In person For the v Mr S Ellerby - Solicitor — 2020

The claimant was employed as a chef from 9 September 2011 until his dismissal for gross misconduct on 9 February 2019. He presented his ET1 on 27 June 2019 after early conciliation had ended, and it was common ground that the last day for presenting both the unfair dismissal and discrimination claims was 23 June 2019. The tribunal therefore heard the case on limitation for the remaining claims.

For unfair dismissal, Employment Judge Andrew Clarke QC applied section 111 of the Employment Rights Act 1996 and the approach in Asda Stores Limited v Kauser. The tribunal accepted that the claimant knew there was a time limit, that he had sought legal advice, had researched the process, and had done significant work on his claim, but found that he had delayed because he had decided not to pursue proceedings until very late. The tribunal held that it was possible, and reasonable to expect him, to have presented the claim in time, so the unfair dismissal claim was dismissed.

For disability discrimination, the tribunal applied section 123 of the Equality Act 2010 and considered the section 33 Limitation Act 1980 factors by analogy. It found the delay was short, but that the reason for the delay was again the claimant's late decision to proceed. The tribunal did not take any view on the merits because the claim was insufficiently particularised and it was too early to assess whether it was strong or weak. It concluded that the claimant had not shown it was just and equitable to extend time, so the disability discrimination claim was dismissed.

The monetary/unlawful deduction claim was not pursued. The tribunal noted that the claimant wished to withdraw it, and also observed that it lacked particularity, there were no records or contemporaneous complaints, and proving it would have been difficult. No remedy was awarded.