Mr Keiran DonnellyClaimantHighland Spring LimitedRespondent
Before
Employment Judge L DohertyMr R Gale (instructed by Solicitor) for respondentDate 4 February 2026
JUDGMENT
The Judgment of the Employment Tribunal is that:(1) it does not have jurisdiction to consider the claim of unfair dismissal;(2) it is just and equitable to extend time under section 123 of the Equality Act 2010 and the Tribunal has jurisdiction to consider the claim of disability discrimination; the claim will now be listed for a Preliminary Hearing for case management purpose.
REASONS
[1]This was a Preliminary Hearing (PH) to consider the issue of time bar in the claimant’s claims of unfair dismissal and disability discrimination. The claimant appeared on his own behalf and the respondents were represented by Mr Gale, solicitor. The matters which the Tribunal had to decide were as follows:a. Whether, on application of section 111(2) and 207B of the Employment Rights Act 1996 (the ERA), the Employment Tribunal has jurisdiction to determine the complaint of unfair dismissal; andb. Whether, on application of 207B of the ERA 1996 and section 123 of the Equality Act 2010 (the EQA), the Employment Tribunal has jurisdiction to determine the complaint of disability discrimination.[2]It is agreed that the date of dismissal was 2 June 2025.[3]It is also agreed that the claim under the EQA is that the claimant’s dismissal was an act of disability discrimination and that the date of that act was 2/6/25, which was the date of dismissal.[4]There is no dispute that the claim is lodged out with the statutory time limit for both claims.[5]The claimant gave evidence on his own behalf. The parties lodged a joint bundle of documents. Findings in fact[6]The claimant was employed by the respondents in a senior role as a Group Manufacturing Manger from 1 May 2023 until his dismissal on 2 June 2025.[7]The claimant was made redundant from that position on 2 June 2025 following a series of 4 consultations meetings, which took place on the 20, 23, 28 May and 2 June 2025. The claimant understood that the redundancy was a serious matter and at the consultation meeting on 20 May 2025, the claimant advised the respondents that he needed to seek counsel from certain people about the situation.[8]On 2 June 2025, the claimant received a letter confirming the termination of his employment as of that date. This letter advised him of his right to appeal within 10 working days. The claimant exercised that right of appeal. With the assistance of his brother, who is a lawyer, he drafted a detailed letter of appeal in which he stated that he would welcome an opportunity to meet to discuss further.[9]The claimant sent a reminder email to the respondents on 17 June 2025 as he had not received a response.[10]The respondents did not respond to the claimant’s appeal letter or the reminder he sent.[11]The claimant had suffered long term mental health problems prior to his dismissal. He had been absent from work June 2024 returning in November 2025. He was absent again in January 2025, returning in March 2025. The claimant had a number of OH referrals. Four OH reports were obtained the latest of which were dated 15 April 2025 at which point the claimant was undertaking a phased return to work.[12]The claimant felt that his mental health was impacted by what had happened at work and the termination of his employment. He found it difficult to concentrate on tasks and to focus. He found it difficult to motivate himself. There were occasions where he found it difficult to get out of bed. The claimant was attempting to balance the value of bringing a claim with the need to look for other work. He prioritised looking for work over brining a claim in the Employment Tribunal.[13]The claimant did not seek medical help or attend his GP. He had attended his GP for treatment as a result of his condition in 2024 and early 2025 and did not think that would be of any benefit to do so again as he was already on medication (Sertraline). The claimant has taken sertraline in the period from his dismissal to date.[14]The claimant began looking for other work around four weeks after he was dismissed. He was the sole wage earner in his family, and he considered it an imperative to earn an income.[15]By the end of June 2025 the claimant decided to contact ACAS for advice about his next steps following his dismissal. The claimant considered that that his dismissal was unfair and that he had been discriminated against on the grounds of disability. The claimant telephoned ACAS around 7 times, but did not receive a reply. He decided to conduct his own research which he did online. He did not discover in the conduct of that research that there was a time limit within which to bring a claim.[16]The claimant applied for an ACAS certificate on 25 August 2025. He brought the ACAS process to an end early on 1 September and the ACAS certificate was issued on 1 September 2025.[17]The claimant did nothing when he received this certificate. He knew that when he received this certificate, he could raise a Tribunal claim. He was going through a recruitment process which he prioritised over bringing a Tribunal claim.[18]The claimant discovered there was a three month time limit to bring a claim by around the end of September 2025 following a conversation with his father, who had been a TU representative.[19]The claimant was on holiday abroad in the period from 5 to 12 October 2025.[20]The claimant lodged his ET1 online on 16 October 2025.[21]The claimant set up a consultancy business offering his professional services, which he posted on LinkedIn on 4 occasions in the period prior to 16 October 2025. Note on evidence[22]The Tribunal formed the impression that the claimant was in the main a credible and reliable witness. He gave his evidence on a straightforward manner and made appropriate concessions, even when these were not to his advantage. For example, he accepted without difficulty that when he received the ACA certificate he knew he could raise Employment Tribunal proceedings, but did nothing. He also accepted that he found out about time limits at the end of September, but still did not act, that he was on holiday from 5 to 12 October 2025 and that he did not lodge his claim till 16 October 2025, after he returned.[23]There was one matter on which , on balance, the Tribunal did not find the claimant’s evidence to be credible. That was to the effect that in the period after his dismissal his concentration were impaired to the extent that he could not cope with dealing with the legal complexities of submitting a Tribunal claim. While the Tribunal accepted that the claimant was taking medication, there no medical evidence before the Tribunal to support the claimant’s evidence that this was the reason why he could not lodge a claim. Significantly, in the Tribunal’s view, despite the difficulties which the claimant described as to focus and concentration and his feeling a lack of motivation, there was considerable evidence that the he was able to engage in complex activities during the limitation period. The Tribunal was satisfied that the claimant was able to engage in looking for other employment within around 4 weeks of his dismissal; that he was able, with the assistance of his brother to draft a detailed letter of appeal; that he was able to telephone ACAS on 7 occasions by around the end of June 2025; that he was able to carry out his own research as to his employment position by the end of June/ July; that he was able to apply for an ACAS certificate and bring he conciliation process to an early conclusion in August/September; and that he was able to set up his own consultancy business and advertise this on line in September. The fact that the claimant was able to undertake these activities does not support the conclusion that his focus and concentration was impaired to the extent that he was unable to cope with submitting an ET claim online.[24]The Tribunal did not accept the claimant’s evidence to the effect that he felt unable to engage in the complex legal process of raising tribunal process, which he considered different to looking for work or setting up a consultancy. The range and complexity of the activities which the claimant carried out during the limitation period did not support the conclusion that the claimant’s mental health prevented him engaging with the complexity involved in submitting a claim online during the limitation period. The Tribunal is supported in this conclusion in that the claimant admitted that he prioritised looked for employment over bringing a tribunal claim, which did not suggest that the reason he did not commence proceeding was that because of health issues he felt the process was too complex. Submissions[25]Both parties made oral submissions and Mr Gale helpfully provided written submissions. These were taken into account in full, but in the interests of brevity these are not rehearsed here, but are referred to below where relevant and necessary. Consideration Time bar - unfair dismissal claim
Consideration
[26]Section 111 of the ERA provides:(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.[27]It is agreed that the date of dismissal is 2 June 2025, which it the starting point from which time runs. The ordinary three months minus one day period for the Claimant to present a claim of unfair dismissal ( and disability discrimination ) expired on 1 September 2025.[28]The Claimant submitted an early conciliation notification to ACAS on 25 August 2025 and the ACAS issued an early conciliation certificate on 1 September 2025. There are seven days between the date of ACAS early conciliation notification (“Day A”) and the issuing of the ACAS early conciliation certificate (“Day B”). Under section 207B (3) of the ERA, the ordinary time period for the Claimant to raise a claim was extended by seven days from 1 September 2025 to 8 September 2025.[29]There was less than a month between the issue by ACAS early conciliation certificate on 1 September 2025, and the ordinary three months limitation period (subject to the extension of time by virtue of the Early Conciliation process through ACAS) of 8 September. Section 207B (4) of the ERA therefore applies and the time limit for the Claimant to raise claim was by virtue of that section 1 October 2025.[30]The Claimant lodged his claims on 16 October 2025, which was 15 days later than 1 October 2025.[31]Section 111 of the ERA sets out a two stage test. Firstly, the Tribunal has to consider whether it was not reasonably practical to lode the claim within the relevant time limit period. If the answer to that question is no, it then has to go on to consider if the claim was lodged within a reasonable period thereafter.[32]What is reasonably practicable in a question of fact for the Tribunal to determine, and the burden of proof rests with the claimant to establish that it was not reasonably practicable to present the claim on time.[33]Reasonably practicable has been paraphrased as reasonably feasible. It is not just a matter of looking at what was possible, but to ask, on the facts found, whether it was reasonable to expect what was possible to be done.[34]For the reasons given above in the Notes on Evidence, the Tribunal was not satisfied that the claimant was prevented from lodging a claim as a result of health issues because of the complexity involved. There was no evidence which explained why, if the claimant had been experiencing difficulty in coping with the complexity of the process, he was able to raise the claim when he did. The range and complexity of the activities which the claimant carried out during the limitation period did not support the conclusion that submitting a claim online during the limitation period would not have been feasible[35]The Tribunal also considered the claimants position with regard to the lack of an appeal. The Tribunal had regard to the cases of Palmer and another v Southend-on-Sea Borough Council 1984 ICR 372, CA 384 and Bodha (Vishnudut) v Hampshire Area Health Authority [1982] I.C.R. 20, referred to by Mr Gale. As submitted by Mr Gale, it is well established case law that the fact that a claimant decides to lodge an internal appeal that does not of itself justify a finding that it was not reasonable practicable to present the claim on time. The Tribunal did not consider that the fact that the respondents did not offer an appeal, made any material difference in terms of the tests which it had to apply. The claimant contacted ACAS by the end of June 2025 and applied for a conciliation certificate by 25 August 2025. The fact that he did so did not support the conclusion he had put matters on hold indefinitely waiting for the respondents to deal with his appeal and that this was this a factor which rendered it not reasonably practicable to lode the claim on time.[36]The Tribunal also considered the fact that the claimant was unaware from of the applicable time limits for bringing a claim and did not become aware of these till the end of September 2025. The claimant was aware of his right to bring a claim. He carried out research into the position and by 1 September 2025, when he received the ACAS certificate, he knew he was able to lodge an ET1.[37]The question is: was the claimant’s ignorance of the time limit reasonable. In this regard the Tribunal considered the case of the EAT case of Cygnet Behavioural Health Ltd v Britton [2022] EAT 108, referred to by Mr Gale, in which it was that: “A person is who is considering bringing a claim for unfair dismissal is expected to appraise themselves of the time limits that apply; it is their responsibility to do so.”[38]In the circumstances where the claimant had been able to carry out research and had recourse to ACAS, the Tribunal could not conclude that ignorance of the time limit was reasonable. Furthermore, the claimant was aware of the time limits by the end of September when the claim could still have been presented on time but not lodge his claim until 16 October 2025.[39]The fact that the claimant chose to prioritise looking for employment was not a factor which rendered it not reasonably practicable for the claim to be presented within the relevant statutory limitation period.[40]The Tribunal was not satisfied that it was not reasonably practicable for the claim to be presented on time having reached that did not require to consider the second limb of the test in section 111 of the ERA.[41]The effect of the Tribunal’s conclusion is that it was not satisfied that time should be extended to consider the claim of unfair dismissal, and the Tribunal does not have jurisdiction to consider the claim of unfair dismissal. Time bar – disability discrimination claim[42]The limitation provision in the EQA is section 123 which provides: “(1) … Proceedings on a complaint … 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.”[43]The limitation period for the claim under the EQA also runs from the date of dismissal, which is 2 June 2025. The extensions of time limit as a result of the application of the ACAS conciliation provisions are as set out above and the time limit for raising a claim expired on 1 October 2025.[44]The test which the Tribunal has to apply is different to the test it considered under section 111 of the EQA.[45]Under section 123 of the EQA, tribunals have a broader discretion. There is, however, no presumption that the Tribunal should extend time and extensions are the exception rather than the rule. As submitted by Mr Gale, time limits are there for a reason, to promote certainty. The onus is on the claimant to establish that time should be extended.[46]Whether it is just and equitable to extend time is a question for the Tribunal, having regard to all the relevant circumstances. In considering what those relevant factors are that the tribunal had regard to, British Coal Corporation v Keeble 1997 IRLR 336, as referred to by Mr Gale. He suggested following that case, that the Tribunal should consider the prejudice which each party would suffer as a result of granting or refusing an extension, and have regard to all the other circumstances, and 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 has 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; ande. The steps taken by the Claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[47]The Tribunal had regard to this case, but it was careful not to adopt a check list approach to the exercise of its discretion, and it considered a multi factorial approach was appropriate in considering whether to extent time. This involved considering all of the relevant factors including the balance of prejudice to the parties in granting or refusing the application.[48]The Tribunal firstly considered the extent of the delay in lodging the claim, which was 15 days. This could not be categorised as a very lengthy delay. The Tribunal is mindful however of what was said in Aniagwu v London Borough of Hackney [1999] IRLR 303, referred to by Mr Gale, to the effect that it is dangerous to present an argument that because an application is only one day late, it should be accepted as the logical conclusion of this is that time limits were to be extended day after day after day.[49]The Tribunal also considered the reason for the delay. As indicated above, the Tribunal did not conclude that the claimant was prevented from presenting his claim on time by reason of his health. The Tribunal took into account that the claimant was on medication for his mental health, however that did not provide an explanation for the delay. The claimant accepted that he prioritised looking for work over the Tribunal process.[50]The Tribunal had regard to what was said in the case of Edomobi v La Retraite RC Girls School [2016] 11 WLUK 396, again referred to by Mr Gale. At paragraph 31 the EAT stated: “The purpose of the time-bar is to promote finality and certainty. The structure of section 123 is that the claim may not be brought outside the time limit unless the Claimant persuades the ET that it is just and equitable to extend time. I find it difficult to see how a Claimant can discharge the burden of showing that it is just and equitable to extend time if he or she simply does not explain the delay, nor do I understand the supposed distinction in principle between a case in which the Claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the ET can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a Claimant from the consequences of any delay.”[51]The Tribunal took this into account, and it considered than that the fact that there was no good explanation for the delay, although not definitive, was factor to which considerable weight should be given by the Tribunal in the balancing exercise it required to undertake.[52]The claimant accepted that he knew of the matters which gave rise to his claim as of 2 June 2025, but ultimately the claim was lodged on 16 October 2025.[53]The Tribunal did not consider any weight should be attached to the lack of an appeal, for the reasons given above. By June 2025, the claimant was already contacting ACAS and carrying out research into the position. It was not the case that he was waiting for an appeal or appeal outcome before proceeding further.[54]While the Tribunal took into account that the claimant is not legally represented, it did not conclude that weight should be attached to the ignorance of time limits in circumstances where, for the reasons given above, it could not be said such ignorance was reasonable, and in any event was the claimant was aware of the lime limit within the limitation period.[55]Lastly, the Tribunal considered the prejudice to the parties on extending or refusing to extent the time limit. The prejudice to the claimant is that he will be prevented from pursuing his discriminating claim. That is very considerable prejudice.[56]In his submission, Mr Gale’s position was that the claim of discrimination was in the nature of unsubstantiated averments. There was, however, no significant exploration of the merits of the claim in the evidence before the Tribunal, beyond that this is disability discrimination claim; there was evidence that the claimant has had long term mental health issues and that he continues to take medication. These elements suggests that there is at least a basis for accreting disability status under the EQA.[57]The Tribunal then considered the relative prejudice to the parties. In considering this, the Tribunal had regard to Mr Gale’s submission in the judgment of Lady Justice Laing in Miller v Ministry of Justice UK EAT/003/15LA, to the effect that if there is no forensic prejudice to the respondent, that is not decisive in favour of an extension, and depending on the tribunal’s assessment of the facts, may well not be relevant at all.[58]The prejudice in allowing the claim to proceed to the respondents is very relevant to the Tribunals balancing exercise and the exercise of its discretion. Mr Gale accepted that there was no forensic prejudice to the respondents and that the evidence will not be impacted by the delay in bringing the claim. The Tribunal accepts that if the claim is allowed the prejudice to the respondents is that they would have to face and defend a claim which would otherwise be time barred. That prejudice, while not to be minimised, could not be said to be as great as that to the claimant in being prevented from pursuing his disability discrimination claim.[59]The Tribunal then considered the factors identified and balanced those in the consideration of the exercise of its discretion. The Tribunal found this to be a finely balanced exercise. There were factors which did not support an exercise of discretion in favour of the claimant, in particular that there was no good reason for the delay and that he was aware of the facts which gave rise to the claim from the date of his dismissal. These factors however are not determination. The Tribunal also considered the extent of the delay in presenting the claim and the prejudice to the respondents in granting the extension, as opposed to the much greater prejudice to the claimant is being prevented from presenting a discrimination claim, in circumstances where there was evidence to suggest that there was a least a basis for establishing disability status.[60]Taking all these factors into account, the Tribunal was satisfied that on balance it was just and equitable to extent time under section 123 of the ERA and to allow the discrimination claim to proceed. The claim will now be listed for a PH on case management issues.