The Employment Appeal Tribunal (EAT) has dismissed a woman’s appeal against a decision of the Employment Tribunal (ET) that her complaints of unfair dismissal and disability discrimination had been brought out of time, finding that the ET had not erred in law on the evidence before it.
The woman had worked for an NHS trust as a healthcare assistant since 2009. She was dismissed on 8 June 2022, following an absence management procedure at the end of which her employer had concluded that she was not medically fit to continue in her role. Her internal appeal against her dismissal was rejected on 19 November 2022. On 10 and 12 January 2023, she brought ET complaints of ordinary and automatic unfair dismissal and disability discrimination.
The ET considered at a preliminary hearing whether her complaints had been brought in time. The ET found that her unfair dismissal complaints had been brought more than four months after the time limit in Section 111(2) of the Employment Rights Act 1996, which had expired on 7 September 2022, and that it would have been reasonably practicable for her to have brought them in time. Her disability discrimination complaint had also been brought more than four months out of time, and it would not be just and equitable to extend time under Section 123 of the Equality Act 2010.
She appealed to the EAT, arguing that the ET had erred by failing to consider the relevance of the fact that she had brought an internal appeal against her dismissal. However, the EAT noted that at the preliminary hearing, she had not relied on the fact that she had brought an appeal as a factor that had caused her to delay bringing a claim to the ET.
She also contended that the ET had erred in not considering the possibility that the rejection of her appeal on 19 November 2022 was itself a discriminatory act. Had it done so, it might have concluded that the rejection was the last act in a course of conduct extending over a period for the purposes of Section 123, with the effect that her disability discrimination complaint would have been brought in time. However, while that was a position that could perhaps have been advanced, it was not the basis on which she had presented her case. The final allegedly discriminatory act she had relied on was her dismissal on 8 June 2022.
Neither of the issues raised in the grounds of appeal had formed any part of her case before the ET. The ET could not be said to have erred in law by failing to consider matters that were never raised before it. Her appeal was dismissed.
