Disabled employees should not be denied the ability to engage in strategies and mechanisms which help to cope with the effects of their condition simply because they inconvenience other staff. Paul Burton looks at a recent case where disability discrimination was disputed.
Sterling v United Learning Trust
The Employment Appeals Tribunal (EAT) has held that an employment tribunal was entitled to reject a claim that was submitted out of time, due to the Claimant entering the wrong ACAS early conciliation number.
In this cautionary tale for Claimants, the employee submitted her ET1 with missing digits from the early conciliation number four days before the expiry of the limitation period. It was returned to her by the tribunal office two days later, with an accompanying letter. The address cited by the office was neither that of her representative nor her home. It ultimately arrived at a neighbour's house and the employee re-submitted straightaway, albeit out of time.
On appeal the employee argued that the employment tribunal was not entitled to make such an inference but the EAT disagreed. The tribunal rules of procedure allow the employment tribunal to reject a claim if the early conciliation number is missing, although a party may apply for a reconsideration of such a rejection. No such application was made by the employee's representative, and even though he was not legally qualified, the EAT said the employment tribunal was entitled to conclude that no such application was forthcoming.
The representative also failed to argue that it was not reasonably practicable for the employee to have lodged the claim in time. The EAT dismissed the employee's challenge to this aspect of the judgment, making it clear that the burden was on her to prove that it was not reasonably practicable and that even if the point had not been argued originally there was a duty on the employee to ensure that the early conciliation number was cited correctly.
Employment Partner Kate Fretten says, "This decision may seem harsh on the Claimant, but this case demonstrates that parties must ensure they comply with the tribunal rules of procedure. Even honest mistakes will be punished. The Claimant was undoubtedly prejudiced by the fact she did not have a legally qualified representative, as if she had they would almost certainly have argued the ‘not reasonably practicable’ point."
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.