Mr C Otigbah v Tesco Stores Ltd — 2022

This was a preliminary hearing about whether the Tribunal had jurisdiction to hear claims which were all accepted to have been presented outside the primary time limits. The claimant brought claims for unpaid holiday pay, unfair dismissal and race discrimination. The Tribunal found that the claimant had been dismissed on 7 September 2021, not on the later appeal date, and that the unfair dismissal claim was out of time.

For unfair dismissal and holiday pay, the Tribunal applied the reasonably practicable test. It accepted that the claimant had financial problems, had tried to obtain legal advice and had poor mental health particularly in January and February 2022, but found these matters did not make it not reasonably practicable to present the claims in time. It also found that, in any event, the claims were not presented within a reasonable further period after clear warnings from solicitors on 8 March 2022 about time limits.

For discrimination, the Tribunal applied the just and equitable test and reached a different conclusion for the dismissal allegation. It found genuine reasons for delay, including the internal appeal, attempts to obtain advice, financial problems and poor mental health, and considered the prejudice to both parties. The Tribunal allowed only the claim that dismissal was an act of direct race discrimination to proceed; earlier race discrimination and harassment allegations could be relied on as background only and were dismissed as substantive claims because of stronger forensic prejudice and the likely case management consequences of allowing them to proceed.