Mr W Young, counsel For the v Respondent — 2023

Mrs M Fabry, as personal representative of the estate of Mr Kristof Fabry, brought linked tribunal proceedings after Mr Fabry's death on 14 May 2019. The first claim, presented on 19 September 2019, was issued before the grant of letters of administration on 27 November 2019. At the 12 May 2023 hearing the claimant conceded that the first claim was a nullity in law, and Employment Judge Klimov made no strike-out order because, if a claim never existed in law, there was nothing to strike out. The judge added obiter comments that the point may have been conceded too readily and that the Equality Act position might differ from the statutory position under s.206 ERA.

The tribunal then considered whether it was just and equitable under s.123(1) Equality Act 2010 to extend time for the second claim, presented on 22 March 2023. That claim was identical in factual background but broke the disability case into direct discrimination, discrimination arising from disability, indirect discrimination, failure to make reasonable adjustments, and disability-related harassment. The judge summarised the governing approach from authorities including Robertson, Pathan, Adedeji, Morgan, and related cases, and treated the claimant as bearing the burden of showing that an extension was just and equitable.

On the evidence, the tribunal accepted that Mr Rugg did not recall Mind's email, did not pass it to the claimant, and had not been told by Ms Lucas that the claim had to wait for the grant of administration. It found that the respondents had long known that proceedings were on foot, had already responded to the factual allegations, and would not suffer material forensic prejudice from the later, more detailed pleading. By contrast, refusing an extension would deprive the claimant of a hearing because of an obscure technical issue combined with Tribunal delay and Covid-related disruption. The tribunal therefore extended time for the second claim to proceed, gave the respondents leave to amend their response by 5 June 2023, and directed a further preliminary hearing.