Ms M KrygerClaimantPladis (UK) Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge T BrownMr D McCrum (instructed by solicitor) for respondentDate 20 May 2025
JUDGMENT
(1) The respondent's application to strike out the claimant's complaint of indirect discrimination in relation to race—on the grounds that the claimant has no reasonable prospect of showing that the Tribunal has jurisdiction to consider it, having regard to the applicable statutory time limit—is refused. Approved by: Employment Judge T Brown 20 May 202511 June 2025 For the Tribunal: Reasons for the Employment Tribunal’s decision having been given orally on 21 May 2025, and no request for written reasons having been made at the hearing, written reasons will not be provided unless a written request is presented by a party within 14 days of the sending of this written record of the decision. 1 of 1
REASONS
(1) On 24 June 2024, this case was referred to me as a result of the respondent’s request for written reasons for my judgment, sent to the parties on 11 June 2025, refusing the respondent’s application to strike out the claimant’s claim on the grounds that the claimant had no reasonable prospect of succeeding in her claim, having regard to the applicable statutory time limit and the time at which the claim had been presented.(2) I decided not to strike out the claimant’s complaint of indirect discrimination in relation to race on 21 May 2025.(3) The claim relates to a period in 2022 when the claimant provided Polish sick certificates and was not paid sick pay because she says the respondent applied a provision criterion or practice to her, of not accepting Polish sick certificates.(4) The application to the claimant of the PCP continued, but in September 2022 she was paid for by the period of sickness absence which had originally been covered by the Polish sick certificates and her employment later ended on 9 May 2024. Early conciliation started on 27 June 2024 and ended on 22 July 2024, and the claim was then presented on 20 August 2024. Both sides accept that a complaint in relation to the non-payment of sick pay on presentation of Polish sick[1]of 5 certificates was a matter which substantially pre-dated presentation of the claim, having been resolved in essence in September 2022, with the earliest possible in time act being from 28 March 2024. (5) Today's public preliminary hearing was listed at a case management preliminary hearing on 21 March 2025 before Employment Judge Shastri-Hurst. She ordered that they would be a public preliminary hearing today for three hours by video to determine whether the claimant’s complaint of indirect race discrimination should be struck out because it had no reasonable prospects of success due to it being presented outside the primary time limit of three months. Employment Judge Shastri-Hurst observed that this hearing had been listed on the application of the respondent who sought to deal with time limits as a preliminary issue. The claimant had objected to that course, primarily on the basis that the claimant would need to give evidence if time limits were determined as a preliminary issue, which, the claimant’s representative had said, would exacerbate the claimant’s disabilities of stress and depression. (6) Employment Judge Shastri-Hurst decided in those circumstances that, given that on the face of the matter the complaint of indirect race discrimination was some months out of time, she considered it appropriate to deal with the matter at a preliminary hearing, but to balance that against the claimant’s disabilities, the matter would be dealt with as a strike out issue, which meant that the claimant would not need to give evidence and could be excused from attending the hearing, so that the matter would be determined on the basis of submissions from the respective parties’ representatives. (7) That having been the ordered approach, it was necessarily the approach that I had to take to the preliminary matter. (8) In deciding it, I had a 108-page agreed bundle of documents from the parties and I had written submissions from each of the parties which had been collated in a single PDF of four pages of submissions for the respondent and two pages for the claimant, with a list of legal authorities and thereafter copies of the authorities. That bundle of submissions was 34 pages long. I also also retrieved from the Tribunal’s case management system, the formal correspondence between the Tribunal and the parties which included a copy of the Tribunal’s 21 March 2025 management order which was not included in the bundle of documents provided by the parties. (9) To be clear, I am not deciding today, whether or not, it would be just and equitable to extend time. I am only assessing whether the claimant has no reasonable prospects of persuading an Employment Tribunal at the final hearing that it would be just and equitable to extend time. (10) In Twist DX v Armes, a decision of the Employment Appeal Tribunal, on 23 October 2020, Mr Justice Linden, at paragraph 43, summarised the principles relevant to the application of the Tribunal’s power under what is now the Employment Tribunal Procedure Rules 2024 to strike out all part of a claim on the basis that it has no reasonable prospects of success.