EMPLOYMENT TRIBUNALS (ET)

A. Mr. R Wagener v the Cabinet Office (2404203/2012)

Judgement

1. This case was decided before judgements were published on the Internet, so the relevant documents have been embedded as objects below.

2. The claim concerned a request for reasonable adjustments to pension arrangements, on the grounds that the claimant’s life expectancy was significantly shortened by his type 1 diabetes. The claim was not refused, but in the judgement below the judge,

Mr. T.V. Ryan, held that it had little chance of success.

3. The reasons for this conclusion were not stated explicitly, but the concerns the judge raised related to –    

• the fact that the disadvantage was ‘anticipatory’, i.e. it was in the future; 
• the claimant’s life expectancy was very uncertain and potentially changeable; and,
• it would be very difficult to monitor these changes in this and any similar claims.          

Anticipatory

4. In relation to (a), the judge appears to have been persuaded by the contentions of the respondent’s counsel, Mathew Gullick, at points 36 of his skeleton arguments below. 

5. Here, Mr. Gullick argued that the employer only has an obligation to make ‘reasonable adjustments’ under section 20 of the Equality Act (EA) when an employee has actually suffered a ‘substantial disadvantage’. If this were true, then it would mean that an employer would not be obliged to do anything under this section, even if he foresaw that a disabled was definitely going to suffer a ‘substantial disadvantage’!         

6. The claimant argued that this was nonsensical, as it nullified the effect of those sections of the Equality Act, such as sections 15 and 19, which clearly required action to be taken to prevent discrimination. These arguments are set out in the document below at 30 – 41.

Further points on this subject can be found at 4.17 to 4.33 of the full arguments of the claimant below. Copies of both documents were sent to the judge.

7. Despite this, these arguments were not accepted by the judge. However, in 2015 the Court of Appeal supported the claimant’s view in the case of Griffiths v DWP,  when it held that that ‘[the] section 20 duty [to make adjustments] is normally relevant when looking into the future; it is designed to help prevent treatment which might give rise to a section 15 claim from arising’.

8. In the case of Mr. R Wagener v the Cabinet Office (2404203/2012) [2012], however, not only did the judge take the opposite view; he refused to consider either section 15 (discrimination arising) or section 19 (indirect discrimination), because the claimant had not mentioned them explicitly in his claim. The judge apparently based this decision on the contentions of the respondent’s counsel at 68-70 of the document at 4. above.

9. At the time the claim was made, however, all the claimant knew was that the reasonable adjustment he requested had been refused, ostensibly because of the alleged uncertainty regarding his life expectancy and the lack of data regarding the prevalence of life-shortening disabilities within the Civil Service. A copy of the refusal letter and the relevant extract from the ET1 claim of 15 May 2012 are below.

10. As can be seen, in the ET1 the claimant clearly alleged that he had suffered ‘discrimination’ arising from the respondent’s failure to make any ‘reasonable adjustment’. So the claimant alleged ‘discrimination’, but the judge said that they could not discuss this at the hearing.

11. In addition, as the claimant alleged that ‘discrimination’ had ‘arisen’ from the failure to make reasonable adjustments, section 15 (‘discrimination arising’) had to be relevant here. The fact that an unrepresented and untrained claimant did not refer to the specific section at that stage should not matter. The tribunal’s role is to find facts and apply the relevant law to those facts. As rule 41 of The Employment Tribunals Rules of Procedure 2013 states:

The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.

12. As regards the claim to indirect discrimination, the only part of section 20 that was relevant here was section 20(3), which only applies where a ‘provision, criterion or practice’ puts a disabled person at a ‘substantial disadvantage’. This is the exactly the same trigger for section 19(1). The claimant was unable to expand on this far in advance of the hearing, however, as the precise reasons for the refusal were not made clear to him until shortly before the hearing when the respondent submitted his skeleton arguments (see 4. above).  

Nevertheless, the claimant did refer to both section 15 and 19 in the skeleton arguments document he was required to submit before the hearing (copy below).

Uncertainty

13. The judge’s conclusions here completely overlooked the fact that pension scheme usuaries regularly re-calculate pension contributions based on the same uncertain facts relating to people’s life expectancies. If it is reasonable for an employer to make business decisions based upon this, how can it be unreasonable for individual to make personal decisions regarding their pension rights based upon the same criteria?

