Mr A Sisson v Represented by: Ms A Bennie Counsel Carr Gomm — 2019

At the preliminary hearing on 12 August 2019 before Employment Judge A Kemp, the tribunal considered whether Mr A Sisson's claims for unfair dismissal, disability discrimination and breach of contract had been presented in time. The tribunal recorded that he had been employed by Carr Gomm from 6 July 2015 until his summary dismissal on 1 September 2018, that early conciliation began on 4 November 2018 and the certificate issued on 4 December 2018, and that 4 January 2019 was the last date for timeous presentation of the claim form.

Mrs Donna Reynolds of Blackadders attempted to submit the ET1 online on 4 January 2019 but could not complete the portal submission. She then emailed the form to the Glasgow tribunal at 11.41 am with a covering note stating that the firm was instructed to present claims of unfair dismissal and disability discrimination. The tribunal accepted that the online facility had not worked and that the mistaken email submission was genuine, but held that email was not a prescribed method of presentation. The form was returned on 7 January 2019 and was later hand delivered to Dundee; the tribunal also noted that the early conciliation certificate name did not match the name on the claim form until that issue was resolved.

For unfair dismissal and breach of contract, the tribunal applied the reasonable practicability test under section 111 of the Employment Rights Act 1996 and paragraph 7 of the Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994. It held that, despite the portal failure and the holiday period, it remained reasonably practicable to present the claims on 4 January 2019 because there was still time to use one of the prescribed methods, including hand delivery to Edinburgh or another tribunal office, and Mrs Reynolds had not checked or followed the relevant Practice Direction. Those claims were therefore dismissed for want of jurisdiction. For the section 15 Equality Act 2010 discrimination claim, the tribunal held that the just and equitable test under section 123 was satisfied because the delay was short, fully explained, there was no suggestion of prejudice to Carr Gomm, and the claim was allowed to proceed to a Full Hearing.