Employment Judge ArmstrongMrs P Magar (instructed by solicitor) for respondentDate 4 September 2025
REASONS
Introduction
[1]At the Case Management Hearing on 17 December 2024, I dealt with a number of case management issues and applications from both sides. Decisions were given orally on each issue as the hearing proceeded. Written reasons are set out below in relation to each decision made. (1) Evidence relating to ACAS conciliation communication[2]The claimant sought to place before the court a number of references to the content of communications between the parties as part of the ACAS conciliation process. It was submitted on her behalf that these were relevant to other applications and case management issues before the Tribunal, as evidence of undue influence by the respondent, its conduct and attitude to the proceedings. In particular, this evidence said to be relevant to the respondent’s application for an extension of time to submit its response, and to submit amended grounds of response. The claimant submitted that the correspondence was admissible because it fell within the ‘unambiguous impropriety’ exception to the general rule regarding the inadmissibility of without prejudice communications (BNP Paribas v Mezzoterro [2004] IRLR 509 (EAT)).[3]At the outset of the hearing I alerted the parties that I had noted that the claimant sought to adduce evidence of ACAS communications but that I had not (as yet) read any of the information referred to. I raised that I would need to deal with the question of the admissibility of that evidence as a preliminary issue.[4]The parties agreed that the appropriate way forward would be for me to determine as a preliminary issue whether communications via ACAS could in principle be subject to the Mezzoterro exception. If not, I would proceed without reading those parts of the evidence. If they could in principle be admissible, I would then proceed to read the communications referred to and determine their admissibility. If admissible, I could proceed to deal with the other issues. If I determined they would not be admissible, at that point I would have to recuse myself from the proceedings and the matter would be adjourned.[5]I heard submissions from both parties regarding the relevant tests.[6]I concluded that the communications through ACAS were not admissible for the following reasons:[7]The ‘without prejudice’ doctrine is a common law doctrine. It has been developed through case law. The case of BNP Paribas v Mezzoterro [2004] IRLR 509 (EAT) sets out the established principles and exceptions, including the ‘unambiguous impropriety’ exception which the claimant seeks to rely on.[8]However, the common law exception does not apply to communications via ACAS. ACAS communications are protected by statute – see section 18(7) Employment Tribunals Act 1996 which provides: ‘Anything communicated to a conciliation officer in connection with the performance of his functions under any of sections 18A to 18C shall not be admissible in evidence in any proceedings before an employment tribunal, except with the consent of the person who communicated it to that officer.’[9]The claimant sought to adduce information communicated to a conciliation officer in connection with the performance of his functions under the relevant provisions. The respondent communicated that information and did not consent to it being admitted in evidence before the Tribunal.[10]The exceptions of unambiguous propriety and imbalance of power as established at common law do not apply to ACAS communications because of the statutory provisions. There are good public policy reasons for that. Firstly, all such communications are via ACAS which mitigates the danger of impropriety or misuse of power. Secondly, it is an important public policy principle that communications through ACAS remain unambiguously confidential, in order that parties can openly use their best endeavours to resolve disputes. Finally, it avoids Employment Tribunal proceedings being obstructed by the type of satellite litigation to which these arguments would lead.[11]Any evidence regarding communication with ACAS is not admissible in these proceedings and will be removed from the Tribunal file, and must not be included in any evidence placed before the Tribunal in future.[12]The following documents were identified with the parties for removal from the main Tribunal record in accordance with the above direction:(i) claimant’s second amended particulars of claim;(ii) claimant’s second amendment application;(iii) claimant’s objection to the respondent’s application to extend time to respond;(iv) Attachment 1 to the claimant’s objection to the respondent’s application to extend time.[13]These documents will be removed from the electronic file and placed under a separate ‘without prejudice’ tab, not to be read by any Employment Judge at future hearings. (2) Set aside of previous order[14]The claim was presented to the Tribunal on 3 April 2024. On 6 June 2024 the Notice of Claim together with the claim form and a Notice of Hearing were sent to the respondent at Unity Place, 200 Grafton Gate, Milton Keynes, MK9 1UP (‘Unity Place’). The respondent accepts that this is the address provided to the claimant by them for service of these proceedings.[15]On 4 July 2024 the claimant submitted an application to amend her claim. On 13 August 2024 she submitted additional evidence.[16]On 20 August 2024 the claim was re-sent to 2 Triton Square, Regent’s Place, London, NW1 3AN (the respondent’s registered office). This was undertaken of the Tribunal’s own motion, following consideration at Rule 21 stage. No response had been received and the Tribunal noted that the claim had not been served at the respondent’s registered address. Documents were therefore sent to this address although it appears not all the required documents were sent.[17]By an undated letter sent by the Tribunal to the claimant and the respondent on or around 21 August 2024, the Tribunal sent the amendment application to the respondent at their registered address, and also invited the claimant to email the respondent with her amendment application and amended particulars of claim in advance of the preliminary hearing, which was at that stage listed for 4 October 2024.[18]On 30 August 2024 the claimant sent the documents to the respondent as requested by the Tribunal. The same day the respondent contacted the Tribunal by email stating they had received an ET1 and Tribunal letter from the claimant but nothing direct from the Tribunal and requesting a copy of the claim and associated documents.