14. Admittedly, the life expectancy of an individual is much more uncertain than the average life expectancy of a large group of employees. However, the claim in this case was not based in the first instance on the individual’s life expectancy, but upon the average life expectancy of everyone in the UK with type 1 diabetics. It is a medical fact that their life expectancy is ‘substantially’ lower than the average for the population. So anyone with type 1 diabetes must suffer a ‘substantial disadvantage’ when life expectancy-related adjustments are refused.

Justification

15. The only further question was whether the refusal to make a ‘reasonable adjustment’ in this case could be justified as being a ‘proportionate means of meeting a legitimate aim.’

16. Here, the judge agreed that the claim could open the floodgates to similar claims. What he failed to consider in reaching this conclusion was that only a small % of people’s life expectancies are ‘substantially’ reduced by their disabilities. Based upon data regarding the most common UK disabilities, for example, the vast majority of disabilities that are likely to affect civil servants relate to mobility, vision and sight, none of which reduce life expectancy.                   

Reconsideration

17. In view of these concerns, the claimant asked the judge to reconsider his reasoning in the letter below.

18. The judge did not reply, so the claimant appealed (below). However, he had to eventually withdraw this appeal as he was unable to obtain support to pursue his claim from either his union (the PCS) or Diabetes UK.    

B. Mr R Wagener v HMRC & HM Treasury (2416695/2018)

Judgement

1. This claim involved a request for reasonable adjustments to pension arrangements, on the grounds that the suspension of progression pay in 2013  by George Osborne (probably an illegal act on the grounds of ‘custom and practice’), had led to indirect age discrimination.

2. The Fire Brigade Union and the judges themselves had enjoyed earlier landmark victories in the Court of Appeal using indirect age discrimination, and in C Heskett v The Secretary of State for Justice it was held that the ending progression pay led to indirect age discrimination in relation to younger members of staff.

3. In this case, however, the claim was limited to those who, because of their age at the time of their promotion, had no reasonable prospect of reaching the maximum salary before they retired, applying the arguments supported in the Supreme Court in Homer v Chief Constable of West Yorkshire.  A copy of the claimant’s skeleton arguments is below.

4. In his judgement below, the judge, Mr. Horne, argued that an ‘age group’ meant the age at the time of the discrimination started, not the age at the time of some other event (points 48 to 49.7). He further contended that the claimant had defined an age group by reference to the alleged disadvantage (points 50 to 54), which was also impermissible.

Reconsideration

5. The claimant formally requested that the judge reconsidered the striking out of his claim for the reasons set out in the request below. The claimant’s two principal arguments were that:

(a) there was only one definition of ‘age group’ in the Equality Act, so one could not conclude, as the judge apparently did, that direct discrimination allowed an age group to be defined by reference to an age at the time of an event, but indirect discrimination did not permit this; and,  

(b) his contentions were supported by the further detailed facts in the ET decision of the case of Homer (copy below), where the Supreme Court ultimately found in Homer’s favour.

6. The judge rejected the reconsideration request for the reasons given in the statement below:

7. This, however, did little more than refer back to the judge’s conclusions in the original judgement. As such, it was more of a reiteration than a reconsideration of that judgement.   

8. As regards point 5. (a) above, the original judgement had said at point 49:

In my view, an age group must be defined by reference to the current age (or ages) of its members. By “current age”, I mean their age (or ages) at the point in time at which membership of the group becomes relevant for the purposes of EqA.      

9. The judge did not define what he meant by ‘becomes relevant’, but this appears to refer the age when someone suffers the alleged discrimination. This definition presumably only refers to the position of indirect discrimination, however, because in the case of direct discrimination the judge stated at 49.7: For the purposes of direct discrimination it is not necessary for the victim to have the protected characteristic at the time of the less favourable treatment.

10. These points were made in response to point 119 of the Claimant’s Arguments, which contended that an ‘age group’ for the purposes of indirect age discrimination could be determined by reference to people’s ages at the date of a particular event. The claimant gave the example of an employer whose rules discriminated against drivers who had passed their driving test before a certain age. The claimant said this was directly analogous to his own position, i.e. his age at the date on which he was promoted.

