Ms R Zhang, Personal Representative of Mr H Liu v Huawei Software Technologies Co Ltd and Huawei Technologies (UK) Co Ltd: 6011217/2024
EMPLOYMENT TRIBUNALS
Case No 6011217/2024
Between
Ms R Zhang, Personal Representative of Mr H LiuClaimantHuawei Software Technologies Co Ltd and Huawei Technologies (UK) Co LtdRespondent
Before
Judge DobbieMr T Cordrey (instructed by Counsel) for claimantMr C Milsom (instructed by Counsel) for respondentDate 14 March 2025
JUDGMENT
[1]It is not just and equitable to extend time in respect of the claims and they are therefore struck because they are out of time.
REASONS
[1]Per the case management order sent to the parties on 4 November 2024 [61-65], the matter was scheduled for a preliminary hearing to determine the following:(a) If not already decided in advance of the hearing, for each complaint, should Runmei Zhang be appointed (or else confirmed) as the person who will present / continue the claims on behalf of the estate of Mr Huasheng Liu?;(b) For each complaint, was it presented outside of the primary time limit?;(c) If so, should there be an extension of time. For some of the complaints, this will require the tribunal to decide whether it had been reasonably practicable to present the claim on time (and, if so, whether it was presented within such further time as is reasonable.) For other complaints, the tribunal will need to decide whether it is just and equitable to extend time. The tribunal will hear witness evidence (if any) and consider documents in order to decide the above issues.(d) Prior to deciding the above issues, there will be such case management orders as the judge considers necessary. In particular, the complaints and issues will be clarified to the extent that it is necessary in order to decide the above-mentioned preliminary issues.(e) As well as deciding the above preliminary issues, time permitting (and subject to the outcome of the preliminary issues) there will be further case management decisions…[2]The claims pleaded by the Claimant in the claim form were as follows:(1) Direct and indirect discrimination under ss.13 and 19 Equality Act 2010 (EqA): (a) For not providing Mr Liu with R2’s life insurance policy and only conferring those directly employed by R2 with that benefit; and (b) For requiring Mr Liu to work one Saturday every month without pay (but with TOIL);(2) Unlawful deduction from wages arising from the requirement to work one Saturday a month without pay;(3) Holiday pay under the Working Time Regulations 1999 (WTR); and(4) Breach of contract for not guaranteeing Mr Liu the statutory rights applicable to the country in which he actually worked (the UK). Procedure, documents, and evidence[3]In advance of the hearing, I was provided with:(a) An electronic bundle of 212 pages;(b) Opening statements from each side;(c) Witness statements for the Claimant and Mr Don Kelly, HR Director for R2, (for the Respondents);(d) An amended grounds of claim;(e) One authority; and(f) Two certificates of sponsorship details.[4]At the outset of the hearing, it was confirmed that the Claimant did not seek to pursue the claim for unlawful deduction from wages (for working on a Saturday without pay but with TOIL). The Claimant had written to the tribunal on 18 November 2024 to withdraw such claim (and proceed with that allegation as a discrimination claim only). Accordingly, I agreed to dismiss the unlawful deduction from wages claim.[5]At §13 of the Claimant’s opening statement, it was stated that the claim for breach of contract was also withdrawn. I agreed to dismiss that upon withdrawal also.[6]This left the claims for holiday pay under the WTR and discrimination claims under EqA.[7]At §§14-15 of the Claimant’s opening statement, the Claimant applied to amend the claim and withdraw the holiday pay claim with the withdrawal being contingent on the outcome of the application to amend. Specifically, it was contended that if the amendment were permitted, enabling the Claimant to pursue the claim for holiday entitlement as a claim for both direct and indirect race discrimination, the Claimant would withdraw that claim as a WTR claim, such that the only remaining claims would fall under ss.13 and 19 EqA.[8]For reasons given orally on 28 January 2025, I allowed the application to amend and the subsequent withdrawal of the holiday pay claim. This meant that the sole issue for determination at the preliminary hearing was whether time should be extended under the just and equitable formula set out in s.123 EqA for all (augmented) elements of the discrimination claims.[9]I heard live evidence from the Claimant (with the assistance of an interpreter) and from Mr Don Kelly (HR Director of R2), both of whom were cross-examined.[10]On the second day, I received closing written submissions from the Claimant and another authority. At the end of the hearing, I made orders for the Claimant to better particularise the PCPs relied on for the reasons set out below.[11]On 5 February 2025, the Claimant provided a further six pages of written submissions which extended beyond the scope of the Order for additional information. Nonetheless, I took all the submissions in that document into account in reaching my decision.[12]On 13 February 2025, the Respondents submitted their reply to the Claimant’s submissions. I have also taken that into account. Findings of Fact and evidence[13]The Claimant is the widow of and acts as the personal representative of Mr Huasheng Liu (Mr Liu).[14]Mr Liu was employed as a BSS Solution Architect and was a Chinese national. He was an employee of R1 but worked for R2 in the UK on and off from January 2013 (the parties acknowledge he worked in Milan and Dusseldorf at times but they differ as to when and for how long).[15]R1 is a Chinese company in the Huawei group, a multinational conglomerate technology corporation operating in over 170 countries.[16]R2 is a UK company within the Huawei group to whom Mr Liu was seconded at times from January 2013 onwards.[17]The Claimant was a full-time accountant when she lived in China but since moving to the UK in 2013, she did not work. The Claimant’s native language is Mandarin and she can speak and understand limited English. She gave evidence through an interpreter.[18]On 8 May 2019, Mr Liu sadly passed away and of course his employment came to an end by operation of law. The primary limitation period for claims pertaining to his employment therefore expired no later than 7 August 2019 (and the Respondents say the time limits for some of the claims pertaining to Saturday working and holiday entitlement expired far earlier, on the basis that they are alleged to date back to 2013).