Ms G O’Hare v Represented by Ms A Evans-Jones Solicitor Shoe Zone Retail Ltd — 2021

Ms G O'Hare started work as a shop assistant on 5 January 2018, was suspended on 28 November 2019, and was dismissed on 13 December 2019 while pregnant. She had told the respondent she was pregnant around mid-November 2019. She consulted solicitors on 29 November 2019 and again in January or February 2020, but she gave them the wrong dismissal date, telling them she had been dismissed on 18 December 2019. The tribunal accepted that she had mislaid the dismissal letter and, when she later found it, the paperwork showed the correct dismissal date.

The hearing was limited to limitation. The tribunal applied section 123 Equality Act 2010 and the authorities it cited on the broad just and equitable discretion, including DPP v Mills, Hutchison v Westward Television Ltd, Robertson v Bexley Community Centre, British Coal Corporation v Keeble, Southwark London Borough Council v Afolabi, and Adedeji v University Hospitals Birmingham NHS Foundation Trust. It accepted the claimant as a credible witness and found her to be young and inexperienced. The judge accepted that her confusion about dates was explained by the pressures she was under, including the pregnancy, a previous miscarriage, a rhesus negative result, hospital appointments, financial worries, and the stress of the emerging pandemic.

On the tribunal's calculations, the claim was at most seven weeks late. It found that the practical effect of the wrong dismissal date was that the respondent had only about five days less notice than it would have had if the date had been given correctly. The tribunal held there was no material impact on the cogency of the evidence, little or no prejudice to the respondent beyond having to defend the claim, and no failure by the claimant to seek advice promptly. It therefore held that it was just and equitable to extend time, and the pregnancy and sex discrimination complaint and the section 99 unfair dismissal claim were to proceed to a full hearing.