ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) Judgment of the Employment Tribunal in Case No: 4101721/2022, Issued Following Open Preliminary Hearing Held at Edinburgh on th and st January and st February 2024 with Deliberation on th March, th April, th May and th June 2024 Employment Judge J G d’Inverno Dr Z Kirkham-Mowbray v Represented by: Ms M Armstrong, Solicitor Fife Health Board Jointly and 1 other — 2024

Dr Kirkham-Mowbray was employed by Lothian Health Board as a junior doctor from 24 July 2018 and undertook foundation training placements, including placements with Fife Health Board, until she began long-term sick leave on 1 October 2020. She lodged her ET1 on 3 April 2022. The open preliminary hearing concerned whether the disability discrimination claims were in time and, if not, whether time should be extended; the tribunal also considered a contingent application to amend the pleaded case.

Reading the ET1 and the later particulars together, the tribunal treated the case as including complaints of discrimination arising from disability under section 15 EqA 2010, indirect discrimination under section 19, failure to make reasonable adjustments under section 21, and harassment related to disability under section 26. It also dealt with a later grievance-handling allegation in the September 2023 particulars. The tribunal found that the incidents relied on were largely separate remarks or omissions by named individuals during different placements between August 2018 and October 2021, and that they were between six months and five years out of time by the date of the ET1 and later particulars.

The tribunal rejected the argument that the matter was a continuing act under section 123(3) EqA 2010, finding that the claimant had not shown the incidents formed part of a single discriminatory state of affairs. It found that by November 2019 she knew, or ought reasonably to have known, of her right to bring tribunal proceedings and the relevant time limits, and that the period of poor health from about October 2020 to October 2021 did not explain the earlier delay and did not justify the further delay from October 2021 to the ET1. It accepted that her health in that year was particularly poor, but did not accept that this provided a basis for extending time under section 123(1)(b).

The tribunal therefore dismissed the disability discrimination complaints for want of jurisdiction. It held that the objected-to elements of the September 2023 particulars were new matters requiring leave to amend, and that the Selkent balance favoured refusal because of the age of the allegations, the lack of specification, the prejudice to the respondents, and the limited recollection and documentary retention available for events said to have occurred three to five years earlier.