Ms S Robertson (Counsel) For the v Respondent — 2021

The claimant brought claims for unfair dismissal, breach of contract, direct disability discrimination and disability-related harassment arising from the respondent's refusal to extend her career break while she was caring for her son, whose ARFID was accepted to be a disability. The tribunal found that she did not resign. It held that the respondent dismissed her by treating her as a leaver in the letter received on 2 August 2018, so the effective date of termination was 2 August 2018 under s.97 ERA and Gisda Cyf v Barratt.

Because the claim form was presented on 18 February 2019, the unfair dismissal and breach of contract claims were outside the three-month time limit. The tribunal found it was reasonably practicable for the claimant to bring those claims in time, noting the 1 August 2018 letter, the P45 and the lump-sum payment of £17,772.69 in lieu of notice. It therefore held that it had no jurisdiction to hear those claims. It nevertheless considered the merits and found that the reason for dismissal was the claimant's failure to return to work or notify the respondent of her intentions. That was a potentially fair reason, but the dismissal was unfair because no disciplinary process was followed; the tribunal said that, if compensation had been in issue, Polkey would have been 50% and contributory fault 30%.

The discrimination claims were also out of time, and the tribunal refused to extend time under the just and equitable test in s.123 Equality Act 2010, applying British Coal Corporation v Keeble. It found that the delay was not well explained and that the respondent would suffer greater prejudice because Tara Field had left and could not give evidence. On the merits, the tribunal held that the refusal to extend the career break, the later communications, the attempts to contact the claimant and the dismissal were not because of the claimant's son's disability. It found no less favourable treatment compared with a non-disabled comparator and rejected the harassment allegations for the same reasons.

On breach of contract, the tribunal held that there was no contractual entitlement to extend the career break and nothing in the way the respondent considered the request amounted to a breach of the implied term of mutual trust and confidence. The tribunal's unanimous conclusion was that all claims failed and were dismissed.