Mrs Zaneta Siwak v Nottingham University Hospitals NHS Trust — 2021

The Claimant was employed by Nottingham University Hospitals NHS Trust as a Maternity Support Worker from 6 March 2017 and was summarily dismissed for gross misconduct on 5 July 2019. She brought an ET1 on 27 December 2019 complaining of unfair dismissal only. ACAS early conciliation began on 11 October 2019 and the certificate was issued on 25 November 2019.

The Tribunal held that the effective date of termination was 5 July 2019, so the primary three-month time limit expired on 4 October 2019. Because early conciliation was not started until 11 October 2019, after the primary limitation period had expired, the early conciliation provisions did not extend time. The Tribunal found that the unfair dismissal complaint was twelve weeks late.

The Claimant relied on lack of legal knowledge and mental health issues, including medication side effects, as reasons for the delay. The Tribunal found no satisfactory explanation for the delay before 4 October 2019, noted the absence of medical evidence showing that health or medication made timely presentation not reasonably practicable, and observed that the Claimant had been able to submit a long appeal document on 18 July 2019. It also found that the Claimant appeared to have had some legal advice, and that if advisers had failed to advise on time limits her remedy would be against them. The unfair dismissal complaint was therefore struck out.

The Tribunal also considered, although it was unnecessary after the time-limit ruling, the Claimant's application to amend the claim to add disability discrimination and pregnancy and maternity discrimination. Applying Selkent and the Presidential Guidance, it found the proposed amendments were substantial additions rather than relabelling, that the proposed claims would now be out of time, that the application was made in August 2020, and that delay would affect the cogency of evidence and significantly prejudice the Respondent. The balance of hardship favoured the Respondent, so the application to amend was refused. No remedy was awarded.