Mr M Rogers, Counsel For the v Respondent — 2020

The claimant worked as a legal secretary for the respondent from 29 October 2018 to 12 February 2020 and brought an Employment Tribunal claim on 12 June 2020 alleging disability discrimination based on back pain. The pleaded complaints were a failure to make reasonable adjustments, disability-related harassment, and direct discrimination in the form of dismissal. At the preliminary hearing, the tribunal found that the relevant ACAS Early Conciliation certificate was issued on 21 April 2020 and that, because the primary limitation period would have expired within one month of that date, the final date for presenting the claim was 21 May 2020. The claim was therefore 22 days late.

The claimant said she believed she had to wait for an internal appeal and understood that she had three months from the EC certificate. The tribunal rejected that explanation. It found that the ACAS material did not support her belief that the certificate marked the start of conciliation or that the respondent would be contacted later, and it did not accept that ACAS had told her she had to appeal before bringing a tribunal claim. It also found that her later timing did not fit with her own account, including that she did not wait for the appeal outcome before issuing the claim, and it rejected the suggestion that the respondent was deliberately delaying matters to run time out.

Applying the just and equitable discretion and the factors discussed in British Coal Corporation v Keeble and Abertawe Bro Morgannwg University Local Health Board v Morgan, the tribunal found that the delay was caused by the claimant's own errors and that those errors were not reasonable. It also noted that some of the allegations dated back many months before dismissal, making them substantially out of time, and that the lack of any earlier grievance or legal advice increased the prejudice to the respondent in having to meet older allegations. The tribunal declined to extend time, struck out the claim for want of jurisdiction, and vacated the listed merits hearing.