Ms S Smith v Keys Childcare (Holdings) Limited — 2024

The claimant presented her ET1 on 5 October 2023. This preliminary hearing was concerned with limitation on the constructive unfair dismissal claim and the pre-resignation discrimination complaints. The tribunal recorded that the post-termination victimisation and unauthorised deduction from wages complaints were not being determined at this stage and would be listed for a case management hearing. It applied the reasonable practicability test to the unfair dismissal complaint and the just and equitable test to the Equality Act complaints.

On the constructive unfair dismissal complaint, the tribunal accepted that the claimant had serious chronic health conditions, that she had some difficult family circumstances, and that she did not know about tribunal time limits. It also accepted that there were periods in mid to late February 2023, including around her grandmother's illness and death, when she was likely not in a position to seek advice or take action. However, it found that she had been engaging with the grievance process, had contact with the GMB, had prepared a detailed timeline with attachments, and was able by late May and early June 2023 to apply for and start new work. On that basis, the tribunal held that it was reasonably practicable for her to have made enquiries and started Acas early conciliation by 9 June 2023, so the constructive unfair dismissal complaint was dismissed.

For the discrimination complaints, the tribunal found that the delay was not a short one. Acas early conciliation was started on 26 July 2023, the certificate issued on 18 August 2023, the ET1 was started on 19 August 2023, and the fully completed form was not submitted until 5 October 2023. The tribunal accepted that some of the delay was explained by health and family pressures and by the way the early conciliation process unfolded, but it found no good reason for the further delay after 18 August 2023, when the claimant had been told to submit her tribunal claim as soon as possible and could continue conciliation at the same time. Balancing the prejudice to both sides, it concluded that it was not just and equitable to extend time, so the direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability, harassment related to sexual orientation, and constructive discriminatory dismissal complaints were dismissed.