Ms L Borrini v The National Trust for Scotland: 8000679/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000679/2025Venue AberdeenHearing 1 December 2025
Between
Ms L BorriniClaimantThe National Trust for Scotland, SC007410Respondent
Before
Employment Judge A StrainMr B Nicholl (instructed by Solicitor) for respondentDate 11 December 2025
JUDGMENT
[1]The claimant’s application to amend received on 13 August 2025 is refused;[2]The claims of detriment under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 have been presented out of time and were not presented within such further period as the Tribunal considers just and equitable; and[3]The claims are accordingly dismissed.
REASONS
[1]The claimant represented herself. The Respondent was represented by Mr B Nicholl, Solicitor.[2]The claimant has autism and ADHD.[3]A joint bundle with productions 1-13 and a further bundle from the claimant with productions 1-50 was produced. The joint bundle is referred to as J1 - J13 and the further bundle is referred to as F1-50.[4]The claimant asserts claims of less favourable treatment by being subject to detriment under Regulation 3(1) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTW Regulations).[5]The claimant commenced early conciliation on 6 January 2025 which concluded with ACAS issuing a certificate dated 17 February 2025 (J2).[6]The claimant’s ET1 (J1) was lodged on 17 Match 2025 by her then solicitors. The ET1 stated that she had been employed by the respondent on a series of Fixed Term Contracts (FTC) as a seasonal gardener. The contracts covered the periods April 2022 to October 2022; April 2023 to October 2023 and April 2024 to 11 October 2024. The ET1 stated that her employment ended on 11 October 2024.[7]The Respondent lodged an ET3 (J3) dated 10 April 2024 in terms of which the respondent sought further and better particulars of the claims and also raised the issue of time bar.[8]On 30 May 2025, the claimant’s solicitors emailed and informed the Tribunal that they were no longer acting for the claimant.[9]On 2 June 2025, the claimant emailed the Tribunal advising she wished to amend her claim.[10]The case called for a case management preliminary hearing (CMPH) on 3 June 2025 before Judge Hendry. A Note was sent to the Parties detailing the matters discussed at the CMPH (J4).[11]At the CMPH, the claimant stated to Judge Hendry that she wished to amend her claim. Judge Hendry records at paragraph 7 what the claimant wished to include in her amendment and informed her that she should set out in a separate document what amendments, if any, she wished to make to her existing claim (paragraph 10).[12]In the CMPH Note, Judge Hendry ordered the claimant to(1) lodge further and better particulars of her claim setting out her response to the ET3 and providing the information requested by the respondent in their ET3 within 14 days and(2) lodge a document headed “amendment” setting out the factual and legal basis for the claims being proposed and to explain why the application to amend comes to be made at this stage in proceedings.[13]At the CMPH the respondent raised preliminary issues of time bar and prospects with regard to the claimant’s FTW claims.[14]On 6 June 2025, the Tribunal issued notice to the parties of an OPH on the issues of time bar and prospects to take place on 26 August 2025.[15]On 12 June 2025 the claimant emailed the Tribunal (F1). In page 1 of that email she states that her case should be one of Constructive Unfair Dismissal and asks “if you are able to amend this case to one of Constructive Dismissal…”.[16]On 16 June 2025 the claimant lodged further and better particulars of her claim (J6).[17]The respondent lodged a summary note of arguments dated 12 August 2025 (J8) asserting that the existing claims were out of time, that the claims should be struck out as having no reasonable prospects of success, failing which a deposit order should be granted.[18]The claimant lodged an amendment application by post dated 11 August 2025 and received by the Tribunal on 13 August 2025 (F2-3).[19]The claimant lodged a response to the summary note of argument dated 15 August 2025 (J9).[20]On 19 August 2025 the OPH fixed for 26 August 2025 was postponed due to lack of judicial resources.[21]By email of 28 August 2025 the respondent objected to the proposed amendment.[22]The Tribunal notified a fresh OPH on the issues of time bar and prospects on 1 December 2025 by letter of 5 September 2025.[23]The claimant responded to the respondent’s email of objection by Note of 8 September 2025 (F5).[24]On 26 November 2025 the respondent sent a copy of their list of authorities to the claimant. Preliminary matters Reasonable adjustments[25]At the outset and on a number of occasions throughout the OPH the Tribunal sought to make reasonable adjustments in respect of the claimant’s Autism and ADHD and also the fact that the claimant was a party litigant.