11. In his reconsideration judgement, the judge said that –  

‘…the aggrieved driver would still have a remedy, even if his age group were defined by reference to current age. The driver would be able to bring a complaint of direct discrimination, based on past membership of the age group.

12. This statement alludes to point 49.7 of the original judgement when the judge had said:

The aggrieved drivers are being less favourably treated at this moment in time because they belonged to the under-35s age group at the time they took their driving tests. But the age group is still under-35s and does not need to be defined any differently.

13. It is clear from this that the judge is accepting that an age group, at least for the purposes direct direction, can be determined by reference to someone’s age at the time of an event, in this case, being under 35 at the time they passed their driving test. The key question is, where is the evidence that this is permissible for direct discrimination and not indirect discrimination?

14. The fact is that there is a single definition of ‘age group’ in section 5 of the EA, which covers both direct discrimination (section 13) and indirect discrimination (section 19). The judge’s conclusions here are therefore without any known foundation.

15. In relation to 5. (b) above, the judge argued that an age group could not be defined by reference to the alleged disadvantage. At point 49.5 of his original judgement, he therefore said of the Homer case:

As Lady Hale observed at paragraph 11, the tribunal found that the age group was persons aged 60 to 65. The additional words in paragraph 11 “who would not be able to obtain a law degree before they retired” is a summary of the disadvantage caused to the age group, not the age group itself. 

16. As regards the facts found in the Employment Tribunal (see 5 above), the judge acknowledged at point 11 of his reconsideration judgement that:

…it appears that the tribunal proceeded on the footing that Mr Homer had been put at the disadvantage because he was “an employee over the age of sixty” who could not obtain a law degree before normal retirement age.

 But he then adds at point 12:  

The Supreme Court’s judgment sets out the facts upon which it came to its decision. The facts on which the claimant now relies were not included. 

17. However, the Supreme Court’s decision would make no sense if it ignored the basic facts of the case that was before them, because the employees who were aged 60-65 were not disadvantaged and Mr. Homer was only placed at a disadvantage because of his age at the time he had to start the training course in question. 

18. It is also clear that it was not his current age alone that created his age group, but his proximity to his normal retirement age at the start of intended training that was determinative of the Supreme Court’s decision. Paragraph 29 of their decision said:  

The number of years that he [Homer] had left to him before he could reasonably expect to retire meant that his age had a direct bearing on whether he would be disadvantaged by the requirement. He was, in effect, being forced to work on beyond the normal retirement age so that he could obtain the benefit. This was, in itself, indirectly discriminatory.

19. It was therefore Mr. Homer’s age at the time he had to start this training that was the age group, not 60-65 on its own. This is directly analogous the claimant’s position, where, without the reasonable adjustments he sought, he would have been ‘forced’ (to use the phrase in Homer) to work beyond his normal retirement age to obtain the pension benefits in question.  

20. It is also incorrect to argue that the claimant had defined his age group by reference to a disadvantage any more than in Homer. The claimant defined his age group by reference to a person’s age proximity to their normal retirement age at the time of their promotion; in Homer it was the proximity of a training course to his retirement. It is worth adding that Homer was also a decision about indirect (not direct) age discrimination.          

21. Given the above, the judge’s striking out of the claim on the grounds that the claimant’s arguments had ‘no reasonable prospect of success’ was baseless, irrational and, quite frankly, draconian. 

C.  Mr R Wagener v The right honourable m. gove, mp(2407553/2021)

Judgement

1. This involved a request for reasonable adjustments to pension arrangements under the powers given to the Minister for the Civil Service by rule 2.24 of the Principal Civil Service Pension Scheme.

2. The only issue at this prehearing review (PHR) was whether or not Michael Gove, as the delegated Minister for the Civil Service, was personally responsible for this matter or if this was an issue for the Cabinet Office.

3. In his decision below, Judge Brian Doyle held that Mr. Gove was not personally responsible (points 104 and 105), as he had not ‘committed’ or ‘authorised’ the refusal of the reasonable adjustments in question.

