Claimant v Aviva Employment Services Limited — 2018

The claimant, Mr D Japp, worked for Aviva Employment Services Limited as a personal injury claims handler from 13 February 2012 until he was summarily dismissed on 21 August 2017. He presented an ET1 on 14 February 2018 alleging unfair dismissal and disability discrimination. The tribunal decided as a preliminary issue that both claims were out of time and that it had no jurisdiction to hear them.

For the unfair dismissal claim, the tribunal found that the three-month time limit under section 111 ERA 1996 expired at midnight on 20 November 2017. It held that ACAS early conciliation did not extend time because the claimant had not contacted ACAS within the original limitation period. The tribunal rejected the argument that it was not reasonably practicable to present the claim in time. It noted that the claimant had started a new job around the beginning of October 2017, that there was no medical evidence showing a debilitating illness, and that the GP material summarised by occupational health said he was improving, sleeping better, eating well and going to the gym, and was fit for his job role.

The tribunal also rejected the claimant's explanations that he did not know his rights, misunderstood the wording of the appeal outcome letter, or relied on advice from Ms Simpson. It held that he had access to the internet, had the opportunity to check his position, and that the letter stating the appeal process was exhausted referred to the respondent's internal process and was not misleading. It further held that any failure by a trade union representative would be attributable to the claimant in any event.

For the disability discrimination claim, the tribunal applied section 123 Equality Act 2010 and considered the just and equitable test, referring to Robertson v Bexley Community Centre and the factors identified in British Coal Corporation v Keeble and Others. It concluded that the claimant had not acted promptly once he knew of the possibility of bringing a claim, had not taken readily available steps to check his rights despite internet access and the availability of ACAS, and that the delay could affect the cogency of the evidence. Time was therefore not extended and the discrimination claim was also out of time.