Case 4112441/2021 · Employment Tribunal
Mr. S Gubby v James Donaldson & Sons Ltd — 2022
- Case reference
- 4112441/2021
- Decision date
- 8 March 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge B Beyzade
Parties
2 namedClaimant
Mr. S Gubby
Respondent
Key findings
Tribunal's reasoningMr S Gubby worked for James Donaldson & Sons Ltd as a Stock Controller from 10 May 2005 until 13 April 2021. The tribunal recorded that he was paid £2,160 before tax and about £1,800 net per month, and that he had received a £3,959 bonus for the 2019/2020 trading year in November 2020. The claims before the tribunal were unfair dismissal, disability discrimination, unlawful deduction from wages and breach of contract relating to non-payment of a bonus.
The tribunal found that the claimant was dismissed on 13 April 2021 for gross misconduct after attending work under the influence of cannabis, and that his appeal was rejected on 28 April 2021 with confirmation sent on 4 May 2021. It held that the unfair dismissal claim was out of time: the primary limitation period expired on 12 July 2021, ACAS early conciliation did not revive the time limit because it began only on 14 October 2021, and the ET1 was not lodged until 17 November 2021. Applying the statutory test under s.111(2) ERA 1996, the tribunal was not satisfied that it was not reasonably practicable to bring the claim in time, and it would not have extended time in any event.
The disability discrimination claim was also dismissed as time-barred. The claimant said the dismissal and appeal outcome amounted to direct disability discrimination and/or discrimination arising from disability. The tribunal treated the relevant conduct as extending from 13 April 2021 to 4 May 2021, found the primary time limit expired on 3 August 2021, and concluded that it was not just and equitable to extend time under s.123 Equality Act 2010. The tribunal noted the claimant’s ill-health evidence and difficulties, but found that he had been able to deal with the appeal process, contact ACAS in October 2021, and present his ET1 in November 2021, and that the evidence did not show an impediment sufficient to justify an extension.
On the bonus-related claims, the tribunal found that the claimant had not presented a valid unlawful deduction from wages claim because, on his own case, any bonus for FY2020/2021 would have been payable in the November 2021 payroll and his ET1 was presented on 17 November 2021, before that payroll date. It held that the breach of contract claim did not arise or remain outstanding on termination in relation to the alleged 2020/2021 bonus, and alternatively that it was also out of time. All claims were therefore dismissed and no remedy was awarded.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Dismissed as presented out of time under s.111(2) ERA 1996. The effective date of termination was 13 April 2021, the primary time limit expired on 12 July 2021, ACAS early conciliation began on 14 October 2021, and the ET1 was presented on 17 November 2021. The tribunal was not satisfied that it was not reasonably practicable to present the claim in time or that the further delay was reasonable. | Dismissed | — | — |
| Unlawful deduction from wages | Dismissed. The claim related to a bonus said to be due for FY2020/2021. The tribunal found the ET1 was presented before the respondent’s November 2021 payroll date, so no unlawful deduction had yet occurred on the claimant’s own case, and in any event the claim was not presented in accordance with s.23 ERA 1996. | Dismissed | — | — |
| Breach of contract | Dismissed. The tribunal found the alleged bonus obligation had not arisen or been outstanding on termination, because the bonus was not due until after the November 2021 payroll date. Alternatively, if the claim had arisen on termination, it was out of time under the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 and the tribunal was not satisfied it was not reasonably practicable to present it in time. | Dismissed | — | — |
| Disability discrimination | Dismissed as out of time under s.123 Equality Act 2010. The claimant relied on dismissal on 13 April 2021 and the appeal outcome confirmed on 4 May 2021 as direct disability discrimination and/or discrimination arising from disability. The tribunal treated the events as conduct extending over a period, found the primary time limit expired on 3 August 2021, and declined to extend time as just and equitable. |
Legal tests applied
12 references- s.111(2) ERA 1996
- not reasonably practicable test
- Porter v Bandridge Ltd
- Dedman v British Building and Engineering Appliances
- s.23 ERA 1996
- Coors Brewers Ltd v Adcock
- Arora v Rockwell Automation Ltd
- s.123 Equality Act 2010
- just and equitable extension
- British Coal Corporation v Keeble factors
- Southwark LBC v Afolabi
- Adedeji v University Hospitals Birmingham NHS Foundation Trust
Official outcome judgment PDF
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