Ms Y-C Cheng v Taipei Representative Office in the UK, Edinburgh Office: 8000950/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000950/2024

Venue Person in Edinburgh

Hearing 5 March

Between

Ms Yu-Chieh ChengClaimant

Edinburgh OfficeRespondent

Before

Employment Judge A Strain

Mr D Ogilvy (instructed by Solicitor) for respondent

Date 2 April 2025

JUDGMENT

The Judgment of the Employment Tribunal is that:(1) the claim under section 47B of the Employment Rights Act 1996 (ERA 1996) has been presented out of time and it would have been reasonably practicable to have presented the claim in time;

(2) the victimisation complaint under section 27 of the Equality Act 2010 (EA 2010) has been presented out of time and it was not presented within such further period as the Tribunal considers just and equitable;

(3) the claims under section 47B of ERA 1996 and section 27 of EA E.T. Z4 (WR) 2010 are accordingly dismissed as the Tribunal does not have jurisdiction.

(4) The Respondent is correctly designed as Taipei Representative Office in the UK, Edinburgh Office.

REASONS

[1]The Claimant represented herself. The Respondent was represented by Mr D Ogilvy, Solicitor.

[2]The Claimant asserted a complaint of victimisation (“victimisation complaint”) under s27 of the EA 2010.a. The protected act was a complaint made by the claimant in October 2023 about sexual harassment and a failure to deal with this as set out in her ET1. She also refers to a similar complaint made in 2021.

b. The alleged detriment is the mark she received in relation to her December 2023 appraisal resulting in her not receiving a bonus.

[3]She also seeks to bring a complaint under s47B of the ERA 1996 that she was subject to a detriment for making a protected disclosure (“whistleblowing complaint”). The protected disclosure is the same matter relied on as a protected act in the victimisation complaint and the detriment is also the same.

[4]The Open Preliminary Hearing had been fixed to determine the following issues:a. Were the claims lodged in time?

b. If not then does the Tribunal exercise its discretion to hear the claims out of time applying the following tests:- i. In relation to the victimisation complaint, whether the claim was presented within such further period as the Tribunal considers just and equitable. ii. In relation to the whistleblowing complaint, whether it was not reasonably practicable for the claim to be presented within the 3 month time limit and whether it was presented within a further period that the Tribunal considers to be reasonable. iii. The correct designation of the Respondent.

[5]The Parties had lodged an Agreed Joint Bundle of Documents with the Tribunal. This included a Witness Statement from the Claimant.

[6]The Claimant gave evidence on her part and made submissions. The Respondent did not lead any evidence and made submissions. Findings in Fact

[7]Having heard the evidence of the Claimant and considered the documentary evidence before it the Tribunal made the following findings in fact: a) The Claimant was employed with the Respondent as an Administrative Assistant to work primarily within their Edinburgh Office with effect from 1 March 2012. b) The Claimant worked under a contract of employment which specified the employer as The Taipei Representative Office in the UK, Edinburgh Office. c) Whilst some instruction and direction on matters came from the London Office the Claimant was based in the Edinburgh Office and took instruction from line management locally. d) The Respondent paid an annual bonus in January each year based on the Claimant’s performance appraisal for the preceding calendar year. e) The Claimant not receive a bonus in her wages paid at the end of January 2024. f) The Claimant had a discussion with HR on 7 February 2024 regarding the non-payment of her annual bonus. In the course of the discussion and in emails sent to her the same day, she was informed that her appraisal had been done at the end of December 2023 (she had been off work for the whole of that month) and was informed of her mark. This was the first time she had been made aware of this. g) The Claimant notified ACAS on 19 April 2024 and the ACAS EC Certificate was issued on 31 May 2024. h) The Claimant lodged her ET1 with the Tribunal on 28 June 2024. i) The Claimant was aware from similar issues she had with the Respondent in 2021 of the time limits applicable to her victimisation and whistleblowing claims. The Claimant had gained this knowledge from advice and support she had received from ACAS, the CAB and her own research. j) The Claimant believed that the time limits in respect of both her claims ran from 7 February 2024 being the date she became aware of the fact that her appraisal had been done by the Respondent in December 2023 and that this was the reason she had not been paid her bonus. k) The Claimant believed that she had presented her claims in time. The Relevant Law The Whistleblowing Claim

The Relevant Law

[8]The Claimant asserts a whistleblowing complaint under s47B of the ERA 1996. Such a claim must be presented(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months (Section 48 (3) of ERA 1996).

[9]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. The Victimisation Claim

[10]The Claimant asserts a victimisation complaint under s27 of the EA 2010. Such a claim may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the Tribunal thinks just and equitable (S123(1) EA 2010).

[11]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.”

[12]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.

[13]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.

[14]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 Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.’ Submissions

[15]Both Parties made oral submissions. The Claimant

[16]The Claimant submitted that she had presented her claims in time and that the time limit for both ran from the date she first became aware of the alleged detriment (7 February 2024).

[17]She considered that the correct designation of the Respondent was The Taipei Representative Office in the UK. All instruction, direction and control came from there. The Respondent

[18]Mr Ogilvy submitted that the Whistleblowing claim had been submitted out of time and that it had been reasonably practicable to have presented the claim in time. The Claimant’s evidence was that she was aware of the time limits and there had been nothing stopping her from complying.

[19]In so far as the victimisation claim was concered once again the Claimant could have presented the claim in time. She was aware of the time limits and had not done so. She had not provided anything in her evidence to justify an extension of time on just and equitable grounds.

[20]He considered that the Respondent was correctly designed as The Taipei Representative Office in the UK, Edinburgh Office as that was where the Claimant was based, the designation in her contract and where she received instruction. Discussion and Decision

[21]The Tribunal firstly considered the relevant time limits and whether the claims were brought within that time limit.

[22]In respect of both claims the alleged detriment was the appraisal conducted in December 2023. The Tribunal were not provided with the exact date but assuming it was 31 December 2023 (the latest possible date) then the claims should have been presented by 30 March 2024. The Claimant did not apply for Early Conciliation until 19 April 2024 by which time the primary time limit had expired and did not result in the extension of the primary time limit in respect of any complaints against the Respondent.

[23]The Tribunal accordingly determined that the claims were not brought within the period of three months from the act complained of. The Whistleblowing Claim

[24]The Claimant’s clear evidence was that she was aware of the time limit and there was no reason why it would not have been reasonably practicable to have presented the claim in time other than her mistaken belief that the time limit ran from the date she became aware of the outcome of her appraisal.

[25]In those circumstances the Whistleblowing claim could have reasonably practicably been presented in time. She did not do so and accordingly the Tribunal does not have jurisdiction and her claim is dismissed. The Victimisation Claim

[26]The claim had been presented out of time. The Tribunal then considered whether the claim was brought within such other period as was just and equitable, noting that the onus was on the Claimant to demonstrate this.

[27]Her only explanation was that she believed the time limit commenced from the date of her knowledge of the detriment complained of (7 February 2024). She gave clear evidence of the extent of her knowledge of the applicable time limits from her own research, contact with ACAS and the CAB in the context of earlier similar claims.

[28]Her mistaken belief was unreasonable against that factual background. She could easily have clarified the position regarding the commencement of the time limits from her own researches, ACAS or CAB. She had managed to commence early conciliation and had lodged her ET1 herself.

[29]In light of these factors, the Tribunal concluded that the delay in raising her claim was not reasonable.

[30]The Tribunal took the length of and reasons for the delay into account, as well as the balance of prejudice between the parties in the claim 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 claim was not brought sooner, particularly where it was clear that the Claimant knew the applicable time limits (apart from when time ran from) and could have pesented the claim in time.

[31]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.

[32]For these reasons the Tribunal concluded that the claim was not brought within the relevant time limit, or such other period as was just and equitable.

[33]The Tribunal accordingly does not have jurisdiction to hear the Claimant’s claim. Designation of Respondent

[34]The Tribunal considered that the contract of employment designated the Respondent correctly as The Taipei Representative Office in the UK, Edinburgh Office. Factually, the Claimant worked from the office and took instruction there from local line management and also, on ocassion, from London Head Quartered staff. 35. 02 April 2025