Claimant v Shivachev v Wartsila UK Ltd — 2022

This was a preliminary hearing on limitation only. Mr Shivachev had been dismissed with immediate effect on 13 January 2021 after a disciplinary hearing concerning alleged fraudulent and inappropriate use of his company credit card. The tribunal did not decide the merits of the dismissal or the alleged breach of contract. It identified 12 April 2021 as the end of the primary three-month limitation period and noted that the claim was not lodged until 19 May 2021, following ACAS Early Conciliation in mid-May.

The claimant said in his ET1 that the claim was late because he was waiting for a dismissal report and for the outcome of a grievance about his former manager. At the hearing he relied instead on the effects of the dismissal on his mental and physical health, saying that he felt broken, could not function properly, and could not complete the tribunal claim until 19 May 2021. His wife gave evidence that he slept badly, would not leave the house, suffered panic attacks, and became very depressed during the period from January to May 2021.

Employment Judge Cuthbert found that Mr Shivachev was aware of the limitation period throughout the relevant period and that the reasons given in the ET1 did not explain why it was not reasonably practicable to present the claim in time. The judge accepted that the dismissal was stressful and difficult for him, but found no medical evidence, no treatment history, and no independent corroboration showing that the effects were so severe that he could not present the claim before 12 April 2021. The tribunal also took account of the fact that Mr Shivachev had corresponded with the respondent after dismissal and that a December 2020 email showed he had previously described himself as very depressed while still functioning at work.

The tribunal therefore found that Mr Shivachev had not shown that it was not reasonably practicable to present the claims within the primary time limit. As he failed at that stage, the tribunal did not need to consider whether the later presentation was within a reasonable further period. Both the unfair dismissal and breach of contract claims were dismissed as out of time.