Mrs K Stratford v The Trustees of the National Museums Scotland: 8001720/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001720/2025

Between

Mrs K StratfordClaimant

The Trustees of the National Museums ScotlandRespondent

Before

Employment Judge E Mannion

Ms S McGowan (instructed by Solicitor) for respondent

Date 26 January 2026

JUDGMENT

[1]The claimant’s case of constructive unfair dismissal was raised outside of the statutory time period and so is dismissed.

[2]The claimant’s case of disability discrimination was raised within a just and equitable period and so the tribunal has jurisdiction to hear it.

[3]That a privacy order under Rule 49 be granted to prevent the public disclosure of facts relating to the private lives of the claimant’s children and partner, in so far as they are relevant to the time bar hearing. This order will remain in place unless and until a further order is made revoking it’s effect.

REASONS

[1]This is a claim of constructive unfair dismissal and disability discrimination.

[2]A preliminary hearing was scheduled to consider time bar under both the Employment Rights Act 1996 and the Equality Act 2010. It was explained to parties at the outset that the hearing would not consider the substance of the claim itself but instead whether the claims were lodged in time.

[3]A bundle of documents had been prepared in advance of the hearing by the respondent and both parties had this available at the hearing.

[4]I heard evidence from the claimant on her own behalf.

[5]After hearing the evidence and considering the matter, it became clear that in publishing this judgment online, which is a required step, sensitive and personal details of the lives of the claimant’s children and partner would be disclosed publicly. These details are necessary to include in the findings of fact and decision so as to explain the reason for that decision. On my own initiative, I therefore considered a privacy order under Rule 49 of the Employment Tribunal Rules of Procedure 2024 so as to prevent the public disclosure of these personal and sensitive details. I found that it was in the interests of justice and to protect the Convention rights of those persons that a privacy order be granted, while balancing the principle of open justice and Convention right of freedom of expression. These details are set out in a separate schedule which will be sent to the parties along with this judgment and will remain on the tribunal’s digital case file but will not be lodged on the register alongside that judgment or in any other public manner. Relevant law

[6]Section 111(2) of the Employment Rights Act 1996 states that a tribunal shall not consider a complaint of unfair dismissal “unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or 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.”

[7]Where the claim is lodged out of time, the tribunal must consider whether it was not reasonably practicable for the claimant to present the claim in time. The burden of proof lies with the claimant in this regard. If the claimant succeeds in showing that it was not reasonably practicable to present the claim in time, then the tribunal must be satisfied that the time within which the claim was presented was reasonable. This is a question of fact for the tribunal (Walls Meat Co Ltd v Khan

1979 ICR 52

[8]Section 123 of the Equality Act 2010 states that a complaint must be made to the employment tribunal before “the period of three months starting with the date of the act to which the complaints relates or such other period as the employment tribunal thinks just and equitable.”

[9]The discretion to extend time is broader than under the “not reasonably practicable” formula (DPP v Mills

1998 IRLR 494

), and the court’s power to extend time on the basis of what is just and equitable entitles the tribunal to take into account anything which it judges to be relevant (Hutchison v 25 Westward Television Ltd

1977 IRLR 69

). Factors which would assist a Tribunal to decide whether to exercise their discretion include the length and reasons for the delay; the extent to which the cogency of evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with requests for information the promptness at which the claimant acted once they knew of facts giving rise to the cause of action; and the steps taken to take appropriate advice once the claimant knows of the possibility of taking legal action (British Coal Corporation v Keeble and others

1997 IRLR 336

). These Keeble factors are a guide for tribunal, rather than a list to be adhered to slavishly (Southwark London Borough Council v Afolabi

2003 ICR 800

). The relevance of these factors depends on the individual circumstances of the case (Department of Constitutional Affairs v Jones

2008 IRLR 128

[10]When exercising discretion, as well as the Keeble factors, the Tribunal is also required to carry out a balance of prejudice exercise (Szmidt v AC Produce Imports Ltd EAT 0291/14).

[11]The onus is on the claimant to persuade the tribunal that it is just and equitable to extend time, but the exercise of discretion is the exception rather than the rule (Robertson v Bexley Community Centre

2003 IRLR 434

). Findings in fact

[12]The Tribunal makes the following findings in fact on the balance of probabilities.

[13]The claimant’s employment with the respondent ended on 31 October 2024.

[14]The time limit for raising both claims ran from 31 October 2024 to 30 January 2025. It is not in dispute that the claims were lodged late, with the Acas process running from 20 to 27 May 2025 and the ET1 lodged on 14 July 2025.