[19]On 17 September 2024 the Tribunal sent to the respondent by email documents including the particulars of claim and ET1.[20]On 27 September 2024 the respondent made an application for an extension of time to respond to the claim. They accept that the claim was validly sent to the address at Unity Place on 6 June 2024. However, staff did not open the claim because it was addressed simply to ‘Santander UK Plc’ rather than a named individual. The respondent accepts that this is a failure in its internal processes. Following the receipt of the email from the claimant as outlined above, it commenced a search to identify the documents and the original notice of claim and ET1 were opened on 24 September 2024. They accepted they had validly received the documents from the Tribunal by email on 17 September 2024. The respondent therefore requested an extension of time to respond to 15 October 2024 (28 days after receipt of the notice of claim from the Tribunal on 17 September 2024). No draft ET3 was provided. The respondent stated that this was due to the volume and complexity of the claims, and the time required to consider their response.[21]Also on 27 September 2024 the claimant submitted a further application to amend her claim (see further below).[22]The case was referred to EJ Davies on 25 September 2024. The referral predates the respondent’s application for an extension of time, and was made on the basis of the respondent’s email request for documents dated 30 August 2024. EJ Davies made an order on 25 September 2024 but it was not drawn and sent to the parties until 1 October 2024.[23]The order of 1 October 2024 directs that the claim form, particulars of claim, notice of claim, notice of hearing, amendment application and re-service correspondence ‘be sent to the respondent straightaway as it appears that when the claim was re-served the relevant documents were not included.’ She extended the time for the respondent to respond to 24 October 2024, and directed that the preliminary hearing listed on 4 October 2024 be postponed.[24]On the same date, the claimant emailed the Tribunal to request ‘an urgent review’ of the order of EJ Davies.[25]Rule 29 Employment Tribunal Rules of procedure 2013 (as in force at the time of the hearing) provides that: ‘A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.’[26]It is apparent, and the parties agree, that on 25 September 2025 when EJ Davies made her order, which was drawn 1 October 2024, she was under the mistaken impression that the respondent had not been validly served with the proceedings when they were first sent to its address at Unity Place. EJ Davies would have been unaware of the respondent’s application for an extension of time submitted on 27 September 2024, and the chronology set out therein. The respondent accepts that it was validly served at the Unity Place address as it was the address given by them to the claimant for service.[27]Furthermore, the claimant did not have an opportunity to make representations before the order was made.[28]I am therefore satisfied that it is necessary in the interests of justice to set aside the order of EJ Davies dated 1 October 2024. (3) Application for Extension of time to submit response[29]On 27 September 2024, the respondent made an application for an extension of time to respond to the claim, as set out above.[30]On 24 October 2024, in compliance with the order of EJ Davies then in force, the respondent submitted an ET3 and grounds of response. The grounds of response run to 15 pages and set out the background of issues between the parties. The respondent denies the claim but largely reserves its position and requests a stay pending the conclusion of internal grievance proceedings (which have now completed) and pending clarification of the claim by the claimant.[31]Having set aside the order of EJ Davies, I therefore have to consider the respondent’s application for an extension of time to respond to the claim. The claimant opposes the application. I considered both parties’ written and oral representations.[32]Rule 20 of the ET Rules 2013 (as in force at the time of the hearing) provides: ‘(1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application. (2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed. (3) An Employment Judge may determine the application without a hearing. (4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.’[33]I considered the guidance of HHJ Auerbach as set out in Thornley Golf Centre Ltd v Reed [2024] EAT 96, applying Kwik Save Stores Ltd v Swain and ors [1997] ICR 49, EAT.[34]Starting with the extent of the delay, considering that the more serious the delay which necessitated the application, the more important it is for the respondent to have a satisfactory explanation for it: The delay from the original expiration of the time limit on 4 July 2024 (28 days from the sending of the claim on 6 June 2024) and the application on 27 September 2024 is some 10-11 weeks. This is a significant delay.[35]The respondent acted promptly on becoming aware of the claim on 30 August 2024. There was a moderate delay of some ten days between receiving the documents from the Tribunal on 17 September 2024 and submitting the application on 27 September 2024.[36]There was also a delay between the submission of the application on 27 September 2024 and the submission of the ET3 and grounds of response on 24 October 2024. However, I take into account that from 1 October 2024 the respondent was acting in accordance with the order of EJ Davies. I also accept that practically speaking, once the respondent’s legal advisers had in fact had sight of the claim, given its length and the volume of claims and allegations, they would require substantial time to draft a response.[37]The respondent’s reason for the delay is that there was an error by staff at the address to which the claim was sent by the Tribunal, leading to the claim being lost in the respondent’s post room. There were then some internal delays in communication. This is not a good reason, but I am satisfied that it is an error rather than a deliberate obstruction of the claim.[38]The claimant invites me to find that the respondent deliberately delayed responding to the claim in order to put pressure on the claimant and to complete their internal processes. I am not satisfied that this is a credible explanation for the delay. I do not consider it likely that the respondent would deliberately risk a ‘default’ judgment under rule 21 in such a significant and wide-ranging claim. I find that it is more likely that the delay was due to incompetence and error on the respondent’s part. Turning next to the balance of prejudice.