Miss P Ibinson v Tyne & Wear Passenger Transport Executive (T/A Nexus) — 2022

Miss Ibinson brought a claim of indirect sex discrimination arising from the respondent’s use of a three-year specialist experience requirement for the OLE role during the 2021 restructuring. The tribunal found that by 7 January 2021 she knew she did not meet the requirement and that she would not get the role. It held that the identity of the successful candidate did not affect the indirect discrimination complaint, because the alleged detriment was the PCP itself.

The tribunal held that the indirect sex discrimination claim was presented out of time. It found that the claimant could have brought the claim after the January 2021 interview, or at the latest after the completion of early conciliation, and that she did not need to wait for her grievance process to finish. It rejected her argument that the grievance process or later developments justified the delay, and also noted that she had access to union advice and later advice from the CAB before presenting the ET1 on 16 August 2021.

Having found the claim out of time, the tribunal refused to extend time on the just and equitable basis under section 123 Equality Act 2010. It accepted that the claimant was educated, knew about employment tribunal claims from 2020, and had deliberately chosen not to present a claim after her first grievance. It also took account of prejudice to the respondent from a late claim where matters were no longer fresh.

The claimant’s application to amend the claim to add direct sex discrimination was also refused. The tribunal held that the ET1 did not already contain a direct discrimination claim and, once the indirect discrimination claim was found to be out of time, there were no live proceedings in which to permit an amendment. In any event, it held that the proposed amendment would introduce a substantially new factual enquiry and would prejudice the respondent, so leave to amend would have been refused under the Selkent and Abercrombie principles.