Mr T Gillard v Manpower UK Ltd: 1400241/2020
JUDGMENT
The Claimant having less than two years’ service with the Respondent, his claim for unfair dismissal is dismissed, for want of jurisdiction, subject to s.108(1) of the Employment Rights Act 1996. _____________________________ Employment Judge O’Rourke Date: 26 August 2020 Case No: 1400241/2020 (V) EMPLOYMENT TRIBUNALS Claimant: Mr T Gillard Respondent: Manpower UK Limited Heard at: Bristol (by video) On: 26 August 2020 Before: Employment Judge O’Rourke Appearances For the Claimant: In person For the Respondent: Mr Sutherland, solicitor PRELIMINARY HEARING JUDGMENT[1]Subject to s.123(1) of the Equality Act 2010, the Tribunal finds that is just and equitable to extend time to permit the Claimant to proceed with his claim of disability discrimination.[2]The Claimant’s application to strike out the Response, as having no reasonable prospects of success, is refused.REASONS
[1]The Claimant’s claim of disability discrimination has been brought out of time, but he requested that the Tribunal exercise its discretion under s.123(1) to extend time, to permit him to continue with the claim, as it would be just and equitable to do so.[2]The Claimant had applied for strike out of the Response, on the basis that it had no reasonable prospects of success.[3]I refer also, by way of reference, to the case management summary of same date, which sets out relevant background to this matter.[4]I deal with the latter application first and briefly. The Claimant considered that because the Response accepts that he made requests for reasonable adjustments that then his claim must succeed. However, it was pointed out to him that firstly (at least currently), the Respondent does not accept that he was, in fact, disabled at the relevant time. Secondly, even if he were disabled, it Case No: 1400241/2020 (V) does not accept that any PCP that may have been applied to him put him at a substantial disadvantage, in comparison with non-disabled persons. Thirdly, the Respondent contends that in any event the requested adjustments were either made, or were in hand and that therefore the Respondent (or EDF on its behalf) took such steps as were reasonable to have to take to avoid any disadvantage the Claimant suffered. Accordingly, therefore, it cannot be said that the Response has no reasonable prospect of success and the application is therefore refused.[5]Turning to the Claimant’s application to extend time, I granted it, for the following reasons:a. It is clear that if the last alleged act of discrimination was the termination of his assignment to EDF, on 2 August 2019 and the claim was not brought until 12 January 2020, then, even allowing for the one- month ACAS conciliation period, from 30 November to 30 December 2019, the claim is out of time, the primary time limit of 1 November having been missed. The Claimant said, however that he had deliberately waited for the outcome of his grievance and grievance appeal, before bringing his claim, as he wished to allow the Respondent every opportunity to resolve the dispute, in the hope of avoiding the need for these proceedings. Indeed, he feared criticism from the Tribunal, if he had not pursued that route.b. The Claimant had not unduly delayed in advancing that grievance procedure, having brought the grievance on the day his assignment was terminated (2 August) and after it was heard on 22 August and he was notified of the decision some several weeks or so later, promptly brought his appeal on 9 October and when notified of the failure of the appeal, on 22 October, resigned three days later and entered Early Conciliation on 1 November. If there was any delay in this process, it was not down to the Claimant.c. Tribunals have a wide discretion in such matters.d. Applying British Coal Corporation v Keeble [1997] IRLR 336 UKEAT, I consider the following factors: i. the delay was not excessive. ii. the cogency of the evidence will be unaffected by such delay. iii. the Claimant is unrepresented and did not consider that delaying until the outcome of the grievance procedure might prejudice his claim. While Robinson v Post Office [2000] IRLR 804 UKEAT indicates that there is no general principle that it will be just and equitable to extend time where the claimant was seeking redress through the employer’s grievance procedure, the general principle is that a delay on those grounds may justify the Case No: 1400241/2020 (V) extension of the time limit, but it is only one factor to be considered in any particular case. iv. when considering the balance of prejudice to the parties, in not extending the time limit, I consider that the balance falls firmly in the Claimant’s favour, as, if time is not extended, he will have no recourse to the Tribunal in respect of the alleged acts of discrimination.[6]Therefore, applying s.123(1) of the Act, I find that it is just and equitable to extend time to permit the Claimant to continue with his claim.