere length of the delay should therefore not be viewed in isolation. The Explanation for Delay[64]The Respondent submits that no satisfactory explanation has been advanced by the Claimant for the delay. Particular reliance is placed upon the Claimant's seniority within the organisation and her role as Group Head of HR Services.[65]The Respondent submits that the Claimant would have been familiar with workplace rights, internal complaints procedures and the potential availability of legal remedies. It was further submitted that the claimant's evidence provides only limited explanation for the lengthy delay before commencement of ACAS Early Conciliation.[66]The Claimant's explanation for the delay was that, following the April 2024 pay award exercise, she raised concerns internally and believed that the matter might ultimately be resolved without the need for proceedings. She said that assurances were given to her that the issue would be addressed if she allowed matters time to develop. She further explained that she was concerned about the potential consequences for her employment and career if she pursued the issue formally whilst still employed by the Respondent. In oral evidence she also referred to the departure from the business of certain senior personnel involved in the matter and to her belief that the position remained unresolved. - 10 -[67]In particular I must consider carefully the Claimant's reliance upon alleged assurances that the issue would be dealt with if she gave the matter further time. I accept that the Claimant genuinely felt uncomfortable pursuing proceedings whilst she remained employed by the Respondent. I further accept that she hoped the issue might ultimately be resolved internally and that she regarded assurances she received as significant. Those matters do explain, at least in part, why proceedings were not commenced immediately. However, they do not satisfactorily explain the entirety of the delay. The Claimant knew in April 2024 that she had not received the pay award. She understood at that time why she believed she had been treated unfavourably. She raised concerns about the matter at the time. She was aware of Employment Tribunal time limits. She was aware of the protection afforded by the Equality Act 2010 against victimisation. She occupied a senior HR role and had substantial familiarity with employment law matters and Employment Tribunal litigation.[68]Taking those matters together, I find that the Claimant possessed an unusually high degree of knowledge and understanding of employment rights when compared with many litigants appearing before the Tribunal. Whilst I accept that the Claimant genuinely believed the issue might eventually be resolved, I am not persuaded that this provides a sufficient explanation for waiting until 30 December 2025 before commencing ACAS Early Conciliation. Prejudice[69]The Respondent submits that genuine prejudice arises from the delay. First, it relies upon the obvious forensic reality that recollections become less reliable with the passage of time. Secondly, it relies upon the fact that two individuals have since left the business. It is said that both individuals were involved in the relevant pay review process and that the delay would therefore impair the Respondent's ability fully to investigate and present its case.[70]The Claimant submitted that if the complaint cannot proceed she will suffer continuing financial loss and will lose the opportunity to obtain a remedy.[71]I accept that refusal of an extension inevitably deprives the Claimant of the opportunity to pursue that complaint. However, that consequence follows in every case in which a limitation defence succeeds and therefore carries only limited weight.
Conclusion
[72]Before reaching my conclusion I remind myself that the task identified by Underhill LJ in Adedeji is not to apply a mechanistic checklist. Rather, I must consider all matters which bear upon the justice and equity of granting or refusing an extension and then stand back and evaluate the overall fairness of the result. I have therefore considered the evidence as a whole. I have considered the length of the delay. I have considered the explanation advanced by the Claimant. I have considered whether there was conduct extending over a period. I have considered prejudice to both parties. - 11 -[73]Standing back and considering all of those matters in the round, I conclude that the delay in this case is substantial. The Claimant was aware of the matters complained of in April 2024. She understood that she had not received the pay award. She raised concerns regarding it at the time. I have accepted that she hoped the issue might ultimately be resolved internally and that she was concerned about the possible consequences of pursuing matters whilst still employed. I also accept that those beliefs were genuinely held. However, I must evaluate all of the circumstances. The Claimant was not unaware of her legal rights. Nor was she unfamiliar with Employment Tribunal proceedings. To the contrary, she occupied a very senior HR position, dealt with Tribunal litigation as part of her professional responsibilities, had experience of working with employment lawyers and accepted that she knew of the relevant time limits. That knowledge does not of itself prevent an extension being granted, but it is a factor to which I attach significant weight in the circumstances of this case.[74]I have also concluded that this was not a case involving conduct extending over a period. Rather, the complaint concerns a discrete decision taken in April 2024.[75]Standing back and considering all of the circumstances in the round, I am not persuaded that it is just and equitable to extend time. The claimant has not discharged the burden resting upon her to satisfy the Tribunal that such an extension should be granted.[76]For all of those reasons, the Claimant's application for an extension of time is not successful. The Tribunal is satisfied that the complaint of indirect sex discrimination was presented outside the applicable limitation period, that there was no conduct extending over a period within the meaning of section 123 Equality Act 2010, and that it is not just and equitable to extend time. It follows that the complaint cannot proceed. G Hughes