Case 4103116/2023 · Employment Tribunal
E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103116/20235 Held at Aberdeen on August 2023 Employment Judge J M Hendry Mr D McDonald
The claimant, Mr McDonald, worked for Tulloch Developments Ltd as a plant operator for over 12 years. He suffered a stroke on 16 May 2022 and later epileptic seizures, which the tribunal accepted caused mobility and cognitive difficulties. His mother, Mrs Heather Moar, acted throughout on his behalf with his consent. The tribunal found that the respondent knew of his health problems by November 2022, that notice of termination was issued on 9 November 2022 with an effective date of dismissal of 16 December 2022, and that the Employment Tribunal claim was presented on 1 June 2023. It also recorded a separate holiday pay and notice pay issue, noting that the respondents had sent a cheque shortly before the hearing and that those claims would remain outstanding until formally withdrawn.
On unfair dismissal, the tribunal applied s.111 ERA 1996 and treated the issue as a two-stage test: whether it was not reasonably practicable to present the claim within three months, and if not, whether it was presented within a reasonable further period. It accepted that Mrs Moar faced significant practical difficulties, including her son's ill health, geography, and the need to obtain advice from SICAB and ACAS. However, it held that the advice she received was sufficient to alert her to the limitation problem, that she could have checked the position herself, and that it could not excuse the failure to lodge the unfair dismissal claim in time. The tribunal therefore dismissed the unfair dismissal claim as time-barred.
On disability discrimination, the tribunal applied s.123 Equality Act 2010 and the Robertson v Bexley Community Centre approach to extension of time. It accepted there was little practical prejudice to the respondent from the delay, but it regarded the discrimination claims as weak. The tribunal noted that there was no mention of discrimination in the ET1 narrative and that the remedy box referred to allowing the claimant to recover and rehabilitate, which it read as more consistent with a reasonable adjustments case. It concluded that, even taking the claimant's health difficulties into account, it was not just and equitable to extend time, and it dismissed the disability discrimination claims.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Dismissed as out of time. The tribunal found it was reasonably practicable for the claimant to have presented the claim within the primary limitation period under s.111 ERA 1996, and in any event it was not presented within a reasonable further period. | Dismissed | — | — |
| Disability discrimination | Dismissed as out of time. The tribunal held it would not be just and equitable to extend time under s.123 Equality Act 2010. It noted that the ET1 narrative did not mention discrimination and that the claims were weak. | Dismissed | Disability | — |
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