[26]The Tribunal took time to identify the documents and explain the process to be followed and the matters that would be considered by the Tribunal.[27]The Tribunal took time to check the claimant’s understanding and also to confirm her position by asking her to confirm the Tribunal’s understanding of what her evidence and position was.[28]The Tribunal asked the claimant to advise if there were any matters she wished clarified or didn’t understand. The claimant sought clarification on a number of occasions which clarification was afforded.[29]The parties were advised that they should not hesitate to ask for a break if desired and that would be accommodated. Witnesses[30]The claimant informed the Tribunal that she had 2 witnesses she wished to give evidence. These were her partner, Andrew Morrison and Ms Lucille McClintock both of whom had worked for the respondent.[31]The respondent objected to these witnesses on the grounds of relevance.[32]The Tribunal explained to the claimant that the only matters for determination at the OPH were(1) whether or not to allow the amendment;(2) whether or not the claims were out of time and, if so, whether or not it would be just and equitable to extend time;(3) whether or not the claims had no reasonable prospect of success and should be struck out and(4) whether or not a deposit order should be made.[33]The Tribunal enquired what Mr Morrison and Ms McClintock would give evidence on. The claimant explained that Ms McClintock’s evidence would be of similar detrimental treatment at the hands of the respondent and that Mr Morrison could also speak to detriments suffered by the claimant.[34]The Tribunal explained to the claimant that this was not a substantive hearing on the merits of the claims. If the claims proceeded, then these matters would be considered at a final hearing. After discussion with the claimant, she agreed that the witnesses were not necessary at this stage.[35]The Tribunal then had a short adjournment to allow the claimant to tell her witnesses they were no longer required and (at the suggestion of the Tribunal) the claimant brought her partner, Mr Morrison, into the hearing room for support. Productions[36]The documents to be referred to during the hearing were identified and agreed as being contained within the bundles J and F referred to above.[37]The claimant had prepared a written statement and also written submissions (16 pages in total). These were copied by the clerk at the Tribunal’s request. A copy was provided to the respondent’s solicitor and the Tribunal.[38]The Tribunal discussed and agreed with the parties that the written statement and submissions would be taken as read as would the claimant’s written submissions in advance of the hearing (F1-5). The Tribunal took time to explain to the claimant what this meant and the reasons why the tribunal was taking this step. The Tribunal explained that it had taken the time to read the documents in advance and was aware of their contents.[39]The Tribunal also adjourned for 30 minutes to allow the tribunal and the respondent’s solicitor time to read and digest the claimant’s written statement and written submissions. The claimant’s evidence[40]The Tribunal discussed and agreed with the Parties that the claimant could give her evidence from her seat alongside her partner rather than moving to the witness desk.[41]The Tribunal discussed and agreed that the claimant would give her evidence in 3 stages. She would firstly speak to the amendment, then to the issue of time bar/just and equitable extension of time and lastly prospects/strike out. At the end of each passage of evidence, the respondent’s solicitor would have the opportunity to cross examine. At the conclusion of her evidence, then the parties would have the opportunity to make submissions.[42]The claimant then proceeded to give her evidence taking into account the terms of her written statement and the documents accepted by the tribunal as being taken as read.[43]The respondent’s solicitor cross examined the claimant and the tribunal asked questions during the course of her evidence. Submissions[44]Both parties had lodged written submissions in advance and the respondent had lodged a list of authorities. The claimant’s evidence concluded by lunchtime and the tribunal adjourned until the afternoon to allow the claimant time to gather her thoughts and consider her submissions. The claimant’s position[45]The claimant’s position was that her amendment was in time. She had resigned from her employment by letter of 24 March 2025 (F34). Her employment had been continuous since April 2022 and she had submitted her amendment on 2/3 June 2025 by informing Judge Hendry that she wished to amend her claim by email of 2 June 2025 and at the CMPH on 3 June 2025.[46]The claimant did not accept that her employment had ended on 11 October 2024 as stated in the ET1 submitted by her solicitors on her behalf. The “reality” of the situation was that she had been continuously employed until she resigned.