[19]After Mr Liu’s death, the Claimant described that she was devastated and her focus was then on how to support her family emotionally and financially.[20]The Claimant acted as sole administrator of Mr Liu’s estate and instructed lawyers to assist her in becoming the administrator.[21]In May 2019, the Claimant was provided with a list of law firms that spoke Mandarin by the embassy.[22]On 24 May 2019, the Claimant contacted Chan Neil solicitors (in China) with an email headed ‘About employment’ asking various queries [208-209]: Hi Selina, Regarding the medical accident, I have not received the final report from Coroner, so there is no way to proceed. I want to do something related to the company now. 1. My husband’s death has not been registered with the government. Can the company stop paying his salary and benefits? 2. The company only purchased Chinese commercial insurance for my husband and did not purchase any insurance in the UK. Does it comply with British legal regulations? 3. My husband has paid taxes in the UK for 5 years. Can the government refund the taxes he has paid? 4. He paid taxes in the UK from January 2013 to October 2016, and from March 2017 to January 2018. This time we entered the country on April 30, 2019, and his salary in the UK has not yet been paid. He entered the country with a work visa T2 ICT, which expired on 27 April, 2020. Unfortunately, he died unexpectedly on 8 May. 5. My husband paid taxes in the UK in the past few years. Is there any compensation from the government? 6. Is Huawei’s UK branch subject to UK company law?[23]On 5 June 2019, the Claimant sought and obtained advice from a friend about how to contact a good lawyer in respect of an issue pertaining to Mr Liu’s medical records.[24]In June 2019, the Claimant received a sum from R1 in respect of Mr Liu’s shares in R1.[25]In June and November 2019, the Claimant enquired of the Respondents about Mr Liu’s life insurance and was informed then that he was protected under the policy applicable to employees of R1 and did not have the benefit of R2’s policy.[26]In July 2019, the Claimant was liaising with R1 in respect of work-related injury compensation.[27]The Claimant stated in evidence that she believed Mr Liu had been unfairly treated in or around August 2020 when HR informed her how much overtime and holiday Mr Liu had taken since he had been assigned overseas and that in her view, it was 22 days too few.[28]The Claimant stated in her live evidence that at some point between August and December 2020, she Googled ‘group insurance contract’ and found that the limitation period was six years. She therefore believed she had six years to submit claims in respect of his employment contract.[29]From August 2019 to June 2024, the Claimant was involved with and successfully advanced a clinical negligence claim in respect of Mr Liu’s death, after being told by a doctor in the hospital that she could so do. She stated that she then found solicitors and followed their advice in respect of that claim.[30]At §§50-52 of her statement, the Claimant stated ‘My focus then was on that [the clinical negligence claims] as I understood form google that I had 6 years to bring a claim against Huawei and I wanted to deal with the litigation against the Royal Berkshire’ and ‘I was also aware that I needed Huawei UK and Huawei China to cooperate in the claims, which is why I only considered the position with Huawei after settlement was reached.”[31]The negligence claims were settled on 7 June 2024 and the Claimant received the payment on 24 June 2024.[32]In her oral and written evidence, the Claimant stated that from 26 June 2024, she sought an employment solicitor to assist her in advancing an employment claim on behalf of her husband.[33]On 27 June 2024, the Claimant consulted a solicitor from Pennington’s Manches Cooper (PMC) in respect of a possible employment claim and was told the claims were likely out of time but that they could review it for her [211]. The Claimant describes that she was in contact with PMC for a month but then decided to change lawyers.[34]On or around 28 June 2024, the Claimant contacted Cole Khan solicitors about the matter but was told they did not have capacity to take it on [211].[35]On or around 1 July 2024, the Claimant was in consultation with Leigh Day about the employment situation, but was told they were too busy to take her case on [211].[36]On 19 August 2024, the Claimant started ACAS early conciliation with the Respondents on behalf of her husband, as his personal representative. ACAS EC certificates were provided on 21 August 2024 [4-5]. The claim was presented on 10 September 2024 [6].[37]It is common ground that EC commenced well after (indeed over five years after) the primary limitation period expired and as such, the ‘stopping the clock’ mechanism under s.207B ERA does not apply, nor does the one-month extension under that section.[38]Mr Kelly’s statement addressed various ways in which R2 contends it would be prejudiced if time is extended in respect of the claims. He confirmed that the former HR director of R2 at the time of Mr Liu’s secondment is no longer employed by R2 but is employed within the group. Of the 11 HR employees that were employed by R2 at the time of the relevant events, only one remains and she was on maternity leave at the time of Mr Liu’s death. He further stated that Mr Liu’s situation was handled between UK and Chinese HR on his death and that R2’s workforce has been significantly downsized and many people have left across various business functions.[39]Mr Kelly further stated in his oral evidence (amongst other matters) that:(a) the team from which Mr Liu originated (employed by R1) has been disbanded and only some of them remain within the group somewhere;(b) the digital system of record keeping was integrated from 2014 onwards but it only really improved ‘within the last 4-5 years’;(c) he could be sure that there are no employees still seconded from R1 to R2 who were also seconded in 2019, due to the limitations on work visas which would mean they must all have left by now (if they were there in 2019);(d) R2 no longer had the lists of those seconded to it from R1 for the period Mr Liu was seconded, due to GDPR, but headquarters might have this held centrally because it is outside the scope of the GDPR;(e) he assumed, but could not know for sure, that R2 directly employed a greater proportion of UK nationals than R1 did; and(f) he had done a check of the system and was able to confirm that over 50% of R2’s direct employees are Chinese nationals.
