Mrs R Hodgkins, Counsel For the v Respondent — 2019

Mr Kenneth Niles presented a claim form on 21 September 2017 alleging unfair dismissal and disability discrimination. The respondent said the dismissal was for capability, disputed disability, and contended that the claims were out of time. The preliminary hearing was therefore concerned only with limitation, and the tribunal heard evidence from the claimant only.

The tribunal accepted that the claimant had been diagnosed with prostate cancer on 30 March 2016, had returned to work on 23 June 2016, and was told after a capability process that his employment would be terminated. The written dismissal letter dated 12 April 2017 said the dismissal was effective immediately but also stated that his final day of employment was Friday 19 May 2017. An email of 8 May 2017 then corrected what the respondent described as typing mistakes and stated that the relevant date should have been Tuesday 11 April 2017. The judge treated the later written communication as the operative clarification of the dismissal date.

Applying section 111(2) Employment Rights Act 1996 and section 123 Equality Act 2010, and referring to Gisda Cyf v Barrett, Robertson v Bexley Community Centre, and Abertawe Bro Morgannwg University Health Board v Morgan, the tribunal held that time started to run from 8 May 2017, when the dismissal position was clarified in writing. On that basis, and allowing for 45 days of ACAS early conciliation, the claim form presented on 21 September 2017 was in time. The tribunal therefore allowed both claims to proceed to the final hearing listed for July 2019, and made no finding on the substantive merits or any remedy.