[40]The prejudice to the claimant: if I allow the application, there will be a significant delay to the resolution of her claim as compared to a judgment being issued in default of a response under rule 21 ET Rules 2013. There is also a lack of clarity in the respondent’s submitted response – it largely reserves its position pending the outcome of a grievance appeal. The claimant not unreasonably points out that had she delayed submitting the claim pending a grievance appeal outcome, the case law is clear that she would have been unlikely to be granted an extension of time. However, if the application is allowed, she will still be able to proceed with the claim.[41]On the other hand, the prejudice to the respondent of refusing the application is that a judgment would be entered in this complex and wide-ranging claim, relating to allegations covering a 16 year period. The respondent would not be able to provide a response to the allegations or to resist the claim. Although the response is in some respects in outline, it does appear to have some merit and if successful would likely provide a defence to the claim.[42]I am satisfied that it would be unconscionable to prevent the respondent from responding to this complex and wide-ranging claim as a result of the delay. Although the reason for the delay is not a good one, the respondent has acted relatively promptly once it in fact became aware of the claim. The prejudice to the respondent of refusing the application far outweighs the prejudice to the claimant of allowing it.[43]Time for presenting the response is therefore extended to 24 October 2024. (4) Application to amend the claim[44]The claimant applied on 4 July 2024 and 27 September 2024 to amend her claim to include matters post-dating the presentation of the claim, including the conclusion of a grievance appeal process and re-investigation. At the hearing, the claimant clarified that the application made on 27 September 2024 supersedes the previous application and she sought to pursue an amendment as set out in this later application.[45]The respondent does not object to this application and I granted it. It is not opposed and relates to matters arising after the submission of the claim form but relating to the same issues.[46]For the reasons set out above, reference to ACAS correspondence included within the application of 27 September 2024 is not admissible. Directions have therefore been made for the claimant to submit a final version of the amendments removing the paragraphs identified in the course of the hearing to be inadmissible. (5) Application for permission to file amended response[47]The respondent sought permission to file an amended response now that the appeal and re-investigation of the claimant’s grievance have been completed. A full response to the claim was not submitted on 24 October 2024 because the respondent reserved its position pending the outcome of that further investigation.[48]The claimant did not oppose the application to file a response to the claimant’s amended particulars of claim but opposed permission to the respondent to provide a full response, submitting that they should not be permitted to simply reserve their position pending the outcome of the rehearing.[49]I have granted permission to the respondent to file one amended response dealing with the full claim in its amended form.[50]In making this decision I took into account the Presidential Guidance on General Case Management (Guidance Note 1 – Amendment of the Claim and Response) and the principles in Selkent Bus Company Ltd v Moore [1996] ICR 836 (EAT).[51]There was no draft of the proposed amendment so the details of the proposed amended response are not clear, however the nature of the proposed amendment is to provide a full response to the claim following conclusion of internal procedures and an amendment to the pleaded claim. The time for presenting a response has now passed, having been extended to 24 October 2024. However, since then an amendment to the claim has been permitted and the internal procedures have been completed.[52]In terms of the timing and manner of the application, there is no issue regarding the application to file a response to the amended claim. However, the claimant makes a valid point that she would not have been permitted to delay the submission of her claim pending the outcome of internal procedures and therefore the respondent should have provided a full response on 24 October 2024. Within the response the respondent sought a stay of proceedings, which is no longer pursued and which I would not have granted pending the outcome of the internal procedures.[53]Turning to the balance of hardship and injustice: I am satisfied that it is entirely appropriate that the respondent provides a response to the amended claim, including the issues surrounding the further investigation and grievance appeal. It would be artificial and prejudicial to tie their hands in preventing them from setting out how that outcome informs their response to the original substantive claims. Overall, there are an extremely extensive number of claims and allegations extending over a 16 year period and it would be inequitable not to permit the respondent to respond fully.[54]I take into account the issue of delay. However an amended response is unlikely to add to the delay in proceedings. A further preliminary hearing is required in any event and the amended response can be provided in good time before that hearing.[55]Therefore, the respondent has permission to file and serve an amended response to the claim as now set out, by 21 January 2025.[56]After this decision was given, the claimant suggested that the decision to allow an amended response should be postponed pending the public preliminary hearing and decisions as to whether any claims are struck out at that hearing. I am satisfied that it is necessary for the respondent to respond in advance of that hearing in order that their position can be taken into account in determining whether any claims should be struck out. (6) Further application to amend the claim to include indirect discrimination[57]The claimant’s representative raised at the hearing that following further information being provided by the respondent she sought to amend her claim to include a further claim for indirect maternity discrimination. She submitted that this claim has arisen within the last three months.