[47]The basis of this submission was that she was invited to return each year and had referred to correspondence from the respondent to that effect (F32-33) asking for her to confirm her start date for 2025. She did not return to or start work in 2025.[48]The claimant had the benefit of trade union advice and representation from at least August 2024 and was a member of Unite.[49]She had sought advice from ACAS from as early as 20 December 2024 (F31).[50]Through Unite, she had the benefit of legal advice and representation from Thompsons from 27 February 2025.[51]She had experienced technical difficulties in accessing the Tribunal portal but Thompsons had forwarded her file to her shortly after withdrawing from acting in May 2025.[52]She considered that the Respondent’s had delayed in providing information to her that was necessary for her to put forward her claim.[53]She was aware of time limits for constructive unfair dismissal claims and had discovered that she could pursue such a claim following research she personally undertook. She was aware of the time limits when she resigned.[54]She accepted that there was no impediment preventing her from having presented the amendment sooner than 13 August 2025 but that she thought her amendment was in time when she presented it. She wished to take time to get it right and present the information she felt was required.[55]She had attempted to source advice from CAB and other sources unsuccessfully following the CMPH.[56]She considered that the amendment incorporated a claim which simply gave a new label to the existing set of facts set out in her ET1 and further and better particulars.[57]She submitted that the Tribunal had discretion whether or not to allow the amendment and referred to the cases of Vaughan Modality Partnership UKEAT/0147/20; Selkent Bus Co Ltd v Moore and British Coal Corporation v Keeble and others in support of her submissions.[58]She considered that the application to amend was in accordance with the overriding objective as she consistently and persistently raised the same issues with the respondent since 14 August 2024. She raised these matters on 6 September 2024, 6 October 2024 and 8 October 2024 with the respondent in writing and through the grievance procedure (F18, F19c, F29). The same facts were presented to the respondent in her resignation of 24 March 2025.[59]The claimant would suffer real hardship if the amendment were to be refused. The respondent would suffer no prejudice if the amendment were allowed.[60]She had been unable to present the claim earlier due to inadequate legal advice, the respondent’s delays in providing information, the Unite representative advising her to go to ACAS and being inexperienced.[61]The claimant confirmed she advanced the following claims (Note the numbering the Tribunal have adopted differs from the numbering used in the ET1 and further particulars. The reason for this being the numbering the claimant used in her further particulars differed from the numbering in the ET1):a. She was not provided with PPE of similar quality and type to that of permanent employees. This detriment occurred in April each year at the commencement of her work that year. The last such occasion being April 2024. She identified a permanent comparator for this claim.b. She was told that she was not entitled to join the respondent’s pension scheme whereas permanent employees could. The last occurrence of this was April 2024. She identified a permanent comparator for this claim.c. She was obstructed from joining the respondent’s pension scheme. In her new starter form which she completed in 2022 and 2023 she ticked the box requesting further information about the pension scheme and this was never forthcoming. She did not identify a permanent comparator for this claim.d. She was enrolled into the Nest pension scheme 3 months after recommencing her employment in April 2022, 2023 and 2024. She had no permanent comparator for this claim.e. She was advised there was no budget for seasonal worker training. The latest incidence of this was August 2024 when she was advised by the Head Gardener, Sarah Ramsay. She had no permanent comparator for this claim.f. She was not provided with access to the training requests process for seasonal workers. She asserted that she had requested details of the request process in August 2024 but had not been provided with this. She identified permanent comparators for this claim.[62]The claimant submitted that these were all examples of less favourable treatment in comparison with permanent employees in general of the respondent.[63]The claimant’s primary position was that the claims were in time. That was why she had taken legal advice and relied upon her solicitors to lodge the claims in time. She had followed their advice.