Claimant v Keys Childcare (Holdings) Limited

The tribunal found the claim was not presented within the applicable time limit (by 9 June 2023). The tribunal concluded it was reasonably practicable for the claimant to have brought the claim in time, particularly in late May/early June 2023 when she was well enough to apply for and attend job interviews. Although the claimant faced health difficulties and family bereavement, the tribunal found she ought reasonably to have made enquiries about her employment rights and time limits during periods when she was not incapacitated.

The tribunal found the claim was presented approximately 4 months out of time. Despite the claimant's health difficulties and bereavement, the tribunal concluded it was not just and equitable to extend time. Key factors were: the significant delay after 18 August 2023 when the claimant was told to submit her claim as soon as possible; lack of good reason for the 7-week delay between starting and submitting the ET1; and prejudice to the respondent in defending historic claims dating back to January 2022.

The tribunal applied the same just and equitable analysis as for the direct discrimination claim. The tribunal weighed the relative prejudice, noting that while the claimant would lose the heart of her complaint, the respondent would face defending multiple historic allegations with potential memory fade issues. The lack of promptness in presenting the claim after 18 August 2023, when the claimant knew time was of the essence, was a significant factor in refusing to extend time.

The tribunal found it not just and equitable to extend time for the same reasons as the other disability discrimination claims. The tribunal noted the respondent would suffer prejudice in having to defend a far more expansive and expensive final hearing (5-10 days) compared to just the in-time victimisation claim (up to 3 days). The tribunal also considered that while conciliation was ongoing, the claimant had been clearly told she could and should submit her tribunal claim alongside continuing conciliation.

The tribunal dismissed this claim on time limit grounds applying the just and equitable test. The tribunal acknowledged the claimant's health difficulties and family bereavement but found these did not provide sufficient reason for the extended delay, particularly after 18 August 2023. The tribunal was not satisfied there was good reason for the nearly 7-week delay between the claimant starting her ET1 draft on 19 August and finally submitting it on 5 October 2023.

The tribunal dismissed this claim on the same time limit grounds as the other discrimination claims. The tribunal found that while the claimant would lose the ability to pursue complaints dating back to January 2022, this was outweighed by the prejudice to the respondent in defending historic oral conversation complaints where memories would have faded, and the significantly increased hearing time and costs involved.

The discriminatory constructive dismissal claim was dismissed on time limit grounds. The tribunal found it not just and equitable to extend time, noting that while the claimant would be left only with her post-termination victimisation claim (the event that drove her to seek advice), this was balanced against the respondent's prejudice in defending the wider discrimination case. The tribunal acknowledged that extending time would bring into play historic matters from January 2022 that would otherwise benefit from the limitation defence.

This post-termination victimisation claim relating to a complaint made by the respondent to the claimant's new employer on 18 July 2023 was found to be within time. The tribunal recorded that this claim continues and will be listed for a case management hearing. The claim alleges victimisation for the protected act of the claimant's grievance dated 23 January 2023.

The unauthorised deduction from wages claim was not the subject of the time limit preliminary hearing and therefore continues. However, the tribunal noted that the claimant needs to consider this complaint seriously as it appears likely to have time limit difficulties similar to the unfair dismissal claim if it relates to wages prior to the claimant's resignation.