Mr S Coates, Solicitor v Cummins Turbo Technologies UK Ltd — 2020

Mr Bywater was dismissed on 7 November 2017 after a long period of sickness absence following a hip replacement and occupational health assessments. He issued tribunal proceedings on 11 October 2019, almost two years later. The tribunal did not determine the substantive merits of the dismissal or discrimination complaints because both were rejected on limitation grounds.

For unfair dismissal, the tribunal held that it had been reasonably practicable to present a claim by 6 February 2018. It relied on the fact that Mr Bywater and his solicitors already knew the basis of the dispute in late 2017, including the challenge to the medical evidence and the fairness of the dismissal process. The later disclosure of the 1 December 2017 email did not, in the tribunal's view, prevent a claim being brought in time.

For disability discrimination, the tribunal accepted that Mr Bywater was a disabled person and that Cummins Turbo Technologies UK Ltd knew that. The complaint covered direct discrimination, discrimination arising from disability, indirect discrimination, and a failure to make reasonable adjustments. The tribunal treated 8 December 2017 as the end of the period complained of and said the primary limitation period expired on 7 March 2018, so the claim was about 19 months late.

In deciding whether to extend time, the tribunal took into account the respondent's failure to disclose the 1 December 2017 email promptly and noted that Dr Dann had strongly recommended a second occupational health opinion. It nonetheless held that the substance of that communication was already apparent from Dr Dann's 5 May 2018 letter and from the solicitor's June 2018 correspondence, and that the claimant could have pursued disclosure within tribunal proceedings earlier. The tribunal also noted the claimant had legal advice, spent time overseas, and had advanced a reasonable-adjustments case that was inconsistent with his earlier position that he could not return to work.