4. The claimant asked the judge to reconsider his judgement for the reasons given in the document below:

5.  This was rejected for the reasons given in the judgement below:

6. Here, the judge accepted that Mr. Gove could be held personally accountable if he had ‘authorised’ the refusal of the claimant’s reasonable adjustment requests. However, the judge then held that Mr. Gove had not authorised the claim’s refusal, despite the fact that Mr. Gove’s  witness statement (copy below) clearly said at point 7 (with emphasis added):

I have authorised Cabinet Office officials…to deal with this claim on my behalf.

7. The judge appears to have concluded that Mr. Gove was exempt, because he stated that he knew nothing about the specific claim before it was refused. However, section 109(2) EA says that: Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. And section 109(3) of the EA adds: It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.

D. Mr R Wagener v CABINET OFFICE & HMRC (2407553/2021 & 2401493/2022)   

Judgement

1. This involved a request for reasonable adjustments to pension arrangements under the powers given to the Minister for the Civil Service by rule 2.24 of the Principal Civil Service Pension Scheme.

2. The claimant asked for two years to added to his reckonable service on the grounds that:

(a) he could not continue working due to ME/CFS; and,

(b) if he did, he would be disadvantaged by a life-shortening disability, type 1 diabetes.

3. The claimant also asked for the pensionable pay attributable to the two years’ added service to be calculated by reference to the pensionable pay he would have received had he been able to carry on working.

4. Judge E. Jane Aspinall rejected the first limb of the claim (2 (a) above), because she did not believe several of the statements the claimant made about this and therefore concluded that he could, in fact, have carried on working full-time if had he wanted to.

5. As regards 2(b), the judge rejected the claim on the grounds that he was being treated in the same way as other employees and pensioners, so the treatment he received was fair.

6. The judge further rejected both claims, because they had been defectively formulated in the list of issues drawn up by the respondent before the hearing. A copy of the judgement is below.

Reconsideration

7. In the document below, the claimant asked the judge to reconsider her decision for three main reasons:

(a) the tribunal had no evidence that the claimant had lied or was mistaken about the issues upon which the ME/CFS element of his claim depended (point 159 of document below);

(b) the rationale for rejecting the part of the claim relating to type 1 diabetes effectively championed uniformity instead of equality (points 146, 162, 177, 203 ibid.); and,

(c) the tribunal was not bound by a defectively written list of issues, as evidenced by the fact that it had reworded and replaced those issues where it felt this was necessary (points 17, 140, 156 ibid).                 

8. The judge rejected the claimant’s reconsideration request for the reasons given below.  

9. Here, the judge acknowledges at point 14 that a reconsideration request only has a reasonable prospect of success, ‘if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing’. She concludes, however, that the Tribunal did not miss something important and argues that the claimant’s reconsideration request was seeking to relitigate, which was impermissible.

10. In relation to the points in 7. above, the judge did not respond to (b), but said regarding (a) that the tribunal did not conclude that the claimant was lying (point 26). In relation to (c), the judge insisted that the claimant agreed what the issues were and had to be judged by those issues. She does not explain why this was the case, given the arguments made by claimant at points 17, 140, 156 of his reconsideration request. 

11. The tribunal therefore rejected the sworn testimony of the claimant in which he said (references relating to the points of the original judgement):

(a) he would have carried on working to 31 May 2023 had it not been for ME/CFS (18);

(b) he spent several more hours in bed most days just to get through the working week (115);

(c) he sent his daily time records to his manager every month (116);

(d) those records showed sick absences of 44.39 days in the year to 31/3/2021 (116); and, 

(e) he couldn’t continue in this way, because of the damage it was having on his life (118).

12. As the judge said the tribunal did not conclude the claimant was lying about these matters, they must have concluded that he was mistaken. However, no evidence was found to this effect. In addition, the claimant shared the detailed, contemporaneous records of (d) with the respondents before the hearing, which the judge refused to look at or admit into evidence (see 24 and 24 of the claimant’s reconsideration request).        

13. These judgements represent the most worrying errors in judgement in all of the tribunal decisions made. Judge Aspinall failed to consider and record crucial evidence, showed no understanding of the difference between equality and uniformity and insisted on adhering to a defectively written list of issues, but only when it suited her.

14. The guidance for tribunals requires them to find the facts and to apply the law to those facts. As rule 41 of The Employment Tribunals Rules of Procedure 2013 states:

The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.

