Mr F Huruva v Secretary of State for Justice: 6016407/2024

EMPLOYMENT TRIBUNALS

Case No 6016407/2024

Between

Mr F HuruvaClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Porter

In person for claimant

Mr R Dunn (instructed by counsel) for respondent

Date 8 August 2025

JUDGMENT

[1]The claimant is granted leave to amend his claim to include a claim that the decision of the appeal officer to uphold the decision to dismiss was an act of victimisation within the meaning of s27 Equality Act 2010;

[2]The claim of unfair dismissal was presented out of time. It was reasonably practicable to present the claim in time. The claim is hereby dismissed.

[3]The claim of harassment under s26 Equality Act 2010 was presented out of time. It is not just and equitable to extend time for presenting the claim, which is hereby dismissed.

[4]The following claims of victimisation under s27 Equality Act 2010 were presented out of time:a. Stuart Tasker telling the Claimant that “we don’t want people who are unstable to work for us” in the Redfern building between 11 December 2022 and 22 December 2022;

b. The Respondent ‘attempting to suspend’ the Claimant on false allegations during a handover meeting with Condicia West and Mhairi Cousland on 30 March 2023;

c. The Respondent denying the Claimant an overtime payment in January and February 2023 for overtime worked in January and February 2023;

d. The Respondent placing the Claimant on an ‘Improvement Plan’ during a handover meeting with Mhairi Cousland on 4 April 2023.

e. The Respondent deliberately trying to portray the Claimant as incompetent by backdating tasks and removing the Claimant’s work from the Respondent’s system in June 2023.

[5]It is not just and equitable to extend time for presenting these claims, which are hereby dismissed.

[6]The following claims of victimisation under s27 Equality Act 2010 shall proceed to a hearing:a. Dismissal of the claimant;

b. The decision to uphold the decision to dismiss on appeal.

[7]These allegations of victimisation constitute an allegation of a continuing act of discrimination ending with the decision on appeal. The claims were presented in time.

[8]In the alternative, if the claims were presented out of time, it is just and equitable to extend time to allow the claims to proceed. Approved by JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided.

REASONS

Issues to be determined

[1]At the outset it was confirmed that the issues to be determined at this preliminary hearing were identified at a preliminary hearing on 20 March 2025 as:a. Time limits pursuant to s123 Equality Act 2010, specifically:

1.1 Given the date the claim form was presented and the dates of early conciliation, the complaints of both race discrimination and victimisation may not have been brought in time.1.1.1 Were the discrimination complaints made within the statutory time limit, as extended by ACAS Early Conciliation (if applicable)? The Tribunal will decide:

1.1.2 Was the claim made to the Tribunal within 3 months (plus early conciliation extension if relevant) of the acts to which the complaints relate?

1.1.3 If not, was there conduct extending over a period? If so, was the claim made to the Tribunal within 3 months (plus early conciliation extension if applicable) of the end of that period?

1.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.1.4.1 Why were the complaints not made to the Tribunal in time?

1.1.4.2 In any event, is it just and equitable in all the circumstances to extend time?

b. Time limits pursuant to s111 Employment Rights Act 1996.

1.2 The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (allowing for any applicable early conciliation extension) of the effective date of termination?

1.2.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.2.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within such further period as the Tribunal considers reasonable?

[2]A list of issues for the substantive issues in this claim had not been agreed or finalised at the preliminary hearing before EJ Tobin. Therefore, at the commencement of this hearing, the tribunal sought clarity on the particulars of the claims and the issues to be determined.

[3]Counsel for the respondent indicated that:3.1 the issues were as set out in the Updated List of Issues (B71), a copy of which appears at Appendix 1;

3.2 This was based on the List of Issues which had been discussed at the preliminary hearing before EJ Tobin who commented that the list “seems fine”.

[4]The claimant agreed this List of Issues except that he asserted that the respondent’s decision at the appeal hearing on 29 July 2024, when the decision to dismiss was upheld, was the last act of discrimination under his claim under section 27 Equality Act 2010.

[5]Counsel for the respondent asserted that this was the first time that the claimant had asserted that the decision at the appeal hearing was an act of discrimination. The claimant is required to make application for leave to amend the claim to enable him to pursue this additional allegation. That application would be opposed.

[6]The claimant indicated that this was not the first time he had identified the decision on appeal as a discriminatory act. He made application for leave to amend the claim to include the allegation that the decision of the appeal officer was an act of victimisation.

[7]It was agreed and ordered that this application for leave to amend would be considered prior to the tribunal determining the out of time points. Application for leave to amend the claim

[8]The claimant makes application for leave to amend the claim to include the following additional allegation of victimisation in the List of Issues, which appears at Appendix 1: 13.g The decision of the appeal officer on or around 29 July 2024 to uphold the decision to dismiss Submissions

[9]The claimant made a number of detailed submissions which the tribunal 9.1. He did expressly state to EJ Tobin at the previous preliminary hearing that the decision on appeal was an act of discrimination. 9.2. This is confirmed by the Record of that discussion in which EJ Tobin identifies the discriminatory acts to include “ procedural errors and unfairness in the disciplinary process.” The appeal hearing was part of the disciplinary process; 9.3. if there is any challenge to this then the tribunal could listen to the recording of that preliminary hearing before EJ Tobin; 9.4. The decision of the appeal officer has been missed from the respondent’s list of issues; 9.5. That list of issues was discussed at the preliminary hearing before EJ Tobin and the claimant did at the time tell EJ Tobin that the list was fine but that he, the claimant, would have to check the details; 9.6. he had provided further information relating to his claim, as ordered by EJ Tobin. The claimant understood that the list of issues would be discussed and finalised at this hearing.

