Claimant v The Merchant Company Education Board (operating as ESMS)
Outcome
Individual claims
The tribunal found it had no jurisdiction to hear the claim as it was presented approximately 2.5 months out of time (lodged 31 October 2024 when time limit expired 14 August 2024). The tribunal concluded it was reasonably practicable for the claimant to lodge his claim in time given he had frequent access to Citizens Advice Edinburgh with interpreter support, was informed of time limits, and his caring responsibilities and hand injury did not prevent timely filing.
Application to amend to add age discrimination claims (relating to comments about claimant being called 'that old Jew' and dismissal alongside 5 other older staff) was refused. Under Cocking v Sandhurst, there must be a claim capable of being amended. As the tribunal had no jurisdiction over the original unfair dismissal claim, there were no proceedings which could be amended.
Facts
The claimant, a part-time cleaner working 20 hours per week, was dismissed on 15 May 2024. He cares for his seriously ill daughter. He received support from Citizens Advice Edinburgh (CAE) approximately weekly with an interpreter, who prepared his appeal and advised him on employment matters. He was informed of tribunal time limits but did not enquire about specifics as he was focusing on finding new work. He sustained a hand injury on 31 August 2024. CAE assisted him to lodge his unfair dismissal claim on 31 October 2024, approximately 2.5 months out of time. He later sought to amend to add age discrimination claims relating to comments calling him 'that old Jew' and dismissal of older staff.
Decision
The tribunal struck out the unfair dismissal claim for lack of jurisdiction, finding it was reasonably practicable for the claimant to lodge in time given his frequent access to CAE with interpreter support and knowledge of time limits. The amendment application was refused under the principle in Cocking v Sandhurst that there must be an existing claim capable of amendment, which did not exist once jurisdiction over the original claim was refused.
Practical note
Where a claimant has regular access to competent advice with interpretation support and is informed of time limits, failure to enquire about specific deadlines will not make it not reasonably practicable to lodge a claim in time, and without a valid underlying claim, there are no proceedings capable of amendment.
Legal authorities cited
Statutes
Case details
- Case number
- 4107155/2024
- Decision date
- 30 April 2025
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- education
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Cleaner
Claimant representation
- Represented
- No