[2]of 5 (11) He said paragraph 43:a. A decision to strike out is a draconian measure, given that it deprives a party of the opportunity to have their claim or defence heard. It should, therefore, only be exercised in rare circumstances: see, for example, Tayside Public Transport Company Limited v Reilly [2012] IRLR 755 at paragraph 30.b. The power to strike out on the no reasonable prospect ground is designed to weed out claims and defences, or parts thereof, which are bound to fail. The issue, therefore, is whether the claim or contention “has a realistic as opposed to a fanciful prospect of success”: see, for example, paragraph 26 of the Judgment of the Court of Appeal in the Ezsias case (supra).c. The court or tribunal should not conduct a mini-trial of the facts and therefore would only exceptionally strike out where the claim or contention has a legal basis, if the central or material facts are in dispute and oral evidence is therefore required in order to resolve the disputed facts. There may, however, be cases in which factual allegations are demonstrably false in the light of incontrovertible evidence, and particularly documentary evidence, in which case the court or tribunal may be able to come to a clear view: see, for example, paragraph 29 of Ezsias.d. Subject to this point, the court or tribunal must take the case of the respondent to the application to strike out at its highest in terms of its factual basis and ask whether, even on that basis, it cannot succeed in law. (12) The remaining sub-paragraphs of paragraph 43 deal with circumstances, where a novel point is raised; where a Tribunal has been satisfied that a contention has no reasonable prospect success and the fact that the Tribunal has residual discretion and the need for particular caution where a party is not legally represented and/or not fully profit proficient in written English, none of which I consider apply to the hearing before me, and therefore I am not going to include those. (13) In reaching my decision, I have sought to follow the guidance in Twist DX v Armes. (14) The respondent says that the complaint of indirect race discrimination is long out of time and there is evidence that the claimant could have presented a claim substantially earlier. It accepts that the documentary evidence of the application of the PCP to the claimant, and the witnesses who were concerned in relevant decision-making are still available, but it says that there may be forensic prejudice to it, from questions asked to those witnesses in cross examination. The respondent says that the issue raised by this complaint is relatively less important because the claimant was paid albeit retrospectively for the period in full once she had produced a statement of fitness for work from a UK clinician.
law.
[3]of 5 (15) The claimant says that the relevant factors for the Employment Tribunal in considering whether or not to extend time would include her ill health at the time in question, and thereafter until her employment ended in 2024, and the fact that she says she had concerns about starting a claim while still employed by the respondent, because she did not wish to create an irretrievable situation and was hoping to return to work. The claimant says that the complaint has some merit taking it at its highest and that there is unlikely to be forensic prejudice to the respondent in the context specifically of an indirect race discrimination claim, because she says the matters in question are in writing. (16) The claimant says that the issue is of some important because it concerns what she says was a policy of not considering Polish sick certificates to the detriment or greater disadvantage of those who are not English. She says that she has a claim for damages for injury to feelings because of the damage which the application of the policy to her caused. (17) I have not been satisfied that the claimant has no prospect persuading an Employment Tribunal to extend time, taking the factors which are relied on in support of an extension of time at their highest, considering those factors, and asking whether even on the basis of them claimant could have no reasonable prospect of persuading a Tribunal. I conclude that she has better than no reasonable prospect of succeeding, because they are factors which have a more than fanciful prospect of success. (18) Whether an Employment Tribunal in fact decides to extend time is not for my determination today. I am simply assessing the prospect that an Employment Tribunal at a final hearing would do so and in my judgment the claimant’s prospects are more than fanciful prospects where an Employment Tribunal has a wider discretion as the Tribunal would here have. The question is not whether it was not reasonably practicable for the claimant’s claim to be presented in time, and there are many instances of complaints brought under the Equality Act 2010 being permitted to proceed even though they were presented long after the ordinary three-month time limit had expired. (19) If at the final hearing the respondent was subjected to forensic prejudice an Employment Tribunal could take that into account in considering how to exercise its wide discretion, but it is far from evident that there would or that it is likely on the basis of the submissions before me that there would be any forensic prejudice to the respondent, and if there were no forensic prejudice to the respondent, as there well may not be, that will, along with all other factors, be relevant to the Employment Tribunal’s exercise of its discretion. (20) Where, as here, a future decision-maker has a wide discretion, it is less easy for me to be satisfied that there is no reasonable prospect of that decision maker exercising the discretion in any particular way, and I can contemplate— I put it no higher than that—circumstances in which an Employment Tribunal at the final hearing could conclude that an extension of time was just and equitable, if it considered that the claimant’s complaint was a well-founded,[4]of 5 one, that there were good, or at least excusable, grounds for her delay (as there may very well be) and that there was no forensic prejudice to the respondent as a result of the delay. (21) In those circumstances, I conclude that the claimant has better than no reasonable prospect of success on the issue of time limits, and I can not therefore strike out her complaint. Approved by: