Mr M Maher v Network Rail Infrastructure Ltd: 6016017/2024

EMPLOYMENT TRIBUNALS

Case No 6016017/2024

Between

Mr M MaherClaimant

Network Rail Infrastructure LimitedRespondent

Before

Employment Judge Rawlinson

In person for claimant

Mr Sangha (instructed by counsel) for respondent

Date 16 December 2025

JUDGMENT

[1]The claimant’s claims that he was subjected to detriments for making public interest disclosures were not brought in time and it was reasonably practicable to bring them in time. As such, they are struck out, as there is no jurisdiction to hear them.

REASONS

[1]This public preliminary hearing, to determine the preliminary issue of whether the claimant’s claims were presented in time, was directed by Employment Judge Buzzard on 16 May 2025.

[2]For the purposes of the hearing, I was provided with a preliminary hearing bundle which ran to 137 pages (referred to hereafter as ‘the PH bundle’), as well as a witness statement bundle which ran to 19 pages (the ‘WS bundle’). The WS bundle contained signed written statements from the claimant himself and from Mr Madden. 1 of 18

[3]I was also provided with written submissions and skeleton arguments from each side. I also had access to the full Digital Case File containing all of the documents, pleadings and correspondence in the case, which ran to some 794 pages.

[4]Both parties attended remotely via CVP. The claimant attended unrepresented but supported by Neil Madden, who was also a witness in the case. The respondent was represented by Mr Sangha of counsel. In due course, the claimant and Mr Madden gave sworn evidence before me, and were also questioned by way of cross-examination by Mr Sangha on behalf of the respondent.

[5]I have carefully read and considered all of the relevant documents and evidence in the case, as well as hearing and carefully considering the live evidence and submissions of each side before arriving at my decision. At the conclusion of the hearing I reserved my decision. The Claimant’s Claims

[6]The claimant's claims are helpfully summarised in previous Case Management Order of EJ Buzzard [85-89 PH bundle].

[7]The claimant has been employed as a technician with the respondent since October 2008. The claimant complains about three specific alleged detriments that he says he was subjected to because he had made public interest disclosures. These were: i. In July 2022, an alleged comment made by the claimant’s supervisor to the claimant’s colleagues that the need for them to work more weekends was the claimant’s fault; ii. In July 2023, a further investigation of the claimant relating to use of social media, and also the handling of his return to work, and; iii. In September/November 2023, the way that the respondent investigated those allegations against the claimant and other events until his return to employment, which occurred on 20 November 2023.

[8]The latest of the three detriments the claimant makes claims about therefore occurred on or before 20 November 2023.

[9]Based on the ACAS certificate, the claimant commenced early conciliation with ACAS on 7 October 2024. The early conciliation period ended 11 October 2024. The claimant’s claim to the Tribunal was made by submitting an ET1 form which is recorded as being received on 23 October 2024. 2 of 18

[10]On the face of matters it appears therefore that these claims were presented significantly outside the time limit for the presentation of such claims, that time limit being three months from the date of the latest detriment i.e. by 20 February 2024).

[11]It follows that unless the claimant is granted an extension of time for his claims they will not fall within the jurisdiction of the Employment Tribunal to determine. An extension of time can be granted to the claimant provided the claim was presented without an unreasonable further delay once it was reasonably practicable to submit it.

The Law

[12]Pursuant to section 48 of the Employment Rights Act 1996, an employee may present a complaint to an employment tribunal that he has been subjected to a detriment. Section 48(3) of the Employment Rights Act 1996 provides: (3) An employment tribunal shall 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 was not reasonably practicable for the complaint to be presented before the end of that period of three months

[13]The authorities on the meaning of that test generally arise under the identically worded unfair dismissal provision in section 111 Employment Rights Act 1996.

[14]When a claimant tries to excuse late presentation of his or her ET1 claim form on the ground that it was not reasonably practicable to present the claim within the time limit, three general rules apply: i. Section111(2)(b) ERA (and its equivalents in other applicable legislation) should be given a ‘liberal construction in favour of the employee’ — Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA ii. What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. An appeal will not be successful unless the tribunal has misdirected itself in law or has reached a conclusion that no reasonable tribunal could have reached. iii. the onus of proving that presentation in time was not reasonably practicable rests on the claimant. ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ — Porter v Bandridge Ltd

1978 ICR 943

, CA. 3 of 18

[15]Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable”.

