Claimant v W H Malcolm Limited

The claimant's engagement as an agency worker ended on 26 July 2024. The three month time limit for claims under the Agency Workers Regulations expired on 25 October 2024. The claimant did not commence early conciliation or proceedings by that date. The tribunal found the claim entirely out of time and refused to extend time. The tribunal had no jurisdiction to hear it.

Comment made by Mr David Nelson on 23 December 2023 that they don't normally let females work nightshift was out of time, occurred more than three months before early conciliation commenced, and tribunal refused just and equitable extension on basis claimant could have raised claim earlier and gave no coherent reason why she did not.

Mr Nelson's confirmation on 17 February 2024 about his earlier comment relating to a previous female driver was out of time, more than three months before early conciliation, and tribunal refused just and equitable extension.

Text message from Mr Nelson at end of March 2024 saying he 'had to fight like fuck to get you into the job, especially a female shunting position' was out of time and tribunal refused just and equitable extension.

Comment by Mr David Jordan at end of March 2024 making a joke about period blood was out of time and tribunal refused just and equitable extension.

Comment by Mr Lee Waugh on 19 January 2024 asking if claimant liked 'five guys' was out of time and tribunal refused just and equitable extension.

Comments made in period March-July 2024 by Mr Alan Penman, Arthur Mackay and Dale Craig that claimant would have to prove herself to get a contract were out of time and tribunal refused just and equitable extension.

Note left in March 2025 saying 'clean your dirty footprints aff the dashboard ya mank' was in time. Tribunal found no sex discrimination as the word 'mank' was not gender-specific, Mr Conway did not know the claimant would be the next driver in the cab, and he would have left the same note for a man in similar circumstances.

In relation to the March 2025 note, the tribunal accepted it was unwanted conduct but found it was not related to a protected characteristic. The word 'mank' meant a dirty person and was not sex-related. The claim could not succeed under section 26.

Third respondent's use of word 'asinine' in response to claimant's sex discrimination complaint was in time. Tribunal found this was not sex discrimination as the respondent had genuine grounds to consider the claim without merit (it was time-barred and relied on invalid comparator). A hypothetical male comparator making a similar claim would have received the same response. The ET3 response using same language was also not discriminatory.

The third respondent's letter of 20 February 2025 and ET3 response were unwanted by the claimant but were not done in relation to a protected characteristic. The tribunal held it would be perverse to allow a party to raise sex discrimination proceedings and then claim the response denying discrimination was itself discriminatory.

Claimant applied to amend to add victimisation claim. Tribunal refused the amendment on basis it introduced entirely new cause of action, claims were unclear and contradictory, would cause significant prejudice to respondents requiring adjournment and further investigation, while prejudice to claimant was slight as she had existing claims ready to proceed.

Withdrawn by claimant after preliminary hearing on 16 May 2025 when Employment Judge pointed out the equal pay claim was submitted outside the time limit and there was no provision to extend time for equal pay claims.