Miss A Lores Represented by: Herself v Respondent — 2019

The claimant brought claims for unfair dismissal and sex and race discrimination. At the open preliminary hearing, the tribunal held that the sex and race discrimination claims were out of time. It identified 8 February 2017 as the latest possible date of any discriminatory act while the claimant was at work, found that the claims were presented about 34 months late, and concluded that it was not just and equitable to extend time under section 123 of the Equality Act 2010.

In reaching that conclusion, the tribunal noted that the claimant had been focused on resolving workplace difficulties and returning to work, had not raised discrimination in her grievances, and had access to some legal advice in January 2018, albeit not about a prospective discrimination claim. It also took account of the claimant's ill health as a factor in the delay, but considered the respondent would be prejudiced by the historic nature of the allegations, the uncertainty over dates and witnesses, and the fact that the alleged perpetrator had left employment.

The tribunal also considered the respondent's application to strike out the unfair dismissal claim under rule 37 of the Employment Tribunal Rules 2013. It recorded that the dismissal was said to be for long-term sickness absence/capability, that the claimant had been absent for more than two and a half years, and that the respondent had obtained occupational health reports and medical material before dismissing her on 23 October 2019.

The tribunal declined to strike out the unfair dismissal claim. It accepted that the fairness assessment would depend on the information available to the respondent at the time, but said the test was nuanced and included the nature and cause of the ongoing ill health, the ability to cover the absence, and any steps taken to explore alternative work. It therefore could not say, at this preliminary stage, that the unfair dismissal claim had no reasonable prospects of success.