Mr. A. Malcolm v Felixstowe Dock & Railway Company PUBLIC PRELIMINARY HEARING — 2023

Mr A Malcolm presented his claim on 4 September 2022 after the tribunal found the limitation date had been 23 August 2022. The claims were unfair dismissal and disability discrimination against Felixstowe Dock & Railway Company. The hearing on 15 May 2023 was a public preliminary hearing before Employment Judge H. Mason to determine whether the claims should be struck out or dismissed because they were out of time.

For the unfair dismissal claim, the tribunal applied the statutory test in section 111(2) Employment Rights Act 1996. It accepted that the claimant had poor mental health, but found he was aware that an employment tribunal claim was an option, had access to internal processes, ACAS, and CAB, and had in fact taken several steps before the limitation date including a grievance, an appeal, and a DSAR request. The tribunal found that his mental health did not prevent him from presenting the claim in time and held that it was reasonably practicable to do so.

For the disability discrimination claim, the tribunal applied the section 123 Equality Act 2010 just and equitable test. It took into account the same chronology and the parties' submissions on prejudice. It accepted that the claimant would be prejudiced if denied the chance to pursue the claim, but also accepted the respondent's submission that some prejudice would arise from delay in witness availability and recollection. The tribunal concluded that it was not just and equitable to extend time.

As a result, the tribunal held that it had no jurisdiction to hear either claim and dismissed the proceedings. No remedy or compensation was awarded because the case was decided on limitation grounds without reaching the merits.