Disability discrimination case dismissed due to being out of time. Waiting for a formal response to a complaint raised with the employer was not sufficient grounds for extending time.

The claimant commenced employment with the respondent in March 2018.  The claimant alleges disability discrimination on the basis of bullying and harassment from her line manager which allegedly occurred in July 2024.

The issue began in October 2023 when the claimant had a ‘walk off’ at her till (i.e. someone walks off without paying). The line manager stated that the amount of ‘merchandise’ (c. £1400) should have been a red flag and she should have called for help.  The claimant stated this was not possible as the till bells never worked following new tills being installed and she did not have a headset. She was also informed that she could have run after the customer.  The claimant stated she could not as she had COPD (which the line manager was aware of) and that security had been removed from the store. This led to an investigation, during which time the claimant was off sick.  On her return, the investigation was mentioned again and the fact that the claimant did not run after the individual in the incident. This led to the claimant becoming upset and stressed.

The claimant was hospitalised on 5th November and informed Ms Doherty.  Ms Doherty responded in a caring manner but on 6th November a voice note was left for the claimant to arrange a meeting relating to absenteeism.  The claimant stated she had Covid and alleged that Ms Doherty questioned this and that she didn’t sound too bad.  The absenteeism continued until July 2024.  At a meeting in July 2024 the claimant stated she was asked personal questions including whether she was on PIPS. The claimant stated that she was also told that if she is fit enough to go to a wedding then she should be fit enough to attend work.

A meeting took place in August with Store Managers where it was noted that running after a thief was not Tesco policy nor was requesting an employee to resign. The final absence meeting though took place at the end of August where it was stated that there were no alternative positions and that she would be dismissed.  The termination took place on 5th September 2024.

It was not until January 2025 that the claimant contacted the LRA and it was 31st January 2025 in which a claim was lodged. As the last act complained of was 5th July 2024 this meant the claim was more than 3 months out of time.

The claimant argued that it was just and equitable to extend time on the basis of ill health and that she had been waiting for a formal complaint from the first respondent as she had submitted letters at the time of her dismissal. The respondent argued there was no evidence that the claimant was incapacitated during the relevant period and that the nature of the claimant’s disability was not such that it would stop her from seeking advice and lodging the claim.

The Tribunal held that waiting for a formal response to a grievance or complaint was not a good reason for the claimant failing to comply with the time limits.  Additionally, the Tribunal notes that the claimant made a conscious decision to focus on her health rather than going forward with the claim in 2024. Accordingly, in all the circumstances, it was held that it was not just and equitable to extend time and the claim was dismissed.

The allegations raised by the claimant in terms of the treatment following the ‘walk off’ is quite stark and could be difficult to defend.  However, that is not a factor to be considered in determining whether time should be extended.  Instead, it is based upon the evidence brought forward by the claimant as to why they did not submit on time.  The argument that it was based upon ill-health without any specific evidence and that they were waiting for a formal response were insufficient and therefore the case was dismissed.   

NI Tribunal decisions are available on the OITFET website.