Miss K Andrzejewska v Balhousie Care Ltd — 2022

Miss K Andrzejewska brought a claim for unfair dismissal against Balhousie Care Limited. Her ET1 was presented on 13 October 2021 and stated that employment ended on 27 January 2021. The respondent argued that the effective date of termination was instead 1 August 2020, when the claimant moved onto the respondent's bank arrangement, and that the claim was therefore out of time in any event.

The tribunal accepted the claimant's evidence that from 1 August 2020 she was no longer obliged to accept shifts and the respondent was no longer obliged to offer work, which the tribunal held was inconsistent with a contract of employment. On that basis, the effective date of termination was 1 August 2020. The tribunal therefore found that ACAS early conciliation began about nine months later than it should have, and that the claim was already well outside the three-month limit even on the claimant's own date of 27 January 2021.

The tribunal considered the claimant's explanation that she had no knowledge of Scottish employment law and did not know the time limit. Applying the section 111(2) ERA 1996 test and the authority in Walls Meat Company Limited v Khan [1979] ICR 52, the tribunal held that her ignorance was not reasonable. It found that once she searched the internet she was able to find Polish-language employment advice, and there was no reason she could not have done so earlier.

The tribunal also relied on the further delay after advice was received and after the ACAS certificate was issued. It held that there was an unexplained gap between advice in around March or April 2021 and contacting ACAS on 3 August 2021, and that the almost month-long delay after the ACAS certificate before the ET1 was lodged was unreasonable. The tribunal concluded that the claim was time barred and that it did not have jurisdiction to hear it.