Mr J Fenny v First Trenitalia West Coast Rail Limited HELD AT: Remote Hearing — 2024

The claimant, Mr J Fenny, was employed by First Trenitalia West Coast Rail Limited from November 2008 and was dismissed on 13 May 2022 after a disciplinary hearing. The employer relied on some other substantial reason, referring to the claimant's bail conditions following a sexual assault allegation, his inability to work at Euston Station, and concern about reputational damage if he were later convicted. The tribunal noted the claimant's case that he could have been placed in alternative work and that he believed the dismissal pre-judged his guilt.

On the respondent's strike-out application, the tribunal was not satisfied that the unfair dismissal claim had no reasonable prospects of success. It said there appeared to be potentially alternative roles that could have been undertaken and it was not persuaded that dismissal on the basis of adverse publicity was obviously justified. That issue did not determine the case, however, because the tribunal then addressed limitation and jurisdiction.

The tribunal held that the real question was whether it had not been reasonably practicable for the claimant to present his ET1 within the primary three-month period after dismissal, or within a reasonable period thereafter. It accepted that the criminal process was stressful, but found that the claimant knew of the three-month time limit, had union and solicitor assistance, and had no medical evidence showing an inability to cope or focus. It referred to Palmer v Southend on Sea Borough Council, Lowry Beck Services v Brophy, Schultz v SO Petroleum, and Asda Stores v Kausara, and concluded that stress alone did not explain the delay.

The tribunal further held that, even if the claimant could not reasonably have presented the claim within three months of dismissal, he should in any event have presented it within three months of the hung jury on 20 June 2022, which would have meant by 19 September 2022. Because the ET1 was not lodged until 28 March 2023, the tribunal found it had no jurisdiction to entertain the claim and rejected it.