Ms Tracey Smith v The Restaurant Group (UK) Limited — 2023

The claimant worked for the respondent as an Assistant Manager from 25 April 2022 until her employment ended on 17 November 2022. After emergency abdominal surgery on 14 August 2022 and a subsequent readmission for infection, she returned to work on restricted duties. The tribunal found that she had a physical impairment arising from the surgery and incisional hernia, and that the hernia was a long-term condition unless sufficient weight loss allowed repair.

On the disability issue, the tribunal accepted that the claimant had a substantial adverse effect on her ability to lift and move heavier everyday items, including a basket of wet washing and bags of shopping. It noted that some of the evidence about fatigue and bowel incontinence was less clear, and that parts of the claimant's evidence appeared to conflate the surgery with the hernia. Even so, the tribunal was satisfied that the lifting restriction was substantial enough to bring her within section 6 of the Equality Act 2010 at the relevant time.

The claimant's ET1 presented on 29 April 2023 brought disability discrimination claims under sections 13, 15 and 20 of the Equality Act 2010 and a claim for unauthorised deduction from wages under section 23 of the Employment Rights Act 1996. The breach of contract claim was withdrawn by the claimant's representative at the preliminary hearing on 29 June 2023. The tribunal held that the first ACAS early conciliation certificate, issued on 3 February 2023, was valid despite the respondent name point, and that there was no scope for relying on a second certificate obtained later; the first certificate should have been used for the tribunal claim.

Applying section 123 of the Equality Act 2010 and the authorities cited, including British Coal Corporation v Keeble and Department of Constitutional Affairs v Jones, the tribunal held it was not just and equitable to extend time for the discrimination claim. It relied on the claimant's knowledge of the time limit, the declaration she had signed in December 2022, her trade union and legal advice, and the absence of evidence explaining why the claim was not presented sooner. For the wages claim, the tribunal held it was reasonably practicable to present it in time and, alternatively, that it was not lodged within such further time as was reasonable. The tribunal therefore held that the claims were timebarred and that it had no jurisdiction to determine them.