The law
[40]I reminded myself of the relevant legislation and caselaw:[41]Under s.123(1) EqA, the primary time limit for presentation of a discrimination claim is three months starting with the date of the act complained of and, where there is conduct extending over a period, it is treated as having been done at the end of that period, under s.123(3) EqA.[42]Under s.123(1)(b) EqA, the test for extending time is the just and equitable test. Continuing acts[43]In some instances, a series of matters can aggregate to what is regarded as a ‘continuing act’ with time running from the last act in the series. In other cases, a single act can itself be regarded as continuing in nature (there being a distinction to be drawn between cases in which there is a one-off act that itself continues and one which occurs on a single date but merely its consequences continue).[44]The leading case on continuing acts is the decision of the Court of Appeal in Hendricks v Metropolitan Police Comr [2003] IRLR 96, which makes it clear that the focus of enquiry must not be on whether there is something which can be characterised as a policy, rule, scheme, regime or practice, but rather on whether there was an ongoing situation or continuing state of affairs in which the group discriminated against was treated less favourably. At §§48-52, it was stated that: ‘48. … She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’. I regard this as a legally more precise way of characterising her case than the use of expressions such as ‘institutionalised racism’, ‘a prevailing way of life’, a ‘generalised policy of discrimination’, or ‘climate’ or ‘culture’ of unlawful discrimination. …[52]The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’ . I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a ‘policy’ could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed’. 45. In some cases, the Tribunal might find that some acts / omissions are connected so as to form a continuing act and others are not, or that there are separate strands of continuing acts that are not themselves connected. In Lyfar v Brighton and Sussex University Hospitals Trust 2006 EWCA Civ 1548, the claimant brought 17 complaints of race discrimination against the Trust concerning the way in which it had investigated complaints of bullying and harassment made against her by a colleague. At a preliminary hearing, the tribunal decided that the complaints about the Trust’s internal investigation and the subsequent disciplinary hearing (although these were, in themselves, continuing acts of discrimination) were not linked to later complaints she had made about her manager’s actions after the disciplinary hearing and the Trust’s handling of her grievance. As a result, the events giving rise to the 17 complaints were not part of one continuing act of discrimination, meaning that many of the earlier complaints were time-barred. The Court of Appeal upheld the tribunal’s decision on the particular facts of the case. However, in reaching its decision, the Court clarified that the correct test in determining whether there is a continuing act of discrimination is that set out in Hendricks. 46. In deciding whether a particular situation gives rise to an act extending over time it will be appropriate to have regard to(a) the nature of the discriminatory conduct of which complaint is made, and(b) the status or position of the person responsible for it. A single person being responsible for discriminatory acts is a relevant, but not conclusive, factor in deciding whether an act has extended over a period (as the CA warned in Aziz v FDA [2010] EWCA Civ 304). Just and equitable extension of time 47. Under the just and equitable formula, the Tribunal has ‘a wide discretion to do what it thinks is just and equitable in the circumstances ... they entitle the [employment] tribunal to take into account anything which it judges to be relevant’ (Hutchison v Westward Television Ltd [1977] IRLR 69). 48. In British Coal Corporation v Keeble and ors 1997 IRLR 336, the EAT suggested that in determining whether to exercise the discretion to allow the late submission of a discrimination claim, tribunals would be assisted by considering the factors listed in s.33(3) of the Limitation Act 1980 (LA), in particular: (a) the length of, and reasons for, the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued has cooperated with any requests for information;(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. 49. This list under s.33 LA is not to be adhered to slavishly or elevated to a legal requirement but is merely a guide (Southwark London Borough Council v Afolabi [2003] ICR 800). 50. In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 15 640, the Court of Appeal confirmed this, stating that it was plain from the language in s.123 EqA that Parliament chose to give tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list. 51. In Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434, the Court of Appeal confirmed that a tribunal has a wide discretion when considering whether it is just and equitable to extend time. However, it also stated that time limits are applied strictly in employment cases, and there is no presumption in favour of extending time. In fact, tribunals should not extend time unless the claimant convinces them that it is just and equitable to do so. The exercise of discretion to extend time should be the exception, not the rule (§25). 52. In Mechkarov v Citibank NA [2016] ICR 1121, the EAT stated that when considering whether it is just and equitable to extend time, tribunals must weigh up the relative prejudice that extending time would cause.[53]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ in the Court of Appeal, at §37 confirmed, that: “…rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. 