[10]Counsel for the respondent made a number of detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:- 10.1. This is a new claim; 10.2. the grounds of complaint do not contain any allegation of discriminatory treatment by the appeal officer and does not set out any causal link between the decision of the appeal officer and the alleged protected act in December 2022; 10.3. This is an extremely weak claim, verging on hopeless; 10.4. The nature of the claims were discussed at length at the preliminary hearing before EJ Tobin. The record of that discussion does not include a record of the claimant making an allegation that the appeal officer’s decision was discriminatory. The list of issues does not contain any reference to the decision of the appeal officer. The claimant has had four months to challenge both the CMO and the List of Issues but did not. He raised this for the first time on the morning of the hearing; 10.5. The claimant has provided no cogent explanation for why he has left this until the morning of the hearing; 10.6. the claimant, having read the skeleton arguments prepared for this hearing, has, at the commencement of this hearing, sought to include an additional claim of discrimination to ensure that his claim is accepted as having been presented in time; 10.7. The introduction of this new claim will cause the respondent considerable prejudice. This will extend the investigation by the respondent, it increases the factual inquiry. 10.8. The claimant will suffer no prejudice if the application is refused: he is still able to pursue his claim of unfair dismissal.

The Law

[11]Under rule 29 of the Employment Tribunal Rules and Procedure the tribunal has a broad discretion to allow amendments at any stage of the proceedings, either on the tribunal’s own initiative or on application by a party. Such a discretion must be exercised in accordance with the overriding objective in rule 2 of dealing with cases fairly and justly.

[12]In Chaudhry v Cerberus Security and Monitoring Services Ltd

2022 EAT 172

the EAT suggested a two-step approach:• first, identify the amendment or amendments sought, which should be in writing

• secondly, in express terms, balance the injustice and/or hardship of allowing or refusing the amendment or amendments, taking account of all the relevant factors, including, to the extent appropriate, those referred to in Selkent.

[13]In Selkent Bus Co Ltd v Moore

1996 ICR 836

the EAT explained that relevant factors would include:• nature of the amendment — applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded, to, on the other hand, the making of entirely new factual allegations that change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action

• applicability of time limits — if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim/cause of action is out of time and, if so, whether the time limit should be extended

• timing and manner of the application — an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the identification of new facts or new information from documents disclosed on discovery.

[14]The first key factor identified in Selkent was the nature of the proposed amendment. It was made clear that this should be considered first, before any time limitation issues are brought into the equation, as it is only necessary to consider the question of time limits where the proposed amendment in effect seeks to adduce a new complaint, as distinct from ‘relabelling’ the existing claim. If it is a purely relabelling exercise then it does not matter whether the amendment is brought within the timeframe for that particular claim Foxtons Ltd v Ruwiel EAT 0056/08.

[15]In Selkent, it was observed that ‘applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal [has] to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.’

[16]In Remploy Ltd v Abbott and ors EAT 0405/14 it was observed that if fresh points ‘can properly be considered to be particularisation of an allegation already pleaded, a more liberal approach may be taken in considering whether to grant permission to amend, than in cases where the point is a “new” point, or will require the parties to produce further evidence or disclosure and prejudice the timetable set for the proceedings or cause further delay’. One question to consider is whether there is a causative link between the grounds of complaint set out in the ET1 and the proposed amendment.

[17]In Vaughan v Modality Partnership

2021 ICR 535

the EAT emphasised that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The parties must therefore make submissions on the specific practical consequences of allowing or refusing the amendment.

[18]In LQP v City of York Council and anor

2022 EAT 196

the EAT endorsed the suggestion in Vaughan v Modality that it is necessary to exercise caution when categorising an amendment application as one involving relabelling, new facts or a new cause of action. It was stated: ‘That labelling exercise should not be used as a shortcut around, or in lieu of the balancing exercise of those different factors… The risk of doing so, in my view, is that, all too easily, impermissible “short cut” decision-making can take place: for example, a so called “relabelling” case (one where the same facts are relied upon in respect of a proposed amended head of claim) is likely to lead to an application to amend being granted, or a “new facts”/ “new cause of action” case will not, without a proper balancing exercise having been undertaken. Rather than focusing on the type of case, or label ascribed to it, it is far more important to look at the practical consequences of allowing, or, on the other hand, refusing an amendment.’

[19]In Rawson v Doncaster NHS Primary Care Trust EAT 0022/08 the EAT considered that the effect of an amendment is to backdate the new claim to the date on which the original claim form was presented. This is the doctrine of “relation back”.

[20]However, in Galilee v Commissioner of Police of the Metropolis

2018 ICR 634

EAT it was held that there is no doctrine of ‘relation back’ in employment tribunal proceedings: amendments to pleadings that introduce new claims or causes of action take effect for the purpose of limitation at the time when permission to amend is given. Determination of the application.

