in person For the v Mr S Wysall, Solicitor — 2020

Mr T Smith brought a complaint of constructive unfair dismissal after resigning on 27 June 2018. The tribunal recorded that the claim was presented on 19 August 2019, more than ten months after the effective deadline of 26 September 2018 once the ACAS early conciliation extension was taken into account. The preliminary hearing was therefore concerned with section 111(1) Employment Rights Act 1996: whether it was not reasonably practicable to present the claim in time, and if so whether it was then presented within a reasonable further period.

The tribunal accepted that the claimant suffered from depression and other health problems and that he had been hospitalised and undergone surgery. It also accepted that there was a period between November 2018 and March 2019 when he was probably not well enough to research and present a tribunal claim. However, it found that during July to November 2018 he was still able to engage with the respondent’s grievance process, make a data subject access request, write detailed correspondence, and refer to having taken legal advice. The tribunal considered that he had enough intellectual capacity, computer and smartphone access, and access to informal legal advice to make enquiries about unfair dismissal time limits, including through ACAS, CAB, or online.

The tribunal concluded that it was reasonably practicable for the claimant to have presented the claim in time, so the claim failed at the first stage of the statutory test and the tribunal had no jurisdiction to hear it. It added that, if it was wrong on that point, the claim would still have failed at the second stage because from March 2019 onwards there was no sufficient explanation for the further delay before he contacted ACAS on 10 August 2019. On that basis, the claim was dismissed.