Mr G McKetty, Consultant For the v Respondent — 2019

At the preliminary hearing in Watford on 6 February 2020, Employment Judge Smail considered limitation because the unfair dismissal and Equality Act claims appeared to have been presented out of time. The tribunal set out the statutory tests under s.111(2) ERA 1996 and s.123(1) Equality Act 2010. It recorded that Mr S Onasanya had been employed as a care assistant from 2 November 2015, that allegations of sexual harassment arose on 23 March 2017, that he was suspended for an extended period, and that he was dismissed on 3 October 2018. The ET1 was presented on 1 April 2019, after the ACAS certificate dated 31 January 2019.

The tribunal accepted the claimant's account on the balance of probabilities. It relied on medical evidence from Dr A Tarl diagnosing severe depressive disorder without psychotic symptoms, together with the claimant's oral evidence, and found that he was suffering from a severe depressive disorder which affected his ability to act. The judge held that, for the unfair dismissal claim, it was not reasonably practicable for the claim to be presented within time, and for the Equality Act claim it was just and equitable to extend time. The judgment noted that the equality claim was not clearly pleaded and might in substance be a reasonable adjustments or section 15 claim, but held there was an arguable disability discrimination case.

The tribunal also noted that the respondent would not suffer evidential prejudice because the position was documented and capable of being addressed by evidence and submission. Time was therefore extended to 1 April 2019, subject to a condition that Mr McKetty provide a witness statement and supporting documentation confirming when he was first instructed. The tribunal listed a further preliminary hearing for 24 March 2020 and a three-day merits hearing for 17 to 19 February 2021.