[21]The tribunal has considered all the circumstances including the following: 21.1. In the claim form the claimant indicated that he was pursuing claims of unfair dismissal and race discrimination. 21.2. At paragraph 8.2 of the claim form the claimant set out the grounds of complaint including the following: 21.2.1. he had to “request to be moved teams following a series of incidents in which the manager was making discriminatory comments”; 21.2.2. The claimant then listed a series of allegations of detrimental treatment adding “I protested that this was victimisation ….. this I found to have been victimising me for complaining and asking to be moved teams”; 21.2.3. The claimant challenged the reason for dismissal alleging that the outcome and investigation was biased; 21.2.4. “my P45 and employment termination was announced and completed before the appeal was conducted suggesting that matters were concluded without consideration of the appeal which I also felt was only a formality with the person presiding being unaware of the material facts of the matter.” 21.3. At the preliminary hearing on 20 March 2025 before EJ Tobin: 21.3.1. the Record of the discussion includes the following: The complaints of race discrimination and subsequent victimisation are contended to arise as follows: an alleged comment that the claimant contended was discriminatory; attempts to have him suspended and eventual suspension; denial of overtime payments; placing him on a performance improvement plan; backdating work to make him look incompetent; and procedural errors and unfairness in the disciplinary process. The allegations lack the specifics of who, when, etc so I will order further particulars. 21.3.2. EJ Tobin did not identify a List of Issues. He commented: Mr Dunn has draft a list of issues which appears fine. He has highlighted several questions (in red) which appear helpful. The claimant should bear this in mind when providing the further particulars ordered below. I make no provision for the list of issues to be agreed at this stage. 21.4. The claimant was ordered to provide additional information setting out each allegation of discrimination with:(a) the date the discrimination act arose;

(b) the perpetrator;

(c) brief details of the allegation [1 or 2 sentences] 21.5. The claimant did not seek to challenge the accuracy of the record of the hearing on 20 March 2025.The claimant did not provide the information as ordered and applied for an extension of time to comply with that Order. The respondent objected to that application. 21.6. By email dated 28 April 2025 (B42) to the tribunal and the respondent, the claimant repeated his application for an extension of time. An extract from that email reads as follows: In response to the respondent's submissions I would like to clarify the following . 1) The deadline is requested to be extended until 28/05/2025 to allow consideration of the documents to be submitted by the respondents on the 14/05/2025. 2) The last act of discrimination is the date when the appel decision was made 30/07/2024 21.7. By email dated 21 May 2025 to the tribunal and the respondent the claimant provided Further Information relating to his claims of unfair dismissal and race discrimination.(B45). He did not in that Further Information identify the appeal outcome as a discriminatory act. 21.8. The respondent by email dated 21 May 2025 (B48) advised the claimant that he had failed to comply with the Order of the tribunal and asked the claimant for further information in relation to the following allegations:

a. The Respondent ‘attempting to suspend’ the Claimant on false allegations (The Claimant is asked to confirm whom allegedly did this, when, what the false allegations were, and the identity of any witnesses);

b. The Respondent denying the Claimant an overtime payment (The Claimant is asked to confirm whom allegedly did this, when, how, what the alleged overtime payment was, and the identity of any witnesses);

c. The Respondent placing the Claimant on an ‘Improvement Plan’ (The Claimant is asked to confirm whom allegedly did this, when, and the identity of any witnesses);

d. The Respondent deliberately trying to portray the Claimant as incompetent by backdating tasks and removing the Claimant’s work from the Respondent’s system (The Claimant is asked to confirm whom allegedly did this, when, what the backdated tasks were, what part of the Claimant’s work was removed, and the identity of any witnesses); 21.9. The claimant provided the information as highlighted in red together with a number of documents. 21.10. In accordance with the terms of the tribunal’s Order the respondent provided the claimant with a copy of its draft List of Issues (B71) on 4 June 2025. 21.11. The List of alleged detrimental acts under the claim of victimisation included the act of dismissal. It did not include the decision to uphold that decision on appeal. 21.12. The claimant did not seek to correct the List of Issues prior to the commencement of this hearing.

[22]The tribunal acknowledges that the claimant does need leave to amend his claim to include the allegation that the appeal outcome was an act of victimisation under section 27 Equality Act 2010. That allegation about the appeal outcome was not pleaded in the claim form. The tribunal would agree with counsel for the respondent that an allegation of unfairness in the appeal, an allegation that the decision on appeal was predetermined, is not by itself an allegation of discrimination. The claimant does not assert in the claim form that the appeal officer was aware of, and motivated by, the alleged protected act in December 2022.

[23]The allegation of victimisation is not set out in the respondent’s list of issues which was discussed at the preliminary hearing before EJ Tobin, when EJ Tobin noted that the list of issues “appears fine”. The tribunal notes that under paragraph 4 of the Record of Case Management Discussion the complaints of race discrimination and subsequent victimisation were said to include “procedural errors and unfairness in the disciplinary process”. The tribunal would agree with the claimant that “disciplinary process” includes the appeal process. However, the list of issues makes no reference to the decision of the appeal officer.

