Mr K A Munro v Western Buses Ltd T/a Stagecoach West Scotland: 4103766/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103766/2025

Between

Mr Kenneth Andrew MunroClaimant

Western Buses Ltd t/a Stagecoach West ScotlandRespondent

Before

Employment Judge O’Donnell

Ms R Page (instructed by Solicitor) for respondent

Date 21 January 2026

JUDGMENT

The judgment of the Employment Tribunal is that the claim was presented to the Tribunal outwith the statutory time limit and was not presented within a period that the Tribunal considers to be just and equitable. The claim is, therefore, dismissed.

REASONS

[1]The claimant has brought complaints under the Equality Act 2010 relying on the protected characteristic of disability. The complaints relate to his unsuccessful job application to the respondent and the interview process itself; he alleges that the decision not to appoint him to the job of trainee bus driver amounts to discrimination arising from disability; he alleges that there was a failure to comply with the duty to make reasonable adjustments in relation to how the interview for the job was conducted.

[2]The respondent denies all the claims. They deny that there was any breach of the Equality Act and rely on a number of specific defences. The primary defence is that the claim has been lodged out of time and so it is said that the Tribunal does not have the power to hear the claim. The present hearing has been listed to determine this issue of time bar.

[3]The respondent also relies on specific defences relating to their lack of knowledge of both the claimant’s disability and that he was placed at a substantial disadvantage as a disabled person by the way in which the interview was conducted.

Evidence

[4]The Tribunal heard evidence from the claimant in relation to why there had been a delay in lodging his claim. Findings in fact

[5]The Tribunal made the following relevant findings in fact.

[6]The claimant applied for the job of trainee bus driver with the respondent and had an interview for this job on 17 February 2025.

[7]The claimant was not offered the job by the respondent. He was informed of this by email approximately two weeks after the interview. The claimant asked for feedback and made a subject access request to the respondent.

[8]The claimant received a reply to the subject access request sometime in March 2025 but he cannot recall the precise date. The documents he received showed that he scored 100% in the assessments for driving and theory. He considered that this showed he was a strong candidate for the job and that he had performed as well as he could have. He came to the view that if adjustments had been made to the interview in relation to his autism spectrum condition then there would have been a good chance he would have been taken on by the respondent.

[9]The claimant did not seek legal advice in relation to his rights in relation to this issue. He carried out his own research online but did not do this immediately on receiving the response to the subject access request. He carried out his research over time and his knowledge of his rights developed as he went along.

[10]The claimant is a member of various groups relating to neurodiversity and spoke to other members of these groups about the case. This was the other source of information which helped him develop his knowledge base.

[11]Over time the claimant came to the knowledge that he could pursue a claim in the Employment Tribunal. A particularly significant revelation to him was that he did not need to be employed by the respondent to pursue the present claim; he had understood that he could only bring a claim to the Employment Tribunal if he had been employed for a period of time but he later learned that the Equality Act applied to job interviews and did not need a period of employment. He could not recall when he learned this.

[12]The claimant’s research also uncovered the time limit for pursuing a claim to the Tribunal and the need to engage in Early Conciliation through ACAS. Again, the claimant could not recall when he learned of these matters other than that it was after the normal three month time limit expired. The claimant thinks that he learned about ACAS sometime in September 2025 but could not be more precise.

[13]The claimant engaged in Early Conciliation on 2 October 2025. He could not recall what prompted him to start this process on that particular day. The ACAS certificate was issued on 9 October 2025 and the ET1 was presented on the same day.

[14]The claimant’s condition can affect how he deals with formal processes such as Tribunal proceedings. He found the process intimidating and had reservations about engaging in it. Submissions

[15]Both parties made oral submissions. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.

Relevant law

[16]The provisions relating to the time limit for bringing a claim under the Equality Act 2010 to the Employment Tribunal is set out in s123 of the 2010 Act:(1) Subject to section 140B [a reference to the provision extending time for ACAS Early Conciliation] proceedings on a complaint within section 120 [the section giving the power to the Tribunal to hear claims under the Act] may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) …

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[17]The time limit runs from when the act of discrimination occurs and not when the claimant becomes aware of it (Virdi v Commissioner of Police of the Metropolis

[2007] IRLR 24

[18]The Tribunal does have a broad discretion to hear a claim out of time under s123(1)(b) of the 2010 Act. In British Coal Corpn v Keeble

[1997] IRLR 336

, it was confirmed that this involved a consideration of the prejudice each side would suffer taking account of all the relevant circumstances of the case.

