Ms Josefa Orellana v Epsom and St Helier University Hospitals NHS Trust — 2021

The preliminary hearing before Employment Judge Apted considered whether Ms Josefa Orellana's unfair dismissal claim had been brought in time and, if not, whether time should be extended because it was not reasonably practicable to present it in time. The Tribunal found that the effective date of termination was 11 September 2019, when the claimant attended the reconvened sickness absence hearing and was told her employment would terminate that day on grounds of ill health capability. The letter dated 20 September 2019 was found to confirm what had already been communicated at the hearing.

On that basis, the unfair dismissal claim had to be brought by 10 December 2019. The claimant referred the matter to ACAS on 13 December 2019, after the time limit had expired, so early conciliation did not extend time. The ET1 was presented on 5 February 2020, 57 days after the time limit expired.

The Tribunal accepted that at the time of dismissal and in the following months the claimant was suffering from depression, stress and anxiety. However, it found that it was reasonably practicable for her to bring the claim in time because she had support from Sutton Uplift, including its Employment Team, and had received advice from the Citizens Advice Bureau before 10 December 2019. The Tribunal therefore refused to extend time and dismissed the unfair dismissal claim under section 111 Employment Rights Act 1996 for lack of jurisdiction.

The claimant also sought permission to amend the claim to add race discrimination harassment and failure to pay sick pay/breach of contract. Because the Tribunal had dismissed the unfair dismissal claim for lack of jurisdiction, it held there was no power to amend that claim. The amendment application therefore failed, and the proposed additional claims were not determined on their merits.