[58]The determination of an application to amend to include this claim was potentially premature. A direction was made for any application to amend the claim to include a claim for indirect maternity discrimination to be submitted by 31 December 2024 so that this can be dealt with at the further preliminary hearing. (7) Case Management Directions[59]Directions were made at paragraphs 11-17 of the order for further evidence and documents in order that the case can proceed to a further public preliminary hearing to deal with the issues at para 17. These are the next issues which need to be dealt with in order for the claim to progress.[1]The claimant worked for the respondent bank from graduation in around 2007. She commenced ACAS conciliation on 23 January 2024. The ACAS conciliation certificate was issued on 5 March 2024. She was then in employment. She presented extensive particulars of claim with a claim form on 3 April 2024. Any allegations before 24 October 2023 were likely to face limitation questions.[2]After two case management hearings at which amendments and further claims were permitted, in May of 2025, the Employment Judge directed the following questions were to be addressed today: The purpose of the hearing is to consider:1.1 Whether any of the claims should be struck out because there is no reasonable prospect of successfully establishing that the claims were brought within the statutory time limits, part of a course of conduct extending over a period of time which ended with the time limit, or that it would be just and equitable to extend time, or that it was not reasonably practicable to bring the claims in time, as appropriate;1.2 Whether any of the claims may be out of time, but that they should proceed to a full merits hearing to determine whether they are part of a course of conduct extending over a period of time, or whether it would be just and equitable to extend time;1.3 Whether any of the claims are clearly within time;1.4 Whether the Tribunal should make a deposit order in relation to any of the complaints because they have little reasonable prospect of success. Mr Rhodes confirmed that the respondent is not currently seeking to have any of the claimant’s complaints struck out for any reason other than the potential time limit issues. It is therefore not anticipated that the Tribunal will need to consider whether any of the claimant’s complaints should be struck out on the basis that they have no reasonable prospect of success for any reason other than time limit issues.[3]The Employment Judge also directed the respondent to provide an agreed list of issues and updated list of allegations (some complaints having been withdrawn, and some amendments having been permitted at that and an earlier hearing). Those documents identifying the claims were before me today. The claimant had also produced an excel spreadsheet of the same list of 42 allegations, but grouped together to identify the type of claim, and with the in time complaints highlighted in green.[4]The bundle for today’s hearing had around 270 pages of the pleadings/ orders/judgments to date and the claimant’s medical records provided to the respondent pursuant to an order of the Tribunal.[5]The respondent separately included fifty pages comprising the claimant’s statement for today and various other documents - identified as “disputed”, that is it understood that today’s hearing would not consider evidence on time limits, but simply take the claimant’s case at its highest. The claimant and her husband plainly wanted the opportunity to have that evidence considered, and it was fair, in those circumstances, for the claimant to be sworn in and for that evidence to be considered, recognising that I am applying a prospects of success test, rather than deciding the time limit issues directly myself. The matters below are therefore a reflection of what would or will emerge at final hearing, rather than me making findings. Overview of the claimant’s circumstances[6]If this matter comes to be tested in evidence the following will emerge:a. The claimant worked for the respondent from 2007; she was on continuous ill health absence from 2 August 2021 (and her employment ended on 20 January 2025, which is the subject of a second claim yet to be the subject of case management);b. The theme of the claim before me is that discrimination by Mr Driver, who was the claimant’s line manager’s manager, (and subsequent ill treatment - either discrimination/victimisation or protected disclosure detriment) caused the claimant’s accepted disability of anxiety/depression. The claimant’s case is that this treatment has resulted in personal injury and life long career loss;c. The background includes that the claimant worked full time between 2007 and 2016, buying a home with her husband in 2013;d. On 25 July 2016 she visited her GP complaining of two ways (one personal, one work related) in which her life was not as she would wish it – the work related reason was that a secondment role had come to an end, “finances mean that was cut back” – there was no mention of Mr Driver;e. The respondent’s sick pay provisions were such that the claimant was entitled to six months full pay and six months half pay and the claimant was signed unfit for work that summer - 2016;f. The subsequent medical notes include reference to the claimant’s unhappiness at her career not progressing – but again there was no reference to underlying prejudicial reasons for that;g. She returned to work on or around April 2017 on a phased return, having had counselling through the respondent’s EAP;h. The claimant left her then union around that time;i. In December 2017 the claimant was again unwell, having become pregnant, and reporting that “a senior manager” (likely Mr Driver) had some role in her not getting promoted roles for which she was applying and that she had been given poor ratings; she wanted to stay working at the respondent and build her career there; as she remained employed until this year, it is likely that sentiment will be found to perisist for some considerable time;j. The claimant remained unwell until March 2018 and then on maternity leave from around April 2018 until February 2019;k. The claimant joined a new union in 2018 while she was unwell and on maternity leave;l. The claimant returned to work