EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103968/2024 (V) Held at Aberdeen on August 2024 Employment Judge N M Hosie v Mr Mark Lees BP Exploration Operating Company Ltd — 2024

Mr Lees presented his ET1 on 3 March 2024 alleging disability discrimination. The parties agreed that his effective date of termination was 21 August 2023, so the ordinary Equality Act time limit expired on 20 November 2023. He did not notify ACAS until 2 February 2024, so the claim was out of time unless the tribunal extended time under the just and equitable test in section 123 of the Equality Act 2010.

The tribunal reviewed the authorities on the exercise of the discretion, including British Coal Corporation v Keeble, Adedeji v University Hospital Birmingham NHS Foundation Trust, Abertawe Bro Morgannwg University Local Health Board v Morgan, Robertson v Bexley Community Centre, and Pathan v South London Islamic Centre. It heard evidence from Mr Lees and his wife, together with documentary material including GP records and a consultant clinical psychologist's report dated 29 April 2024. The tribunal accepted that Mr Lees had been diagnosed as experiencing complex PTSD, and it also recorded his evidence that he had ADHD and anxiety.

The tribunal found the evidence from Mr and Mrs Lees about the impact of the dismissal to be consistent, corroborative to a degree, credible and reliable. It accepted that during the critical period after dismissal Mr Lees could not face anything to do with BP, experienced nightmares and flashbacks, lacked motivation, and was unable to revisit how he said he had been treated. It also accepted that he only became able to consider legal advice in January 2024, contacted ACAS on 2 February 2024, and saw Citizens Advice on 16 February 2024.

On that basis, the tribunal held that his medical condition for some months after dismissal prevented him from presenting a timeous claim, and that the balance of factors favoured an extension. It was not persuaded that he had a reasonable belief that he had six months to bring the claim, but it found the delay was explained by his condition, that the cogency of evidence was unlikely to be affected, that he had co-operated with tribunal directions, and that the only prejudice to the respondent was having to defend the claim. The tribunal therefore held that it had jurisdiction to consider the disability discrimination claim and directed that the case proceed to a further preliminary hearing. It also recorded that it had refused an application to amend to add a whistleblowing claim, leaving the disability discrimination claim as the only live claim.