Mr A Hannan v Mercedes-Benz Retail Group UK Limited — 2019

This was a preliminary hearing about limitation and amendment. The claimant agreed that his disability and race discrimination complaints had been presented out of time, and the tribunal found that the last alleged discriminatory act was 14 September 2018 while the ET1 was presented on 29 January 2019, making the discrimination claims 21 days late after taking ACAS early conciliation into account. The tribunal held that it was just and equitable to extend time for those claims, and the claimant's accepted disability was relevant to that exercise.

In reaching that conclusion, the tribunal applied the Robertson approach to limitation, the British Coal v Keeble factors, and considered the claimant's mental health evidence. It accepted that he had suffered from depression, anxiety and PTSD, that his condition worsened after his dismissal and the failure of appeal and ACAS conciliation, and that he had difficulty with concentration, deadlines, appointments and completing the ET1 process. It found that his failure to issue in time was due to significant mental ill-health rather than a deliberate decision not to pursue the claims, and that the prejudice to him outweighed the prejudice to the respondent.

The tribunal therefore allowed the existing discrimination complaints to proceed to final hearing: failure to make reasonable adjustments, direct disability discrimination, disability harassment, race harassment, and direct race discrimination. It did not decide the merits of any of those complaints at this stage.

On amendment, the tribunal granted permission to add an automatic unfair dismissal complaint under section 103A Employment Rights Act 1996. It accepted that the delay in issuing the claim stemmed from the claimant's mental ill-health and that he had been aware of the time limit, had sought union advice, and had referred in correspondence to whistleblowing and to the substance of alleged disclosures, even though the ET1 did not set out the claim with full clarity. The tribunal refused the separate proposed amendment to add a section 15 Equality Act 2010 discriminatory dismissal complaint, finding that it was not hinted at in the existing claim form or correspondence and appeared to be a later and entirely new point. No remedy was determined and the matter was listed for a final hearing.