Case 4100439/2021 · Employment Tribunal
Mr J Brogan v Represented by:15 Mr Gerry Loughery - Solicitor Personal Hygiene Services Ltd — 2021
- Case reference
- 4100439/2021
- Decision date
- 1 July 2021
- Jurisdiction
- Scotland
- Judge
- Employment Judge Hendry
Parties
2 namedClaimant
Mr J Brogan
Key findings
Tribunal's reasoningMr Brogan brought claims for unfair (constructive) dismissal and disability discrimination. He had worked for Personal Hygiene Services Ltd as a Service Driver from 27 March 2017 and resigned on 25 August 2020, with resignation accepted on 26 August 2020. He was disabled because of an injury to his left hand in 2016. The tribunal accepted that he had felt aggrieved about the way he was treated by his line manager, including a February 2020 remark about using his Blue Badge and being called a liar on 12 August 2020. After he resigned, he raised concerns with HR in September and November 2020, and the respondent's HR adviser replied on 5 January 2021.
The unfair dismissal claim was dismissed because it was presented out of time and the tribunal was not satisfied that it had not been reasonably practicable to present it within the three-month time limit in s.111(2)(b) ERA 1996. The tribunal found that Mr Brogan had been unaware of the time limit, but held that this ignorance was not reasonable. It placed weight on his contact with ACAS on 16 November 2020 and the email warning that it was his responsibility to ensure any Tribunal claim was submitted on time and that ACAS could not advise on timeliness. The tribunal also noted that, after the grievance response of 5 January 2021, he still had time to lodge the claim, which he did on 1 February 2021.
The disability discrimination claim was also dismissed as out of time. The tribunal found the alleged discriminatory treatment arose in February 2020 and considered whether it was just and equitable to extend time under s.123 Equality Act 2010. Applying the approach it identified from Robertson v Bexley Community Centre, the tribunal accepted that Mr Brogan feared for his job but held that he knew the behaviour was wrong, did not raise a grievance or try to raise the matter informally with higher management or HR at the time, and had not taken steps to ascertain his legal rights. In those circumstances it decided that it was not just and equitable to allow the claim to proceed.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Pleaded as unfair (constructive) dismissal. Dismissed at preliminary hearing as out of time under s.111(2)(b) ERA 1996 because the tribunal was not satisfied it was not reasonably practicable to present the claim in time. | Dismissed | — | — |
| Disability discrimination | Dismissed as out of time. The tribunal declined to extend time under s.123 Equality Act 2010, finding it was not just and equitable to do so. | Dismissed | Disability | — |
Legal tests applied
4 references- s.111(2)(b) ERA 1996
- s.123 Equality Act 2010
- John Lewis Partnership v Charman
- Robertson v Bexley Community Centre
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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