Mr S Wright v Fishkeeper Scotland Limited — 2019

The claimant, Mr S Wright, was employed by Fishkeeper Scotland Limited at its Aberdeen store and the respondents accepted that he was disabled within the meaning of the Equality Act, with mental health difficulties including anxiety and depression. The remaining complaint before the tribunal was a disability discrimination claim framed as a failure to make reasonable adjustments. The claimant said the relevant provision, criterion or practice was the requirement to deal with customers who might be aggressive, and that a reasonable adjustment would have been additional training to help him cope with those interactions.

The tribunal found that the complaint had to be treated as a failure to do something for the purposes of s.123 Equality Act 2010. On the claimant’s evidence, the alleged request for training was made at a meeting around 25 September 2017, at which he said he raised concerns about dealing with aggressive customers. The tribunal accepted that the respondents did not give a specific response at that meeting, but it held that the period within which they might reasonably have been expected to provide the training expired one month later, on or about 28 October 2017. Time therefore started to run on 29 October 2017, and the claimant should have started early conciliation by 28 January 2018 at the latest.

The claimant did not begin early conciliation until 9 May 2018 and lodged his ET1 on 4 June 2018, so the claim was about three and a half months out of time. The tribunal considered whether it was just and equitable to extend time, applying the broad discretion discussed in Abertawe Bro Morgannwg University Local Health Board v Morgan and the approach in Robertson v Bexley Community Centre. It took into account the length of the delay, the reasons given, the claimant’s access to advice from Citizens Advice Bureau, and the lack of prejudice to the respondents.

The tribunal nevertheless refused to extend time. It found the claimant’s explanation for the delay vague and insufficiently differentiated between the earlier limitation period and the later period when he was off work. It also noted that none of the claimant’s later complaints referred to the alleged training request, and that he accepted Mr Christian had met him on or about 10 December 2017 and discussed ways of handling difficult customers. The tribunal also recorded that, if it had had to consider a deposit order, it would have granted one because the claim had little reasonable prospect of success. In consequence, it held that the disability discrimination claim was lodged out of time and dismissed it for want of jurisdiction.