A Kemp (sitting alone) Miss R Stewart v Represented by: Ms D Freiss Representative Highland Health Board — 2019

Employment Judge Kemp held a preliminary hearing on jurisdiction. The tribunal recorded that the claims before it were age and race discrimination only, although later written submissions sought to add disability discrimination and constructive dismissal. It found that Miss Stewart had worked for Highland Health Board from 1998, had been absent from work for long periods, resigned on 10 April 2018 with termination effective on 18 June 2018, and had made an early conciliation claim on 28 April 2018 against 'NHS Highland Nicola Murray (manager)'. The first claim form presented on 18 June 2018 was later found to have been wrongly rejected insofar as it named Nicola Murray, and the tribunal found that the rejection letter dated 19 June 2018 was not sent.

On the age and race detriment claims, the tribunal accepted that some derogatory comments had been made at work, including remarks about the claimant's age and remarks linked to her surname and the local travelling community. It found, however, that any such acts must have occurred before the claimant's second period of absence began on 3 July 2017. Because early conciliation did not begin until 28 April 2018, the claims were brought well outside the three-month time limit under section 123 of the Equality Act 2010. Applying the just and equitable discretion, the tribunal considered the length and reasons for delay, the claimant's access to union and CAB advice, the limited specificity of the evidence, the prejudice to the respondent, and the weak prospects of success. It declined to extend time and held that it had no jurisdiction to consider the age and race claims.

The tribunal dealt separately with dismissal. It considered that the claim form and later submission could be read as raising a constructive dismissal issue because the claimant said she had been 'forced to retire' and intended to work to 70, but held that the pleadings did not explain the alleged repudiatory breach or set out enough factual detail to found such a claim. It also found that there had been a lengthy period after 17 July 2018 when no enquiry was made about the lack of a tribunal response, and that the dismissal claim was therefore also out of time. Taking the matter as a whole, the tribunal concluded that the balance favoured the respondent and dismissed the claims for want of jurisdiction.