[16]A claimant’s complete ignorance of his or her right to claim unfair dismissal may make it not reasonably practicable to present a claim in time, but the claimant’s ignorance must itself be reasonable. As Lord Scarman commented in Dedman, where a claimant pleads ignorance as to his or her rights, the tribunal must ask further questions: ‘What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?’ The correct test is not whether the claimant knew of his or her rights, but whether he or she ought to have known of them.

[17]Where the claimant is generally aware of his or her rights, ignorance of the time limit will rarely be acceptable as a reason for delay. This is because the claimant will generally be taken to have been put on inquiry as to the time limit. Indeed, in Trevelyans (Birmingham) Ltd v Norton

1991 ICR 488

, EAT, Mr Justice Wood said that, when a claimant knows of his or her right to complain (in that case of unfair dismissal), he or she is under an obligation to seek information and advice about how to enforce that right. Failure to do so will usually lead the tribunal to reject the claim.

[18]It is worthy of note that (particularly in this case, given some of the matters the claimant relies upon) that exceptional cases will warrant an extension of time. For example, in Theobald v Trustees of the Borough Market ET Case No.04938/84 the employment tribunal found that the claimant’s ignorance of his right to claim unfair dismissal was reasonable in the special circumstances of the case.

[19]The EAT in Cambridge and Peterborough NHS Foundation Trust v Crouchman

2009 ICR 1306

, EAT, helpfully distilled the relevant principles governing the exercise of a tribunal’s discretion under S.111(2)(b) in circumstances where the claimant initially believes that he or she has no viable claim but changes his or her mind when presented with new information after expiry of the primary time limit.

[20]In that case, the EAT upheld an employment tribunal’s decision to accept an unfair dismissal claim out of time where an appeal outcome letter, which had been received after the primary time limit, contained crucial new facts that genuinely and reasonably led the claimant to change his mind and believe that he had a viable claim. The core principles seem to be:(a) ignorance of a fact that is ‘crucial’ or ‘fundamental’ to a claim will, in principle, be a circumstance rendering it impracticable for a claimant to present that claim — Churchill v A Yeates and Sons Ltd

1983 ICR 380

, EAT, as approved by the Court of Appeal in Machine Tool Industry Research Association v 4 of 18 Simpson

1988 ICR 558

, CA, and Marley (UK) Ltd and anor v Anderson

1996 ICR 728

, CA

(b) a fact will be ‘crucial’ or ‘fundamental’ if it is such that, when the claimant learns of it, his or her state of mind genuinely and reasonably changes from one where he or she does not believe that he or she has grounds for the claim to one where he or she believes that the claim is ‘viable’;

(c) ignorance of a fact will not render it ‘not reasonably practicable’ to present a claim unless, first, the ignorance is reasonable and, secondly, the change of belief in light of that new knowledge is also reasonable;

(d) whether the belatedly learnt crucial fact is true is not relevant. What matters is whether the information about the fact has genuinely and reasonably produced the change of belief

[21]A claimant’s mere doubts about whether his or her case has a reasonable prospect of success will be unlikely to excuse late presentation. See for instance Rajabov v Foreign and Commonwealth Office

2022 EAT 112

[22]Any substantial fault on the part of the claimant’s adviser that has led to the late submission of his or her claim may be a relevant factor when determining whether it was reasonably practicable for the claimant to present the claim within the prescribed time limit. However, much will depend on the circumstances and the type of adviser involved. Trade union representatives also count as ‘advisers’ in this context and, if they are helping a claimant with his or her case, they are generally assumed to know the relevant time limits and to appreciate the necessity of presenting claims in time.

[23]It does not follow that bad advice from any third party will automatically prevent a claimant from showing that it was not reasonably practicable to present a claim in time. In terms of ACAS advice, see the case of DHL Supply Chain Ltd v Fazackerley EAT 0019/18.