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 of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”[54]The strength of the claim may be a relevant factor when deciding whether to extend time. In Lupetti v Wrens Old House Ltd 1984 ICR 348, EAT, the EAT noted that tribunals may, if they think it necessary, consider the merits of the claim, but if they do, they should invite the parties to make submissions on this point.[55]In Kumari v Greater Manchester Mental Health NHS Foundation Trust 2022 EAT 132, a litigant in person presented complaints out of time. In reaching its decision not to extend time, the tribunal weighed in the balance its view that the merits of the complaints appeared to be weak (although not so weak that they had no reasonable prospect of success). This was not overturned on appeal. The EAT noted (at §63): ‘It is permissible, in an appropriate case, [for a tribunal] to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a minitrial, or become drawn into a complex analysis which it is not equipped to perform.’ Submissions[56]The parties’ positions were set out in their opening note / skeleton arguments, supplemented by oral submissions, the Claimant’s closing submission and the post-hearing submissions (referenced above). I do not replicate them here, but a summary is as follows: Respondent[57]Mr Milsom submitted (in summary) that:(a) The Claimant’s statement was not her own and had been produced by Google Translate and with the help of her son (who is not a certified translator) and that if this had been done in civil proceedings, the claim would have been struck out without more, but that the issue as to reliability of her evidence applied equally in these proceedings, such that the statement should be given no weight;(b) The claims date back to 2000 or 2013 at the latest, some 12 years ago and Mr Liu knew the facts giving rise to them at the time. The Claimant herself knew of the limitation period by August 2020 and there was no reason for extending time;(c) The claims were at least five years out of time, if not longer;(d) The Claimant had accepted she had consulted various employment solicitors yet she provided no adequate explanation for the delay;(e) The Claimant’s evidence that she believed there was a six-year limitation period for employment claims was ‘vague and belated’ and not to be believed, noting it was not mentioned in the claim form, despite the claim form addressing the issue of and reasons for the delay;(f) The ‘better view’ is that she prioritised the more lucrative personal injury claim first and decided it was better to keep the Respondents on side in respect of that claim so that they could assist. She had the facts at her disposal, but chose to use them at a time of her convenience;(g) She waited three months after learning the claim was out of time to present it and there is no excuse for that ‘glacial pace’;(h) There is likely to be forensic prejudice in allowing the claim to proceed, but in any event a lack of prejudice does not mean it is just and equitable to extend time; R2 no longer holds the records to show whether there was a particular ‘group’ disadvantage; How can the Claimant prove that Mr Liu was forced to work Saturdays for no extra pay (but with TOIL) rather than that he opted to do so when he was not able to give evidence and there was not likely to be any remaining staff in R2 to give evidence on this?; and(i) It is permissible to consider the merits of the claims when deciding to extend time provided caution is exercised per Kumari and the Claimant’s claims are weak (for a number of reasons advanced). Claimant[58]Mr Cordrey submitted that:(a) The Claimant’s statement should be given full weight, she had explained how it was created and there should not be a formality of needing an official interpretation in tribunal proceedings since this would be disproportionate and an unnecessary formality and cost;(b) The Claimant’s oral evidence should also be given full weight and that evidence was consistent with the written statement;(c) The Claimant did seek employment law advice ‘as soon as she thought she needed it’;(d) The claims had merit and were worth approximately £180,000 plus injury to feelings and c.6 years of holiday / overtime payments;(e) Whilst Mr Liu might have been able to bring some of the claim whilst he was alive, and it is not irrational to consider why he did not, he is not here to explain why he did not do so;(f) The Claimant’s mistake as to the limitation period is a reasonable one induced by a reasonable Google search – she believed she had six years to bring the claims;(g) Based on her belief that she had six years to bring the claims, it was reasonable for her to wait until June 2024 to seek employment law advice, at which time only five years had passed;(h) Her behaviours as to when she sought advice is consistent with the fact that she believed she had six years and therefore her evidence as to the genuineness of her belief should be accepted;(i) As to prejudice, the burden of proof in respect of the claim lies on the Claimant and if documents are no longer available due to the passage of time, it is the Claimant that is prejudiced, not the Respondents;(j) Respondents led no evidence to state that R1 did not have the relevant documentary evidence;(k) In respect of the insurance claim, the rationale for not offering it to seconded staff applies equally now as it did at the time and the Respondents can therefore give evidence for that rationale.[59]I asked Counsel for the Claimant during the hearing how the claim for less favourable terms based on Chinese nationality could amount to direct discrimination given that there were Chinese nationals employed by R2 (in the UK) on R2’s terms and English nationals employed by R1 (in China) on R1’s terms. Counsel suggested that the claim was best framed as indirect discrimination but had been pleaded in the alternative to ensure it did not ‘fall between two stools’. It would be fair to say he implicitly accepted that a direct discrimination claim was not viable. At the very least, he did not advance any submissions to demonstrate why such claims would be viable as direct discrimination claims. I then asked him to clarify the PCPs relied upon in respect of each matter that he contended caused Mr Liu particular disadvantage. He was unable to do so at the hearing. I therefore agreed to give the Claimant time to consider the position, hence the orders made above and the further submissions received.