Members: Ms M Fisher & Mr P Kelman Mr D Brown v McAlpine & Company Limited — 2018

The claimant brought claims for direct sex discrimination and unfair dismissal. The sex discrimination complaint concerned the respondent's refusal to allow him to change holiday dates in 2017. The tribunal held that the relevant acts occurred in February and May 2017, that there was no continuing act, and that the claim presented in January 2018 was out of time. It declined to extend time on just and equitable grounds, noting that the claimant knew he considered himself discriminated against in May 2017, was a trade union member with access to advice, did not raise a grievance, and gave no evidence explaining the delay.

The tribunal also said that, even if the complaint had been in time, the claimant and his comparator, Ms Finnan, were not in materially the same circumstances. Ms Finnan's leave had been treated as Category C leave for a special occasion, while the claimant sought to change Category B holiday dates and did not apply under Category C. The tribunal further noted that other comparator evidence did not establish sex discrimination, and it dismissed the discrimination claim.

On unfair dismissal, the tribunal accepted the respondent's evidence that it investigated concerns that the claimant had gone to Fuerteventura on 28 July 2017 despite reporting unfit for work and had been untruthful about his whereabouts and intentions. It found that the investigation was reasonable, that the claimant was given opportunities to explain matters and provide evidence, and that the disciplinary and appeal hearings were conducted fairly. Applying section 98 of the ERA 1996 and the range of reasonable responses approach, the tribunal concluded that dismissal for conduct was fair and dismissed the unfair dismissal claim.

Because both claims were dismissed, the tribunal did not proceed to assess remedy.