EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4103202/2020 (V) Held by means of the Cloud Video Platform on September 2021 Employment Judge W A Meiklejohn Major C Milroy Advocate-General for Scotland v Respondent — 2021

This was an open preliminary hearing on time bar only. Major C Milroy had been a member of the Army Reserve from 9 May 1982 until 1 November 2019. He advanced a pension claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and an underpayment claim under both the PTWR and the Employment Rights Act 1996. The tribunal recorded that the ET1 was presented on 5 June 2020 and that the PTWR deadline was agreed to have expired on 1 May 2020.

On the ERA limb of the underpayment claim, the tribunal held that the relevant date for the limitation period was probably at or around the end of October 2019, before the claimant retired from the Army Reserve. Applying section 23 ERA 1996 and the 'not reasonably practicable' test, and referring to Wall's Meat Co Ltd v Khan, Porter v Bandridge Ltd, Palmer v Southend-on-Sea Borough Council and Asda Stores Ltd v Kauser, it found that the claimant had legal advice during the limitation period and had not shown why presentation in time was not reasonably practicable. That claim was dismissed as out of time.

On the PTWR claim, the tribunal applied regulation 8(3) and considered the section 33 Limitation Act 1980 factors, while noting the caution against a mechanistic approach in Southwark London Borough Council v Afolabi and Adedeji. It accepted that the claimant's understanding of O'Brien and Miller was uncertain, that he sought and received advice from counsel and Beers, and that the Covid-19 pandemic, together with work and domestic pressures, affected his ability to progress the matter. It found no adverse impact on the cogency of the evidence and concluded that, in all the circumstances, it was just and equitable to extend time, so the PTWR claim was allowed to proceed.