In person For the v Respondent — 2021

This was a preliminary hearing on 12 January 2021 before Employment Judge O Segal QC. The tribunal recorded that the claimant's earlier 2018 claim against the respondent was a protected act for the purposes of s.27 Equality Act 2010, but the present case had to be narrowed to the victimisation allegations that survived case management and amendment issues.

The original allegation, that the claimant was required to attend a meeting of concern on 10 July 2018 because he had not produced an up-to-date fit note, was struck out. The tribunal held it was around 19 months out of time, that there was no compelling explanation for the delay, and that the contemporaneous correspondence gave a plausible and reasonable explanation for convening the meeting. It concluded that, even if the allegation had been in time, it would have had no reasonable prospect of success, and that it was not just and equitable to extend time.

The holiday pay allegation, that the respondent victimised the claimant by not paying his full holiday allowance in advance in about April 2020, was also struck out. The tribunal accepted the respondent's explanation that it could only pay holiday already accrued, found that explanation reasonable and predictable, and noted that the claimant was paid for all of his holiday in the relevant year, just not in advance of accrual.

The furlough allegation was treated differently. The tribunal accepted that the respondent had not included the claimant in its CJRS claims from about late March 2020, and said that, on the material before it, there was sufficient evidence to shift the burden of proof. It allowed that allegation to be added by amendment and ordered early disclosure about how other long-term sick employees were treated, but it did not decide the merits at this stage. Two further proposed amendments were refused: the late-2017 medical-records allegation was refused because the alleged detriment pre-dated the protected act, and the 17 October 2019 capability-review allegation was refused because it was out of time and, on the correspondence, lacked a realistic prospect of success.