[64]In the event that they were out of time then the Tribunal should exercise its discretion to extend the time. She had consistently and persistently raised the same issues with the respondent since 14 August 2024. She raised these matters on 6 September 2024, 6 October 2024 and 8 October 2024. She would suffer real hardship if the claims were to be struck out. The respondent would suffer no prejudice if time were to be extended. Prospects[65]On the basis of the documentary evidence she has produced she did not consider that her claims had no reasonable prospect of success. She referred to the numerous emails from the respondent and outside advice sources such as the HSE demonstrated how part time staff employed seasonally year after year are treated differently and unfairly by the respondent. The respondent’s position[66]Mr Nicholl adopted the written Summary Note of Argument of 12 August 2025 (J8), email of 28 August 2025 and supplemented that with oral submissions.[67]The amendment should be refused.[68]The amendment seeks to lodge a substantive new claim of constructive unfair dismissal which is out of time and could have been lodged in time of the claimant’s position of having been continuously employed until her resignation on 24 March is accepted (which it was not).[69]The claimant was employed under a series of fixed term contracts the last of which had come to an end on 11 October 2024. This was also the stated position of the claimant in her ET1 which had been prepared and lodged on her behalf by her then solicitors. The claim has no prospects of success.[70]The claimant was not employed on 24 March 2025 when she purported to resign. Even if she had been then on the claimant’s own evidence it would have been reasonably practicable to have presented the amendment in time.[71]Mr Nicholl referred to Selkent Bus Company Ltd (Trading as Stagecoach Selkent) v Moore [1996] IRLR 661 and invited the Tribunal to follow the approach of the EAT.[72]Weighing up the Selkent factors, the Claimant’s application to amend should be refused.[73]The Claimant had the benefit of legal advice and raised the claim she was advised to bring being a Fixed Term Detriment claim.[74]To add new, time barred claims, the alleged factual basis of which go back many years would be substantially prejudicial to the respondent in terms of time and costs but also in relation to their ability to fairly defend the claims given that inevitably, as a result of the passage of time, memories will have faded and documents may not be readily recoverable.[75]All of the detriment claims were considerably out of time. Mr Nicholl referred to Bexley Community Centre (t/a Leisure Link) v Robertson [2003] Civ 576 and Abertawe Bro Morgannwg University Local Health Board v Morgain [2018] EWCA Civ 640 and submitted that the exercise of any discretion should be the exception and not the rule.[76]The claimant has not provided grounds upon which it could be said that it would be just and equitable to extend time.[77]There would be considerable prejudice to the respondent if the claims were to be allowed to proceed. The claimant had the benefit of trade union and legal advice and representation so could have presented the claims earlier. The claims have no reasonable prospects of success and that is a relevant factor to take into account when considering whether or not to extend time (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] 132).[78]The claimant did not identify relevant comparators for the majority of her claims and as such they could not succeed. Findings in fact[79]Having heard the evidence of the Claimant and considered the documentary evidence before it the Tribunal made the following findings in fact which are supplemental to the Background set out above on Page 2:a. The claimant had been employed by the respondent on a series of Fixed Term Contracts (FTC) as a seasonal gardener. The contracts covered the periods April 2022 to October 2022; April 2023 to October 2023 and April 2024 to 11 October 2024. Her last period of employment ended on 11 October 2024.b. The claimant had knowledge of her alleged unfavourable treatment, detriment and cause of action at the latest by 14 August 2024.c. The claimant raised the issues which are the subject of her FTW detriment claims with the Respondent on 14 August 2024, 6 September 2024, 6 and 8 October 2024. She also made a formal grievance submission on 26 September 2024.d. The claimant had the benefit of trade union advice and representation from at least August 2024 and was a member of Unite.e. She had sought advice from ACAS from as early as 20 December 2024 (F31) regarding her employment.f. Through Unite she had the benefit of legal advice and representation from Thompsons from 27 February 2025.g. The claimant was asked if she could confirm her return to work date in 2025 by email of 29 January and letter of 7 March 2025 from the respondent (F31-32).h. The claimant resigned