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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cunningham v Marks and Spencer PLC (Discrimination - Disability Unfair Dismissal) [2021] NIIT 13796_21it (12 November 2021)
URL: http://www.bailii.org/nie/cases/NIIT/2021/13796_21IT.html
Cite as: [2021] NIIT 13796_21it
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THE INDUSTRIAL TRIBUNALS
CASE REF: 13796/21
CLAIMANT: Alison Cunningham
RESPONDENT: Marks and Spencer PLC
JUDGMENT ON A PRELIMINARY ISSUE
The judgment of the tribunal is:-
(1) The claimant’s claim of unfair dismissal was presented outside the statutory time limit and the claimant has failed to establish that it was not reasonably practicable to have presented that claim within the statutory time limit.
(2) The claimant’s claim of disability discrimination has been lodged outside the statutory time limit and it is not just and equitable in all the circumstances to extend time.
(3) The claimant’s claims of unfair dismissal and disability discrimination are therefore dismissed for want of jurisdiction.
CONSTITUTION OF TRIBUNAL
Employment Judge (sitting alone): Employment Judge Orr
APPEARANCES:
The claimant appeared and was self-representing.
The respondent was represented by Ms McManus, Solicitor of Eversheds Sutherland Solicitors.
BACKGROUND
1. The claimant lodged her claim form in the tribunal office on 31 December 2020. In this she claimed unfair dismissal, notice pay, holiday pay and disability discrimination.
2. The claimant was employed as a Customer Assistant for 12 hours a week in the respondent’s Ballymena store. The claimant had been absent by reason of ill-health/sickness from 8 December 2017 until her employment was terminated by the
respondent on the grounds of incapacity on 10 July 2020. The claimant did not appeal this decision.
3. At a Preliminary Hearing for case management purposes on 17 June 2021 a Preliminary Hearing was listed to determine the following:
(1) Whether the claimant’s complaint of unfair dismissal was presented to the tribunal before the end of the period of three months beginning with the effective date of termination;
(2) If not, if the tribunal is satisfied that it was not reasonably practicable for the claimant to have lodged her claim of unfair dismissal before the end of that period, has the claimant brought her claim within such further period as the tribunal considers reasonable?
(3) Whether the claimant’s claim of disability discrimination has been presented to the tribunal within the statutory time limit of three months and if not, whether in all the circumstances it is just and equitable to extend time, as a condition of the claimant being permitted to proceed with her claim?
4. The tribunal was presented with a bundle of documents containing the claim form, the response form, Record of Proceedings, medical evidence/reports and discovery documentation exchanged between the parties. In its determination of the preliminary issue the tribunal considered only the documents to which it was referred during the course of the Preliminary Hearing.
EVIDENCE
5. The claimant submitted a written statement on which she was cross-examined. Mr Christopher Cunningham, the claimant’s son also gave evidence orally at the hearing on behalf of the claimant.
6. The tribunal was presented with a chronology of events that had been agreed between the parties for the purposes of this Preliminary Hearing.
THE LAW
Unfair Dismissal
7. The time limit for bringing a claim of unfair dismissal is contained in Article 145 of the Employment Rights (Northern Ireland) Order 1996;
“(1) A complaint may be presented to an Industrial Tribunal against an employer by any person that he is unfairly dismissed by the employer.
(2) Subject to the following provisions of this Article, an Industrial Tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.
8. The Employment Appeal Tribunal in Bodha v Hampshire Area Health Authority [1982] ICR 200 confirmed that the ‘reasonably practicable’ test for an extension of time did not permit an employee to plead that it had not been ‘reasonable’ for him to present his claim for unfair dismissal before an internal appeal procedure had been completed. It concluded that the correct test was a strict test of practicability, namely where the act of presenting the complaint in time was reasonably capable of being done. It held:-
“The statutory words still require the industrial tribunal to have regard to what could be done albeit approaching what is practicable in a common sense way. The statutory test is not satisfied just because it was reasonable not to do what could be done.”
9. In Palmer and Saunders v Southend-on-Sea Borough Council [1984] ICR 372, the Court of Appeal considered the ‘reasonably practicable’ test for an extension of time. The Court stated:-
“In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However we think that one can say that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view too favourable to the employee. On the other hand, ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done - different for instance, from its construction in the context of the legislation relating to factories : compare Marshall v Gotham Company Ltd [1954] AC 360. In the context in which the words are used in the Employment Protection (Consolidation) Act 1978, however ineptly as we think, they mean something between these two. Perhaps to read the word ‘practicable’ as the equivalent of ‘feasible’ as Sir John Brightman did in Singh v Post Office Case [1973] ICR 437 and to ask colloquially and untrammelled by too much legal logic - ‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ - is the best approach to the correct application of the relevant sub-section.”
