Miss S Borg v Liverpool University Hospitals NHS Foundation Trust — 2021

At a preliminary hearing on 2 March 2021, Employment Judge Grundy sitting alone considered whether Miss Borg's discrimination claims arising from the incident on 17 September 2019 were in time. The tribunal held that the discrimination claims were presented out of time: ACAS early conciliation was not notified until 28 July 2020 and the ET1 was presented on 28 September 2020, well outside the three-month time limit.

The tribunal then exercised its discretion under s.123 Equality Act 2010 to extend time on the just and equitable basis. It accepted that the claimant had been signed off work after the incident, knew of the time limit by March 2020, and had delayed while internal processes were ongoing. The tribunal also noted a late November email from the respondent asking her not to act, and accepted that the claimant's focus had become how the employer had dealt with the matter.

In reaching that conclusion, the tribunal accepted that this was a single workplace incident which had a significant effect on the claimant and caused anxiety. It weighed prejudice to both sides and found no substantial evidential prejudice, because the discrimination issues overlapped with the constructive unfair dismissal case and with the respondent's investigation. The result was that the direct sex discrimination and harassment claims were allowed to proceed. The tribunal noted that the unfair constructive dismissal claim was in time, but this judgment did not determine its merits.