from her employment by email of 24 March 2025 (F34).i. The claimant did not raise the prospect of a constructive dismissal claim with the Tribunal until her email of 12 June 2025 (F1).j. The claimant was aware of the time limits for making a constructive dismissal claim as at 24 March 2025.k. It was reasonably practicable for the claimant to have presented a claim of constructive unfair dismissal sooner than 13 August 2025, but she did not do so. The relevant law[80]The starting point for the Tribunal in considering any such application is the “overriding objective” which provides: 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. Applications to amend[81]In the context of applications to amend the tribunal should have regard to the case of Selkent Bus Company Ltd v Moore [1996] IRLR 661 (which was followed by the EAT in Scotland in Amey Services Ltd and another v Aldridge and others UKEATS/0007/16). The EAT held that, when faced with an application to amend, a tribunal must carry out a careful balancing exercise of all the relevant circumstances, weighing up the balance of injustice or hardship that would be caused to each party by allowing or refusing the application. This would include the nature of the amendment, the applicability of time limits, and the timing and manner of the application.[82]In the case of Vaughan v Modality Partnership [2020] UKEAT/0147/20, the EAT held that Selkent factors may be relevant but should not be used as a checklist to be ticked off to determine the application but are factors to take into account in conducting the fundamental exercise of balancing the injustice or hardship of allowing or refusing the amendment Time limits[83]In this case the amendment purports to introduce claims which may be time barred. The time limit for a constructive unfair dismissal claim to be presented to a tribunal is 3 months less one day unless the tribunal is satisfied that it was not reasonably practicable for such a claim to have been presented before the end of the relevant period of three months, then the tribunal may consider the claim if it is presented within such further period as the Tribunal considers reasonable.[84]The approach that a Tribunal should take to the question of whether it was reasonably practicable for a complaint to be presented in time is a matter of fact for the Tribunal, taking into account all the circumstances of the case. Those circumstances can be quite wide and include, for instance, whether an employee was physically prevented from complying with the limitation period; it may also be relevant to investigate whether, at the time of the detriment (and, if not, when thereafter) the employee knew that she had the right to make a claim. In another case, the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee, and it will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom. It may also be relevant for the Tribunal to consider the nature of any advice which is given to the employee and it may be relevant for the Tribunal to ask itself whether there was any substantial failure on the part of the employee or her adviser which led to the failure to comply with the time limit.[85]The claimant’s claims are made under FTW Regulations.[86]Regulation 7 (2) provides: “(2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning—(a) in the case of an alleged infringement of a right conferred by regulation 3(1) or 6(2), with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them;(b) in the case of an alleged infringement of the right conferred by regulation 3(6), with the date, or if more than one the last date, on which other individuals, whether or not employees of the employer, were informed of the vacancy.”[87]Regulations 7 (4) (b) and 7 (5) (b) of the Regulations provide that a deliberate failure to act is to be treated as done when it is decided upon or when it might reasonably have been expected to have been done.[88]Regulation 7(3) allows the Tribunal to extend the time for making such a complaint on just an equitable grounds.[89]The burden of proof is on the claimant to establish that it is just and equitable to extend time, as explained in Robertson v Bexley Community Centre [2003] IRLR 434, in which the Court of Appeal said, at para 25: “When tribunals consider their discretion to consider a claim out of time on just and equitable grounds 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 discretion is the exception rather than the rule.”[90]This does not however mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The only requirement is that the extension of time should be just and equitable. In British Coal Corporation v Keeble [1997] IRLR 336 the EAT indicated that task of the Tribunal, when considering whether it is just and equitable to extend time, may be illuminated by considering section 33 Limitation Act 1980. This sets out a check list of potentially relevant factors, which may provide a prompt as to the crucial findings of fact upon which the discretion is exercised.