Ms Simmonds-Clark – Lay Representative For the First v Mr Maratos - Consultant WRITTEN — 2019

Mr O'Sullivan brought claims for unfair dismissal and disability discrimination against DSM Demolition Limited. Before deciding the substantive issues, the tribunal refused his application to add dyslexia to the disability claim because it was substantially out of time, would have required a postponement, and he could not clearly explain how it would change the case. The tribunal therefore proceeded on the left-hand injury pleaded originally.

On disability, the tribunal accepted that the claimant had fractured a finger and later experienced left arm and hand symptoms, including pain and nerve-related problems, but it did not accept that the evidence showed a substantial adverse effect on normal day-to-day activities at the material time. The tribunal found that the main restriction shown was an inability to do the heavy labour job he had been employed to do, which it regarded as beyond ordinary day-to-day activity. It also found that the impairment was not shown to be long-term at the date of dismissal, and that later surgery in December 2017, which cured the condition, could not affect the statutory assessment. The disability discrimination claim was therefore dismissed because the claimant was not disabled within s.6 EqA 2010.

On unfair dismissal, the issue was whether the claimant had two years' continuous employment. The tribunal found that the employment contract started on 2 November 2015, not on 19, 22 or 26 October 2015, and that the work done before 2 November was collateral to the contract and was not work under it. It accepted the respondent's records and found that the dismissal letter was received on 20 October 2017, but that the statutory effective date of termination was 27 October 2017 after the notice period under s.86 ERA 1996. As continuous employment ran from 2 November 2015 to 27 October 2017, the claimant did not have the two years required for an unfair dismissal claim, so that claim was dismissed.