Mr A Watson, of Counsel For the v Respondent — 2020

At the open preliminary hearing before Employment Judge Nicolle on 10 January 2020, the tribunal accepted that the claimant’s ET1 had first been emailed on 11 July 2019, but held that email was not a valid means of presenting a claim under the applicable Practice Direction. The claim was validly presented online on 27 July 2019, after the agreed last date of 19 July 2019, so the tribunal treated that as the only valid presentation and considered whether time could be extended.

Applying the s.111 ERA 1996 test of reasonable practicability and authorities including Wall’s Meat Co Ltd v Khan and Marks and Spencer plc v Williams-Ryan, the tribunal held that it was reasonably practicable to present the unfair dismissal claim in time. It found the automated acknowledgment from the tribunal did not amount to confirmation that the claim had been accepted, and it rejected the argument that the tribunal’s correspondence or later rejection letter made timely presentation impossible. The failure was described by the claimant’s solicitor as a "momentary lapse of concentration", and the tribunal concluded that this did not justify extending time, so the unfair dismissal claim could not proceed.

For the Equality Act claims, the tribunal applied the just and equitable test in s.123 EqA 2010. It found there were at least arguable issues on direct age discrimination, including the alleged deletion of the claimant’s post, evidence that a younger and cheaper replacement was recruited, and arguments about the financial performance of the claimant and the Sales Team. It also held that the victimisation complaint was at least arguable as an ongoing act culminating in dismissal on 4 April 2019, and it allowed both claims to proceed.

The tribunal also granted leave to amend under Selkent Bus Co v Moore and Abercrombie v Aga Rangemaster Ltd to add indirect age discrimination and post-termination victimisation. It described the indirect age discrimination amendment as limited and noted that the original claim already referred to a replacement salary of about £40,000 and someone in the 20-29 age group. For post-termination victimisation, it relied on Prakash v Wolverhampton City Council and held that it would be inconsistent with the overriding objective to require a fresh ACAS process and new claim. No financial remedy was decided at this hearing.