The claimant has MS and had been on sick leave since 2018. In September 2021 she submitted claims relating to her sick and holiday pay. At a preliminary hearing the claims were struck out as out of time, though only after a clarification notice was required.

In this judgment HHJ Tayler begins with a comprehensive review of the law around time points under s123 of the EQA highlighting the difference between determining the time point as a matter of substance and deciding whether the complaint should be struck out because there are no reasonable prospects of the complaint being found to be in time. He is at pains to point out these questions require different preparation especially where a litigant in person is involved as was the case here. Given the ambiguity on the judge's approach, and the consequent lack of proper consideration of the circumstances, he allows the appeal as the process was unfair saying at as [59]

"It is clear from the Employment Judge’s notes of the hearing that the Employment Judge did not clarify at the outset whether she was going to consider the time point as a matter of substance or strike out or, possibly both."