for four months and then was unwell again from June 2019, having a second baby in October 2019 and was on maternity leave, returning in June 2020;m. The claimant’s first child had attended a private nursery four days a week from age one in 2019;n. By September 2020 the claimant was provided with a work lap top, and so on to work from home, and due to the pandemic there was no childcare and she had her husband managed that between them;o. When nurseries resumed around December 2020, both children were in nursery three days a week, typically the same days, and the claimant continued to work full time from home, with she and her husband managing uncovered childcare between them;p. The claimant became unwell again from August 2021 accessing counselling both again through the EAP in 2021/2022, and the NHS in 2023. Anti depressants were prescribed in August 2023 and further NHS counselling in 2024;q. The claimant presented a grievance and performance rating appeal in or after January 2022; while absent on sick leave from then until her dismissal, she accessed her work emails five or six times, typically, on each occasion her line manager would need to provide authorisation to log on; she had assistance from her union with her grievance in 2022;r. The claimant’s husband typically drove the children to nursery and then school, although on occasions the claimant did so.s. The claimant’s husband is her representative and though not legally qualified, he has the experience of having brought his own recent claim to the Tribunal and having had representation. During this hearing he referred to his own experiences and situation “not having been talked about” - nevertheless I take into account that this was a family with litigation already underway in recent years;t. The claimant knew of the possibility of Tribunal proceedings by February of 2023 and did her own google research at or around that time. The in time case and allegations and the people involved[7]The claimant is conceded to be a disabled person by reason of anxiety and depression and she advances, between November 2023 and September 2024, seven contended reasonable adjustments, which she says, the duty having arose, the respondent should have made. These allegations are accepted for the purposes of this hearing to have been brought in time.[8]There is also one in time allegation of indirect discrimination on the grounds of religion or belief in June of 2024.[9]There are sixteen in time allegations of whistleblowing detriment/victimisation from November 2023 to September 2024 (Allegations 1 to 10 and 19 to 24). The people alleged to have subjected the claimant to detriments on the ground of, or because of, her previous complaints are alleged to be:a. Ms Church/Mr McLennan, who were involved in investigating the claimant’s grievance;b. Mr Driver, “along with” with Mr McLennan or Sonnet Ms Church (allegation 7) - alleged to have fabricated claims that the claimant failed actively to engage/partake in mentorship and a manager development programme; (Mr Driver is also the subject of many of the claimant’s historic allegations);c. Ms Chavda who re-investigated the grievance;d. Ms Arfifa, who is alleged to have failed to answer questions in relation to the absence review on 22 August 2024;e. “the respondent”, by choosing Ms Jackson, who is alleged not to be independent, to chair an absence review process about the claimant’s absence – Ms Jackson is alleged to have a close working relationship with Mr Driver and friendship with Ms Mitchell, who manages Mr Driver;f. Ms Guy, who with Ms Church is alleged to have initiated a flawed absence review process; The “out of time” allegations[10]There are seven allegations of victimisation/whistleblowing detriment by Craig Driver during a period beginning on 16 June 2016 and ending “throughout 2021”. The June 2016 allegation is that he threatened the claimant in the office in person saying: “if anyone thinks of coming for me and my family they’d better be prepared for me to come for them” (allegation 18). It is alleged that via the claimant’s line manager Mr Beckram, throughout 2021, Mr Driver made oral and written statements on how the claimant was receiving full pay but was not doing her contractual hours. An eighth allegation is made against Mr Roles, that on 17 June 2016 he failed deliberately to investigate the claimant’s complaints, or offer an appeal.[11]This historic whistleblowing/detriment case relies on three internal communications from the claimant in January 2016, April 2016 and May 2016 about Mr Driver, including that he was hindering her career for discriminatory reasons, sought massages from female staff, and had promoted three white males (and not the claimant).[12]The claimant also alleges that Mr Driver:a. In 2010, mockingly accused two colleagues of going on “terrorist training” when planning a holiday to Egypt/Turkey (alleged as harassment related to race/religion);b. In 2013 chastised another colleague for failing to identify a colleague was pregnant before she was promoted, saying: If I had known you were pregnant, I would not have given you this job” - alleged as harassment on the ground of pregnancy;c. Between 2014 and 2017 requested and received neck massages from two female colleagues in the office, one of whom was a friend of the claimant who said she felt under duress (alleged as sexual harassment);d. In December 2015 failed to acknowledge her achievement in completing a secondment two grades higher, and failed to ensure her development continued to progress and failed to hire her for a team manager role in April 2016 (both of which are said to be less favourable treatment because of race (Pakistani) and/or religion (Muslim).[13]She further alleges that in January 2021 her manager, Richard Beckram, sent an inappropriate text message – alleged as sexual harassment.[14]The claimant’s case on limitation, is, firstly that the out of time allegations will be found to be conduct extending over a period pursuant to Section 123(3). Failing that, a Tribunal will consider it just an equitable to extend time, for a great number of reasons, including, fear of raising complaint about Mr Driver, the claimant’s illness and focus on raising her family, her ignorance of Tribunal matters, the systemic nature of the allegations and that justice requires them to he heard, the respondent’s own failure to investigate in 2016, and her diligent conduct of her case, including withdrawing 14 allegations to make this case manageable.
