Mr J Robertson v Optosafe Limited — 2023

Mr J Robertson was employed by Optosafe Limited from October 2017 until his resignation took effect on 4 June 2021. On 3 June 2021 he entered into a settlement agreement in relation to the termination of his employment, and the tribunal recorded that he received legal advice from a solicitor before signing it. The agreement's schedule included claims such as unfair dismissal, detriment, disability discrimination and sexual orientation discrimination. The claimant did not make an early conciliation notification to ACAS until 12 September 2023 and presented his ET1 on 14 September 2023.

At the preliminary hearing, the tribunal identified the pleaded claims in the ET1 as unfair dismissal, whistleblowing, discrimination on the grounds of disability and sexual orientation, and some additional matters that were outside the tribunal's jurisdiction. It recorded the claimant's evidence about a 2020 motorcycle accident, later illness, and his investigation of events after leaving employment, but found that this did not explain why he had not contacted ACAS by the limitation deadline of 3 September 2021. The tribunal also noted that the claimant had solicitor advice in June 2021 covering the effect of the settlement agreement on the claims later advanced.

Applying the reasonable practicability test under section 111(2) ERA 1996 and section 48(3) ERA 1996, the tribunal held that the claimant had not shown that it was not reasonably practicable to present the unfair dismissal and whistleblowing claims in time. It referred to the delay of more than two years, the absence of medical evidence explaining the effect of the claimant's health issues on presentation of the claims, and the fact that he had spent time investigating the matter rather than presenting the claims promptly.

For the discrimination claims, the tribunal applied the just and equitable test under section 123 Equality Act 2010 and concluded that time should not be extended. It relied on the existing settlement agreement, the claimant's legal advice, the lack of coherent and particularised allegations, the prejudice to the respondent, and the claimant's failure to explain the delay satisfactorily. The judgment therefore held that all claims were time barred and that the tribunal had no jurisdiction to hear them. It added that, had the point required determination, the settlement agreement met the statutory conditions in sections 203(3) ERA 1996 and 147(3) Equality Act 2010 and would have excluded jurisdiction, referring to Bathgate v Technip Singapore PTE Limited.