[91]In London Borough of Southwark v Afolabi [2003] IRLR 220 the Court of Appeal confirmed that, whilst that checklist provides a useful guide for Tribunals, it does not require to be followed slavishly. In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 30 640, the Court of Appeal confirmed this, stating that it was plain from the language used in s123 Equality Act 2010 (‘such other period as the Employment Tribunal thinks just and equitable’) that Parliament chose to give Employment Tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list.[92]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the Court of Appeal approved the approach set out in Afolabi and Morgan and, at paragraph 37, Underhill LJ confirmed, that ‘rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a Tribunal refers to a genuinely relevant factor but uses inappropriate Keeblederived language. The best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.’[93]The prospects of success are a relevant factor to take into account when considering whether or not to extend time (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] 132).[94]A claimant making a complaint under the FTW Regulations must be able to compare themselves with a comparable permanent employee under Regulation 2: “Comparable employees 2.—(1) For the purposes of these Regulations, an employee is a comparable permanent employee in relation to a fixed-term employee if, at the time when the treatment that is alleged to be less favourable to the fixedterm employee takes place, (a) both employees are— (i) employed by the same employer, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills; and (b) the permanent employee works or is based at the same establishment as the fixed-term employee or, where there is no comparable permanent employee working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.(2) For the purposes of paragraph (1), an employee is not a comparable permanent employee if his employment has ceased.” Discussion and Decision Application to amend[95]In this context the Tribunal adopted and followed the approach of the EAT in Selkent and Vaughan. Nature of the amendment[96]The claimant’s amendment seeks to add in a new claim of constructive unfair dismissal. If allowed, the amendment would add a claim which clearly sought to proceed on a set of facts and circumstances which had not been pled and to some extent was contrary to the facts and circumstances currently pled in the ET1.[97]The claimants’ cases as originally and currently pled clearly indicated that she considered her employment with the respondent to have been under a series of Fixed Term Contracts as a seasonal worker the last of which had come to an end on 11 October 2024. It is also exclusively on the basis of alleged less favourable treatment and detriment that she has suffered under the FTW Regulations. Nowhere in the current claim is there any mention of constructive unfair dismissal.[98]The claimant asserts that the amendment is based on the same facts she has presented to the respondent over the last year and is simply a “different legal labelling”.[99]The Tribunal consider and find that the amendment purports to include a substantive new claim which is not foreshadowed in or an elaboration of the existing claim in her ET1. Nor is it based on the same facts. It could not possibly be given that the claimant bases this claim upon an assertion that her employment was ended by her resignation on 24 March 2025 which postdates the lodging of the ET1 on 17 March 2025.[100]In any event the tribunal find that the claimant was employed under a series of fixed term contracts the last of which ended on 11 October 2024. The claimant was not employed on 24 March 2025 and as such any claim of constructive unfair dismissal had no prospect of success. Claim out of time[101]The Tribunal considered that the claim of constructive unfair dismissal contained within the proposed amendment was considerably out of time even if it were to have been the case that the claimant resigned from ongoing employment on 24 March 2025 (which the Tribunal did not find).[102]The claimant accepts that she was well aware of the applicable time limits and was in receipt of advice from at least August 2024 to May 2025 from her trade union and then her solicitors.[103]The claimant accepted that there was no impediment to her lodging the proposed amendment sooner and that she could have done so. She believed that the clock stopped when she informed Judge Hendry of her wish to amend on 2/3 June 2025. She believed that the claim was in time. The Tribunal concluded that it was reasonably practicable for any claim to have been presented in time. Timing and manner of the application[104]The claimant’s submissions were to the effect that she had been unable to present the claim earlier due to inadequate legal advice, the respondent’s delays in providing information and the Unite representative advising her to go to ACAS and being inexperienced.