Mrs K Sim, lay representative (the claimant’s daughter in law) The v Mr R Dempsey, solicitor — 2024

The claimant, Mrs A O’Dwyer, brought a complaint of age discrimination arising from alleged age-related remarks at Archway School, including allegations later clarified as verbal comments by Jordan Allaway on 23 and 28 June 2022. The claim was presented on 22 March 2023. The tribunal held that the primary three-month time limit expired on 27 September 2022, so the claim was over five months out of time.

The tribunal accepted that there were mitigating features for the period up to the end of December 2022. It found that the claimant and her daughter-in-law were unaware of tribunal time limits until contact with ACAS in late November 2022, that the claimant had been absent from work from July 2022 with low mood and stress, and that she had some confusion about the identity of her employer after the issue of an up-to-date contract. The tribunal also accepted that the claimant had tried to pursue ACAS early conciliation against Caterlink and then Gloucestershire County Council before later identifying the School’s governing body.

The tribunal was not satisfied that there was an adequate explanation for the delay from January 2023 to 22 March 2023. It found that by late November and December 2022 the claimant knew the relevant time limits and knew that Caterlink and Gloucestershire County Council were not her employer, yet she had not acted promptly to clarify matters with the School. It also found that there was no sufficient medical evidence after September 2022 to explain why proceedings could not have been brought earlier, particularly as the claimant had started alternative employment on 30 October 2022.

Balancing delay and prejudice, the tribunal held that it was not just and equitable to extend time. It accepted that the claimant would suffer prejudice if unable to proceed, but found that the respondent would also suffer real prejudice because the case turned on alleged oral comments said to have been made in June 2022, with no mention of those specific comments in the claimant’s grievance of 26 June 2022. The tribunal therefore held that it had no jurisdiction to entertain the age-related harassment complaint. In consequence, the claimant’s amendment application, which sought to add earlier age-related allegations, was also dismissed.