[24]Again, important in the context of this case, debilitating illness may prevent a claimant from submitting a claim in time. In Schultz v Esso Petroleum Co Ltd

1999 ICR 1202

, CA, the Court of Appeal accepted that illness may justify the late submission of claims. In that case, the evidence was that S had been too depressed to instruct solicitors during the last six weeks of the three-month time limit. The Court overruled the employment tribunal and the EAT to hold that it was not reasonably practicable for S to have presented his claim in time. The Court emphasised that the test is one of practicability — what could be done — not whether it was reasonable not to do what could be done. Although it was necessary to consider what could have been done during the whole of the limitation period, attention should be focused on the closing stages rather than the earlier ones. 5 of 18

[25]Mere stress — as opposed to illness or incapacity — is unlikely to be sufficient. Employment tribunals will usually expect to see medical evidence if illness is relied on as a reason for extending the time limit, particularly if the claimant has taken legal advice and was aware of the limitation period. Such evidence must not only support the claimant’s illness, it must also demonstrate that the illness prevented the claimant from submitting the claim in time. Medical evidence showing that the claimant was struck down by illness at the relevant time will not necessarily be conclusive where that evidence is contradicted by the claimant’s own actions at that time. See Chouafi v London United Busways Ltd

2006 EWCA Civ 689

, CA.

[26]Having an illness or medical condition during the relevant time will not in and of itself mean that an employee was reasonably prevented from presenting their claim in time or that ignorance of the relevant time limit was reasonable; see e.g. Cygnet Behavioural Health Ltd v Britton

[2022] EAT 108

. Whether it did or did not is a factual enquiry for the ET.

Findings of Fact

[27]I make my findings of fact on the basis of the material before me taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. I have resolved such conflicts of evidence as arose on the balance of probabilities. I have taken into account my assessment of the credibility of witnesses and the consistency of their evidence with the surrounding facts. I have also taken into account the written submissions and oral submissions of the parties. In respect of some matters, I have expressed my resolution of certain factual issues in the discussion and conclusions section.

[28]The claimant adopted the contents of his witness statement as his evidence in chief, as well as the amended chronology he had prepared commencing at page 117 of the PH bundle. Given the burden is on the claimant to establish these matters, I concentrate upon and set out his evidence and the chronology in some detail.

[29]The claimant also specifically relied upon the medical evidence he had provided to fortify that claim (see pages 7-14 of WS bundle). These included a GP Fit Note dated 24 April 2023, a GP Fit Note dated 2 June 2023, an Optima Health Occupational Health Report (dated 3 June 2023) and NHS Medical Records (dated from 12 April, 23 April, 16 June and 17 June 2024 respectively) the latter of which confirmed his hospitalisation and follow-up treatment for a brain haemorrhage.

[30]In essence the claimant’s case was that there were compelling individual and cumulative factual and personal circumstances that prevented the timely 6 of 18 submission of his claim. These included prolonged psychological harm, misleading advice from trusted sources, the later emergence of significant new information and crucially, a serious medical emergency in terms of brain haemorrhage that he suffered in April 2024.

[31]In terms of the substance of his detriment claims, the claimant's case was that his difficulties with the respondent began in earnest in July 2022. By way of summary only, these difficulties ultimately led to a formal ‘Speak Out’ complaint being submitted on 22 July 2022, raising serious concerns about unsafe working practices, fraudulent overtime claims, and favouritism in recruitment and shift allocations. Despite the claimant’s understanding that this was an anonymous channel to raise such concerns, the claimant case was that he was thereafter investigated and received formal notice of a suspension in August 2022 (see generally the claimant’s chronology at pages 122-131 of the PH bundle). He was also subject to formal disciplinary action by the respondent, which he asserts arose out of him raising such concerns.

[32]The claimant’s evidence generally regarding this period was that despite this treatment, he still believed at this stage that Network Rail was following lawful procedures, as he had been told this repeatedly by HR.

[33]Central to the claimant’s detriment case was that his ‘Speak Out’ disclosure was mishandled by the respondent, resulting in significant procedural failings. Notably, on or around 19 December 2022, the respondent made the decision to merge the initial disciplinary investigation with the allegations raised in the Speak Out submission. However, and crucially for present purposes, the claimant asserts that evidence of this mishandling by the respondent only became apparent much later, when it was acknowledged by them in a document provided on 4 April 2024. This was a central plank of his claim that earlier submission of a tribunal claim was not reasonably practicable, his case being that that document effectively contained significant new information (see the document ‘Review of Case relating to Michael Maher’ prepared by Victoria HillStanford at p92-116 of PH bundle, discussed further below).

[34]In terms of the chronology, the claimant asserted that after this initial incident his mental health deteriorated significantly between July 2022 and December 2022, culminating in thoughts of self-harm (see WS bundle, page 3). At that point in time, the claimant’s evidence was that he was in no state to think clearly or take legal action, and that he could not navigate daily life, let alone comprehend or pursue a complex tribunal claim.