[60]In the further submissions, it was stated that the following PCPs applied:(a) ‘However long they have lived and worked in the UK, no Huawei employee is entitled to UK terms and conditions unless their contract of employment is with R2’;(b) ‘However long they have lived and worked in the UK, no Huawei employee is entitled to membership of R2’s life insurance scheme / death in service benefit unless their contract of employment is with R2’;(c) ‘However long they have lived and worked in the UK, no Huawei employee is entitled to R2’s annual leave allowance unless their contract of employment is with R2’; and(d) ‘However long they have lived and worked in the UK, no Huawei employee is required to work one Saturday per month without pay, unless their contract of employment is with R1’.
Conclusion
[61]On the issue of the Claimant’s written witness statement, I have considered the risks arising from the fact that it was not written in her first language, that it has not been translated by a professional or certified and that there is thus likely to be elements of the statement that do not express what she intended to say exactly how she intended to say it. However, this is no reason to disregard it entirely and I have considered it, along with all the evidence I was taken to, but have been mindful of the risks of inaccuracy.[62]I have also been mindful that live translation is not infallible. Accordingly, where the Claimant’s evidence diverged on certain less critical points, I have not counted that against her or drawn inferences about credibility that I might have drawn if she had been giving evidence in her own language and had made the same contradictions / inconsistencies. Plainly, where her oral evidence was consistent with her written evidence and/or underlying documents, it was more credible and probative than evidence which did not have those features.[63]It is common ground that the claims are out of time by at least five years. For the purposes of this decision, I have proceeded on the basis that the Claimant has an arguable case that the alleged requirement to work some Saturdays and to only receive 12 days’ holiday per annum were continuing acts, or at the very least, that they were requirements that applied to him between 30 April – 8 May 2019.[64]This is not a finding that such claims do in fact amount to continuing acts, this is far from clear and would need to be determined alongside the evidence if the matter were going forward. Indeed, the Respondents maintain that Mr Liu worked in Germany from 11 January 2018 to 29 April 2019 (§10 GOR), reentering the UK on 30 April 2019, and that this would break any alleged continuing act for treatment said to have occurred in the UK. The Claimant, whilst disputing the precise dates that the Respondents maintain Mr Liu was outside of the UK, acknowledged in an email in May 2019 to Chan Neil solicitors (extracted above) that he ‘paid taxes in the UK from January 2013 to October 2016, and from March 2017 to January 2018. This time we entered the country on April 30, 2019, and his salary in the UK has not yet been paid.’ As such, it would appear that there was a period immediately before Mr Liu’s death when he was not working in the UK for R2. This would be highly relevant to any continuing act argument for alleged requirements prior to 30 April 2019. However, as stated, for the purposes of this application, I have treated the claims as being approximately five years out of time.[65]Further, I have taken the date for the life insurance claim as being the date on which the Claimant sought to make a claim under it (upon Mr Liu’s death) rather than in 2000 when the terms were agreed between R1 and Mr Liu (and sat dormant because there was no need to claim upon the policy) or the date on which he moved to the UK, in 2013. Again, this is not a finding that this is the correct date for such a claim, merely that I am giving the Claimant the most generous reasonable interpretation to take the claim ‘at its highest’ for present purposes.[66]This means I have given the Claimant the benefit of the claims being potentially ‘only’ five years out of time, rather than up to 12 (or 24) years out of time.[67]On this basis, it is not necessary to have a detailed consideration of the law on continuing acts.[68]I have reminded myself of the guidance in Hutchison that I have a wide discretion and can take into account anything I deem to be relevant. I have had regard to the Keeble factors, as indicated below, but have not adhered to them slavishly (per Afolabi) and have considered various other facts which I deem to be relevant on the unique and somewhat peculiar facts of this case, which merits a bespoke approach: Length of, and reasons for, the delay[69]I have already addressed the length of delay. The reasons for delay are many and various. I have considered the fact that the Claimant was suffering grief and loss after the death of Mr Liu and that she was in the UK without a strong command of the language and had been a ‘housewife’ in the UK since 2013. However, I note she is an intelligent woman who is qualified as an accountant and had worked full time as such in the past. She was also able to take steps to ensure the financial stability of her family by pursuing various avenues, including liquidating Mr Liu’s equity in R1, pursuing a complex and lengthy clinical negligence claim and obtaining a pay-out under R1’s life insurance. She also was able to and did become appointed as Mr Liu’s administrator (by seeking advice from lawyers) to deal with his affairs and estate. As such, whilst I do not seek to diminish the pain and grief she was suffering, there is no evidence before me to suggest she suffered any or any prolonged depression or any other medical condition or disability for example. Further, whatever the effects of the grief and mourning, it did not prevent her from taking the above steps and securing the financial security she needed for her son. She also had the inherent qualities or capability to advance legal matters in the UK despite the language barrier.