ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4110920/2021 Preliminary Hearing at Edinburgh on February 2022 Employment Judge: M A Macleod Ms Dorota Polewiak v McSence Services Limited — 2022

Ms Dorota Polewiak presented her claim on 19 August 2021 after ACAS early conciliation. She said she had been discriminated against on grounds of pregnancy or maternity and had been underpaid holiday pay and related sums, with the underlying events arising during her maternity leave and after her return to work in February 2020. The hearing on 1 February 2022 was a preliminary hearing on whether the tribunal had jurisdiction because the claims may have been presented out of time.

On the pregnancy or maternity discrimination claim, the tribunal accepted that the claimant had faced serious personal difficulties after a premature birth, including concerns about her baby’s health and her own stress-related illness. It found, however, that the main explanation for the delay was that she waited for the internal grievance process to finish before bringing a Tribunal claim. Applying the just and equitable test under section 123(1) of the Equality Act 2010, and referring to Robertson v Bexley Community Centre and British Coal v Keeble, the tribunal held that it was not just and equitable to extend time.

For the remaining claims, the tribunal applied the "not reasonably practicable" test under section 48(3) of the Employment Rights Act 1996. It found that the holiday pay issue had become apparent when the claimant’s terms and conditions changed, but that she did not investigate tribunal time limits until a late stage, despite remaining at work for much of the period, pursuing grievances and appeals, and only later contacting ACAS. The tribunal therefore held that those claims were also out of time and dismissed all claims for want of jurisdiction.