Member E Coyle Tribunal Member S Larkin Ms A de Vere v W H Malcolm Limited and 2 others — 2025

The claimant brought claims arising from an agency-working arrangement at WH Malcolm, including a Regulation 5 Agency Workers Regulations pay claim and claims framed as sex discrimination and harassment. At a case management stage she also sought to add victimisation; that amendment was refused under Selkent Bus Company v Moore because the proposed claim was a substantial and unclear new cause of action, would have required further clarification and witness work, and would have caused prejudice and delay. The equal pay claim had already been withdrawn after time-limit concerns were raised.

On time limits, the tribunal found that the Regulation 5 claim was out of time because the relevant period ended on 26 July 2024 and early conciliation did not begin until February 2025. It also found that the earlier sex discrimination allegations, which concerned incidents from December 2023 through March to July 2024, were out of time. The tribunal rejected the claimant's case that there was a continuing course of conduct and declined to extend time on a just and equitable basis, noting that the claimant knew of the matters from the outset, had not given a coherent reason for delay, and had not identified a comparator who was paid more at the same time.

The only allegations that remained in time were the March 2025 note left in the cab and the third respondent's February/March 2025 response to the claimant's discrimination complaint. On the first issue, Mr Conway left a note saying, in substance, that the cab should be cleaned. The tribunal found that the note was about cleanliness, not sex, that Mr Conway did not know who would take over the vehicle, and that he would have left the same note for a man in similar circumstances. The direct discrimination and harassment complaints based on that incident were dismissed.

On the third respondent issue, Ms Hunter's letter describing the claimant's allegation as 'asinine' and the later ET3 response using the same word were held not to be sex discrimination. The tribunal accepted that the third respondent genuinely regarded the allegation as unfounded and found no basis for concluding that the language would have been different if the claimant had been male. The harassment complaints based on those communications also failed because, although unwanted, the conduct was not related to sex.

The tribunal accepted the evidence of Ms Hunter and Mr Conway and found the claimant's evidence unreliable overall. It concluded that the surviving claims were not well-founded and dismissed them. No award was made.