Mr N. Butler v OCS Group U.K. Limited — 2022

Mr Butler was a zero-hours cleaning operative for OCS from 2008 and was furloughed between 1 May and 1 October 2020. After furlough ended he said he was not given a rota or further work. He emailed on 17 November 2020 asking about the end of furlough and redundancy, raised a grievance on 4 December 2020 alleging unfair dismissal, and presented his ET1 on 21 March 2021. The tribunal accepted that, as a litigant in person with dyslexia, he intended paragraph 8.2 of the ET1 to advance a direct race discrimination complaint even though the original form did not tick a discrimination box.

On the unfair dismissal complaint, the tribunal found that the claim was out of time under section 111 ERA 1996. On the claimant's own case, he had been dismissed by the end of August 2020; even on the respondent's more generous case of 31 October 2020, the ET1 was still late after ACAS early conciliation. The claimant said he was stressed, but the tribunal found no medical evidence or other impediment showing that it was not reasonably practicable to present the claim in time. It therefore held that it had no jurisdiction to hear the unfair dismissal claim.

The amended race discrimination complaint also failed on limitation. The tribunal accepted that paragraph 8.2 of the ET1 should be treated as a direct race discrimination allegation and that the amendment was only a re-labelling exercise, but it held that there was no credible explanation for the delay. Although the tribunal considered prejudice and noted the respondent was not evidentially prejudiced, it concluded that it was not just and equitable to extend time under section 123 Equality Act 2010. The race discrimination complaint was therefore struck out for lack of jurisdiction.