Mr P Hesketh v Avon Fire and Rescue — 2023

This was an open preliminary hearing on whether the claimant's final alleged act of discrimination, namely his alleged discriminatory constructive dismissal on 24 February 2021, had been presented out of time under section 123 of the Equality Act 2010 and, if so, whether time should be extended. The tribunal found that the claim was on its face out of time: the claimant resigned on 24 February 2021, the ACAS Early Conciliation period ran from 24 February 2021 to 7 April 2021, and the extended deadline was 4 July 2021. The ET1 was presented on 9 August 2021, making it one month and five days late.

The tribunal accepted that the claimant had waited for the outcome of a grievance process connected to his resignation and had mistakenly assumed that time would run from receipt of that outcome. It found from the emails in the bundle that he was genuinely chasing the grievance response, both directly and through his FBU representative, and that his ignorance of the time limit was just within the bounds of reasonableness. The tribunal also accepted that he had contact with Acas and the FBU, but not with FBU lawyers, and that he acted promptly once he realised the claim was out of time.

The claimant's mental health was treated as background rather than the primary explanation for the delay. The tribunal noted contemporaneous references to stress, anxiety and suicidal thoughts in emails, and recorded that the respondent had conceded on 11 March 2022 that the claimant was disabled by reason of wrist/arm pain, fibromyalgia, anxiety and depression during his employment. However, there was no medical evidence before the preliminary hearing showing the claimant's state of health between April and August 2021, and the judge found that health was not the central reason for the delay.

Applying the broad just and equitable discretion under section 123, and having regard to the absence of forensic prejudice, the fact that relevant witnesses were still employed, and the proximity of the listed full hearing in June 2023, the tribunal exercised its discretion in the claimant's favour. Time was therefore extended so that the final alleged act of discrimination could proceed to the full liability hearing.