[24]The claimant accepts that he told EJ Tobin that the list was fine but he would have to check the details. The claimant was ordered to provide further particulars of the race discrimination and victimisation claims ordered to provide the date of the act of discrimination, the perpetrator and brief details of the allegation. The claimant did not, in that further information, provide the date of the appeal outcome, did not state that the appeal was an act of victimisation. However, he did in his email dated 28 April 2025 identify the last discriminatory act as the appeal outcome. The respondent was ordered to provide the claimant with an amended list of issues. The respondent did so. The claimant did not seek to amend the list of issues to include the appeal outcome as a discriminatory act.

[25]The nature of the amendment: This is not a wholly new cause of action. It is linked to the pleaded claims. The respondent is aware that the claimant alleges that the dismissal was unfair and an act of victimisation. The appeal is part of the disciplinary process and falls to be considered under the claim of unfair dismissal. The claimant relies upon the same protected act in his allegation that the appeal officer’s decision was an act of victimisation.

[26]The manner and timing of the amendment: The claimant makes his application at the start of the hearing, having read the skeleton argument of the respondent and having realised that having a later alleged discriminatory act will benefit his case on the out of time issue.

[27]However, it was acknowledged at the preliminary hearing on 20 March 2025 before EJ Tobin that the complaints of race discrimination and victimisation were listed to include “procedural errors and unfairness in the disciplinary process”. The claimant understood that to include the appeal process. The claimant also by his email dated 28 April 2025 ( see paragraph 21.6 above) advise both the respondent and the tribunal that the last discriminatory act was the date the appeal decision was made.

[28]The claimant has not set out the grounds of this additional claim of victimisation in writing. He has not, in his oral submissions, set out the grounds upon which he asserts that the appeal officer was aware of the protected act and dismissed the appeal because of it. The claim is very weak.

[29]The tribunal has considered the issue of the prejudice to the parties and sought to balance the injustice and hardship arising to each party by the granting or refusing of leave to amend.

[30]There is prejudice to the respondent in introducing this new claim. There will have to be further investigation of the knowledge of the appeal officer of the actions of the claimant in December 2022. However, in the current claim of unfair dismissal the claimant has questioned whether the appeal officer did genuinely address the issues or whether he had made a predetermination as to the outcome of the appeal. The allegation that the appeal outcome was an act of victimisation is consistent with the claimant's allegation that the respondent did not have good reason to dismiss him but that this was an act of victimisation. The injustice and hardship to the respondent in granting the amendment is small. The appeal officer will be giving evidence in the unfair dismissal claim. His motivation for upholding the appeal will be challenged in that claim. The injustice to the claimant in denying the amendment is severe. Without the amendment the last alleged discriminatory act is the act of dismissal. Time runs from that date not the date of the appeal. The claimant is a litigant in person. He has not challenged the list of issues prior to this hearing. He did not expressly state in his further information that the appeal outcome was a discriminatory act. However, the disciplinary process was identified at the hearing before EJ Tobin as being discriminatory and prior to this hearing, in correspondence with the tribunal and the respondent, the claimant did identify the appeal outcome as a discriminatory act.

[31]In all the circumstances the tribunal finds that it is in the interest of justice to allow the amendment. The injustice and hardship to the claimant in refusing the application outweighs the injustice and hardship to the respondent.

[32]The claim is amended to add to the allegations of detrimental treatment under s27 Equality Act 2020 the following: The decision of the Appeal Officer on or around 29 July 2024 to uphold the decision to dismiss. Determination of the Jurisdictional issue: whether the claims were presented out of time and, if so, whether time should be extended to allow the claims to proceed.

Evidence

[33]The claimant gave evidence. He provided his evidence from 2 written witness statements. He was subject to cross-examination, questioning by the tribunal and, where appropriate, re-examination.

[34]The respondent did not call any witness evidence.

[35]An agreed bundle of documents was presented. Additional documents were presented during the course of the Hearing, either in accordance with the Orders outlined below or with consent. References to page numbers in these Reasons are references to the page numbers in the agreed Bundle. Orders

[36]A number of orders were made for the conduct and good management of the proceedings during the course of the Hearing. In making the orders the tribunal considered the overriding objective and the Employment Tribunals Rules of Procedure 2024. Orders included the following.

[37]At the outset of the hearing the claimant sought to introduce the following new documents: 37.1. A timeline of events prepared by the claimant; 37.2. Copies of correspondence between himself and the trade union relating to the presentation of the claim to the tribunal.

[38]The claimant asserted that: 38.1. The correspondence with the trade union supported his evidence that the reason for the delay in presenting the claim to the tribunal arose in part to the claimant relying on the trade union to progress the matter. The documents show the claimant seeking advice and the trade union telling him to wait; 38.2. He had not been able to produce the documents in time because he had had difficulty in obtaining the relevant documents from the trade union; 38.3. The timeline of events was prepared by the claimant to assist him in preparing for this hearing

[39]The respondent asserted that the claimant should not be allowed to introduce these new documents because: 39.1. The claimant has persistently failed to comply with orders within the time limits set by the tribunal; 39.2. He has presented these documents for the first time on the morning of the hearing, following an email sent at 9.30 last night; 39.3. The documents do not assist the claimant as they show that he sought advice from the trade union before the expiry of the time limit for presenting his claim.

