Mr S Pendleton v WGM Engineering Ltd — 2019

Mr S Pendleton presented a discrimination claim on 14 December 2018 arising from a racist comment made by his line manager on 24 August 2017 and his dismissal on 25 August 2017. The tribunal recorded that the complaint was outside the ordinary three-month time limit. It also recorded that Mr Pendleton was not pursuing an unfair dismissal claim, so only the discrimination time-bar issue remained for determination.

The tribunal found that Mr Pendleton knew about employment tribunal claims and time limits, had access to a computer and the internet, and did not seek advice from ACAS, Citizens Advice, or a legal adviser. It noted that he chose to report the matter to Police Scotland first, that the internal grievance process had ended by November 2017, and that he did not contact ACAS until around March 2018. The police later advised in October 2018 that no crime had been committed, although the matter was treated as a hate incident.

Applying section 123 of the Equality Act 2010 and the just and equitable test, the tribunal held that it would not extend time. It considered the length of the delay, the absence of any ongoing process by the respondent, the lack of new information from the police, the claimant’s failure to act sooner, and the balance of prejudice. The tribunal accepted that the August 2017 incident itself was unlikely to be affected by delay, but found that Mr Green, who dismissed the claimant, would be an essential witness and was no longer employed by the respondent. It therefore concluded that it did not have jurisdiction to hear the discrimination complaint.