The Law
[15]Section 48(3) Employment Rights Act 1996 states “an employment tribunal should 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 similar 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 is not reasonably practicable for the complaint to be presented before the end of that period of three months.”[16]Section 48(3) is subject to the extensions given by virtue of ACAS conciliation where they apply. Section 207B (3) and (4) provide: “In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted [the stop the clock provision]; If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period;” “Reasonably practicable” means reasonably doable.[18]Section 123(1) of the Equality Act 2010: “Proceedings on a complaint within section 120 may not be brought after the end of -(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable.”[19]The Section 123(1) period is extended by the ACAS conciliation provisions where conciliation is commenced within the relevant time either by the “stop the clock” provisions or providing a further month from the close of conciliation, in a similar way to the provisions affecting other complaints.[20]Section 123 (3) provides: 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 it to be treated as occurrring, when the person in question decided on it.[21]Various principles have emerged in the application of 123(3), including consideration of whether a discriminatory state of affairs exists, such that a s number of acts amount to conduct extending over a period, as distinct from a succession of unconnected or isolated or specific acts – see Commissioner of Police of the Metropolis v Hendricks 2003 ICR CA. I have also had regard to those set out in Mr Gillie’s skeleton and most recently, Worcestershire Health and Care NHS Trust v Allen 2024 EAT 40 to the effect that reliance on different causes of action or different protected characteristics does not operate as a bar to conduct being found to be conduct extending over a period. I apply the language of the statute, in assessing whether there are prospects of the claimant succeeding in that case.[22]Equality Act time runs from the date of the alleged discriminatory act (but lack of knowledge is relevant to the grant of an extension) - see Mr GS Virdi v Commissioner of Police of the Metropolis and another [2007] IRLR 24 EAT.[23]The burden is on the Claimant to persuade the Court to exercise its discretion. The Court “cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule” (Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA at §25).[24]The Tribunal also considers “forensic prejudice” in assessing the prejudice to each party from an extension of time - see Wells Cathedral School Ltd v Souter EA 2020 000801 JOJ.[25]Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 makes clear that the Tribunal is entitled to consider the merits of a claim in the exercise of its discretion.[26]The Act confers the widest possible discretion on the Employment Tribunal in determining whether or not it is just and equitable to fix a different time limit Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640. That said the power of the Tribunal is a discretion, to be exercised judicially, assessing relevant factors and the weight to be given in each case. The onus is on the Claimant to persuade the Tribunal that it is just and equitable to extend time. Robertson-v-Bexley Community Centre 2003 IRLR 434 CA.[27]If there are circumstances which would otherwise render it just and equitable to extend time, the length of extension required is not of itself, a limiting factor unless the delay would prejudice the possibility of a fair trial see Afolabi -vSouthwark LBC 2003 EWCA Civ 15.[28]In exercising discretion under the Section 123 (1)(b) case law has also established that the Tribunal must consider the length of, and reasons for, delay, and must consider the prejudice to both parties.[29]Section 33(3) of the Limitation Act 1980 contains a helpful list of other matters which might need to be considered (in personal injury and other claims with longer time limits), but also for the Tribunal to bear in mind if relevant: the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any requests for information; the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.