[105]The Tribunal did not accept this submission. The claimant accepted that she was aware of the time limits for making a constructive unfair dismissal claim and it was she who had resigned on 24 March 2024. By that date the claimant clearly had enough information to enable her to have presented a claim of constructive dismissal.[106]The Tribunal considered that refusal of the application to amend was in accordance with the overriding objective.[107]The amendment seeks to introduce a new claim which proceeds on a factual basis contrary to the factual position as currently pled and on the basis of facts which post date the lodging of the ET1. Further, the claim would require response by the Respondents which would entail potential delay and additional expense.[108]The claim is out of time and could have reasonably been presented in time.[109]The Tribunal do not consider there to be any reasonable prospect of success on the basis of the facts and circumstances relied upon. Her employment had ended on 11 October 2024 and had not recommenced when she resigned.[110]The Tribunal considers that there would be considerable prejudice to the respondent in allowing the amendment given that it would need to be responded to, there would be potential delay and further expense.[111]The Tribunal did not accept that refusal of the amendment would prejudice the claimant in the circumstances. In any event the balance of prejudice favoured the respondent.[112]The Tribunal considered that the interests of justice favoured the refusal of the amendment.[113]The application to amend is accordingly refused.[114]The Tribunal firstly considered the relevant time limit and whether the claims were brought within that time limit. The time limit is set out in Regulation 7 (2):[115]In respect of all claims the dates of the alleged detriments were confirmed by the claimant in her evidence. The claimant confirmed she advanced the following claims:a. She was not provided with PPE of similar quality and type to that of permanent employees. This detriment occurred in April each year at the commencement of her work that year. The last such occasion being April 2024.b. She was told that she was not entitled to join the respondent’s pension scheme whereas permanent employees could. The last occurrence of this was April 2024.c. She was obstructed from joining the respondent’s pension scheme. In her new starter form which she completed in 2022 and 2023 she ticked the box requesting further information about the pension scheme and this was never forthcoming.d. She was enrolled into the Nest pension scheme 3 months after recommencing her employment in April 2022, 2023 and 2024.e. She was advised there was no budget for seasonal worker training. The latest incidence of this was August 2024 when she was advised by the Head Gardener, Sarah Ramsay.f. She was not provided with access to the training requests process for seasonal workers. She asserted that she had requested details of the request process in August 2024 but had not been provided with this.[116]The last detriment occurred in August 2024. The claimant commenced ACAS conciliation on 6 January 2025 and lodged her ET1 on 17 March 2025. The claims under the FTW Regulations are considerably out of time.[117]Having found that the claims were out of time the Tribunal then moved on to consider whether or not it would be just and equitable to extend the time for lodging such claims.[118]Regulation 7(3) allows the tribunal to extend the time for making such a complaint on just an equitable grounds. The burden of proof is on the claimant to establish that it is just and equitable to extend time, as explained in Robertson v Bexley Community Centre [2003] IRLR 434.[119]The Tribunal considered Keeble, Afolabi, Morgan, Adedeji and Kumari. The Tribunal considered(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence was likely to be affected by the delay;(c) the extent to which the respondent had cooperated with any requests for information;(d) the promptness with which the claimant had acted once she had known of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate professional advice once she had known of the possibility of taking action. The Tribunal also considered the prospects of success of the claims.[120]Detriments a, b and d, on the claimant’s evidence had first occurred in April 2022 and had reoccurred in April each year so the last such detriment was April 2024. Detriment c had last occurred in April 2023. Detriments e and f had occurred in August 2024.[121]On the claimant’s evidence she had consistently and persistently raised the same issues with the respondent since 14 August 2024. She raised these matters on 6 September 2024, 6 October 2024 and 8 October 2024. She felt she was getting nowhere so had sought legal advice through her trade union. She obtained this advice in February 2025 and her ET1 was lodged on 17 March 2025.[122]She maintained that the respondent had failed to provide her with or had delayed providing information necessary for her to pursue her claim. The Tribunal note that by 14 August 2024 she clearly had enough information upon which to pursue her claim on her own evidence. She accordingly had knowledge of the cause of action by 14 August 2024.[123]The claimant had been in receipt of advice from her trade union from at least August 2024 and legal advice and representation from February 2025.[124]There had accordingly been considerable delay in the claimant presenting her claims from 14 August 2025 until 17 March 2025.[125]The Tribunal concluded that no satisfactory explanation was advanced for why the claim was not brought sooner, particularly where it was clear that the claimant knew the applicable time limits, was in receipt of advice and could have presented the claims earlier.[126]The cogency of any evidence regarding the matters claimed was not likely to be affected by the delay in presenting a claim. Prospects[127]The Tribunal considered each detriment in turn. The claimant did not have a permanent comparator for alleged detriments c, d and e. As a comparable permanent employee is a requirement for a claim under the FTW Regulations these claims have no prospect of success.[128]In so far as a, b and f were concerned the claimant had identified a comparable permanent employee as required.[129]Mr Nicholl contended that on the facts the detriments a, b and f were bound to fail. This appeared to be based on an analyses of the template permanent contract and the claimant’s own contract which provided for equivalent pension terms for both types of employee. This related to detriment b.[130]In so far as f was concerned, this related to access to a training request process for seasonal workers not permanent employees. As such the claim was bound to fail.[131]The Tribunal agreed with Mr Nicholl’s analyses of detriment f. The Tribunal did not agree with regard to detriment b. Whilst both contracts may have identical pension provisions it was the claimant’s position that she was told she could not join the respondent’s pension scheme. This was a matter which would require evidence to be led and a finding made on the facts.[132]In so far as a was concerned the claimant asserted that permanent staff were provided with appropriate PPE as a matter of course. The claimant accepted that she could have asked for particular items of PPE. This in itself identifies that the claimant is asserting less favourable treatment and what that treatment was in comparison with a comparable permanent employee. This was a matter which would require evidence to be led and a finding made on the facts. Conclusion on just and equitable extension of time[133]The Tribunal find that it would not be just and equitable to allow the claims under c to f to proceed. There had been considerable delay, the claimant had knowledge of the cause of action and been in receipt of advice from at least 14 August 2024. Proceedings had not been raised until 17 March 2025. These claims had no reasonable prosects of success. For these reasons the Tribunal concluded that these claims were not brought within the relevant time limit, or such other period as was just and equitable.[134]Accordingly, these claims are dismissed as being out of time. 135. ln so far as claims a and b were concerned taking what the claimant said at face value there was a clear assertion of less favourable treatment and detriment with a comparable permanent employee which would require examination into the facts.[136]The Tribunal took the length of and reasons for the delay into account, the claimant’s knowledge of a cause of action, the advice received by her, the balance of prejudice between the parties in the claims proceeding at this stage, when determining whether it was just and equitable to extend time. The Tribunal concluded that no satisfactory explanation was advanced for why the claims were not brought sooner. These claims had been known to the claimant since commencement of her first period of employment with the respondent in April 2022. For these reasons the Tribunal concluded that these claims were not brought within the relevant time limit, or such other period as was just and equitable.[137]Whilst the Tribunal is aware that the claimant will be unable to pursue her complaint if discretion is not exercised in her favour, the Tribunal is also mindful that the respondent would be prejudiced if the claim was allowed to proceed at this stage given the passage of time.[138]The claims are dismissed.[139]The Tribunal having found that the claims are out of time do not consider it necessary to deal with the application for strike out on prospects or for a deposit order.