The claimant was employed as a customer assistant at the respondent’s Ballymena store.   She had been absent by reason of ill-health from 8th December 2017 until she was dismissed on the grounds of incapacity on 10th July 2020.  The claimant did not appeal the decision internally and she presented her claim on 31st December 2020.

The claimant suffers from a neurological order which leads to frequent limb jerking movements.  The claimant was certified as being unfit for work in December 2017.  The claimant was also a carer for her mother who was designated as extremely clinically vulnerable for the purpose of the Covid-19 regulations and mitigations.

After her dismissal, on the 21st August 2020 she received a letter stating that she had been overpaid by £1,972.57.  The claimant disputed this stating that if it had occurred it was not her fault and that she should not be liable.  She also outlined that she had not received any pay for approximately 2 years.  The claimant sought advice during the period from September to November about her employment matters. In October 2020 the claimant was advised that she was not required to repay any monies.

The primary issue arising at the preliminary hearing was the fact that the claim was presented out of time.  The claimant submitted that the failure to lodge the claim within the statutory time limits of three months was due to her lack of knowledge of the process and her ill health.  The ill health also included issues relating to anxiety and depression.  She said she was made aware of the time limit though through her advice but that she could not face going online in November and December 2020.

The Tribunal outlined the different tests for extending time for unfair dismissal and disability discrimination.  For unfair dismissal, it was held that it was reasonably practicable for the claimant to have brought her claim on time.   There was a ‘strict test of practicability’ and the claimant had the burden of proof of showing why an extension should be granted.  There is a wider test for disability discrimination as to whether it is ‘just and equitable’.  However, it was held that the Tribunal did not find the ill health reasons as being the ‘genuine reason’ for the delay in lodging the claim.  As a result, the claims were dismissed for want of jurisdiction.

Practical Lessons 

This case, once again, demonstrates the importance of the time limits in Industrial Tribunal cases.  The tight time limit is something that potential claimants, employers and legal practitioners should keep in mind when dealing with these matters.   This case also demonstrates the differences between the rules on extending time when it comes to unfair dismissal or discrimination claims.  In both of these the claimant did not succeed in discharging the burden of proof.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/