Mrs M Bark v Represented by:- Mr J McHugh - Counsel Wigtownshire Women’s Aid — 2019

The claimant brought complaints about unlawful deduction from wages and disability discrimination arising from the respondent's decision to pay SSP rather than contractual sick pay during an absence beginning on 19 December 2017. At the preliminary hearing the respondent's strike-out application was refused and the claimant's amendment to add a reasonable adjustments complaint was allowed, but this judgment decided only the time-limit issues. The claimant said she relied on her trade union and its legal advisers after being told on 18 December 2017 that she would receive SSP only.

On the unlawful deduction claim, the tribunal held that the relevant deduction date was 25 February 2018, not 25 March 2018 as the claimant's advisers had thought. Applying the 'reasonably practicable' test under s23 of the Employment Rights Act 1996, and referring to Dedman and later authorities, the tribunal found that the delay arose from advisers' mistake and that this did not prevent the complaint from being presented in time. The tribunal therefore held that it had no jurisdiction to hear the unlawful deduction complaint and dismissed it.

On the disability discrimination claim, the tribunal applied the 'just and equitable' test in s123 of the Equality Act 2010 and the factors discussed in British Coal Corporation v Keeble. It accepted that the claimant acted promptly once she knew she was being paid SSP, that she immediately took expert advice, and that there was no indication that the delay had affected the cogency of the evidence or caused material prejudice to the respondent. Time was extended to 2 August 2018 and the disability discrimination claim was allowed to proceed to a further Preliminary Hearing. Both parties had raised expenses issues, but the tribunal made no expenses award and invited separate applications instead.