10. In Lowri Beck Services Limited v Patrick Brophy [2019] EWCA Civ 2490 Lord Justice Underhill summarised the case law on the correct approach to the test of reasonable practicability (at paragraph 12):-
“(1) The test should be given “a liberal interpretation in favour of the employee (Marks and Spencer plc v Williams–Ryan [2005] EWCA Civ 470 which reaffirms the older case law going back to Dedman v British Building and Engineering Appliances Ltd [1974] ICR 32).
(2) The statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as to whether it was “reasonably feasible” for the claimant to present his or her claim in time: see Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119.
(3) If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will have been reasonably practicable for them to bring the claim in time (see Wall’s Meat Co Ltd v Khan [1979] ICR 52); but it is important to note that in assessing whether ignorance or mistake are reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made.
(4) If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman).
(5) The test of reasonable practicability is one of fact and not of law (Palmer).”
11. The onus of proof is on the claimant to establish that it had not been reasonably practicable or ‘reasonably feasible’ for the claim to have been presented before the end of the three month period or before the end of such further period as the tribunal considers reasonable.
Disability Discrimination
12. The time limit within which proceedings must be brought is set out in Schedule 3 to the Disability Discrimination Act 1995:
“(1) An employment tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning when the act complained of was done.
(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so”.
13. The discretion under this test is broader than under the “not reasonably practicable” test. The burden is on the claimant to persuade the tribunal that it is just and equitable to extend time.
14. In Robertson v Bexley Community Centre [2003] IRLR 434, the Court of Appeal stated:-
“It is also important to note that the time-limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion, quite the reverse, the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so, the exercise of discretion is the exception rather than the rule.”
15. In Department of Constitutional Affairs v O’Brien UK EAT/0139/07, Mr Justice Langstaff stated:-
“1. Time-limits are draconian. However, they are not contrary to Article 6 of the Convention of Human Rights, provided there is a means of ameliorating the necessary harshness. A time-limit of three months is familiar territory to many of the claims which come before the Employment Tribunal jurisdiction.
2. In this claim, the harshness of a three month cut-off, for what might otherwise be a perfectly good claim, is ameliorated by the provision that a tribunal may hold that it is just and equitable for the claimant to proceed, notwithstanding the expiry of the relevant time-limit. However, it is plain from the very nature of time-limits that they are intended to be of general application, subject only to legitimate exceptions; and it must follow that good reason must be shown for such exceptions.”
16. In British Coal v Keeble [1997] IRLR 336 the EAT suggested that a tribunal would be assisted by the factors mentioned in Section 33 of the Limitation Act 1980, which deals with the exercise of discretion by the courts in personal injury cases.
“It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular to:-
(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the party sued had cooperated with any request for information;
(d) the promptness with which the plaintiff acted once her or she knew of the facts giving rise to the cause of action; and
(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”
17. In Olufunso Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 (15 January 2021) LJ Underhill in the Court of Appeal stated:-
“38. I am not the first to caution against giving the decision in Keeble a status which it does not have. I have already noted the Judge’s reference to the decision of this Court in Afolabi at para. 33 of his judgment in that case Peter Gibson LJ said:-
“Nor do I accept that the ET erred in not going through the matters listed in Section 33(3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a check-list … in many cases, I do not think that it can be elevated into a requirement on the ET to go through such a list in every case, provided of course no significant factor has been left out of account by the ET in exercising its discretion.”
In Department of Constitutional Affairs v Jones [2007] EWCA Civ 894 Pill LJ at para 50 of his judgment referred to Keeble as “a valuable reminder of factors which may be taken into account” but continued:-
“Their relevance depends on the facts of the particular case. The factors which may have to be taken into account depend on the facts and the self-directions which need to be given must be tailored to the facts of the case as found:-
That point was further emphasised by Elisabeth Laing J, sitting in the EAT, in Miller v Ministry of Justice [2016] UKEAT 004/15: see paras.11 and 29-30 of her judgment. In Abertawe Bro Morganwg University Local Health Board v Morgan [2018] EWCA Civ 640, Leggatt LJ, having referred to Section 123, says, at paras. 18-19 of his judgment:-
“18 … It is plain from the language used (‘such other period as the tribunal thinks just and equitable’) that Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike Section 33 of the Limitation Act 1980, Section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it will be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list. Thus, although it has been suggested, that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in Section 33(3) of the Limitation Act 1980 (see Keeble), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see [Afolabi] …
19 … That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).