15. Here, the tribunal bound itself to a defectively written list of issues, even when the claimant spelled out very clearly the facts and arguments of his case (see point 106 of the claimant’s reconsideration request). It was a complete and perfidious dereliction of the judicial duty.

GENERAL LESSONS

Costs

The first and one of the most important things to know is your exposure to costs. There are four potential legal stages in relation to employment related claims, namely the –

1. Employment Tribunal (ET);
2. Employment Appeal Tribunal (EAT);
3. Court of Appeal (COA); and,
4. Supreme Court (SC).

Each party has to bear its own costs at stages 1 and 2 unless they behave unreasonably or (in the case of stage 1) the party presses ahead with a claim that the judge rules has no reasonable prospect of success.  

In relation to both stages 3 and 4, however, the losing party has to meet the other party’s reasonable legal and other costs. As companies and government departments may employ expensive lawyers, losing at this stage could lead to an individual being made bankrupt.

Theirs is no easy solution to this and it means that winning at stages 1 or 2 can be a mixed blessing, as public companies and government departments will often want to appeal all the way to stage 4, if possible, to protect their name and avoid setting what they might regards as a dangerous precedent.

If the amount at stake is small and the risk of setting a wider precedent is very small or non-existent, it might be possible to take the risk or take out what is called ‘after-the-event’ (ATE) insurance, just in case the dispute goes beyond stage 2. However, this is expensive with premiums being between 40-60% of the compensation being sought.

Where the issue has wider ramifications, crowdfunding might be a possibility. Here, the main challenge is likely to be around securing enough backing in good time, as stage 1 has to be started within a relatively short period of time of the grievance in question.

Another avenue worth exploring, therefore, is the possibility of support from one or more trades unions or cause organisations and special interest groups. Some of the latter are backed by large charities, who may be able and willing to support you at least some of the way.   

If your means are very limited, you might also be able to secure Legal Aid, but here is will be important to establish exactly what this will cover and what it will not, as even poo people can be made bankrupt.

It should be clear from all of this that basically only the poor and rich have access to justice in these matters. Those with limited means will be taking a significant risk in taking an action, particularly against a public company or government department. The law cannot allow everyone to have a risk-free pot-shot at authority, but making the risk of all legal actions prohibitively risky for the vast majority of the public is clearly wrong, and it means that justice is still not available to all.  

Obtaining Justice

Unless your goal is simply to have your day in court, then you will not be going down this legal road unless you believe you have a fighting chance of winning. As you will have seen from the hearing above, however, justice is not something that is going to come easily or at all. Particularly at the ET level, you can probably expect a fair amount of quite stupid and downright unjust decision making.

The key thing is not to be put off. If you have the funds to fight your case all of the way up to the SC, then go for it. At the very least, however, you should take the matter to the EAT, providing, of course, you are able to take on the risk of winning there, but then losing at the COA or the SC.    

Representation

There is no doubt that having a lawyer on your side enhances the probability of success. To begin with tribunals appear to take unrepresented litigants quite a bit less seriously. In the first of the actions mentioned above, the judge, Mr. T.V. Ryan, would not allow me to mention my arguments based upon section 19 EA, for reasons best known to himself. He also did not allow me to hand him a copy of a document I had already shared with the respondent. I had to hand it to their barrister, who then handed it to the judge! And in the last claim above, Judge E. Jane Aspinall did not allow me an examination in chief, but then allowed the respondent’s barrister to cross-examine me twice!

Having a barrister on my side, who might object to these mistreatments, would no doubt have prevented them happening in the first place. And just appearing with a barrister would also make it clear to the tribunal that you took this matter seriously and were prepared to lay out serious money in pursuit of your claim. This last point, of course, also raises the difficulty, particularly if your claim is not for a large amount of money. How will you be able to afford the services of a good solicitor and barrister?

If you ultimately decide the services of a solicitor or barrister are beyond you, then it would be a good idea to consult one of the many self-help books on the subject of taking a case before an Employment Tribunal. Ou should find David Curwen’s book, Employment Claims without a Lawyer is clearly written and easy to understand.

If you decide not to employ a professional, it is still a good idea to have someone else go with you, particularly someone who is articulate and well educated. A second pair of eyes is always useful and it is helpful to have one person taking notes of exactly what is said and when. This other person could also act as your representative. They may not be alive to all of the legal and procedural issues, but a representative would be able to ask you the lead-in questions during examination in chief and re-examination.

A union representative might be a good choice, but a more senior colleague, particularly from the same business or government department might be better. Any work colleague or professional person would add weight to your evidence by giving it an independence that it might lack if you were just arguing your case on your own.                 

Witness Statements   

It is important that your witness statements cover every scrap of information you might refer to, even if you do not foresee using those facts as evidence to support your arguments. Here, it may help to consider every single question that might be raised by your opponent and then provide the answer to that question in the witness statement.

There is also no doubt that having other people at the hearing with their witness statements will help to give your case further weight and objectivity. It will no longer just be you stating this, but others will be supporting you and people who ostensibly have no vested interest in the success of your claim.           

Interpreting the Law 

There are a number of resources you should consult before you decide if you have a case and, if so, how it can best be argued.

The first is statute, in these cases, the Equality Act. Here, it is important that you look at the version of the law at the times that are relevant to your issues. You should be able to find and download searchable copies of all of the relevant statute at www.legislation.gov.uk.

When seeking to interpret statute, it is important to read statements in their immediate and wider context. Some statute works is a very clear, mechanistic way, but most of our written laws need a ‘purposive approach’ where the intentions of the law need to divined from what it says and how it says it.

By ‘intentions’ here, we mean what the law is trying to do by its structure and diction, as opposed to the legislator’s intentions was in creating the law in the first place. The latter will only be relevant if where legislation is ambiguous, obscure or would lead to absurdity if it were read or applied literally (Pepper v Hart, 1993). Where this is true, useful support may be found in the debates in Hansard and the Explanatory Notes that accompanied the legislation.

The most important further resource you will need to consider is case law. Decided cases may tell you what the legislation means or how it should be applied in practice. In looking at these cases, it is obviously vital to look at the latest decision, focusing on those made in the highest courts. And make sure what you wish to quote was not a dissenting judgement!   

Here, you need to be familiar with the laws of precedent. A decision in the EAT or above would set a precedent that would be binding on any UK court at the same level. The only exception to this is the Supreme Court, which can overturn its previous decisions on the same issue, although it is rare for this to happen. Decisions made in other territories that apply very similar or identically worded provisions, are not binding, but UK courts have to take account of those judgements and their rationale (the so-called ratio descidendi) for those decisions.      

One important fallacy to avoid is to focus on case law decisions that follow the same or a similar fact pattern to your own. Whilst it is tempting to look at decisions relating to circumstances that are ‘on all fours’ with your own, this can be misleading.  As Vice Chancellor, Sir Nicholas Browne-Wilkinson stated in the tax case of Marson v Morton and Others (1986), ‘the purpose of authority is to find principle, not to seek analogies on the facts’.

Precedents        

On the issue of precedents, one thing you need to think about is whether a favourable decision in your case would set a precedent or not.

If it is likely to affect or have implications for a large number of other people in the UK, then it is likely to be resisted by your opponents up to a high-level in the judicial system, probably the Supreme Court, if possible. The downside is that this could be risky for you and resolution could take several years. On the positive side, however, you will probably be in a better position to secure support from third parties, such as unions, relevant charities and via crowd-funding platforms.   

If your issue is quite narrowly focused or quite particular to your own circumstances, it is more likely that it will be finalised at ET or EAT level. However, you may find yourself on your own with the issue, having to finance the action from your own resources or via legal aid.

If you are somewhere in between those two extremes, however, then you may find it harder to attract support from third parties. You may also be left with a fair amount of uncertainty about how dangerous a precedent your opponent sees your claim as potentially setting.

In view of this, it is sensible to do as much research as you can beforehand. One thing you must bear in mind, however, are time limits.

Time Limits

In relation to the EA, as a general rule someone must take action against an act of discrimination etc. within 3 months of that act. Where the discrimination extended over a period of time, however, the 3-month time limit does not start to run until the end of that period. In addition, where litigants approach ACAS under the Early Conciliations Process (ECP), the 3-month clock does not start running until ACAS have issued their ECP certificate.

Whilst it is important not to rush the formulation of your claim, it is essential that you do not fail to act within the relevant time periods, as judge’s will only extend time limits in very limited circumstances.    

Robert Wagener

June 2025