Employment Tribunal Allows Disability Discrimination Claim

OUTCOME: Allowed in Part

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No. 8001001/2025

Preliminary Hearing on 26 March 2026 in Glasgow

Employment Judge [NAME]

Claimant

In Person

The City of Edinburgh Council Respondent

Represented by:

Ms [COUNSEL],

Solicitor

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

The judgment of the Tribunal is that (i) the complaints of unfair dismissal and detriment for making a protected disclosure shall be dismissed and (ii) the complaint of disability discrimination shall proceed.

REASONS

BACKGROUND

1. The Tribunal held a preliminary hearing to determine the issue of whether the complaints of unfair dismissal, detriment for making a protected disclosure (whistleblowing) and disability discrimination having been presented out of time could proceed. FINDINGS IN FACT

2. The claimant gave evidence and the Tribunal was provided with documents from both parties. Based on the above, the Tribunal made the following findings in fact relevant to the issue before it;

3. The claimant was dismissed by the respondent on 3 December 2024. At that time the claimant was represented by a [NAME]. After his dismissal, the

8001001/2025 Page 2 claimant remained in contact with the [NAME]. They provided him with information about bringing an appeal against dismissal and about presenting a claim to the Employment Tribunal. It was suggested by the [NAME] that presenting a claim to the Employment Tribunal was something to consider after the appeal was concluded.

4. Following his dismissal, if not before, the claimant knew about obtaining advice from the CAB and ACAS. He was aware of Employment Tribunals. He was aware of the right to make claims to an Employment Tribunal including unfair dismissal and discrimination. In addition to advice from his [NAME], he used the internet to find out about claims to the Employment Tribunal. He was aware that there are time limits for presenting claims to the Tribunal.

5. The claimant appealed against his dismissal and attended the appeal hearing without [NAME] representation. The appeal hearing took place on 4 April 2025. The claimant contacted ACAS on 6 April 2025 about early conciliation. The appeal was unsuccessful and the claimant was informed of this by letter dated 11 April 2025.An early conciliation certificate was posted to the claimant on 11 April 2025.

6. The claimant presented a claim to the Tribunal on 25 April 2025. An earlier claim presented on 15 April 2025 was rejected because the claimant had not provided information about early conciliation.

7. The claimant should have contacted ACAS or presented his claim no later than 2 March 2025 to have complied with the time limits for presenting his claim.

8. The claimant struggles with low mood and heavy alcohol use. He has had mental health issues for a number of years which have included depression and issues with anger. Since his dismissal, the claimant has had intermittent periods of social isolation and has struggled to engage with the outside world.

DELIBERATIONS

9. It is not in dispute that the claim was presented out of time. For the complaint of unfair dismissal to be allowed to proceed, the Tribunal must first be satisfied that it was “not reasonably practicable” for the claim to have been presented before the end of the period of three months from the date of dismissal (Section 111(2)) of the Employment Rights Act 1996 (“ERA”)). A similar provision applies to the whistleblowing complaint (Section 48(3) of ERA). (Early conciliation can extend the three month period but this would

8001001/2025 Page 3 have required the claimant to have started this process through ACAS within the three month period). If the Tribunal decides that it was not reasonably practicable for the claimant to present the claim in time, it must go on to decide whether the further period within which the claim was presented– in this case 6 weeks and 2 days for the rejected claim and 7 weeks and 5 days for this claim– is reasonable.

10. When reaching its decision, the Tribunal had regard to parties’ submissions and the documents (including medical evidence), and authorities referred to during the hearing.

In all the circumstances, the Tribunal was not persuaded that it was not reasonably practicable for the claimant to have presented his claim for unfair dismissal and whistleblowing within three months of his dismissal. The claimant was represented by a [NAME] during the disciplinary hearing and for a period after his dismissal when discussions took place about his right to appeal and to bring a claim to the Employment Tribunal. While the advice from the [NAME] was potentially misleading and incomplete as regards when to present a claim, the claimant was able to make his own enquiries using the internet. He was able to proceed with an appeal and attend the appeal hearing. He knew how to contact ACAS and the CAB to obtain advice on presenting his claim and of any applicable time limits for presenting a claim. While the Tribunal recognised that the claimant is unwell and has been unwell since his dismissal, making it difficult for him at times to engage in activities such as arranging to present a claim, the Tribunal was not persuaded that this was the position throughout the three month period following his dismissal, including the period towards the end of the three month limitation period, or that it made it not reasonably practicable to present his claim in time.

11. The Tribunal concluded that in all the circumstances the Tribunal should not extend the time limit for presenting the claim of unfair dismissal and whistleblowing and these complaints will be dismissed.

12. Turning to the claims of disability discrimination. It is the claimant’s position that his dismissal was an act of disability discrimination. The claimant has indicated that there are other alleged acts of discrimination, but the Tribunal does not have sufficient information about these or the dates of alleged acts to consider them in this judgment. (The respondent has reserved the right to raise issues of time bar if further acts of discrimination are complained of by the claimant).

13. In terms of this hearing, the Tribunal has considered whether the alleged act of disability discrimination, being his dismissal on 3 December 2024, should be allowed to proceed having been presented out of time. The Tribunal must

8001001/2025 Page 4 consider whether it is just and equitable to extend the three month time limit (Section 123(1)) of the Equality Act 2010).

14.

In all the circumstances, the Tribunal was satisfied that it is just and equitable to extend the time for presenting the claim of disability discrimination to 25 April 2025. The Tribunal did not accept that the respondent will suffer material prejudice if the time for presenting the claim is extended. The Tribunal did not accept that an extension to 25 April 2025 will materially affect the cogency of the evidence. The dismissal was well documented by the respondent. The claimant had attempted to bring the claim earlier. When it was successfully presented on 25 April 2025, it was around two weeks after he been informed by the respondent of the outcome of the appeal and less than two months out of time. To dismiss the claim would prejudice the claimant to the extent that he will be denied the opportunity to pursue a claim of alleged disability discrimination. The respondent will have to defend the claim, but the Tribunal is persuaded that in all the circumstances, this inconvenience and cost to the respondent is outweighed by the prejudice to the claimant of not being able to pursue his claim.

15. The claim of disability discrimination will therefore proceed. Parties will be contacted by the Tribunal to provide their availability to attend a preliminary hearing to discuss further procedure.

_________________________ Date sent to Parties

28 April 2026