[19]Keeble also suggested that the factors set out below are ones which the Tribunal should take into account in exercising its discretion. However, in subsequent decisions it was made clear that the Tribunal has been given a very wide discretion under the 2010 Act and it should not treat these factors as a “checklist” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5) but, rather, take into account all relevant factors with no one factor being determinative.

[20]The length and reason for any delay as well as the question of any prejudice to the Respondent arising from the delay have been said to always be relevant factor (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] IRLR 1050

) although requires to bear in mind that no one factor is determinative.

[21]The factors which may be relevant to the exercise of the Tribunal’s discretion are: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 co-operated with any requests for information;

d. the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action;

e. the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[22]Other factors which may be relevant to the exercise of the discretion are:a. the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings);

b. the presence or absence of any other remedy for the claimant if the claim is not allowed to proceed;

c. the medical condition of the claimant, taking into account, in particular, any reason why this should have prevented or inhibited the making of a claim;

[23]The burden of proof in the exercise of the discretion lies on the Claimant and past cases have made it clear that it should be the exception and not the rule, with no expectation that the Tribunal would automatically extend time (Robertson v Bexley Community Centre

[2003] IRLR 434

). This does not, however, mean that exceptional circumstances are required for the Tribunal to exercise its discretion and the test remains what the Tribunal considers to be just and equitable (Pathan v South London Islamic Centre

UKEAT/0312/13

[24]It is not in dispute that the ET1 claim form was presented out of time. The alleged acts of discrimination occurred either at the interview on 17 February 2025 or when the claimant was informed he had not been successful in his application approximately two weeks later. The normal three month time limit, therefore, expired either on 16 May 2025 or at the end of May 2025. The ET1 was not presented until 9 October 2025, more than 4 months after the time limit expired.

[25]The claimant does not benefit from the extension of time in relation to ACAS Early Conciliation because he commenced this process after the normal three month time limit.

[26]The issue is, therefore, whether the Tribunal is prepared to exercise its discretion to allow the claim to proceed out of time. The test for the Tribunal is whether it is just and equitable to do so taking into account all the relevant factors as set out above.

[27]One factor for the Tribunal to take into account is the reason for the delay. In this case, one reason relied on by the claimant is an alleged lack of feedback by the respondent. However, the Tribunal does not consider that this is a particularly cogent explanation for the delay given what was in the claimant’s knowledge before the normal three month time limit expired.a. In relation to what happened at the interview itself and the alleged failure to make reasonable adjustments, the relevant facts were all known to the claimant from the date of the interview. He knew what difficulties he alleges he faced in the way in which the interview was conducted and what he felt could have been done to assist him. He did not require any further information from the respondent in relation to this allegation.

b. As regards the decision not to offer him the job, the claimant had all the information on which he bases this claim by, at the latest, the end of March 2025 when he received the reply to his subject access request.

[28]In these circumstances, the claimant had all the factual information on which his claim is based for around two months before the normal time limit expired. Any alleged failure by the respondent to provide feedback or other information does not provide any real explanation for the delay in lodging his claim.

[29]The Tribunal considers that the real reason for any delay is the fact that the claimant was not aware of his right to bring a claim until after the time limit expired. This was nothing to do with any alleged failure by the respondent to provide feedback.

[30]The claimant did not seek any legal advice and relied on his own research as well as speaking to other members of groups in which he was involved that are about neurodiversity. The Tribunal is aware that there is information about the Tribunal process (including time limits) and employment rights widely available on the internet from a range of reputable sources. It is not the case that someone seeking to research their rights would struggle to find information.

[31]The claimant could not recall, in his evidence, when he became aware of his rights and, importantly, the time limits for bringing a claim beyond the fact that it was sometime after the normal time limit had expired. He described the pivotal piece of information was finding out that he could bring a claim under the Equality Act without having to work for the respondent for any period of time but did not recall when this was. Similarly, he could not recall when he found out about the time limit and the need to engage in Early Conciliation.

[32]This makes it difficult for the Tribunal to assess whether the claimant acted timeously in investigating his rights and, importantly, whether he acted without delay once he became aware of his rights and the time limit. There was simply not enough evidence from the claimant about what he did to research his rights and what he knew at any particular point in time. The Tribunal accepts that this is the claimant’s honest and genuine recollection of events but it does mean that the Tribunal cannot assess whether the claimant acted quickly, both in looking into his right and once he knew he was out of time or whether there was a further delay for which there is no apparent explanation.