[35]On 25 January 2023, the claimant discovered that the respondent had failed to properly redact his confidential information within the Speak Out submission, and that this information had likely been disclosed inappropriately. The disciplinary action taken against the claimant culminated in a hearing which he attended on 28 February 2023 and an outcome on 7 March 2023 in terms of a final written warning.

[36]Around this time (February 2023), the claimant confirmed that he was being assisted by his cousin Mr Madden, and he confirmed that he had formally 7 of 18 requested sight of the respondent’s internal policies from them. A formal subject access request (SAR) was also made by the claimant around this time(with assistance from Mr Madden), as well as a formal complaint to the Information Commissioners Office (ICO) regarding information sharing and inadequate redaction of his personal information.

[37]The claimant was deemed unfit for work and absent with depression and anxiety from 9 March 2023 to 2 June 2023 when he was certified fit for a phased return to work at a different depot. In April 2023 the claimant submitted three grievances in respect of earlier events and conduct by the respondent.

[38]Also of some potential importance is that also during that period, ACAS were initially formally approached by the claimant, and there was in fact an early conciliation period between 18 May 2023 and 12 June 2023. Despite this, no claim was lodged at this time in respect of the fist detriment, the claimant stating that this was because he still thought procedures were being followed.

[39]The claimant’s account was that during the initial conciliation process, ACAS also engaged with the respondent, who rejected the claimant’s assertions and insisted that all internal procedures had been conducted fairly. The claimant states that he was left with the impression that the conciliator accepted the respondent’s narrative, leaving him feeling discredited and powerless.

[40]The claimant’s general account seems to be that this early experience significantly undermined his confidence in the viability of any legal escalation at that stage. He described under cross-examination that he was “shut down” by ACAS, and that contacting them was with a view to “drawing a line under matters” rather than bringing a tribunal claim. When asked during the hearing why he contacted ACAS at that stage, he replied: “I just needed a conversation, I'm waving a white flag. I never felt like a claim was in my heart, I didn’t know I was being attacked as fully as I was - but I had no evidence. I only had feeling. I didn’t have the proof until April 2024. It wasn’t a question of bringing a claim as such I didn’t fully understand it.”

[41]Similarly, and also in June 2023 the claimant apparently received formal legal advice from his Union the RMT. His evidence was that the RMT Legal Department formally advised him that his potential claims, including those relating to detriment for making a protected disclosure, had no reasonable prospect of success, and that legal support would not be provided. Combined with the earlier outcomes from ACAS and a response from the ICO (to the effect that that the respondent appeared to have a legitimate business reason for sharing the information, and had provided all data he was entitled to under his SAR) the claimant stated that this advice reinforced his belief at the time that there were no viable legal grounds to pursue a formal claim.

[42]The claimant’s evidence was to the effect that on 13 July 2023 the respondent raised a new disciplinary issue concerning alleged misuse of social media and 8 of 18 this, combined with the respondent’s handling of his return to work, amounted to the second of the three detriments. The claimant stated that as before, around this time, both HR and the RMT Union legal team were still telling him that that nothing unlawful was happening and that, in terms of potentially bringing a claim, he did not have either the strength or mental capacity to keep challenging that narrative.

[43]In terms of further chronology, the claimant’s evidence was that third detriment then arose in September/November 2023, in terms of the respondent’s investigation into an incident with a colleague going back to July 2022. On his account, this detriment effectively continued until claimant returned to work at the Longsight Depot on 20 November 2023.

[44]Nevertheless, the claimant’s evidence (as per paragraph 11 of his witness statement, WS bundle page 5) was to the effect that the idea of bringing a claim had still not yet become either a practical or emotional possibility. He stated he received further legal advice from RMT Legal again in December 2023.

[45]It follows and the claimant accepts that the time limit for bringing that latest detriment claim (20 February 2024) again came and went without the submission of any claims to the tribunal.

[46]The claimant then gave evidence about subsequent significant events, one of the most significant of which was receipt of the document prepared by the respondent on 4 April 2024. The claimant stated that this was the first time that the company admitted that policy had not been followed and that his Speak Out complaint had been mishandled Again, see the document ‘Review of Case relating to Michael Maher’ prepared by Victoria Hill-Stanford at p92-116 of PH bundle). The claimant agreed that the new and significant information he asserts emerged from that document is captured at p.19 of the PH bundle, contained within a schedule of loss provided to the respondent (again, discussed further below).