[40]In all the circumstances the tribunal allowed the claimant to introduce these new documents as part of the evidence to be considered at today’s hearing. The claimant seeks to rely on these documents to explain the delay in presenting the claim. They are relevant documents. The respondent’s right to a fair hearing is not prejudiced by the late disclosure of these documents: the respondent is represented by counsel and the claimant can be crossexamined upon them. It is in the interest of justice and in accordance with the overriding objective to allow these documents to be introduced at this late stage.

[41]During the course of giving his evidence the claimant referred to obtaining advice from a solicitor about the presentation of this claim to the tribunal. The tribunal explained that the claimant was entitled to take advantage of his right to refuse to give evidence or answer questions as to the nature of the advice he received from the solicitor under the doctrine of legal professional privilege. His evidence, and questions in cross-examination, should be restricted to the dates upon which he sought the advice and his own knowledge and understanding of the tribunal procedure and relevant time limits after receiving the advice. Submissions on the out of time point

[42]The claimant made a number of detailed submissions which the tribunal 42.1. He had worked for the probation service for seven years and understood that you did not do things without guidance from the trade union; 42.2. he relied on his trade union even after he had the advice from his solicitor; 42.3. it is not reasonable to expect lay people to rely on Internet searches to get proper legal advice: you cannot trust Google; 42.4. ACAS told him that starting the early conciliation process froze time for presenting the claim; 42.5. there is little prejudice to the respondent. The claimant set out his complaints of discriminatory treatment up to June 2023 in an e-mail. He did not submit a formal grievance but the respondent was aware of his complaints at the time. They could have carried out a full investigation then but chose not to do so; 42.6. It is just and equitable to allow this complaint to proceed. The actions of the probation service need to be investigated by the courts.

[43]Counsel for the respondent relied upon his written skeleton argument and made a number of detailed oral submissions which the tribunal In relation to the claim of unfair dismissal 43.1. The claimant asserts that he was unaware of the time limit for the presenting the claim, was unaware that time ran from the date of dismissal rather than the outcome of the appeal. However, any ignorance of the law must be reasonable. The claimant had the opportunity to establish his rights before the expiry of the time limits; 43.2. the claimant asserts that he was let down by his trade union but the claimant is unable to rely on the fault of his advisor: the actions of the union advisers must be attributed to the claimant himself; 43.3. Time for presenting the claim expired on 7 August 2024. On 12 August 2024 the claimant obtained advice from a solicitor. From that point he was aware that his claim was out of time and yet he delayed until 26 October 2024 before presenting his claim; 43.4. it was reasonably practicable to present the claim in time; 43.5. the claimant did not act within a reasonable period of time after learning that the time for presentation of his claim had passed. In relation to the claims under the Equality Act 43.6. The claims of discrimination were all presented out of time; 43.7. the new allegation of victimisation in relation to the decision of the appeal officer is out of time. The claimant has failed to provide a satisfactory explanation for the delay; 43.8. There is significant prejudice to the respondent in allowing the claims to proceed; 43.9. the allegation of harassment relates to verbal conversations in December 2022. Memories do fade; 43.10. there is a gap in the allegations of detrimental treatment under section 27 Equality Act. The majority of the allegations took place between December 2022 and June 2023. The claimant has provided no satisfactory explanation as to why he did not pursue his complaint in relation to these matters before his dismissal. The claimant was advised by the trade union throughout this period; 43.11. In relation to the claims of victimisation relating to the dismissal and the decision of the appeal officer this claim is extremely weak. The claimant relies on the protected act of a verbal conversation in December 2022. There is no explanation from the claimant as to how he seeks to establish a causal link between the decisions of the dismissing and appeal officers and the conversation in December 2022. 43.12. The claimant cannot rely on his ignorance of law: he was advised by the trade union throughout.

Facts

[44]Having considered all the evidence the tribunal has made the following findings of fact. Where a conflict of evidence arose the tribunal has resolved the same, on the balance of probabilities, in accordance with the following findings.

[45]The claimant was employed by the respondent from May 2018 as a Probation Services officer.

[46]The claimant joined the trade union in or around May 2023 because he needed advice about actions of the respondent which the claimant believed to be victimisation.

[47]In or around August 2023 the claimant raised a complaint in an email about alleged acts of victimisation arising before that date. He did not raise a formal grievance. He was invited to a meeting in London to discuss his concerns. That meeting was conducted by the Racial Inclusion Team. [The tribunal accepts the evidence of the claimant on this point. This evidence was given orally in response to questions in cross-examination and from the tribunal. No documentary evidence has been produced in relation to this matter.]

[48]The claimant’s evidence as to whether he was satisfied with the outcome of that meeting is inconsistent. However, he did not progress his complaints any further at that point. He did not raise any complaint about the conduct of that meeting, did not present a claim to the tribunal alleging race discrimination in relation to the events arising before that date.

[49]The claimant was invited to attend a disciplinary hearing on 8 May 2024 in relation to allegations relating to him taking a work computer out of the jurisdiction and carrying out work on that computer while abroad. The claimant was represented by the trade union at that hearing.

[50]The respondent decided that the claimant had committed an act of gross misconduct and the claimant was summarily dismissed. The effective date of termination is 8 May 2024.

[51]The claimant was aware of his right to bring a claim to the employment tribunal. He was advised of his right by the trade union who told him that they would present a claim to the employment tribunal if he was dismissed at the disciplinary hearing on 8 May 2024.

