Mr N Burke v WSP UK Limited — 2024

Mr N Burke brought a claim of unfair dismissal against WSP UK Ltd. At the outset the Tribunal considered whether any disability discrimination claim had been raised, because Mr Burke referred in evidence to reasonable adjustments and to being dismissed because he was disabled. The Tribunal held that the ET1 did not raise a discrimination claim: only the unfair dismissal box was ticked, and the narrative about a suitable chair was treated as part of the background to the dismissal rather than an allegation of breach of the duty to make reasonable adjustments or disability discrimination.

The Tribunal found that Mr Burke was dismissed on 18 October 2023, so the normal unfair dismissal time limit expired on 17 January 2024. He did not contact ACAS until 19 April 2024, the Early Conciliation Certificate was issued on 30 April 2024, and the ET1 was lodged on 27 May 2024. The Tribunal held that ACAS Early Conciliation did not assist because it began after the primary limitation period had already expired.

On the issue of time limits, the Tribunal applied the statutory test in s.111 ERA 1996 and the authorities it cited on reasonable practicability, including Porter v Bandridge Ltd, Wall's Meat Co Ltd v Khan, London International College v Sen, Westward Circuits Ltd v Read and Northumberland County Council v Thompson. It accepted that Mr Burke had been unaware of the time limit and said his medical conditions had affected him, but it found that his ignorance was not reasonable because he had taken no steps to investigate his rights after dismissal.

The Tribunal also found that any lack of knowledge fell away by January 2024 when a friend who was an employment lawyer told him that he could bring a claim and should contact ACAS urgently. Even after that point he waited around three months to start Early Conciliation and about a further month to present the ET1. The Tribunal found that his health conditions did not explain that delay, because there was no evidence that they prevented him from researching, seeking advice, contacting ACAS or lodging the claim himself. It therefore held that it was reasonably practicable to present the claim in time, and in any event the claim had not been presented within a further reasonable period, so the claim was dismissed for lack of jurisdiction.