Although the message of those authorities is clear, its repetition may still be a value in ensuring that it is fully digested by practitioners and tribunals.”
RELEVANT FINDINGS OF FACT
18. The tribunal made the following findings of fact for the purposes of this Preliminary Hearing only having considered the evidence - oral and documentary and taking into consideration the submissions of the parties.
19. The claimant suffers from a functional neurological disorder that is characterised by frequent limb jerking movements. It is common case that the claimant was certified unfit for work by reason of this condition from 8 December 2017 until the termination of her employment in July 2020. The claimant also has a history of anxiety, depression, OCD and back pain.
20. The claimant resides at home with her son and mother and is the primary carer for her mother who was designated as in “the extremely vulnerable” category during Covid 19.
21. In December 2018 whilst on long term sickness absence, the claimant applied for ill-health early retirement, however this was refused.
22. It is common case that the claimant attended a capability termination meeting (by telephone) on 9 July 2020, the outcome of which was the termination of her employment on the grounds of ill-health/ incapacity. The claimant did not appeal this decision despite being offered the opportunity to do so in the termination letter dated 10 July 2020. The termination letter confirmed to the claimant that she would be paid in lieu of notice.
23. By letter dated 21 August 2020 the respondent wrote to the claimant to confirm a salary overpayment of £1,972.57. The claimant emailed the respondent on 26 August 2020 expressing her disbelief that she owed the respondent any money and requested clarification on how the debt had occurred, the claimant specifically stated:-
“I have not received any money from Marks for about two years and any money prior to that I was led to believe was sick pay. If I did receive this in error this was not my fault and therefore I don’t feel I should be held liable for something that someone else actioned.”
24. The claimant sent a further email to the respondent on 2 September 2020 as follows:
“In response to your email (dated 26 August 2020) and my subsequent response which was not replied to, as it was sent to your personal Marks and Spencer address contained within your original email.
I wish to have further information regarding this apparent overpayment that I am supposed to have received, whilst still being in employment of Marks and Spencer. As I mentioned in the previous email, I am in complete disbelief and utter shock that I apparently owe a debt to Marks and Spencers of nearly £2,000. I wish to have clarification about how exactly this has supposedly occurred and I would strongly disagree that I have received any overpayment. On 27 August 2020, I have also received a letter via Royal Mail about repaying the debt. However until further information and clarification is supplied, I do strongly argue that I did not receive any extra money from Marks and Spencer.
Originally I was led to believe that there was a query over my leaving date. I can confirm that my last day of employment was 10th July 2020.
Additionally in my P45 it states that I received £1,109.39 and I would like to know when I was sent this as I have not received any money from Marks and Spencer since April 2019.
I would appreciate a response to this email.
Thanks.
Alison Cunningham.”
25. The tribunal accepts the claimant’s unchallenged evidence that she arranged and attended a face to face meeting with her local MLA Ms Claire Sugden on
28 August 2020 for the purposes of, in her own words, “sorting out” her pay in lieu of notice issue. In the claimant’s witness statement she states:-
“I explained the whole situation about the occupational health reports and subsequent dismissal on the grounds of ill-health as well as my payment in lieu of notice with outstanding holiday pay to her”.
26. The tribunal finds that the focus of the claimant’s enquiries was the failure to be paid in lieu of notice and the respondent’s request for repayment of monies. The tribunal finds that it was clear from the claimant’s evidence and email exchanges that the claimant was actively seeking advice in respect these issues.
27. The tribunal accepts the claimant’s unchallenged evidence that she attended a meeting with a representative from the Cedar Foundation on 16 September 2020. The Cedar Foundation provides assistance to individuals who are carers. During the Covid-19 pandemic, this organisation delivered food and provided assistance where necessary to carers. The claimant’s unchallenged evidence was that she attended weekly sessions with a representative from the Cedar Foundation from
22 October 2020 onwards for about four weeks. There is no dispute that the claimant was provided with the contact details of the Law Centre NI by the Cedar Foundation representative. The tribunal concludes that the claimant had clearly raised or discussed her employment issues with the Cedar Foundation representative at some point during the period 16 September 2020-November 2020. The claimant’s unchallenged evidence in her witness statement was:-
“The representative from the Cedar Foundation felt it would be beneficial for me if I could contact the Law Centre NI in relation to my situation with Marks and Spencer as well as my PIP appeal.”