[15]The claimant’s employment ended via a voluntary severance scheme. This was confirmed in or around July 2024 and notice given to the claimant that her last day of employment would be 31 October 2024. During the last six weeks’ of the claimant’s notice period, she was certified as unfit for work. Her initial focus as her employment was ending was finding a new job and for that employment to continue.

[16]While she received an exit payment from the respondent, she was not in a position to take time off work and use this payment as a cushion or buffer while she sought alternative work, focused on her health/family or take the time to lodge a claim. The exit payment was required in it’s entirety to pay off debts from a family law action and make arrangements in respect of the family home.

[17]The claimant began a new role on 4 November 2024, working 4 days per week. This job had a steep learning curve for her in terms of HR work, having spent the majority of her career in Operational Development. As an autistic person, meeting new people and building new relationships was exhausting.

[18]The delay in raising the claim was caused by a number of overlapping factors – her caring responsibilities to her children and partner, her own health conditions and her new and demanding job.

[19]The facts of her caring responsibilities both in terms of her children and partner were established in evidence and these are set out in a separate schedule for anonymity purposes. All of these responsibilities were very much on her shoulders alone, she was in complete survival mode and had to keep moving forward.

[20]The claimant has a number of medical conditions which affect her as well as being autistic and having ADHD. In the immediate aftermath of her dismissal, she was dealing with the effect and impact of the treatment she says she suffered while employed by the respondent. Many of her conditions are impacted by stress and cause flare-ups and she was working with her GP to reduce such flare-ups from early 2025 onwards. Between May and July 2025, she found that reliving the treatment she suffered while employed by the respondent in order to lodge her claim was negatively impacting her, causing panic, intrusive thoughts and anxiety dreams. Her panic was such that immediately after she lodged her ET1 she vomited.

[21]The claimant first contemplated raising a claim against the respondent in February 2025. While employed by the respondent, she was a member of a civil service union, but her membership ended on termination of employment. Raising a claim was very briefly mentioned in a discussion with her union representative in June 2024 when she returned from a period of sick leave, but no specifics were provided.

[22]She sought legal advice from a number of solicitors as early as February 2025 but was unable to get legal representation due to the outstanding time bar issue. She contacted Acas in May at some point before making her Early Conciliation claim and they also advised her of the time limits in Tribunal claims. The thrust of the advice she received both from solicitors and Acas was that while her claim may be time barred, it would be worthwhile to lodge it in any event as it may be accepted.

[23]At the time the claimant lodged her Early Conciliation claim on 20 May 2025 she described the events in her personal life as calming down somewhat, stating that things went from survival crises mode to more manageable but noting that this would still be far in excess of what a “normal” family might have to deal with.

[24]The reason for the delay of two months between the Early Conciliation claim and lodging the ET1 was the impact of reliving the events on her mental health. She was suffering from intrusive thoughts, panic and anxiety dreams. There was also the need to research and ensure she was presenting every aspect of her claim correctly. Being honest and transparent is of critical importance to her and she felt the need to consider every question being asked of her on the ET1 form to ensure she was giving a fully accurate answer. Submissions

[25]Both parties made submissions at the conclusion of evidence. For brevity, I have not included these here but for the avoidance of doubt, they have been fully considered in reaching my decision.

[26]I applied the two part test in section 111, looking first at whether it was reasonably practicable for the claimant to bring her constructive dismissal claim within the three month time period and then considering, if it were not reasonably practicable, if it was raised in a further reasonable period.

[27]I found that it was not reasonably practicable for the claimant to raise a claim in the required three month window. The personal circumstances involving her children went far beyond the normal busy life of a parent and instead amounted to a protracted period of crises. Two of her children had high levels of need, and the claimant had to manage their needs plus the involvement of different departments from the Local Authority and mental health agencies. Added into the mix was the unexpected health crises of the claimant’s partner and the toll of starting a new role which had particular impact due to the claimant’s neurodivergence and the pressure of remaining in that job as the sole earner in the family. This was an extreme set of circumstances which partly began before the limitation period, but got worse as the limitation period continued.

[28]Having found that it was not reasonably practicable, I then looked at whether the claim for constructive dismissal was raised in a further reasonable period. I considered that a claimant is required to act quickly to minimise delay after becoming aware of it and that I should have regard to all circumstances of the case including what the claimant knew of time limits and why there was further delay.

[29]I found that the claim for constructive dismissal was not raised in a further reasonable period. The claim was lodged on 14 July 2025 almost nine months after the date of termination and almost six months after the time limit expired. The claimant was aware that her claim was potentially time barred from February 2025 at the earliest as she began to take legal advice at that time. She did not take any steps to raising her claim until 20 May, lodging it on 14 July. The family personal circumstances continued to be a challenge but some of the pressure was relieved from March/April. The claimant described this as the dial going down from 11 to around a seven or eight. The claimant was also manging her ongoing medical conditions and the impact on her mental health which she believes resulted from her employment with the respondent and this was a factor in her delay. In balancing all of these factors however, I found that this almost six month period was not reasonable given the specific knowledge she had from February 2025 that a claim of this type should be raised within 3 months of dismissal and at the time of taking that advice she was informed that her claim was likely time barred, which is why she was unable to instruct a solicitor to represent her. Discrimination Section 123 Equality Act 2010

[30]The test to be applied looks firstly at whether the claim was brought within the three month time period and if not, in some other period which the tribunal thinks is just and equitable.

[31]It is not in dispute that the claim was brought outside the three month limitation period and so this decision is concerned with whether it was raised in a period the tribunal thinks is just and equitable. I found that it was.

[32]I considered that over the six month period from 30 January to 14 July 2025 the claimant continued to experience extreme personal difficulties, albeit the severity decreased as the months progressed for various reasons. The main factors in this decreases included a work placement for the claimant’s son, confirmation that the claimant’s daughter could be homeschooled and a more understanding approach to her school absence from the various authorities and an improvement in her partner’s health allowing him to return to work. The claimant settled into her new role and the initial learning curve coupled with the drain of building new relationships for a neurodivergent person reduced to normal levels. I found that from May 2025, the claimant was no longer in survival mode and could begin to look at raising this claim, although her children continued to have a high level of need. She began her Acas Early Conciliation on 20 May.

[33]In asking why the claimant waited until July after beginning her Early Conciliation claim in May 2025, she explained that she was retraumatised by reliving the events of the final two years of her employment in drafting the claim and compiling her evidence. This meant that completing and lodging her ET1 took much longer. There was no medical evidence provided by the claimant to underpin this but her evidence on her mental health during this period was not challenged. I found that the claimant’s evidence was credible.

[34]The claimant sought assistance from a solicitor to represent her and lodge her claim but after speaking to a number of solicitors from February 2025 onwards, no one was willing to represent her while the time bar issue was outstanding. She was the only person who could raise this claim and ultimately did so on 14 July 2025.

[35]I considered the prejudice to the respondent. The time period over which the allegations of discrimination stretch are February 2023 to October 2024. One manager who is alleged to have acted in a discriminatory manner towards the claimant in 2023 left employment with the respondent in that year. It was the respondent’s position that the cogency of evidence would be affected and that the memories of witnesses would be affected by this delay pointing out that the events of February 2023 are now three years old. While I considered this point, I noted that given the lengthy period of alleged discriminatory acts, even at the limitation point of 30 January 2025 some of these allegations were almost two years old. Had the claim been raised within the correct three month period, the respondent would still be required to lead evidence on events from 2023 and 2024 and the inherent impact by the passage of time on that evidence, including the fact that an alleged discriminator was no longer employed by the respondent.

[36]I also considered that the finality of time limits and that a respondent will have an obvious prejudice should a claim proceed where it was raised out of time.

[37]In balancing up all of these factors, I considered that it was just and equitable to allow the claimant’s claim of discrimination to proceed. I considered that the claimant raised the claim herself as she was unable to get legal representation. The time it took to lodge her claim was impacted by the her ongoing caring responsibilities which decreased from crises level to high in March/April/May 2025, her partner’s ill health up until April 2025 and her own health, in particular the mental health reaction in May to July 2025 to compiling the evidence she required for her claim and reliving events she found traumatic in order to set out the narrative of her claim.

[38]While there is an inherent prejudice to a respondent in allowing a claim in late, I did not hear any specific submission that the six month delay caused forensic prejudice to the respondent. Instead, the submission was to a general forensic prejudice which would have existed had the claim been lodged on time. In balancing this prejudice, I had regard for the prejudice to the claimant who would not be in a position to advance her claim and found that this carried greater weight in the balance of prejudice.

[39]In weighing up all of these factors, I found that the claim was brought in such other period as was just and equitable. No one factor was determinative but instead, I exercised my discretion having regard to all of the factors set out above and the guidance in case law. Further procedure

[40]A preliminary hearing to consider case management will now be set with the aim to finalise the list of issues and schedule a final hearing. A notice of hearing will follow with details. Parties are encouraged to co-operate in the period before this preliminary hearing, in particular around any outstanding information, documentation and the list of issues to be determined. Date of judgment: 26 January 2026