[52]The claimant appealed against the decision to dismiss. The claimant was aware of the outcome of his appeal against dismissal on 29 July 2024;

[53]The claimant is well aware of court processes.

[54]The trade union did not present a claim to the tribunal on the claimant’s behalf. The claimant was concerned that the trade union was not taking any action and pressed them for a reply to his enquiries about the next steps to be taken.

[55]On 12 August 2024 the claimant sought legal advice from a solicitor and was informed of the correct time limit for presenting the claim, three months from the date of dismissal.

[56]The claimant did not present a claim at that time. He went back to his trade union for advice. The claimant tried to contact the union branch without success. He has produced documentary evidence from Unison of a telephone call he had on 13 August 2023 with Unison Head Office which states: Member called in as has not heard from branch yet and nothing in e-mail junk. Advised to allow more time and if still not heard to call us back. Member advised they had seeked some advice from an employment solicitor previously. I advised member the branch may not assist if member has seeked previous advice but they are best to have that conversation with Branch

[57]The claimant wanted to retain the services of his trade union and therefore delayed further awaiting their advice. He then returned to the solicitor for further legal advice on the 21 August 2024, when he was told again that his claim was out of time and that he should present his claim quickly.

[58]The claimant started early conciliation with Acas on 21 August 2024. It ended on 26 September 2024.

[59]The claimant misunderstood the advice from Acas and genuinely believed that starting the early conciliation process froze the time for presenting the claim.

[60]The claimant presented his claim on 26 October 2024.

The Law

[61]A claim of unfair dismissal under S111 Employment Rights Act 1996 (ERA 1996) must be brought before the end of the period of three months beginning with the ‘effective date of termination’.

[62]The existence of a contractual appeal procedure does not alter the effective date of termination . If the appeal fails the dismissal takes effect from the original date of dismissal unless there is an express or implied contractual provision to the contrary.

[63]When determining whether a time limit has been complied with, the period beginning the day after the early conciliation request is received by Acas up to and including the day when the early conciliation certificate is received or deemed to have been received by the prospective claimant is not counted s207B(3) ERA 1996. The clock will stop when Acas receives the request and start to run again the day after the prospective claimant receives (or is deemed to have received) the certificate.

[64]If a time limit is due to expire during the period beginning with the day Acas receives the request and one month after the prospective claimant receives the certificate, the time limit expires instead at the end of that period — s207B(4) ERA 1996. This effectively gives the prospective claimant one month from the date when he or she receives (or is deemed to receive) the certificate to present the claim.

[65]In Pearce v Bank of America Merrill Lynch and ors EAT 0067/19 the EAT confirmed that s207B(4) ERA 1996 does not apply where the limitation period has already expired before EC commences.

[66]The two types of time limit extension apply cumulatively, not in the alternative. The limitation date should be extended first by s207B(3) or its equivalent, and then extended further under s207B(4), if it applies.The corresponding provisions relating to the extension of time to facilitate early conciliation under the Equality Act 2010 should be applied in the same way.

[67]S111(2)(b) ERA 1996 provides that time for presentation of the claim is extended the claim was presented: 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. This is a two step test: first, to decide whether it was not reasonably practicable to present the claim in time, and second, if not, to decide whether the claim was presented within such further period as the tribunal considers reasonable.

[68]In Lowri Beck Services Ltd v Brophy

2019 EWCA Civ 2490

the Court of Appeal set out the essential points established in the case law: 68.1. the test should be given a liberal interpretation in favour of the employee 68.2. the statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was ‘reasonably feasible’ for the employee to present his or her claim in time. (Underhill LJ commented that the reference to ‘feasibility’ in the case law did not seem to a particularly apt way of making the point that the test is not concerned only with physical impracticability) 68.3. if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable If it is not, then it will have been reasonably practicable for the employee to bring the claim in time. In assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have made 68.4. if the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee

[69]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 v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA, 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?’ In Porter v Bandridge Ltd

1978 ICR 943

, CA, the Court of Appeal ruled that 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.

[70]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. The claimant will generally be taken to have been put on inquiry as to the time limit. 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 of unfair dismissal, he or she is under an obligation to seek information and advice about how to enforce that right.

[71]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. In the majority of cases, an adviser’s incorrect advice about the time limits, or other fault leading to the late submission of a claim, will bind the claimant, and a tribunal will be unlikely to find that it was not reasonably practicable to have presented the claim in time.

[72]If a claimant engages solicitors to act for him or her in presenting a claim, it will normally be presumed that it was reasonably practicable to present the claim in time and no extension will be granted. Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

[73]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.

[74]Where a claimant delays presenting a claim until the outcome of any appeal procedure is known then the fact that there was an impending internal appeal is not in itself sufficient to justify a finding that it was not reasonably practicable to present a complaint to a tribunal within the time limit . Palmer and anor v Southend -on-Sea Borough Council

1984 ICR 372

[75]In Nolan v Balfour Beatty Engineering Services EAT 0109/11, the EAT held that tribunals determining whether a claim was submitted within a further reasonable time must consider all the circumstances of the particular case, including what the claimant did; what he or she knew, or reasonably ought to have known, about time limits; and why it was that the further delay occurred.

