M Kearns Mr S Lyttle v Sir Robert McAlpine Ltd — 2025

At a preliminary hearing on time bar, the tribunal considered the claimant’s claims of unfair dismissal, age discrimination, unlawful deduction from wages in respect of a bonus, and an alternative breach of contract claim. The claimant had worked for the respondent from 3 March 1998 until his redundancy dismissal on 31 December 2024. He said the respondent had operated a retention bonus scheme on the Haymarket project and that, in the redundancy exercise, the older of two senior project managers was selected while a younger comparator was retained.

The tribunal held that the unfair dismissal and bonus claims were out of time. Applying the section 111 ERA 1996 “reasonably practicable” test, together with section 23 ERA 1996 and article 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 for the contract claim, it accepted that the claimant had been stressed and not in the right head-space but found that this did not prevent him from presenting in time. It noted that he had internet access, had not sought medical help or produced medical evidence, and had succeeded in obtaining new employment during the limitation period. Those claims were dismissed for lack of jurisdiction.

For the age discrimination claim, the tribunal applied the section 123 Equality Act 2010 “just and equitable” test and considered the Keeble and Afolabi factors. It found the delay was about nine weeks, that the claimant knew of the possibility of such a claim for years, and that he had access to the internet and to legal advice through his home insurance but did not act until after the limitation period had expired. The tribunal also observed that the pleaded case was not strong on its face because a difference in age and treatment between two comparators, both in their fifties, did not by itself show that age was the reason for the redundancy selection. It therefore refused to extend time and dismissed the discrimination claim.