Miss D Graham v Represented by: Mr A Cacace - Solicitor Starfish Limited t/a Starfish Construction — 2020

Miss D Graham started work for Starfish 9 Limited t/a Starfish Construction on 15 September 2018 as a Business Development Manager. On 9 August 2019 the respondent sent a redundancy letter stating that her role was being made redundant with immediate effect and that she would continue to be paid until the end of August. The tribunal held that the effective date of termination was 10 August 2019, when she received and read the letter, applying Gisda Cyf v Barratt. It rejected the argument that payment to 31 August meant her employment continued until that date.

Because the discrimination claim was presented on 17 January 2020 and ACAS notification was not made until 20 November 2019, the claim was out of time if the EDT was 10 August. The tribunal accepted that the claimant had periods of ill health and fatigue and had taken advice from CAB and then a solicitor, but it found no evidence that health, a possible house move, or any conduct by the respondent prevented her from presenting the claim in time. The tribunal noted that the claimant and her advisers proceeded on the mistaken view that the employment ended on 31 August because pay continued to that date.

Applying the just and equitable discretion under section 123 of the Equality Act 2010 and the authorities cited, including Robertson, Abertawe and Keeble, the tribunal held that the reason for the missed deadline was unsound advice rather than fault by the claimant herself. It took account of the short delay and the absence of material prejudice to the respondent, and with hesitation extended time so that the disability discrimination claim could proceed to a further case management preliminary hearing on whether the claimant was disabled under the 2010 Act.