Mr .Harris , Counsel v Ms Bartin, Respondent Director — 2020

The claimant worked for the respondent as an Executive Assistant / Office Manager from 20 August 2019 to 5 September 2019. She said her dismissal during probation followed a dispute about non-payment of August wages and that she stopped coming to work for the final days because she could not afford travel costs. The respondent said she was a poor performer and had been late on a number of occasions. This hearing was preliminary and dealt with limitation, the respondent's late ET3, and the claimant's attempt to add an unfair dismissal claim.

On limitation, the tribunal held that the existing claims were out of time but that it was not reasonably practicable for the claimant to present them within the primary three-month period. It accepted that she was not legally represented, did not know about the tribunal time limit, had financial difficulties after losing her job, was caring for her seriously ill father, later had suspected Covid-19 and a miscarriage, and had approached ACAS only in relation to a possible breach of contract. Applying Schultz v Esso Petroleum Company Ltd, Palmer v Southend-on-Sea BC, and Kwik Save Stores v Swain, the tribunal extended time so the existing claims could proceed.

The tribunal also accepted the respondent's Rule 20 application to lodge its ET3 out of time, taking into account that its office had been closed during the pandemic and finding no undue prejudice to the claimant. It refused the application to amend the claim to add unfair dismissal under s.104 ERA 1996, applying Selkent Bus Co Ltd v Moore and holding that this would be a distinct new statutory claim brought too late. The decision did not determine the merits of the notice pay, unpaid wages, or holiday pay issues, which were left for a later merits hearing.