[76]A claim concerning work-related discrimination must be presented to the employment tribunal within the period of three months beginning with the date of the act complained of s123 (1) (a) Equality Act 2010. Conduct extending over a period is to be treated as done at the end of that period - if there is continuing discrimination, time only begins to run when the last act is completed.

[77]The Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust EWCA Civ 1548 CA clarified that the correct test in determining whether there is a continuing act of discrimination is that set out in Commissioner of Police of the Metropolis v Hendricks 20023 ICR 530 CA. Tribunals should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.

[78]In Aziz v FDA

2010 EWCA Civ 304

CA the Court noted that, in considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’.

[79]The Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust EWCA Civ 1548 CA stated that when deciding whether a claim is time-barred at a preliminary hearing the test to be applied is to consider whether the claimant had established a prima facie case, or whether the claimant has “ a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’.

[80]The Tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. The Tribunal has a wide discretion to do what it thinks is just and equitable in the circumstances Hutchinson v Westward Television Ltd

[1997] IRLR 69

. The Tribunal should consider the prejudice which each party would suffer as a result of granting or refusing an extension and have regard to all the other circumstances of the case including in particular the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be effected by the delay, the extent to which the parties sued had cooperated with any request for information, the promptness with which the applicant acted once he or she knew of the facts given rise to the cause of action and the steps taken by the claimant to obtain appropriate professional advice once he or she knew the possibility of taking action; British Coal Corporation v Keeble

[1997] IRLR 336

[81]In Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5 CA it was noted that rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. The best approach when considering the exercise of the discretion is for the tribunal to assess all the factors in the particular case that it considers to be relevant, including in particular the length of, and the reasons for, the delay. Given the breadth of the discretion afforded to tribunals by the ‘just and equitable’ formulation, a multi-factorial approach is appropriate when considering whether to extend time.

[82]When tribunals consider exercising the discretion to extend time ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.’ The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit. Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

[83]However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law simply requires that an extension of time should be just and equitable.

[84]In Hunswicks v Royal Mail Group plc EAT 0003/07 the EAT noted that the authorities clearly establish that where a claimant has missed a relevant time limit as a result of relying on bad advice from a skilled adviser, including a trade union, that is a relevant factor which the tribunal should consider in deciding whether it is just and equitable to extend time. Whether it is a decisive factor will depend on all the circumstances of the case.

[85]Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other. Pathan v South London Islamic Centre EAT 0312/13

[86]In Miller and other v Ministry of Justice and others EAT 0003/15 it was noted that there are two types of prejudice that a respondent may suffer if the limitation period is extended:(i) the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and

(ii) the forensic prejudice that a respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses.

[87]The tribunal has considered and where appropriate applied the authorities referred to in submissions. Determination of the Issues

[88]This includes, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence.

[89]A claim of unfair dismissal must be presented within three months of the effective date of termination.

[90]The claimant was dismissed and effective date of termination is 8 May 2024. Time for presenting the claim ended on 7 August 2024. The claimant did not start early conciliation until 21 August 2024. Time for presenting the claim is not extended by the operation of the Early Conciliation process. The claim was presented out of time.

[91]In deciding whether it was reasonably practicable to present the claim in time the Tribunal has considered all the circumstances including the following: 91.1. the claimant was aware of his right to bring a claim to the employment tribunal; 91.2. he was advised of his right by the trade union who told him that they would present a claim to the employment tribunal if he was dismissed at the disciplinary hearing on 8 May 2024; 91.3. The claimant was aware of the outcome of his appeal against dismissal on the 29 July 2024;

[92]It is the claimant’s assertion that he was unaware of the time limit for presenting the claim. However, ignorance of the law is no defence. The claimant is well aware of court processes. It is encumbent on any claimant to make reasonable enquiries about bringing a claim and the court processes. The claimant was assisted by the trade union. The trade union can be expected to know the existence of time limits.

[93]The claimant asserts that he delayed in the presentation of the claim because he was relying on his trade union to take the appropriate action and they did not advise the claimant to act quickly but advised a delay. However, as stated above if the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee.

[94]In all the circumstances the tribunal finds that it was reasonably practicable to present the claim in time.

[95]Further and in the alternative if it was not reasonably practicable for the claim to be presented in time the next question is whether the claim was presented within a reasonable time thereafter.

[96]The claimant obtained legal advice on the 12 August 2024 and was informed of the correct time limit for presenting the claim, three months from the date of dismissal. He knew at that point that the claim was out of time. However, he did not present the claim at that point. but went back to his trade union who he says told him to wait a little longer before presenting his claim. The claimant has provided no satisfactory explanation as to why he should reject the legal advice of the solicitor and present his claim immediately. The claimant then returned to the solicitor for further legal advice on the 21 August 2024, when he was told again that his claim was out of time and that he should present his claim quickly. The claimant started early conciliation that day. However, he did not present his claim until 26 October 2024. The claimant asserts that he obtained advice from ACAS that starting Early Conciliation would freeze the time for presenting claim. It is difficult to envisage that ACAS would give wrong legal advice. However, correct advice can only be given on the basis that the correct information is given to the adviser. It is not credible that ACAS would have given wrong advice, given the correct information as to the date of termination of employment. It is not credible that the solicitor would not have also given the claimant correct advice about the operation of the EC procedure. Again, the claimant has not provided any satisfactory explanation as to why he should not act on the advice of the solicitor.

