Mr S MacKenzie v Limited (in Liquidation) — 2019

The claimant was dismissed by letter dated 16 May 2017 after a seizure and absence from work. At the preliminary hearing the claimant confirmed, through his representative and with his agreement, that he did not make an unfair dismissal claim under the Employment Rights Act 1996. The remaining claims were breach of contract and disability discrimination, the discrimination claim being said to concern dismissal and failure to make reasonable adjustments.

For the breach of contract claim, the tribunal accepted that the claimant and his partner were unaware of the three-month tribunal time limit until December 2017. However, a solicitor had been instructed between May and December 2017, and the claimant and his partner had attended meetings and given instructions. Applying the not reasonably practicable test, the tribunal was not satisfied that the claim could not reasonably have been presented in time. It also found that, even if that test had been met, the claim was not presented within a reasonable further period after awareness of the right to claim.

For the disability discrimination claim, the tribunal considered the broader just and equitable test. It recognised prejudice to the claimant if the claim did not proceed and some prejudice to the respondent if it did, but found that the balance was against extending time. The tribunal placed weight on the approximately 15-month delay from dismissal to valid presentation, the claimant's and his partner's awareness that a discrimination claim potentially existed, and the absence of particular evidence explaining the further delay between the ACAS certificate in March 2018 and presentation of the claim in August 2018. The tribunal did not weigh the potential merits of the discrimination claim in reaching its decision.