The Employment Appeal Tribunal (EAT) has ruled that, when rejecting an employee’s complaint of unfair dismissal, the Employment Tribunal (ET) did not err in law in not identifying an additional complaint of disability discrimination under Section 15 of the Equality Act 2010.
The employee had worked for a steel stockholder as a crane operator and warehouse assistant. In November 2019 he injured his wrist in a workplace accident. He underwent surgery 18 months later, after which he was signed off work. He was dismissed on 29 September 2022, while absent from work awaiting a further operation. His appeal against that decision was unsuccessful and he was notified by a letter dated 8 November 2022 that his dismissal had been upheld.
His complaint of unfair dismissal was received by the ET on 6 February 2023. His ET1 claim form did not indicate that he was bringing a complaint of disability discrimination and stated that he did not have a disability. The ET concluded that he had been dismissed on 29 September 2022 and his unfair dismissal complaint had therefore been submitted out of time.
He appealed to the EAT on the grounds that the ET had erred in not addressing with him whether his claim included a complaint of disability discrimination under Section 15 and in not considering whether time should be extended for that complaint on just and equitable grounds. He contended that it should have been clear from the ET1, when read with a medical report and his witness statement, that he was claiming disability discrimination.
The EAT found that, at most, the ET might have thought that there was a possibility of a disability discrimination complaint. The ET1 suggested that he could have an impairment because of his wrist injury. The fact that he could still not carry out his duties suggested that this might have a substantial adverse effect, and the period from the accident to his dismissal suggested that the effect could be long term.
However, the decision of the Court of Appeal in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust made it clear that just because an ET1 suggests the possibility of a complaint, that does not mean that the complaint has been pleaded. He had not indicated that he was bringing a complaint of disability discrimination and had specifically stated that he was not disabled. The complaints brought were limited to those that emerged clearly from an objective analysis of the ET1. On an objective analysis his ET1 did not include a Section 15 disability discrimination complaint, and the ET was not obliged to investigate whether he wished to bring such a complaint. Accordingly, there was no basis for the ET to consider an extension of time on just and equitable grounds. The appeal was dismissed.
