Mr R Kenna v Represented by: Ms N Maguire and Mr R Crombie Student Advisers st Homecare Ltd — 2022

This preliminary hearing on 31 January 2022 concerned whether the tribunal had jurisdiction over the remaining unfair dismissal complaint and whether the claimant could amend the claim to add an automatically unfair dismissal allegation under section 103A of the Employment Rights Act 1996. The earlier holiday pay, arrears of pay and sex discrimination claims had been withdrawn, and the breach of contract claim was not insisted on. The claimant had been summarily dismissed for gross misconduct by letter dated 25 November 2020, commenced early conciliation on 8 March 2021, received the early conciliation certificate on 19 April 2021, and presented the claim on 17 May 2021.

The tribunal applied section 111 ERA 1996 and the reasonable practicability test. It found that the primary deadline for starting early conciliation was 24 February 2021 and that the claimant had not shown it was not reasonably practicable to meet that date. The claimant relied on stress, anxiety, sciatica and difficulty understanding the process, but the judge found the evidence on health and incapacity to be unsupported and at times inconsistent. The tribunal also found that he could use a mobile phone and iPad for searches and other tasks, and that his evidence about advice from ACAS, solicitors, the benefits system and the Scottish Social Services Council was vague.

The tribunal concluded that the claimant had not discharged the burden of showing that the late start to early conciliation was excused. It further held that, even after the certificate was issued, the claim was not presented within a reasonable period because there was no adequate explanation for the 28-day delay to 17 May 2021. The unfair dismissal complaint was therefore outwith the tribunal's jurisdiction and was dismissed. No monetary remedy was awarded.

The proposed section 103A amendment was not determined in detail because the tribunal had already found that the underlying unfair dismissal claim was outside jurisdiction. The judgment notes that section 103A complaints are subject to the same section 111 time-bar and would also have been outwith jurisdiction in any event. The judge also observed that any personal injury claim arising from the March 2020 assault, and any breach of contract claim, would be matters for the civil courts rather than the Employment Tribunal.