Conclusions
[30]Taking into account the statutory provisions and principles above, as any Tribunal would, and considering the allegations advanced by the claimant, I have reached the following conclusions.[31]There is no reasonable prospect of a Tribunal considering that allegations 11 to 18 amount to a series of acts or failures with allegations 1 to 10. There is a gap in these two sets of allegations of just less than two years from the end of 2021 to November 2023. The allegations are that the claimant was victimised (I use the term generically for both whistleblowing detriment and Equality Act victimisation) by Mr Driver/line management and Mr Cole to whom she complained. The eight discreet allegations are in 2016, 2017, 2020 and 2021 (two in each year). She was then victimised, on her case, relying on the same three 2016 communications by almost wholly different people - those involved in her grievance/ill health management from November 2023 and into 2024.[32]There is no prospect of a Tribunal concluding these different specific allegations amounted to a series, such that time runs from the last of them – the 2024 allegations. There is one allegation against Mr Driver “along with” others - giving particular false evidence in the grievance – allegation 7, but otherwise the people involved are different. The allegations are discreet.[33]There is no principle that a gap of months or years breaks a series – a series can be quinquennial for example – but practically speaking, I consider that in light of the claimant being absent from work in the intervening period, and the nature of the in time allegation – evidence to a grievance investigation - there is no prospect that one very specific aspect of the Driver evidence to the investigation (as opposed to all other evidence of his) being considered the last in a series of victimising behaviour – a series which will be argued as running 2016 to 2021.[34]Further, there is no reasonable prospect that a Tribunal would conclude it was not reasonably practicable for the claimant to present allegations 10 to 18 within the Employment Rights Act 1996 time limits and no reasonable prospect of it concluding that the reasonable further reasonable period was up to and including 3 April 2024.[35]There are two allegations in 2016, two in 2017, two in 2020, and two in 2021. One of the 2021 allegations is that “throughout” 2021 comments were made that the claimant was receiving full pay but not doing full time hours – this at a time when she was working wholly from home and sharing uncovered childcare with her husband. It is also the case that she was unwell and not working from August 2021, and that must be the end date of her experience of such comments.[36]There is some, but little prospect that the Tribunal might conclude it was not reasonably doable to present the two 2016 allegations during the period of absence 2016/2017, because of that ill health, but the claimant then returned to work having had employer provided counselling.[37]Considering the state of technology and publicity in 2017, as now, there is no prospect of a Tribunal concluding it was reasonable for anyone (absent very unusual and compelling circumstances), let alone a graduate, not to know of the right to take whistleblowing and Equality Act complaints to a Tribunal. There is no prospect of a Tribunal concluding that at that time the claimant could not have researched the position, being back at work and undertaking her duties. Many people with impairment, and/or embarking on starting a family do just that and bring complaints. Similarly during the 2020 and 2021 complaints – the claimant was at work, albeit with some underlying mental impairment, but nevertheless working and, with her husband, on her own case, concentrating on raising her family.[38]For those reasons complaints 11 to 18 are struck out as whistleblowing allegations.[39]As to being advanced as victimisation complaints, again, there is no prospect of a Tribunal concluding there was conduct by the employer extending over a period – they are separated by a more than two year break during which there are no such allegations.[40]As to a just and equitable extension, the claimant’s reasons for not researching and understanding her right to bring Tribunal proceedings, were fear of Mr Driver, health, her focus on children and family, and her presentation of a detailed grievance in January 2022 alleging discrimination and harassment by Mr Driver (and a performance rating appeal) - essentially pursuing matters internally.[41]What are the prospects of a Tribunal at final hearing, considering it just and equitable to grant an extension of time to permit allegations 11 to 18 to be decided as victimisation complaints?[42]I consider, again, they are no such reasonable prospects. The Tribunal would be weighing the prejudice to the respondent of the loss of a limitation defence, with all that entails including cost and resources, and forensic prejudice, against the prejudice to the claimant.[43]At the time the proceedings were brought, respondent witnesses are challenged to account for their thought processes eight, seven, four and three years previously. By the time the case is being heard next year, that will be ten, nine, six and five years ago respectively (and in relation to the allegations addressed below even earlier). Any Tribunal would have profound concerns about the fairness of such a hearing.[44]The prejudice to the claimant includes losing her opportunity for a judicial and independent examination of historic allegations against Mr Driver, her other victimisation case, and the potential loss of remedy for historic wrongs. In particular damage to her health and her career.[45]As to prejudice by loss of remedy, any Tribunal exercising its discretion will bear in mind the prospects of a litigant in person, currently without any expert medical evidence but with the extant medical records, being the subject of a jointly and independently instructed expert, to establish and advise on causation in respect of particular acts, typically where there are lengthy allegations, trying to grapple with the very complex relationship between those acts and health. In that, I bear in mind that the Tribunal will know that there were two sources of the claimant’s upset and anxiety originally, and her path to remedy, even on her case at its highest, is by no means linear or certain.[46]The Tribunal will also be bearing in mind the claimant’s reasons for not commencing proceedings earlier, including fear was overcome to present a grievance in 2022, and that she knew of Tribunals in early 2023 because of her husband’s case.