Case 4107619/2021 · Employment Tribunal
Miss E Campbell v & Mr Smith Student Advisors Lothian Health Board — 2021
- Case reference
- 4107619/2021
- Decision date
- 23 September 2021
- Jurisdiction
- Scotland
- Judge
- Employment Judge M Sangster
Parties
2 namedClaimant
Miss E Campbell
Key findings
Tribunal's reasoningThe tribunal held that it had no jurisdiction to consider any of Miss Campbell's complaints and dismissed the claim. Miss Campbell worked for Lothian Health Board from 29 October 2018 to 3 January 2020 and lodged her ET1 on 11 February 2021. The tribunal held that the fixed-term complaints about refusal of travel expenses and a parking space arose, at the latest, by 31 December 2018, and that the gender reassignment complaints were out of time even on the assumption that the incidents formed a continuing act ending on 29 February 2020.
For the unfair dismissal and breach of contract complaints, the tribunal found that the claimant had not shown that it was not reasonably practicable to present the claims within the primary time limit. It rejected her reliance on her view that bringing a claim against the NHS during the Covid-19 pandemic would divert resources from patient care, and it found that her ignorance of tribunal procedure and time limits was not reasonable because she knew Employment Tribunals existed, knew of a colleague litigating against the respondent, and could have made enquiries or researched the position. The tribunal accepted that mental ill health affected her in 2019, but found no medical evidence that it prevented her from researching or lodging a claim during the primary period after termination. It also recorded that, even if the first test had not been met, the delay after 31 December 2020 was not reasonable.
On the discrimination and fixed-term claims, the tribunal applied the just and equitable test and refused to extend time. It found that the Covid-19 explanation did not account for delay in relation to events in 2018 and 2019, found that the claimant knew or suspected she had a discrimination complaint by May 2020, and considered that she did not act promptly after the 31 December 2020 discussion in which she learned how to bring a claim. It also said the cogency of evidence about events in 2018 and 2019 would be adversely affected by the delay. No remedy was awarded because all complaints were dismissed.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Pursued as automatically unfair dismissal under s.100(1)(d) ERA 1996. The tribunal held the complaint was presented out of time and that it was reasonably practicable to present it within the primary period; alternatively, the post-31 December 2020 delay was not reasonable. | Dismissed | — | — |
| Breach of contract | Presented with the unfair dismissal complaint and dismissed as out of time under Article 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994. | Dismissed | — | — |
| Fixed-term employee regulations | Alleged less favourable treatment as a fixed term employee in relation to travel expenses and a parking space in October-November-December 2018. The tribunal held the claim was out of time and refused to extend time on just and equitable grounds. | Dismissed | — | — |
| Gender reassignment discrimination | Pursued as direct discrimination, indirect discrimination and harassment on grounds of gender reassignment. The tribunal assumed for limitation purposes that the incidents formed a continuing act, but still held the claim was out of time and that it was not just and equitable to extend time. | Dismissed | Gender reassignment | — |
Legal tests applied
7 references- reasonably practicable test
- further reasonable period
- just and equitable test
- continuing act under s.123(3) Equality Act 2010
- Palmer and Saunders v Southend-on-Sea Borough Council reasonably feasible test
- British Coal v Keeble factors
- Mensah v Royal College of Midwives prior knowledge questions
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
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