[70]At §10 of the particulars of claim, it was stated ‘Importantly, she was concerned that the First and Second Respondent would not co-operate in providing information to support the negligence claim if she raised any claims against them’ as being part of the reason for the delay in bringing the employment claims. This states in terms an element of choice (perhaps an invidious choice, but a choice or prioritisation nonetheless).[71]There is no mention in the claim form that the reason for the delay was due to an erroneous belief that there was a six-year time limit, despite various reasons being advanced for the delay at §10 [24-35]. Nonetheless, I accept the Claimant’s evidence that she misunderstood the time limits. I find that she was not thinking of discrimination claims at the time she did the search and focused on the issue of ‘contract’ instead, such that she used the wrong search terms. This is supported by the email she sent to Chan Neil solicitors in May 2019 (referenced above) which focuses on other matters and asks about UK company law. In her live evidence, she stated she had searched the term ‘group insurance contract’ in Google.[72]However, I also find that from November 2019, she knew that the life insurance Mr Liu was entitled to was R1’s lower cover, not R2’s allegedly more favourable cover. Further, from August 2020, she believed the holiday pay and overtime situation to be ‘unfair’. Therefore, whilst I find that she did in fact use the wrong search terms when she consulted Google, and thereby ended up with the information of the limitation period for contract claims, I find that it was unreasonable for her to rely on that in the circumstances.[73]A one-off Google search is an inadequate basis on which to make a serious decision about weighty matters of this nature. Whilst it would certainly be a reasonable starting point, I would expect a prospective litigant of the Claimant’s capability to take some further step to verify this information and assure herself of the matter. Further, it would have been reasonable for her to have specifically searched for holiday entitlements and claims for unpaid overtime. She is and was computer literate, able to research relevant rights and seek help from lawyers (and did so in respect of certain matters). In her email to Chan Neil solicitors as early as May 2019, she knew to ask about ‘employment’ matters (per the subject heading), and she could have found (and was directed to) solicitors that spoke Mandarin.[74]Further, given that the Claimant was already consulting with lawyers in respect of the clinical negligence claim, it would have been reasonable for her to ask them if they could verify her understanding of time limits for employment claims or refer her to their employment department or an employment law firm for advice on his. Therefore, I find that the Claimant’s ignorance was genuine but not ‘reasonable’ given that she took inadequate steps to research the situation and given her inherent qualities / capability to have done so. Her complete reliance on a single Google search is not reasonable. The extent to which the cogency of the evidence is likely to be affected by the delay[75]Mr Cordrey could not challenge Mr Kelly’s evidence as to who might still be available within the company group and who might not. However, through cross examination, the Claimant did establish that Mr Kelly’s evidence was very much based on R2’s access to information and that R1 might well have different access / evidence. Further, that it was possible that some of the people who worked with Mr Liu might still be engaged within the group somewhere.[76]I accepted Mr Kelly’s (unchallenged) evidence that none of the Chinese expatriates working with Mr Liu up to 2019 could still be working for R2 now. However, they could still be within the group.[77]It stands to reason that the passage of time is more likely than not to have affected the memories of those who worked with Mr Liu. Whilst this may be less relevant in respect of the claim for life insurance, and possibly holiday allowance / pay, it is highly material in respect of the allegation that Mr Liu (and only Chinese nationals seconded to R2) were obliged to work on Saturdays without extra pay. This is a disputed fact and the Respondents say this was not a policy or practice. The Claimant stated in her own evidence that Mr Liu rarely discussed his work with her. At §8 of the particulars of claim it was also stated that she ‘knew little about Mr Liu’s work’ [23]. As such she has no direct evidence to give in respect of this and might have only very limited hearsay if anything. Hearsay is admissible but usually less probative than direct evidence from the person who themselves had direct knowledge of the matters at hand, for obvious reasons.[78]Mr Liu is not able to give evidence about this alleged requirement. Had he brought a claim whilst he was at work and subject to this alleged requirement, between 2013 and 2019, the Tribunal would have the benefit of his evidence and that of his manager and colleagues to be able to make a finding as to whether this was a policy / requirement (informal or otherwise) and whether it applied only to Chinese expatriate staff or at all.[79]Further, there was no grievance / complaints process pursued by Mr Liu, such that the matters relevant to this issue were not recorded in writing at the time (to be available later for evidential purposes). Therefore, this aspect of the claim is particularly likely to be detrimentally affected by the passage of time.[80]In respect of the claims for holiday entitlement / pay and life insurance, there is likely to be less of an impact caused by faded memories or lost / destroyed documents because they appear to be in the nature of a policy applied over a period. However, it is possible that those who decided on the terms on which R1’s employees were seconded to R2 may no longer be with the group to explain the rationale and / or that their memories may have faded in respect of this if they remain employed. This could hamper consideration of the ‘reason why’ for the direct discrimination claim and the ‘objective justification’ for any indirect discrimination claims.[81]Further, given that R2 has deleted data in respect of secondees engaged up to 2019 under its GDPR obligations, there is not likely to be readily available to R2 (if it is available at all) data on the comparative pools for the purposes of the indirect discrimination claims and ascertaining ‘particular disadvantage’. R1 might hold some data on this, but Mr Kelly’s description of the systems in place between 2013 and 2019 means that this is not likely in my view.[82]Accordingly, whilst there is no evidence from R1 about the records it keeps, and no definitive evidence as to who might still be within the business, I accepted Mr Kelly’s evidence that the Respondents may not have records of who worked with Mr Liu at the material times and/or they may have left.[83]Mr Liu is not able to detail who was involved in the matters and nor can the Claimant. Given the passage of time and attrition of staff and/or them having moved within the group the Respondents could be put to significant work trying to work out who might have the relevant information. There is only one person remaining in UK HR that was there when Mr Liu was (and she was on maternity leave towards the end of his employment); his entire team of expats will have left the UK (due to the length of work visas); and the team from which he was seconded in China has been disbanded. Ultimately, I find on the evidence provided to me that there is a real risk that the information / evidence needed to determine the claims will not be available. The extent to which the party sued has cooperated with any requests for information[84]The Claimant stated she had been frustrated by her attempts to obtain information from R1. However, Mr Kelly gave evidence about the attempts he had made to obtain information and stated that this was due to it not being readily available due to the nature of the systems and the passage of time. I was not presented with anything to suggest that the Respondents did in fact have the evidence or should have it and were refusing to provide it. Under the GDPR, there is a requirement to delete data if it is no longer needed and this is what Mr Kelly said R2 had done. The promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action[85]Mr Liu of course knew of the alleged disparities at the time they occurred, which, if the Claimant’s case is correct factually, started in January 2013 and continued until May 2019. He did not advance a complaint or claim during his lifetime.[86]The Claimant knew / believed no later than August 2020 that:(a) Mr Liu had been given less holiday;(b) had been obliged to work some Saturdays without extra pay; and(c) had the benefit of R1’s life insurance only, not R2’s. She described in her written and oral evidence that at this time she believed he had been treated ‘unfairly’. Unfortunately, she did not take steps to advance the current claims until 26 June 2024, some four years later. The steps taken by the Claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[87]As set out above, I have already addressed the steps taken by the Claimant from August 2020 onwards, that ultimately led to the claim being presented in September 2024. Merits[88]I have reminded myself that it is not appropriate to conduct a mini trial on disputed facts. I have also heeded the warnings on considering the merits of discrimination claims, per Kumari. However, I do consider it is appropriate to consider the merits of the claims when deciding whether to extend time for them.[89]As to the claims based on direct discrimination, I note that Mr Kelly stated (unchallenged) that more than 50% of R2’s workforce (i.e. those employed directly by R2) were Chinese nationals. They were engaged under R2’s terms and had the benefit of the same holiday, life insurance and policy on Saturday working as non-Chinese nationals engaged by R2.[90]Chinese nationals employed by R1 but seconded to R2 were on R1’s (allegedly less favourable) terms. There was no suggestion by the Claimant that non-Chinese employees of R1 seconded to R2 would have been or were given the more favourable UK terms that R2 granted to its direct employees. In essence therefore, to advance a case of less favourable treatment, the Claimant needs to compare the treatment of Mr Liu (engaged by R1) with the treatment of equivalent employees engaged directly by R2. This claim suffers from several defects:(a) Under s.13 EqA, direct discrimination is defined as ‘A person (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’. For the Claimant’s claim to proceed, it would require me to treat R1 and R2 as being the same legal ‘person’ - ‘A’. However, they are separate entities legally and there is nothing to suggest that the distinction between the two entities is a sham or false or any other reason that might merit piercing the corporate veil and treating them as one. If R1 and R2 were not both part of the Huawei group of companies, and an employee had been seconded from one company in China to a different company overseas, there could be no argument whatsoever of direct discrimination between the employees of each entity. The Claimant’s approach glosses over the fact that there are two separate companies and takes a somewhat simplistic approach that because they are both under the ‘Huawei’ brand, they can be treated as being the same legal person; (b) Under s.23 EqA, there must be ‘no material difference between the circumstances relating to each case’. In the Claimant’s case, there are differences which are material, namely: (i) the comparator is employed by R2 and Mr Liu was employed by R1; (ii) the comparator’s contract originated in the UK under UK law whereas Mr Liu’s originated in China under different laws;(c) Further, on the ‘reason why’ there is no evidence before me to indicate that either R1 or R2 favoured non-Chinese nationals over Chinese nationals, so as to draw inferences of the reason why. Indeed, R2 and R1 appear to employ more Chinese nationals than non-Chinese nationals on the (unchallenged) evidence provided to me in cross examination of Mr Kelly. R2’s terms for Chinese nationals engaged by it are the same as for non-Chinese nationals engaged by it. The same goes for R1 as far as I have been made aware. The evidence tends to suggest that the ‘reason why’ the Claimant was not given the same terms as those engaged directly by R2 (alongside whom he worked) is not ‘because of’ race / nationality but because of where the employment contract was formed / originated.[91]I therefore consider that the direct discrimination claims are weak as a matter of law.[92]As for the indirect discrimination claims, it is necessary to analyse the PCPs. The first (general) PCP advanced was ‘However long they have lived and worked in the UK, no Huawei employee is entitled to UK terms and conditions unless their contract of employment is with R2’. The specific PCPs (above) are more specific examples of this general PCP and do not need to be separately assessed for present purposes, though I have considered each of them when reaching my conclusion.[93]Section 19 EqA, it states ‘A person(a) (A) discriminates against another(b) (B) if A applies a [PCP] which is discriminatory in relation to a relevant protected characteristic of B’s’.[94]At §8 of the Claimant’s further written submissions, it was stated that ‘R would apply the PCPs to persons with whom C does not share the protected characteristic…[and] were applied to all Huawei employees working in the UK.’ [emphasis added].[95]The problem as I see it with the Claimant’s formulation of the claims is that the alleged PCPs are not applied by ‘a person’ – singular, as required by s.19 EqA. R1 applies one PCP (being R1’s terms and conditions) and R2 applies its own PCP (R2’s terms and conditions). The alleged disadvantage arises when an employee of R1 is seconded to R2. However, R1 and R2 are separate ‘persons’ in law. Whilst the Claimant has sought to merge the Respondents by referring to them jointly as ‘R’ and ‘Huawei’, to blur the lines between the two separate legal persons, this cannot get around the fact that the claims for indirect discrimination suffer this serious defect.[96]Section 23 EqA applies to both direct and indirect discrimination claims. As with the analysis above for direct discrimination, the comparative group advanced by the Claimant is materially different than the Claimant group for the purposes of indirect discrimination too.[97]Accordingly, well before consideration of any justification defence (which would be a factual enquiry and beyond the scope of the present exercise) the claims are defective as a matter of law.[98]I entirely agree that where the facts of a claim straddle the (sometimes) uncertain distinction between indirect or direct discrimination, they should not ‘fall between two stools’ for want of categorisation. However, I am also mindful that if the claim falls between stools because it is not actually covered by either type of claim, it is not justiciable. Tribunals are creatures of statute and have no inherent jurisdiction.[99]My analysis is purely on the legal elements of the claims as advanced by the parties, taking the Claimant’s case at face value. It is not dependent on findings of fact. The only relevant fact (which was not contested) was that R1 and R2 each employ both Chinese nationals and non-Chinese nationals and each Respondent operates its own (unique) terms that are different from the other Respondent but consistent within each entity. This is not a disputed fact. Prejudice[100]Prejudice is a key consideration and despite is being last in my list this is no indication of its importance. Indeed, I consider it to be of great importance.[101]I have considered the two types of prejudice described in Miller. In respect of the first (the prejudice of facing a claim that might otherwise be time barred) I consider this to be more weighty where the delay is greater. Allowing a claim to proceed when it is a few days, weeks or months out of time is less prejudicial than one that is years out of time. This is partly because the passage of time is more likely to cause forensic prejudice in such cases (but I discount that element under this limb of prejudice to avoid double counting when considering the second aspect / type of prejudice). The other aspect is the fact that Parliament has decided to set short time limits for employment tribunal claims to be presented. Time limits are strictly enforced and there is a public policy in finality of litigation. Extending time limits of claims that are years out of time frustrate these objectives.[102]As to the second type of prejudice (forensic prejudice), I have already addressed above how the passage of time is likely to have affected: retention of documentary evidence; witness memories; and availability / identification of relevant witnesses.[103]I note that the Claimant’s counsel stated that it would be the Claimant (not the Respondents) who would be most prejudiced by any loss of or deterioration of evidence. Of course, the more significant prejudice to be faced by the Claimant is that she will be barred from proceeding with the claim unless I extend time. Summary[104]Taking all of the above matters into account, weighing them in the balance as I am required to do, I find that it would not be just and equitable to extend time and I therefore decline to exercise my discretion to do so.[105]Therefore, the Tribunal does not have jurisdiction to consider the claims, and they are struck out. Approved by: