Mr J Morrison v Essex Partnership University NHS Foundation Trust: 6022461/2025
EMPLOYMENT TRIBUNALS
Case No 6022461/2025
Between
Mr J MorrisonClaimantEssex Partnership University NHS Foundation TrustRespondent
Before
Employment Judge HallenIn person for claimantMs. G. Corby- Counsel for respondentDate 17 February 2026
JUDGMENT
[1]The Claimant presented his claim of unfair dismissal after the time limit imposed by Section 111 of the Employment Rights Act 1996 had expired and the Tribunal has no jurisdiction to hear this complaint.[2]The Claimant presented his claim for disability discrimination after the time limit imposed by Section 123 of the Equality Act 2010 had expired and the Tribunal has no jurisdiction to hear this complaint.[3]This Claim Form is accordingly struck out.
REASONS
[1]This case came before Employment Judge Crossfill on 24 November 2025 at a preliminary hearing at which the judge listed the case for an open preliminary hearing on 13 February 2026 before an Employment Judge sitting alone to consider the issue of jurisdiction namely whether the Claimant’s claim for unfair dismissal and disability discrimination were presented in time in accordance with section 111 of the Employment Rights Act 1996 and section 123 Equality Act 2010 were presented within three months of the effective date of dismissal/the last act of discrimination or whether if the Claimant’s claim is out of time. Accordingly, the Tribunal listed the claim to consider whether the claims were out of time and if so whether the Claimant can persuade the Tribunal that time should be extended under the relevant tests.[2]For the hearing, I had an agreed bundle of documents made-up of 128 pages that included the witness statement of the Claimant. I also had a skeleton argument for the Claimant and Respondent. I heard evidence under oath from the Claimant, and he was subject to cross examination and questions from me. After hearing closing submissions from the parties, I reserved my judgement. I confirmed to the parties that I would send them the judgement with reasons shortly.
Facts
[3]The Claimant was employed by the Respondent as a Community Psychiatric Nurse (“CPN”) in the Trust’s C-Specialist Psychosis Team from 2 October 2018 until 7 June 2022, when he was dismissed for gross misconduct.[4]The dismissal followed complaints from members of staff about the Claimant’s behaviour towards them in September and October 2021. The allegations were of sexual harassment/intimidation as against a staff member and student (inter alia). On 11 October 2021, the Claimant was placed on restricted duties.[5]During the course of the investigation, in December 2021 further concerns were raised about the Claimant (relating to taking patient medication), leading to a suspension on full pay.[6]The Claimant was referred to his regulator by the Respondent, the Nursing and Midwifery Council (“NMC”) in respect of his fitness to practice following his dismissal. These proceedings were concluded on 16 December 2025 and the NMC found that that his fitness to practice was not impaired. The Claimant was represented during the NMC proceedings and the internal appeal process with the Respondent by his union throughout. He did not say that he was not aware of his right to pursue his claim before an Employment Tribunal or that he was wrongly advised by his union with respect to making such a claim. He also did not say to me that he was unaware of the time limits for making a claim to the Tribunal.[7]His evidence to the Tribunal was that due to the frontal lobe brain injury sustained by him in 2004, he has a permanent neurological condition that substantially impairs his executive functioning, ability to plan and organise, concentrate, emotional regulation and his ability to cope with stress and complex tasks. As a consequence, although he was able to engage with the Respondent’s internal appeal process and the NMC proceedings, he did not have the cognitive or emotional capacity to initiate Employment Tribunal proceedings until 17 June 2025. He said that the internal appeal process and the NMC fitness to practice process was structured, supported and time limited whereas the Employment Tribunal litigation required sustained independent planning, organisation and decision making. He said that due to this disability he was not capable, therefore, to be able to initiate the Employment Tribunal claim within the primary time limit and had to wait until 17 June 2025 to do so.[8]In relation to his dismissal, at the disciplinary hearing on 4 May 2022 the Claimant alleged that the brain injury he had sustained in a road traffic accident in 2004 had caused/contributed to his disinhibited behaviour. The hearing was adjourned to allow for investigation in this issue. It was reconvened to 7 June 2022 and the Claimant was dismissed.[9]On 13 June 2022, the Claimant appealed against his dismissal pursuant to the Respondent’s internal procedures. The Claimant/his trade union representative requested various delays of the appeal to secure medical evidence (including an MRI scheduled on 1 May 2023). The hearing was reconvened on 30 June 2023 and the Claimant attended with his representative. The dismissal was upheld, with the Claimant receiving the outcome letter on 6 July 2023.[10]The Claimant approached ACAS on 1 September 2023, receiving a certificate on 4 September 2023. He said in evidence before the Tribunal that he did not commence his claim then because he was variously busy with his work, flying between home and his place of work, was more focused on the NMC proceedings and was too busy to fill in a Claim Form at this time.[11]The Claimant gained new employment within two weeks of his dismissal working in Jersey for a period of 2 years. He then obtained a position that lasted six months with the Department of Work and Pensions and from December 2024 to October 2025 he worked as an agency worker for the Respondent. He now works at Guernsey Hospital as a Practice Nurse. In evidence before the Tribunal, he agreed that his job was stressful, required a high degree of skill/coordination and required him to complete detailed paperwork. He said that he was capable of undertaking his job without self-referral to the NMC for cognitive or mental issues.[12]The Claimant approached ACAS in this matter (for the second time) on 10 June 2025 and was issued with an ACAS Early Conciliation Certificate on 16 June 2025. The Claim Form was filed with the Tribunal on 17 June 2025. As such, the Claimant’s claim was presented over 3 years after his employment had ended and almost 2 years after the disciplinary appeal concluded.
The Law
[13]The material parts of the Section 111 of the Employment Rights Act 1996 are as follows: 111 Complaints to employment tribunal.(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section 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.[14]Where a claim is presented outside the period of 3 months it is necessary to ask firstly whether it was not reasonably practicable to present the claim in time and, only if it was not, go on to consider whether it was presented in a reasonable time thereafter. The two questions should not be conflated. There is no general discretion to extend time and the burden of proof rests squarely on the Claimant to establish that both limbs of the test are satisfied.[15]The expression “reasonably practicable” does not mean that the employee can simply say that his/her actions were reasonable and escape the time limit. On the other hand, an employee does not have to do everything possible to bring the claim. In Palmer and Saunders v Southend-On-Sea Borough Council [1984] IRLR 119 it was said that reasonably practicable should be treated as meaning “reasonably feasible”.[16]Schultz v Esso Petroleum Ltd [1999] IRLR 488 is authority for the proposition that whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aim to be achieved.[17]In subsequent cases it has been held that the question of whether bringing proceedings in time was not reasonably practicable turns, not on what was known to the employee, but upon what the employee ought to have known Porter v Bandridge Ltd [1978] ICR 943, Avon County Council v Haywood-Hicks [1978] IRLR 118. A further proposition can also be gleaned from those authorities. Where an employee is aware that a right to bring a claim exists it will be considerably harder to show that they ought not have taken steps to ascertain the time limit within which such claims should be presented.[18]In Palmer v Southend-On-Sea Borough Council [1984] IRLR 119 following a review of the earlier authorities including Dedman and Wall’s Meat May LJ concluded that the question of whether a step was or was not reasonably practicable would include the advice given, or available, but that was a material consideration which would have to be taken into account along with all of the other circumstances.[19]The question of whether an employee has presented their claim within a reasonable time of the original time limit is a question to be determined objectively by the employment tribunal taking into account all material matters see Westward Circuits Ltd v Read [1973] ICR 301, NIRC.[20]The pausing of time for ACAS EC under s.207B(3) ERA will apply in all cases where the primary time limit has not already expired. However, if the time limit has expired by Day A (the date they commence ACAS EC) section 207B(3) ERA cannot logically apply because it specifically states: In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.[21]The existence of a contractual appeal procedure does not alter the Effective Date of Termination. If an employee is summarily dismissed and his or her appeal succeeds, he or she will be reinstated with retrospective effect. If, however, the appeal fails, the dismissal takes effect from the original date of dismissal: West Midlands Co-operative Society Ltd v Tipton 1986 ICR 192, HL. The only exception to this will be where there is an express or implied contractual provision to the contrary. 22. s.123 EqA 2010 sets out the following: 123 Time limits (1) Subject to section proceedings on a complaint within section 120 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.[23]Section 33(3) of the Limitation Act 1980 (power to extend time in personal injury actions) specified a number of factors that a court is required to consider when balancing the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular:(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; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[24]In British Coal Corporation v Keeble [1997] IRLR 336, it was held that the Tribunal’s power to extend time was similarly as broad under the ‘just and equitable’ formula. However, it is unnecessary for a tribunal to go through the above list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’(Southwark London Borough v Afolabi [2003] IRLR 220).[25]The Court of Appeal in Robertson and Bexley Community Centre (trading as Leisure Link) 2003 IRLR 434CA made it clear that there is no presumption that time should be extended to validate an out of time claim unless the Claimant can justify the failure to issue the claim in time. The Tribunal cannot hear a claim unless the Claimant convinces the Tribunal that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.[26]In Abertawe Bro Morgannwg University v Morgan [2018] EWCA Civ 640 the Court of Appeal however stated that the "such other period as the employment tribunal thinks just and equitable" extension indicates that Parliament chose to give the tribunal the widest possible discretion. Although there is no prescribed list of factors for the tribunal to consider, "factors which are almost always relevant to consider are: (a) the length of, and reasons for, the delay and (b)whether the delay has prejudiced the respondent”. There is no requirement that the tribunal had to be satisfied that there was a good reason for the delay before it could conclude that it was just and equitable to extend time in the Claimant's favour.[27]The Claimant did not argue that the discrimination he was subjected to took place over a period. His complaint was specifically limited to the time he was informed that his appeal against the decision to dismiss him was communicated to him on 6 July 2023. Accordingly, s.123(3) EqA did not apply. Conclusion and Findings[28]In this case, I am satisfied on the evidence that I heard from the Claimant that it was reasonably practicable for him to have made his claim for unfair dismissal within the three-month primary time limit. His evidence to me was that his brain injury sustained in 2004 meant that he did not have the cognitive or emotional capacity to initiate external Employment Tribunal proceedings for unfair dismissal within the three month time limit but that he did have the cognitive and emotional capacity to deal with not only his internal appeal against dismissal directly with the Respondent but also to deal with his fitness too practise proceedings that were conducted simultaneously with respect to the NMC.[29]In his evidence, he sought to persuade me that the appeal process against dismissal before the Respondent and separately the fitness to practise proceedings before the NMC were structured, supported and time limited whereas the Employment Tribunal claim would require sustained independent planning, organisation and decision making. However, I find this explanation to lack any merit. I cannot see how he lacked cognitive and emotional capacity to initiate Employment Tribunal proceedings whilst at the same time and with the assistance of his trade union he was able to not only dealt with his internal appeal against dismissal with the Respondent but also the equally stressful fitness to practise proceedings with the NMC at the same time. I was not persuaded by his evidence that he lacked cognitive and emotional capacity to initiate Employment Tribunal proceedings. I find that if as was the case he was cognitively and emotionally able to deal with the internal appeal against dismissal as well as the fitness to practise proceedings with the NMC, he must have been cognitively and emotionally capable of commencing his Employment Tribunal claim within the primary three-month time limit for his unfair dismissal claim. The evidence that he gave to me at the hearing made no sense to me and I find that it was reasonably practicable for him to make this claim within the three month time limit.[30]To support my finding, and contrary to what the Claimant was suggesting to me at the hearing, it was clear to me on his own evidence that the Claimant was quickly able to obtain suitable alternative employment in a similar capacity at a Jersey hospital for two years that involved him undertaking a stressful and emotionally demanding job that involved planning, organisation, processing at speed, concentration and emotional regulation. These were all factors that he was seeking to persuade me that he was unable to do due to his neurological condition. He was able to not only undertake that stressful job but has remained in employment from his dismissal to date undertaking stressful and complex duties without having his ability to function from his impairments at all during this period. It was put to him during cross examination that he was under a duty to self-refer himself to the NMC if he was unable to practise as a nurse due to cognitive or emotional incapacity. He confirmed that he did not do so as his neurological condition did not prevent him from practising. Furthermore, he was not referred to the NMC by his employers for any physical or mental impairment that would impact his ability to practice. As a consequence, I find that the Claimant did have cognitive and emotional capacity to initiate these proceedings for unfair dismissal in the Employment Tribunal within the threemonth primary time limit.[31]For the above reasons, I also find that he was able to initiate his claim for disability discrimination within the primary time limit of three months from the last act of discrimination. If this is taken as the notification of the dismissal of his appeal against dismissal on 6 July 2023, he is almost two years out of time in making his disability discrimination claim. He did not argue that he was subject to a continuing act of discrimination following his dismissal nor did he say that he was subject to disability discrimination following the conclusion of his appeal hearing on 6 July 2023.[32]It follows that from this date he must be relying solely on a just and equitable extension. I do not find that it is just and equitable to extent time in this case. I come to this conclusion, for the following reasons. Firstly, the Claimant received union advice throughout (which was ongoing in relation to the NMC proceedings at least until December 2025 when he was notified of the fitness to practice outcome). He does not deny that he was aware of his rights and the relevant time limits. Secondly, the Claimant approached ACAS in September 2023 (following the failed appeal) but did not pursue a claim. The explanation that he gave to me at the hearing for not doing so was not persuasive and was incoherent. He said he did not commence his claim then because he was variously busy with his work, flying between home and his place of work, was more focused on the NMC proceedings and was too busy to fill in a Claim Form at this time. Thirdly, while the Claimant has raised ill-health arising from his brain injury in 2004, this was firstly, not set out in the Claimant’s ET1, or in his initial letter to the Tribunal responding to the Respondent’s strike out application as causative of his delay; Secondly, while the Claimant’s medical evidence indicated some difficulties arising from a historic brain injury, it goes nowhere near establishing that he was not able to bring the instant proceedings sooner; Thirdly, it is relevant that from at least 2018, the Claimant had been able to work as a mental health nurse for the Respondent trust, a role with significant responsibilities, including managing medication, dealing with complex patients and complex paperwork. Fourthly, the Claimant obtained a new post in Jersey two weeks after his dismissal. On his own evidence, he was travelling back and forth almost every weekend to the United Kingdon. This does not suggest incapacity. Fifthly, since December 2024, the Claimant was re-employed via an agency and has been working at the Respondent trust. He did not explain properly the delay in instituting proceedings to June 2025. Sixthly, the Claimant was able to address the NMC proceedings for much of this period. I find that in effect, he de-prioritised his Employment Tribunal claim in the face of other commitments. For these reasons, I find that it is not just and equitable to extend time for such a significant period.[33]In coming to my conclusion, I find that there is significant prejudice to the Respondent in only being able to respond to matters some three years out of time. It is inevitable that memories will have degraded such that there is forensic prejudice to the Respondent. The Respondent is left answering to and investigating events years after they have passed. The Respondent may have lost key witnesses to the events and/or they may be unlikely to recall with precision decisions that they made. I understand that the Claimant will suffer prejudice in not being able to pursue his claim of disability discrimination, but I find that as he was well aware of the time limits that applied to Tribunal claims in relation to discrimination claims, he was able to pursue such claims within the three-month time limit.[34]Taking all the factors into consideration, the claims of unfair dismissal and disability discrimination made by the Claimant are out of time and the Tribunal has no jurisdiction to hear them.