[97]In these circumstances the claimant did not act within a reasonable time of being fully aware of the time limits for presenting the claim.

[98]The claim of unfair dismissal was presented out of time. Time is not extended to allow for late presentation of the claim.

[99]The claim of unfair dismissal is dismissed.

[100]A claim concerning work-related discrimination must be presented to the employment tribunal within the period of three months beginning with the date of the act complained of s123 (1) (a) Equality Act 2010. Conduct extending over a period is to be treated as done at the end of that period - if there is continuing discrimination, time only begins to run when the last act is completed.

[101]The claimant has failed to set out the grounds upon which he asserts that there was a continuing act of discrimination. The List of issues clearly identifies a gap in the allegations of discrimination between June 2023 and dismissal on 8 May 2024. The complaint at paragraph 13 d refers to the claimant being placed on an Improvement Plan on 4 April 2023 and paragraph 13e contains an allegation that the respondent was deliberately trying to portray the claimant as incompetent in June 2023. There are no further allegations of discriminatory treatment until the dismissal on 8 May 2024. The claimant was dismissed for gross misconduct. The claimant has not set out the grounds upon which says the dismissal was part of any continuing act. He does not dispute the assertion that the events up to June 2023 concerned a variety of individuals and are entirely disconnected from the matters for which the claimant was dismissed. In all the circumstances the tribunal finds that there was a break in the allegations of discriminatory treatment. The time for presenting the earlier claims of discrimination ran from June 2023. The claim was therefore presented out of time on 26 October 2024.

[102]The claimant has failed to provide a satisfactory explanation as to why he did not present the claim in time. He was aware of the right to claim, was a member of a trade union and could have sought advice on how to proceed. The respondent is prejudiced by the late presentation of the claim. There has been a considerable lapse of time. Some of the allegations relate to oral conversations. Although the claimant raised some complaints in an email the claimant has not provided a copy of that email and did not raise a formal grievance. There was no investigation of the complaints at that time. Memories do fade. The prejudice to the respondent is significant in allowing these claims to proceed after such a length of time when the claimant was advised by the trade union and could have raised a formal grievance and an employment tribunal claim in a timely manner. The claimant has failed to provide a satisfactory explanation for the delay. He simply states that it would be difficult for an existing employee to present a claim and other avenues should be progressed first. The claimant did attend a meeting to discuss his complaints. His evidence as to whether he was satisfied with the outcome of that meeting is unsatisfactory. On the balance of probabilities the tribunal finds that it is more than likely that the claimant was satisfied with the outcome of that meeting. If not, he had the opportunity to present his claim then. He chose not to do so.

[103]In weighing the prejudice between the parties the tribunal finds that the prejudice to the respondent outweighs the prejudice to the claimant. Time is not extended.

[104]These claims are dismissed.

[105]As to the remaining claims of victimisation relating to the dismissal and the appeal outcome, the tribunal considers that, following the amendment to the claim, these claims are presented in time. The claimant was aware of the appeal outcome on 29 July 2024. Time for presenting the claim ended on 28 October 2024. The claim was presented in time on 26 October 2024. The tribunal considered the timing of the application when granting the application for leave to amend the claim. This was not a wholly new claim but related to the facts of the claim of unfair dismissal.

[106]In the alternative, if the claims were presented out of time then the tribunal has considered whether it is just and equitable to extend time to allow the claim to proceed.

[107]The tribunal has considered all the circumstances, including the following.

[108]The period of time is relatively short. The claim of discriminatory treatment in relation to the decision to dismiss was raised some 2 and a half months late. As stated above, the time for presenting the claim in relation to the act of dismissal expired on 7 August 2024.

[109]The claim of victimisation in relation to the decision of the appeal officer is intrinsically linked to the claim of victimisation in relation to the decision to dismiss. The respondent was aware from the date of presentation of the claim that the claimant challenged the reason for upholding the appeal.

[110]Part of the reason for the delay was the claimant’s reliance on the poor advice of his trade union. This is a matter than can be considered in the exercise of discretion on just and equitable grounds. It is clear that the claimant genuinely accepted the advice of the trade union and did take steps to chase them to progress his claim.

[111]Part of the reason for the delay was the claimant’s mistaken belief that the start of the EC process extended the time for the presentation of the claim. The tribunal accepts the evidence of the claimant that this mistake was a genuine one.

[112]The remaining acts of discrimination relate to the reason for dismissal and the decision on appeal. The short delay in the presentation of the claim will not seriously prejudice the respondent’s ability to present its defence to the claim and its right to a fair hearing. The prejudice to the claimant is severe: failing to extend time to allow him to progress his claim will deprive him of his right to claim. The claimant is a litigant in person and clearly took steps to progress his claim from the outset but unfortunately relied on his trade union to progress his claim. He did take legal advice but was keen to retain the services of the trade union. Although the claimant is aware of court processes it is clear that he did not fully understand the need to act quickly and did misunderstand the advice from Acas, which led to a further short delay. The prejudice to the claimant outweighs the prejudice to the respondent.

[113]In all the circumstances it is just and equitable that the time for presenting the claim in relation the alleged discriminatory acts of dismissal and the appeal outcome is extended. Those claims shall proceed to a hearing. Approved by