Miss S Combie v Elevate East London — 2020

At a preliminary hearing on 2 March 2020, Employment Judge Burgher considered whether Miss S Combie's claims against Elevate East London were in time. The claimant had worked for the respondent from 7 August 2017 to 12 February 2018, said she suffered an accident at work on 23 November 2017, and alleged that health and safety concerns and other treatment during employment led to her dismissal. She also brought sex and disability discrimination complaints arising from her treatment during employment and termination. The respondent said she was dismissed for unsatisfactory completion of probation.

For the automatic unfair dismissal complaint under section 100(1)(c) ERA 1996, the tribunal held that the lack of a two-year qualifying period did not remove the need to comply with the section 111 time limit. Applying the test of reasonable practicability and referring to Palmer and Saunders v Southend-on-Sea Borough Council, the tribunal found that the claimant knew the basis of her complaint by 12 February 2018, had been told by the end of April 2018 that her appeal had been refused, and should not have waited for the written appeal outcome before contacting ACAS and presenting a claim. It concluded that it was not reasonably practicable to present the claim in time, so the unfair dismissal complaint was dismissed.

For the sex and disability discrimination complaints, the tribunal applied the just and equitable test under section 123 Equality Act 2010 and referred to Aziz v FDA, Robertson v Bexley Community Centre (t/a Leisure Link), and British Coal Corp v Keeble. It accepted that the claimant had some ill health and noted that the respondent did not send a further copy of the written appeal outcome until 1 May 2019, but found there had been a very long delay before the tribunal claim was lodged on 30 July 2019. The tribunal also found that the claimant had access to union and solicitor advice, had not acted promptly once she knew the relevant facts, and that the respondent would be prejudiced because three key witnesses no longer worked for it. The tribunal therefore refused to extend time and dismissed both discrimination claims.