Case 1302335/2020 · Employment Tribunal
Mr Uton Black v E H Smith (Builders’ Merchants Ltd) — 2021
- Case reference
- 1302335/2020
- Decision date
- 9 September 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Hughes Appearances
- Venue
- Birmingham
Parties
2 namedClaimant
Mr Uton Black
Respondent
Key findings
Tribunal's reasoningAt the open preliminary hearing on 20 July 2020, Mr Uton Black and E H Smith (Builders' Merchants Ltd) were before Employment Judge Hughes. The tribunal dealt with limitation, a substitution application, and an amendment application. It allowed the claimant to substitute claim 1305596/2020 for 1307377/19, and the earlier claim was dismissed on withdrawal.
On the final claim, the tribunal found that the unfair dismissal complaint and the claim for 'other payments' were out of time. It accepted that the effective date of termination was 22 September 2019 and that ACAS early conciliation did not start until 13 January 2020. The claimant said he was in shock, had kidney problems, had started a new job that was tiring, and could not obtain legal advice, but the tribunal held that those matters did not show that it was not reasonably practicable to present the dismissal-related claims in time. It also said that ignorance of the time limit, or an error about when time began to run, was not itself a reason to extend time.
The tribunal rejected the respondent's submission that the dismissal-related direct race discrimination and victimisation complaints were already within time because no appeal allegation had been pleaded. It held that the dismissal allegations were out of time on the pleaded case, but extended time under section 123 of the Equality Act 2010 on a just and equitable basis, taking account of the claimant's health issues, his new job, the short delay before ACAS early conciliation, and the fact that the dismissal was a continuation of earlier events. It therefore allowed those discrimination complaints to proceed to a substantive hearing, but did not permit any new complaint about the appeal against dismissal.
The tribunal also allowed the amendment application to add protected-disclosure detriment allegations under the Employment Rights Act 1996, treating that aspect as a relabelling exercise. It did not allow any separate complaint about the conduct or outcome of the appeal to be added, and it did not determine the merits of the protected-disclosure allegations at this preliminary stage.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal held it had no jurisdiction to hear the unfair dismissal complaint: the effective date of termination was 22 September 2019, ACAS early conciliation did not begin until 13 January 2020, and it was not satisfied that it had not been reasonably practicable to present the claim in time. | Dismissed | — | — |
| Other | The tribunal also held that the claim for 'other payments' was out of time on the same reasoning and that there was no jurisdiction to hear it. | Dismissed | — | — |
| Race discrimination | The dismissal-related direct race discrimination complaint was out of time because the particulars did not include an allegation about the appeal, but the tribunal extended time under section 123 of the Equality Act 2010 on a just and equitable basis so the complaint could proceed. | Other | Race | — |
| Victimisation | The dismissal-related victimisation complaint was treated in the same way: it was out of time on the pleaded case, but the tribunal extended time under section 123 of the Equality Act 2010 on a just and equitable basis so it could proceed. | Other | Race | — |
| Whistleblowing | The tribunal allowed the amendment to plead detriments for protected disclosures, treating it as a relabelling exercise, but did not allow any separate complaint about the appeal against dismissal. | Other | — | — |
Legal tests applied
4 references- reasonable practicability test
- just and equitable test
- section 123 EA10
- section 103A ERA
Official outcome judgment PDF
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Published on gov.uk under the Open Government Licence v3.0.
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