[47]The Tribunal knows that families have to make difficult choices all the time about how they prioritise their resilience and resources, but fundamentally, a Tribunal will bear in mind that having resilience to run one person’s Tribunal case rather than another’s is a decision, and there is no prospect that such a choice would sensibly persuade a Tribunal to exercise discretion in favour of the person whose case has been delayed.[48]As to the sense of justice for historic wrongs, the Tribunal will know that the claimant chose to bring grievance proceedings about them to her employer and was supported by her union in that. It will recognise that the employer’s handling of that process is to be examined in these proceedings; further Mr Driver faces one allegation of victimisation in any event. It will consider that prejudice from not being permitted to advance the historic allegations is mitigated by an already lengthy and substantial case which is in time. It will also consider that the claimant has always had the opportunity to bring any of her allegations to the Tribunal.[49]In all these unusual circumstances and in the round, I again consider, there is no prospect of the Tribunal fixing a different time limit to permit victimisation allegations from 2016 to August 2021 to be brought in 2024. Those allegations are also struck out.[50]It will be apparent from the conclusions above, that I consider the same analysis applies to allegations 35 to 41 – a collection of discriminatory, unpleasant behaviour, much not directed at the claimant personally, relying on different protected characteristics including pregnancy and maternity between 2010 and 2021, principally by Mr Driver. None of these matters, with the exception of the general 2016 “career progression” worry, are mentioned in the claimant’s medical notes as sources of distress or worry, let alone the cause of her ill health.[51]I again consider there is no prospect of the Tribunal thinking it is in the interests of justice to permit an extension to try such stale allegations, however unpleasant and upsetting such behaviour can be even if experienced remotely or indirectly. There is also one specific reason for the Tribunal not doing so, and that is that there is no such complaint of harassment on the grounds of pregnancy – allegation 41 – it is not a protected characteristic for the purposes of a Section 26 complaint.[52]For those reasons allegations 35 to 41 are struck out.[53]It follows from my assessment above that were I not striking out these complaints for the reasons explained, I would issue an unless order requiring cause to be shown why allegation 41 should not be struck out as misconceived and I would have ordered deposits payable in respect of each struck out allegation on the basis that the limitation case in relation to them has little reasonable prospects of success.[54]Finally, I turn to the reasonable adjustment complaints, it having been conceded the claimant was a disabled person at all material times. There are three historic allegations in addition to seven in time allegations from November 2023 to September 2024 – the post claim allegations having been permitted by amendment. Those historic allegations are:a. Throughout 2021 [up to August 2021] the claimant’s performance targets should have been extended and she should have been allowed more time to complete mortgage applications;b. In June 2020 the claimant should have been moved to another department, and engaged with her to review alternative vacancies;c. On returns to work in April 2017, February 2019, and June 2020: The training period should have been extended; 2:1 coaching support should have been provided; There should have been additional support to observe calls; and An alternative means of assessment should have been provided.[55]Time limits in reasonable adjustment cases are typically fraught with more complexity than other sorts of claims, because time on an omission runs from the decision not to do something, or when an act inconsistent with the adjustment is done, or alternatively when it might reasonably have been done. That complexity is sometimes a reason to grant a just and equitable extension. On any of these measures, however, the claims above experience the same break in allegations of over two years – from August 2021 to November 2023, with the later allegations.[56]There are no prospects of a Tribunal concluding conduct extending over a period to address that gap – during which, although the claimant was not at work, she was pursuing internal grievances, and as she says, accessing her emails on occasion and line management.[57]As to the prospects of a Tribunal thinking a just and equitable time limit is just, in addition to the matters above, and the balance of prejudice, the claimant was a member of a new union since 2018. The right to reasonable adjustments for those with disability is a well understood lay concept, as well as a legal one. Taking the claimant’s case at its highest that she faced disadvantage from her disability and her employer could reasonably be expected to know that, the explanation for not approaching her union while that disadvantage was playing out on her case in early 2019, 2020, and 2021, rather than in 2022 was a lack of knowledge of rights, and the strains of life which those with impairment face, while working and starting and raising a family.[58]The prejudice to the claimant in not being able to pursue a breach of duty case, is perhaps subtly different to that of pursuing historic and unpleasant allegations against Mr Driver. For the respondent the forensic prejudice is less, because it is not a “workings of the mind/mental process” type analysis, but an objective consideration of whether the respondent ought reasonably to have known of disability and disadvantage, and if so, what could reasonably have been done to alleviate that. Nevertheless, the balance of prejudice remains the ultimate test to be applied by the Tribunal, taking into account all the factors and matters in this case.[59]I can, again, see little prospect of a Tribunal considering the balance lies with the claimant in this case, such that it is in the interests of justice to grant an extension to both bridge the 2021 to 2023 gap, and then permit a further year from the knowledge of Tribunals in February 2023 to the presentation of the claim in April 2024. A very long time extension is, of course, not of itself a barrier if a fair trial is not prejudiced, but Tribunals see every day union members with health struggles and consequent difficulty at work – even if the concept of disability is not understood approaching their union for advice – all the more so if other aspects of their life are a struggle. In all these circumstances I cannot see any prospect of the Tribunal considering “not knowing” of rights to be a sufficient factor, in all the circumstances of this case, to tip the balance of prejudice in favour of the claimant. For these reasons, these complaints are also struck out. JM Wade