[33]The claimant gave evidence that he learned about Early Conciliation at some point in September 2025 but could not recall when. If it was near the start then the claimant delayed approximately a month before contacting ACAS whereas if it was towards the end then the delay may have only been a few days. There was no evidence of when the claimant learned about his rights to bring a claim and the time limit for doing so. It must be borne in mind that the burden of proof in all of this lies with the claimant.

[34]The Tribunal does take account of the fact that the claimant has autism spectrum disorder and the impact this could have on him in relation to lodging the claim. Whilst the respondent is correct that the claimant produced no medical evidence to support his case, the Tribunal considers that it is entitled to take account of what is said in Appendix B of the Equal Treatment Bench Book regarding the effects of autism spectrum condition.

[35]The Tribunal does accept that the claimant’s condition could potentially impact on his ability to engage with the legal process but there is a limit to what weight can be given to this in the absence of specific evidence about how the claimant was affected.

[36]Turning to the length of the delay, it was not an excessively long delay but it is not so short that it would have a minimal impact. A delay of four months is more than the normal time limit itself but the real question is what effect that delay has had in terms of prejudice to the parties.

[37]It is clear that the delay has affected the recollection of the claimant and the interviewer. This is important because the respondent’s defences in relation to knowledge will turn, almost wholly, on the evidence of these witnesses.

[38]The reason for this is that, as the claimant accepts, he did not set out in writing that he had autism spectrum disorder nor that he needed any adjustments. The case set out in the ET1 claim form is that these matters were raised verbally at the interview. In the ET3, it is pled that the interviewer has no recollection of any such discussion. It will, therefore, be a case that any findings of fact about what was said at the interview will be based on the oral evidence of the claimant and the interviewer.

[39]The claimant’s case on what was said has developed further since the ET1 was lodged. In his case management agenda, he states that he recalls referring to his autism but not what was actually said. This does put the respondent in the position of having to respond to a case about which they have little detail and in circumstances where their only witness has no clear recollection of events.

[40]Matters developed further at the preliminary hearing; the claimant gave evidence that he was not sure that he said anything about his autism at all but was relying on a case of constructive knowledge (see further below).

[41]If the claimant is going to advance a case of constructive knowledge based on what inferences he says the interviewer should have drawn from how the claimant presented at the interview, his communication style, a question about flexibility in any training schedule and the claimant needing additional time to process questions then there is an even greater need for witnesses to have a clear recollection of events. The claimant will need to be able to give evidence about what exactly it was about his communication style that should have prompted the interviewer to conclude the claimant was disabled. The interviewer will need to have a recollection of these matters and what they thought of them at the time in order to be able to respond to the claimant’s case.

[42]These are not matters which can be addressed by the contemporaneous documents as the claimant sought to suggest at the hearing. Documents such as the claimant’s test results and the interview notes will not provide any evidence about how the claimant presented at the interview or his communication style. The issues around what knowledge the respondent had about the claimant, any disability and the effects of that disability are going to be matters for oral evidence.

[43]The Tribunal considers that the passage of time involved in the delay in bringing the claim will undoubtedly have impacted on the recollection of the claimant and the interviewer.

[44]Both parties are affected by the delay in bringing the claim in respect of the recollection of relevant witnesses. The Tribunal does consider that there is a prejudice to the respondent as a result given the lack of information about what the claimant may or may not have said at the interview as well as the matters from which the claimant will argue that there was constructive knowledge of his disability and its effects.

[45]The Tribunal accepts that there is an obvious prejudice to the claimant in not being able to pursue his claim and the question is whether this outweighs the prejudice to the respondent in having to respond to a claim in circumstances where there is no clear recollection of fundamental evidence by witnesses from both sides.

[46]The Tribunal bears in mind that there is no presumption that an extension of time should be allowed and these should be the exception and not the rule. Taking into account all of the matters set out above, in particular the lack of a wholly satisfactory and cogent reason for the delay and the relative prejudice to both parties, the Tribunal does not consider that it is just and equitable to allow the claim to proceed out of time. The Tribunal finds, with some sympathy for the claimant, that the prejudice to the respondent set out above does outweigh the prejudice to the claimant.

[47]In these circumstances, the claim is dismissed.