Mr Bradley Donaldson v Bear Scotland Limited — 2020

The claimant, Mr Bradley Donaldson, brought a claim of unfair dismissal against Bear Scotland Limited. The tribunal heard evidence only from the claimant, found him to be candid and credible, and accepted that he had been employed from 15 February 2016 until 20 January 2020, when he was dismissed for gross misconduct. It also accepted that he sought advice from Citizens Advice on the day of dismissal and was told about the three-month time limit and the need to complete ACAS early conciliation before issuing a claim.

The tribunal found that the claimant pursued an internal appeal, which was heard in late February 2020 and rejected on 27 March 2020. By that point the national lockdown had begun on 23 March 2020, and the claimant assumed that the lockdown prevented him from contacting ACAS. He did not seek further advice, make any online or telephone enquiry to ACAS, or otherwise check whether the early conciliation process was available. He eventually contacted ACAS and presented his claim on 23 April 2020.

Applying section 111 of the Employment Rights Act 1996 and the reasonable practicability test, the tribunal held that the effective date of termination remained 20 January 2020 and that the claimant should have contacted ACAS by 19 April 2020. It accepted that the claimant had followed incorrect advice to wait for the appeal outcome, but held that, under Dedman, any mistake by the adviser was attributable to the claimant. The tribunal also found that by 27 March 2020 there was still sufficient time to contact ACAS before the limitation period expired.

The tribunal concluded that the claimant had not taken reasonable steps to ascertain the true position about the effect of lockdown on ACAS or the time limit. Because he did not make reasonable enquiries and instead proceeded on an assumption, it was reasonably practicable for him to present the claim in time. The tribunal therefore held that the claim was out of time, lacked jurisdiction to hear it, and dismissed the unfair dismissal claim without reaching the merits.