28. The claimant was unable to confirm to the tribunal the specific date on which she received a Law Centre NI leaflet from the Cedar Foundation representative. As per the agreed chronology, the claimant first telephoned the Law Centre NI on
17 November 2020. She therefore had received the Law Centre NI leaflet prior to this date. There is no dispute between the parties that the claimant was informed by the Law Centre NI solicitor, between the dates 25-30 November 2020) of the three month time limit within which to bring tribunal proceedings. The claimant was fully aware that she was outside the statutory time limit to bring her claims at the latest 30 November 2020.
29. It is common case that the respondent informed the claimant by email dated
22 October 2020 that she was not required to repay any monies to the respondent. By email response dated 23 October 2020 the claimant raised a number of further queries regarding pay in lieu of notice and issues regarding her Universal Credit entitlement. There was additional email correspondence between the claimant and the respondent’s overpayments team in November 2020.
30. It is common case that the claimant contacted the Labour Relations Agency on
8 December 2020 to obtain the requisite Early Conciliation Certificate. The claimant completed her claim form online and submitted it on 31 December 2020. The tribunal accepts that the claimant’s son sat beside her while she typed her claim form.
31. The tribunal finds from the claimant’s evidence and from the content of the correspondence at all the relevant times the claimant was actively seeking advice and assistance during the period 28 August 2020 until the end of November 2020 in respect of her concerns regarding pay in lieu of notice and the respondent’s request to repay monies by reason of an overpayment.
Medical Evidence
32. There is no dispute that the claimant has a history of chronic anxiety, depression, OCD and back pain.
33. The tribunal was provided with a letter dated 24 June 2021 from
Ms Suzanne McMullan, Senior Social Worker (Coleraine Community Mental Health Team). This confirmed the claimant’s diagnosis of OCD and generalised anxiety disorder with panic attacks and a level of social phobia. This letter contained the following:-
“She engages well with the service and attends appointments regularly. As well as seeing me, she sees the Consultant Psychiatrist on occasions.
…
As a result in a deterioration in her physical and mental health Ms Cunningham was signed off work sick in December 2017. Due to the nature of her illness she was unable to return to work and was subsequently dismissed on medical grounds on July 2020. This dismissal caused Ms Cunningham a significant level of distress, and had a detrimental effect, both on her mental health, as well as exacerbating her physical health symptoms, particularly in relation to her Functional Movement Disorder.
At this time Ms Cunningham required more intensive input from our services as her mental health had deteriorated as a result of the dismissal, and she became more anxious, withdrawn and isolated. She continues to struggle with her daily living activities, and requires an increased level of support. In regards to the Employment Tribunal Application it is my opinion that at that time she would not have had the motivation, cognition or ability to make an appeal within the three month period to the tribunal, and continues to find the process distressing despite some gradual improvement”.
34. The claimant’s unchallenged evidence was that she engaged in fortnightly telephone appointments with Ms McMullan during the period July to December 2020.
35. The relevant entries in the claimant’s GP Notes and Records are as follows:-
8 September 2020
“Also stressed. Says M&S says they overpaid her. She thinks it is a mistake and is waiting a response from them. Also worried about movement disorder and has been discharged from neuro. Still awaits EMG. Maybe more related to her mental state”.
8 December 2020
“Telephone encounter probs with M&S. Since dismissal … re … Universal Credit … going round and round in circles … diff coping … going to Labour Relations”.
THE CLAIMANT’S SUBMISSIONS
36. The claimant relies on two reasons for her failure to lodge her claim form within the relevant statutory time limits:-
· lack of knowledge
· ill-health/medical reasons.
37. The claimant asserts that she was led to believe there was nothing she could do about the decision to dismiss her because her line manager informed her she could do nothing about the report regarding her ill-health retirement application. She asserts she was “brought up in an era where people are given an element of respect” - she believed her line manager to be a person in authority. In addition the claimant stated she did not like to draw attention to herself.
38. The claimant contends that her anxiety, generalised anxiety disorder, depression and back pain results in her feeling very tired and suffering from ‘brain fog’. She claims that she went into ‘a state of shock’ after realising she was no longer employed and that it took her some time to process what had happened to her and to obtain specialist medical mental health input.
