Mr S Klima v Frasers Group plc and Jack Wills Retail Ltd: 6001848/2023

EMPLOYMENT TRIBUNALS

Case No 6001848/2023

Between

Mr S KlimaClaimant

Ms E Misra KCRespondent

Before

Employment Judge Shulman

In person for claimant

Ms E Misra KC for respondent

Date 25 July 2024

JUDGMENT

[1]The claimant having failed to comply with the period of three months before issuing his complaint and being unable because of justice and equity to have his period extended his claim is hereby dismissed.

[2]The applications for strike out and deposit are hereby dismissed.

REASONS

[1]Claim Indirect discrimination – age.

[2]Issue The claimant being outside the period of three months starting with the date of the act complaint of whether that period should be extended to such period as the Employment Tribunal thinks just and equitable.

[3]The Law The Tribunal has to have to the following provisions of the law: 3.1. Section 123 Equality Act 2010 (EqA) Section 123(1)(b) (EqA): Proceedings on a complaint within section 120 may not be brought after the end of .. (b) such other period as the employment tribunal thinks just and equitable. Section 123(3)(a) (EqA): For the purposes of this section —(a) conduct extending over a period is to be treated as done at the end of the period. 3.2. Olufenso Adedeji v University Hospitals Birmingham NHS Foundation Trust (Olufenso)

[2021] EWCA Civ 23

per Underhill LJ paragraph 37(part): “The best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular “the length and the reasons for, the delay”” And paragraph 38 quoting Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan (Abertawe)

[2018] EWCA Civ 640

: “Factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent”.

[4]Facts The Tribunal having carefully reviewed all the evidence (both oral and documentary) before it finds the following facts (proved on the balance of probabilities): 4.1. The parties accept that the date of the act to which the claim relates was the date the first respondent implemented a policy known as the Frasers Group Loyal Service Policy (LSP) which was done on 1 May 2022. As we shall see the claimant objected to a particular aspect of the LSP but did not issue proceedings in the Tribunal until 18 September 2023. The LSP provided that after five years’ service allocated leave amounting to five days would be available and there were other awards which are not relevant for the purposes of this hearing. The LSP was only applicable to colleagues passing the five year milestone on or after 1 May 2022. The claimant had already passed that milestone, having commenced employment on 23 March 2015. 4.2. At the very least the LSP was drawn to the claimant’s attention by email dated 14 July 2022 and indeed on 22 July 2022 the claimant asked a colleague, Mark Smith, whether he the claimant was eligible for the five year reward. Mr Smith said he was unable to answer but by email of the same day I find that he pointed the claimant in the direction of human resources and also said that the claimant did not qualify for that reward. 4.3. The claimant did not, for no particular explanation, contact HR, but waited until 5 May 2023 to do anything more. The claimant says that this was because of the size of the first respondent but that he was going to have a meeting with Mark Smith. That meeting did not happen, although the claimant knew by then what Mr Smith had told him, namely, that this was an HR matter. The claimant also said he spoke to managers about this but there was nothing to this effect recorded by him nor in his witness statement. The Tribunal finds as a fact that none of this would have stopped the claimant proceeding had he wanted to. 4.4. It was on 5 May 2023 that the claimant lodged a grievance about the fact that he had not received the award and a grievance meeting took place on 9 May 2023. After that hearing the claimant took advice from the CAB, when claims to a Tribunal were discussed and the claimant was told about the time limit which we are considering today. The claimant was advised to await the outcome of his grievance by the CAB but he was now fully aware of the time limit. The claimant took no action in the direction of the Tribunal. 4.5. The claimant’s grievance was not upheld and the claimant appealed the decision. The appeal took place on 9 August 2023 and was dismissed in writing on 31 August 2023.

[5]Determination of the Issues (after listening to the factual and legal submissions made by and on behalf of respective parties): 5.1. It being accepted by the claimant that the act to which the complaint related was the coming into force of the LSP means that the Tribunal needs to concentrate on whether there should be any extension of time until 18 September 2023 only and not as to the question of whether the claim was lodged in or out of time. 5.2. The claimant argued right at the end of the case and nowhere in his claim nor in his witness statement that conduct extending over a period was to be treated as done at the end of the period (see section 123(3)(a) EqA). I asked the claimant at the outset whether he agreed that the date to which the complaint related was 1 May 2022 and he unequivocally said yes. If there is only one act, which I find to be so, there cannot be conduct extending over a period. In any case it is quite clear that the commencement of the LSP was exactly what the claimant was complaining about. 5.3. That being said I look to Olufenso for guidance. I have assessed all factors including the length of and reasons for the delay. I also to have regard to prejudice in relation to the respondent (Abertawe) but the first and second respondents are not claiming prejudice and I therefore disregard it. 5.4. So this case is principally about delay and it has been long. On or after 1 May 2022 or 14 July 2022 when the claimant received his email it is still long. I do not accept that the claimant did anything meaningful between 1 May 2022 and/or 14 July 2022 until 5 May 2023. By then I find that the claimant was too late but in any case he was fully appraised of the time situation by the time he saw the CAB and whether or not he was told to do nothing he still let four to five months pass before taking action. 5.5. I have a discretion in this matter taking into account justice and equity and my decision is that the claimant was out of time and is not entitled to have his period for his claim extended beyond the three month period and his case is therefore dismissed. 5.6. My decision is a matter of jurisdiction so the pending strike out and deposit applications naturally fall and the witnesses are hereby released. J Shulman