[47]The claimant further stated that although he wanted to act upon that information in terms of bringing a claim, just four days later on 8 April 2024, he suffered a brain haemorrhage. He was detained in hospital until his discharge on 12 April

[48]The claimant stated that this event profoundly affected him, and that for weeks he could barely walk, speak clearly or concentrate for more than a few minutes. His account was that he was advised by doctors to avoid all stress and to focus on entirely on rehabilitation for at least 6 months. It has not been meaningfully disputed that this was plainly an incident of some significance in terms of the claimant’s health.

[49]In the event, the claimant in fact returned to work after approximately four months, on 2 August 2024.

[50]Twelve days later on 14 August 2024, and again of some potential significance, the claimant, assisted by Mr Madden, submitted a comprehensive Schedule of Loss to the respondent (see pages 18-31 of PH bundle). The bullet points on 9 of 18 second page of that Schedule of Loss (PH bundle p.19) outline the significant information the claimant asserts came to light in the Review Report prepared by Victoria Stanford-Hill dated 4 April 2024.

[51]On the claimant’s case these included matters such as the combining the two earlier investigations, lack of any independent investigation, a general lack of impartiality, a failure to follow policy, the length of his suspension, the arbitrary changing of a disciplinary sanction and other related matters. In his written submissions (at paragraph 4.1.4) the claimant described the report as the first time he had obtained “credible and objective confirmation that a potential legal claim existed”.

[52]The Review Report itself concluded that the duration of the suspension and what had been called the ‘First Disciplinary Investigation’ was protracted/excessive and recommended that the respondent consider whether there was any financial reimbursement it could make to compensate the claimant for the impact on him. The report also concluded (at page 94, PH bundle) that: “Whilst it is possible to understand how the perception of victimisation by (MM) and his Union representative(s) could arise due to the prioritisation of the Speak Out investigation and excessive and prolonged duration of suspension (which was not backed up by any formal written extension notices or reasoning), there is no evidence to show that (MM) was directly victimised as a direct result of the Speak Out concerns he raised.”

[53]Following a meeting with the claimant to discuss his Schedule of Loss, the respondent agreed that it would offer some financial reimbursement to the claimant for the loss of unguaranteed earnings for the period July 2022 to November 2023. The Respondent wrote to the Claimant on 18 September 2024 confirming this and that the amount to be paid to the claimant was £59,355.62 (less PAYE deductions).

[54]Shortly after this, in October 2024, the claimant began early conciliation via ACAS in respect of his current detriment claims (7 -11 October 2024 inclusive) with the ET1 then being submitted on 23 October 2024. His evidence was that as the six-month recovery period drew to a close, he slowly began to regain a sense of stability and his health had improved.

[55]The claimant stated that at the point of submission, he was then in possession of three things he had never had before: a formal acknowledgement of serious procedural failings; a level of psychological stability that had taken nearly two years to rebuild; and, for the first time, the mental clarity and confidence to act. This he said, demonstrated that submission prior to that date was not reasonably practicable.

[56]The evidence of Neil Madden, which I also read and heard, substantially corroborated the claimant’s account of events, especially with regard to his health and his chronology. He made clear that many of the decisions taken in terms of submission of any claim were taken with the claimant’s health and 10 of 18 recovery well in mind. His evidence was that in his view, the claimant was not fit, mentally or physically, to pursue legal action until October 2024 and that he wasn’t even willing to discuss it with him before that time. Prior to that, his view was that the claimant was either emotionally destroyed, suicidal, or recovering from a major medical episode.

[57]When Mr Madden was asked by me what the difference was between preparing and submitting a detailed Schedule of Loss in August 2024 and potentially submitting a claim at that stage, his evidence was that one (the Schedule of Loss) was a potentially positive thing, whilst he regarded the submission of a tribunal claim as a potentially negative and stressful thing.

Discussion and Conclusions

[58]I remind myself that the burden of proving that it was not reasonably practicable to submit the claim in time lies upon the claimant. I deal in turn with the relevant and potentially relevant matters in the case. Lack of Knowledge

[59]Although Mr Madden at one stage in his evidence suggested there may have been a general ignorance of the applicable time limits by both him and the claimant , I prefer the evidence of the claimant himself. The claimant did not assert at any stage that he was ignorant of the right to bring the claim, or of the procedure involved, or indeed of the applicable time limit - which in evidence he confirmed he was aware of.

[60]On the evidence I have heard and read I find as a fact the claimant was aware of the applicable time limits. The Viability of a Claim and ‘New’ Information

[61]The claimant’s asserted that the report of 4 April 2024 was a key turning point and that this was the first time he became aware he had a viable legal claim. He also relies upon the fact the respondent he says had previously reassured him that proper procedures had been followed.

[62]On the evidence I find that that the claimant clearly already suspected significant potential procedural failings on behalf of the respondent well before he received the Review report on 4 April 2024.

[63]Such a conclusion is born out by the fact that the claimant first discovered issues with improperly redacted material and improper onward disclosure around his Speak Out complaint as far back as January 2023. 11 of 18

[64]It is also born out by the fact that the claimant thereafter specifically asked for copies of the respondent’s policies as far back as February 2023, also making a Subject Access request around this time, as well as lodging a formal complaint with the ICO. There can be no explanation for those actions other than a strong suspicion of some form of impropriety that could potentially form the basis of a claim. The fact that the claimant was also capable of engaging in that action and formulating those requests (albeit with assistance from Mr Madden) is also relevant in terms of what he was capable of doing around that time in light of and notwithstanding his ongoing health difficulties.

[65]Moreover, the fact that the claimant actually started ACAS early conciliation between May and June 2023 is, in my view, further compelling evidence that he genuinely believed that he may have a detriment claim worthy of submission - even at that stage. I do not accept the contention that the purpose of that action and the approach to ACAS at that stage was merely to ‘draw a line’ under matters, or that the possibility or potential of submitting a claim at that stage was not within the claimant’s reasonable contemplation.

[66]In terms of the issue with how the claimant’s return to work was handled around July 2023, it is worthy of note again that the claimant submitted a grievance concerning this around that time – a clear indication that he felt proper procedures had not been followed. In my view, the claimant had just as much reason to at least suspect this second investigation to be retaliatory nature in the middle of 2023 as he did by April 2024.

[67]The language used by the claimant himself is also important. In both his evidence and explicitly in his written submissions (at paragraph 4.1.4) the claimant detailed that the Review Report represented ‘confirmation’ of preexisting suspicions, and that this confirmed a claim was viable. That does not seem to me to be the language of the discovery of a crucial new fact or facts that were fundamental to his claim. Instead, I find that the claimant’s behaviour was representative of him wanting to gain more certainty or more evidence before presenting a claim.

[68]In those circumstances, the answer to the question: could the claimant reasonably have acted earlier based on what they already knew or suspected? I conclude the answer to be yes.

[69]In any event, I also find as a fact that the Report of 4 April 2024 did not in fact contain any significant or fundamental new information with respect to the claimant’s subsequent claims of detriment. Rather than illuminating truly new issues or revealing information fundamental to a claim, many of the issues it dealt with I find had been raised by the claimant already when he raised his grievances against various individuals and the respondent generally in April 2023.

[70]It is also worthy of note that whilst the Review report found there had been a protracted period of suspension, it found no link as between the claimant raising his Speak Out complaint and his subsequent treatment by the respondent – the cornerstone of one of his later claim for detriments and generally (see page 94 12 of 18 of the PH bundle). It also found no link as between how the claimant’s return to work was handled, or the fact that disciplinary proceedings had been instigated against him in July 2023 regarding use of social media and the transmission of some WhatsApp messages – with those aspects again being central to the claimant’s claim of detriments.

[71]In those circumstances I do not find that, upon receipt of the Review Report, the claimant’s state of mind genuinely and reasonably changed from one where he did not believe he had grounds for the claim to one where he did believe the claim was viable. Advice the Claimant Received from Others

[72]In my view the evidence suggests, and I find as a fact, that the claimant made an informed and deliberate decision at various stages regarding the viability or otherwise of his claim. This was allied to a linked assessment made by him at various stages regarding what evidence or confirmation he felt had regarding the respondent’s conduct.

[73]The starting point is that the claimant confirmed in evidence and questioning that he was never positively told at any stage by either RMT Legal, ACAS or anybody else not to submit a claim – merely that RMT Legal’s subjective assessment at that particular stage was that they felt his prospects were poor and that the case would not be funded. The claimant is therefore not alleging that he was given clearly incorrect legal advice, or that he was either deceived or was misled.

[74]Put simply this is not a case involving alleged negligent advice from advisers, or advice received by the claimant that somehow misled him about either applicable time limits or his right to claim.

[75]It is also worthy of note that the first formal legal advice the claimant says he received from RMT was given in June 2023 in any event - before the second and third detriments even occurred. It is axiomatic that the advice received in June 2023 cannot somehow be extrapolated to apply throughout, covering the prospects of claims that have not yet even arisen.

[76]In terms of the further legal advice apparently received by the claimant in December 2023, this is detailed on the claimant’s own chronology (PH bundle page 128).

[77]Analysis of it demonstrates that it amounts to (perfectly correct) advice that that “the burden of proof is on the Claimant (the employee) to show that they have been subject to a detriment.” This is followed by the claimant’s own narrative in the chronology to the effect that: “The Claimant understood this to mean that, 13 of 18 without clear evidence, he could not proceed, and this contributed to his decision not to submit a tribunal claim at that time.”

[78]I agree with the respondent’s submission that the balance of the evidence suggests a strategic and conscious decision by the claimant not to submit a claim. Whilst the advice may have played some small part, I find that this decision and was based in large part on his own assessment of the merits, in combination with his wish to wait for further evidence to emerge and confirmation of his suspicions to crystallise.

[79]In those circumstances I find as a fact that the claimant was aware he had a potential right to claim but, effectively, chose not to having considered the prospects and having considered the evidence available to him at various stages.

[80]In summary, the receipt by the claimant of negative advice regarding prospects and funding, the respondent’s apparent reassurances to him about the propriety of their processes, or the claimant’s subjective impressions of the first ACAS process, in my assessment and in these particular circumstances, do not establish that it was not reasonably practicable for the claimant to have lodged a claim earlier than he did. The Claimant’s Health, Illness And Medical Condition Prior to 20 November 2023 (the date of the latest alleged detriment)

[81]The claimant detailed in his evidence a significant deterioration in his mental health following the events of July 2022 and his subsequent suspension. Whilst I have no reason to doubt that he had difficulties around this time in light of what had happened at work and his perception of it, I remind myself that the test is one of practicability i.e. what could be done, and not whether it was reasonable not to do what could be done. Whilst a debilitating illness may prevent a claimant from submitting a claim in time mere stress — as opposed to illness or incapacity — is unlikely to be sufficient. Any evidence provided by the claimant (including medical evidence) should support the contention that any illness or condition actually prevented the claimant from submitting the claim in time.

[82]In terms of documentation from this period, I note that the claimant has provided in evidence a fit note from 24 April 2023, covering the period from 9 March 2023 to 10 July 2023. This indicates that he was deemed by his GP to be not fit for work during this period and detailed that he was suffering from mixed anxiety and depressive disorder. A further GP fit note in similar terms was also provided, dated 2 June 2023, covering the period from 2 June 2023 to 9 August 2023.

[83]An Occupational Health Report, dated 3 June 2023, detailed that the claimant was reporting high anxiety, low mood and significant sleep disruption, as well as financial difficulties. The report concluded that the claimant was fit to return to work by way of a phased return, and that his symptoms were not considered 14 of 18 as a disability as they were “not having a significant impact on his day to day activities.”

[84]It is worthy of note that none of that evidence suggests that the claimant was so impaired or unwell as to be unable to present his claim in time. Indeed, despite his suspension it appears that the claimant was still deemed as being fit for work between July 2022 and March 2023. There is no medical evidence covering 2022.

[85]In general I agree with the respondent’s submission that the medical evidence regarding mental distress is not in line with the very significant psychological impact that is portrayed in the witness evidence on behalf of the claimant.

[86]Further, during this period and even after March 2023, I find as a fact that the claimant was able to undertake and engage in a number of significant and complex activities and tasks, albeit on occasions with assistance from Mr Madden. This continued until his return to work on 20 November 2023.

[87]These activities and tasks are set out in the respondent’s written submissions at pages 5-7 and, to some extent, also appear in the claimant’s own timeline included at pages 3-8 of his written submissions. These include: 31.03.2023 submitted a formal data protection complaint to the ICO 10.04.2023 submitted three separate grievances 27.04.2023 attended disciplinary appeal hearing 18.05.2023 initiated ACAS EC 19.05.2023 attended Grievance Hearing 03.06.2023 reviewed reply from ICO re: data protection complaint 08.06.2023 attended RTW meeting 19.06.2023 reviewed legal advice from RMT legal 03.07.2023 raised grievance about return to work 04.08.2023 attended a RTW grievance 16.08.2023 appealed RTW grievance outcome 25.08.2023 appealed the outcome of April grievances; 06.09.2023 emailed to raise concerns regarding no formal updates/correspondence being provided 05.10.2023 attended investigation meeting (re: WhatsApp message) 10.10.2023 provided further information for investigation (re: WhatsApp message)

[88]In my view the absence of any medical evidence from 2022 and the claimant’s continued fitness for work from July 2022 until March 2023, is inconsistent with any claim that he was so incapacitated or unwell that it prevented him presenting a claim during this period.

[89]Further, this period was followed thereafter by the claimant’s ability to participate and engage in the variety of tasks, activities and processes listed above until his return to work in November 2023 (even to the extent of providing relevant information to Mr Madden to engage or complete requests on his behalf). That is 15 of 18 also inconsistent with any claim that he was so incapacitated or unwell that it prevented him presenting a claim to the tribunal during this period.

[90]I therefore find as a fact that the claimant has not established that his medical situation made it not reasonably practicable for the him to have lodged a claim during this period and earlier than he did. I bear in mind of course that the third detriment is only said to have arisen in September – 20 November 2023 and that the claimant alleges a continuing course of conduct. I deal with the period after this below. Events after the 20 November 2023

[91]In terms of documentation for this period, I note there is no documentation, fit notes or medical evidence provided from the date of the claimant’s return to work and the alleged latest date of the third detriment i.e. 20 November 2023, up until the date he unfortunately suffered a brain haemorrhage on 8 April 2024.

[92]It follows that there has been no meaningful explanation by the claimant as to why a claim could not have been submitted during this period prior to the haemorrhage and indeed prior to the expiration of the primary time limit on 20 February 2024.

[93]I remind myself that the authorities suggest that although it is necessary to consider what could have been done during the whole of the limitation period, attention should be focused on the closing stages rather than the earlier ones.

[94]I note that the claimant was back at work throughout that period, and indeed on 2 December 2023 regained his safety competencies after completion of a PTS course. On the 5 December 2023 the claimant was also able to review and apparently understand and assess further legal advice received from RMT Legal. The claimant’s own chronology as contained within his written submissions is conspicuously silent as to any significant events as between 5 December 2023 and receipt of the Review Report by Victoria Stanford-Hill on 4 April 2024.

[95]I therefore find as a fact that the claimant has not established that it was not reasonably practicable for the him to have lodged a claim during this period and earlier than he did, in particular before expiration of the time limit on 20 February Events after 20 February 2024 (the expiration of the primary time limit)

[96]Given my earlier findings above in respect of the Report of 4 April 2024 (i.e. that it contained no new, significant or fundamental information, and that it did not 16 of 18 genuinely and reasonably change the claimant’s state of mind in terms of the viability of his claim) it seems to me unnecessary to consider at length the events that occurred after 20 February 2024, including between February and April 2024, and the sequalae related to the claimant’s brain haemorrhage on 8 April

[97]Also, given also the claimant has not established that it was not reasonably practicable to lodge his claim prior to the expiration period, it is also not necessary for me to consider whether the claim was brought within such further period as was reasonable after this date.

[98]Nevertheless, and for the sake of completeness, I note that the medical evidence provided by the claimant covers a period from the date of the claimant’s brain haemorrhage on 8 April 2024, his discharge from hospital on 12 April 2024 and thereafter up to 17 June 2024. Although the claimant indicated he was advised to avoid all stress generally and certainly for a period 6 months after the haemorrhage, I note that he in fact returned to work on 2 August 2024 and was able to submit a detailed, complex and lengthy Schedule of Loss shortly thereafter on 14 August 2024.

[99]That document, in my view, dealt with substantially the same issues that later formed part of his claim. I observe in passing that the claim was not submitted until October 2024.

Conclusion

[100]In all the circumstances, and given my findings of fact outlined above, I do not accept that the reasons the claimant has put forward (either individually or cumulatively) establish that it was not reasonably practicable for him to have brought his detriment claims within the applicable time limit and by the date of expiration on 20 February 2024.

[101]Consequently, I find that it was reasonably practicable for the claimant to bring his claims for detriment for making public interest disclosures in time. It follows that all such claims are struck out as there is no jurisdiction to hear them.