Ms T Seymour v Homerton Healthcare NHS Foundation Trust — 2023

At this public preliminary hearing, Employment Judge M Brewer considered the respondent’s strike-out application and the claimant’s race-related claims. The judgment records that the claimant alleged victimisation and direct race discrimination by association arising from changes to the structure of the Facilities Department. The tribunal identified the relevant issue as whether the claim had been brought out of time and, if so, whether it was just and equitable to extend time under s.123(1)(b) EqA.

The tribunal found that the last date on which the claimant could properly complain about the restructure was 1 February 2022, when it was implemented, although it had been discussed from October 2021 and a consultation paper in November 2021 made clear that the department would move from five roles to two. The claimant started ACAS early conciliation on 6 December 2022, received the certificate on 9 December 2022, and presented her claim on 16 December 2022. On the tribunal’s analysis, the claim was more than eight months late.

Applying the authorities it cited, including Robertson v Bexley Community Centre, Pathan v South London Islamic Centre, British Coal Corporation v Keeble, Department of Constitutional Affairs v Jones, Adedeji v University Hospitals Birmingham NHS Foundation Trust and Secretary of State for Justice v Johnson, the tribunal considered the length and reasons for delay, the promptness of the claimant’s actions once she knew she had to bring her own claim, the cogency of the evidence, and the balance of prejudice. It found that the claimant had not taken advice from her union or legal advice, had access to the internet, and should reasonably have known how to start a tribunal claim before time expired.

The tribunal also held that the merits were weak. It said the victimisation and race discrimination by association claims were fundamentally misconceived, noted that the restructure affected most of the department, and concluded that the claimant had not shown a basis for victimisation or less favourable treatment because of race or association with a race discrimination claimant. It referred to the claimant’s own statement as suggesting that the successful candidate was favoured because of a friendship with management rather than for the reasons alleged. For those reasons, the tribunal refused to extend time and dismissed the claims for want of jurisdiction.