39. The claimant relies on the impact of the Covid-19 pandemic as a relevant factor affecting her health during this period. She asserts that the various lockdowns caused her great anxiety and stress which impacted on her mental and physical health.
40. The claimant also referred to the fact that her father died on 29 December 2013 and therefore each year she finds Christmas a difficult period and that by reason of this it took her some time to complete her claim form on 31 December 2020.
41. The claimant contends that although she was fully aware of the statutory time limit she simply ‘could not face going on-line’ during the period November to
December 2020.
THE RESPONDENT’S SUBMISSIONS
42. The respondent made the following submissions:
(1) The burden of proof is on the claimant to persuade the tribunal that the claims which are out of time should be accepted.
(2) The claimant became aware of the statutory time limit at some point between 25-30 November 2020.
(3) The claimant delayed making contact with the Labour Relations Agency until 8 December 2020 to obtain an Early Conciliation Certificate furthermore the claimant delayed a further 23 days until 31 December 2020 before completing and lodging her claim form in the tribunal office. No satisfactory explanation has been provided in respect of this further delay which is unreasonable.
(4) The respondent accepts the claimant has health issues however argues that no evidence has been presented as to why her health challenges prevented her from being able to take steps in the period July to December 2020. In addition the claimant’s evidence is that she was seeking advice and engaging with organisations from August to December 2020.
(5) The medical evidence submitted does not provide specific examples of when the claimant attended with the Community Mental Health Team or how her health was affected during the relevant time.
(6) The claimant’s conduct during this period is not representative of someone whose “anxiety makes it difficult for her to cope well with change or meeting new people” as stated by Ms McMullan - her Mental Health Practitioner.
Ms McMullan’s letter that the claimant became ‘withdrawn and isolated’ or that ‘she would not have had the motivation, cognition or ability to make an appeal’ is contradicted by the claimant’s own conduct and behaviour at all relevant times. Specifically she was actively corresponding to rectify what she saw as an error in her pay; this included emails to the respondent company, contact and attendance with her local MLA, meetings with the Cedar Foundation in September, October and November; telephone attendance with the Law Centre in November and contact with the Labour Relations Agency in December 2020.
(7) The claimant’s ill health did not impact on her ability from July to December to present a claim form.
(8) Lack of knowledge and/or ignorance of rights in all the circumstances of this case is not an acceptable reason given the claimant’s attempts to obtain advice in August and in November in respect of her rights.
CONCLUSION
Unfair Dismissal
43. The tribunal has to determine whether it was reasonably practicable for the claimant to have brought her claim within three months of the date of the effective date of termination, and if not was the claim received within such further period as the tribunal considers reasonable.
44. As per the legal authorities set out above, it is for the claimant to show that it was not reasonably practicable to present her claim within the statutory time limit. The correct test is a ‘strict test of practicability’ ie was the act of presenting the complaint in time one that was reasonably capable of being done.
45. The tribunal concludes, in all the circumstances, that the act of presenting the claim in time was one that was reasonably capable of being done and rejects the claimant’s argument that it was not reasonably practicable for her to have lodged her claim taking into consideration the following:-
(1) The tribunal does not accept Ms McMullan’s assertion that:-
“At that time she would not have had the motivation, cognition or ability to make an appeal with the three month period to the tribunal, and continues to find the process distressing despite some gradual improvement”.
It is clear from the findings of fact set out above, that the claimant’s health did not prevent her from seeking advice and assistance in the months of August, September and October. She arranged and attended a meeting with her MLA; she was emailing the respondent raising concerns regarding overpayments and a failure to be paid in lieu of notice and she attended meetings with the Cedar Foundation. This conduct contradicts entirely the contents of Ms McMullan’s letter dated 21 June 2021. The claimant was medically fit and capable of engaging with a number of different individuals and associations at all relevant times.
(2) The tribunal rejects the claimant’s assertion that she went into a ‘state of shock’ as alleged; there is no medical evidence to substantiate this and furthermore the claimant had been absent for 2½ years by reason of ill-health during which she applied for ill-health retirement, therefore the tribunal does not accept that the claimant could be shocked that she was no longer employed as she herself had been applying to be retired on the grounds of ill-health.
(3) Ms McMullan provides no explanation as to how the claimant’s medical conditions improved or altered by 31 December 2020 to allow the claimant to submit her claim.
(4) There was no evidence, medical or otherwise provided to the tribunal of the impact of Covid-19 on the claimant’s ability to seek advice and assistance or that the Covid-19 pandemic prevented the claimant from presenting her claim to the tribunal within the time limits. The claimant had access to the internet, sent emails and had telephone contact with the respondent and different sources of advice.
(5) The tribunal does not accept that the claimant’s alleged ignorance of her legal rights is reasonable and specifically rejects the claimant’s assertion that she was led to believe there was nothing she could do about the decision to dismiss her. It is clear from the claimant’s evidence that reference to the information from her line manager related only to the claimant’s ill-health retirement application and not the termination of her employment. The claimant had no difficulty in seeking legal advice in respect of her rights relating to an alleged overpayment or a failure to receive pay in lieu of notice; she was actively instructing her MLA to take the necessary action through corresponding with the respondent on her behalf. The claimant provided no explanation as to why she did not make specific enquiries as to her legal entitlement to bring a tribunal claim for unfair dismissal and/or disability discrimination. In all the circumstances the failure of the claimant to make the relevant enquiries and obtain specific advice on these claims was unreasonable
46. Even had the tribunal determined that it was not reasonably practical for the claimant to present her claim form within the statutory time limit, the tribunal finds that the claimant has not brought her claim within such further period as the tribunal considers reasonable. The claimant did not act promptly once she became aware of the statutory time limits. The claimant provided no explanation as to why she did not lodge her claim form until 31 December 2020 nor did she explain the delay between her obtaining the Early Conciliation Certificate on 8 December until 31 December 2020 in circumstances where she was fully aware that was outside the statutory time limits. The tribunal specifically rejects the claimant’s contention that the anniversary of her father’s death is a relevant factor. Clearly within two days of the anniversary date she was capable of submitting her application to the tribunal on-line.
Disability Discrimination
47. As referred to above the claimant accepts that her claims have been presented outside the statutory time limit, accordingly it is for the claimant to persuade the tribunal that it is just and equitable in all the circumstances to extend the time limit.
48. As per the tribunal’s findings of fact and conclusions set out above at paragraph 42, the tribunal does not accept the claimant’s health was a genuine reason for the delay in lodging her claim.
49. As per the tribunal’s conclusions above, the tribunal rejects the claimant’s contention that she was ignorant of her rights and lacked the requisite knowledge. This was simply not reasonable when the claimant was actively seeking advice from various sources on her employment issues. The claimant’s employment rights were clearly on her mind throughout the period of July to December 2020. She had no difficulty contacting her employer to raise issues of inaccuracy or correspond by email after she received the letter in August 2020 in respect of an alleged overpayment. She arranged a face to face appointment during the Covid-19 pandemic with her MLA and continued to correspond with her employer throughout the three month period following the termination of her employment. The tribunal does not accept that the claimant is someone who does not like to be seen to drawn attention to herself as she actively sought assistance from relevant organisations including the Community Mental Health Team, Cedar Foundation and the Law Centre NI.
50. Furthermore the claimant did not act promptly to take steps to obtain specific legal advice as to her legal rights to bring a tribunal claim. It was incumbent on the claimant to make proper enquiries as to any time limits for bringing a claim arising out of her termination of employment and there has been no explanation for why the claimant failed to do so. It is clear from her own evidence that she sought advice on the issue of notice pay and overpayments; there is no explanation as to why the claimant did not seek specific advice in respect of a tribunal claim of unfair dismissal or disability discrimination. The claimant provided no credible explanation for the delay in lodging her claim from the period of 8 December 2020 until 31 December 2020.
51. The onus is on the claimant to establish that it is just and equitable to extend time.
52. The tribunal reminded itself that time limits in tribunal clams are strictly enforced and there is no presumption that a tribunal should extend time. There is obvious prejudice to a respondent in having to defend a claim in terms of costs, expense and resources.
53. Having considered all of the above and taking into consideration the Keeble factors of delay, reasons for delay and not acting promptly as per the findings of fact and in balancing the prejudice to the respondent, the tribunal finds that in all the circumstances it is not just and equitable to extend the time-limit to enable the claimant’s claim of disability discrimination to proceed.
54. The claimant’s claims are therefore dismissed for want of jurisdiction.
Employment Judge:
Date and place of hearing: 24 August 2021, Belfast.
This judgment was entered in the register and issued to the parties on: