Case 1802650/2022 · Employment Tribunal
Mr A Kerr v DFS Trading Ltd — 2022
- Case reference
- 1802650/2022
- Decision date
- 13 December 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge I McFatridge
Parties
2 namedClaimant
Mr A Kerr
Respondent
Key findings
Tribunal's reasoningMr A Kerr brought a claim of unfair dismissal against DFS Trading Ltd after his employment ended on 9 February 2022. At a preliminary hearing the parties agreed the ACAS early conciliation period ran from 3 to 7 March 2022, and the tribunal calculated that the three-month time limit, extended by the stop-the-clock provisions, expired on 12 May 2022. The claim was not submitted until 7 June 2022.
The only issue before Employment Judge I McFatridge was whether the late claim could proceed under section 111(2)(b) of the Employment Rights Act 1996 on the basis that it was not reasonably practicable to present the complaint in time. The tribunal accepted that the claimant had experienced significant distress after dismissal, including depression, a heart attack history, his mother's serious illness, and the impact of his job loss on his finances and personal life. It also accepted that he had consulted solicitors, pursued the internal appeal process, and was able to work in a new job from 4 April 2022.
The tribunal held that the evidence was insufficient to show that it had not been reasonably practicable to lodge the claim by 12 May 2022. It noted that the claimant was able to pursue the appeal, take legal advice on several occasions, and submit the ET1 himself once prompted by a friend on 7 June 2022. The medical evidence was brief and did not adequately explain the relevant period. The tribunal therefore did not extend time and dismissed the claim for want of jurisdiction. It also indicated that, even if the first stage of the test had been met, it would not have regarded the period from 12 May to 7 June 2022 as a reasonable further period.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Claim was held out of time; the tribunal found it did not have jurisdiction because the claim was not presented within the extended limitation period and the claimant had not shown that it was not reasonably practicable to present it in time. | Dismissed | — | — |
Legal tests applied
6 references- section 111(2)(b) Employment Rights Act 1996
- section 207B(3) Employment Rights Act 1996
- not reasonably practicable test
- Porter v Bandridge Limited [1978] IRLR 271
- Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119
- Wall's Meat Company v Khan [1979] ICR 52
Official outcome judgment PDF
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