Ms M McGuiness v British Gas Services: 3331762/2018
| Judgment Date | 29 April 2020 |
| Citation | 3331762/2018 |
| Published date | 20 July 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 3331762/2018
5 Final Hearing in Glasgow on 7, 8 and 9 October and 17, 18 and 20 December
2019; Members meeting Monday 16 March 2020
Employment Judge R McPherson
Members EA Farrell 10 P Kelman
Ms M McGuiness Claimant
Represented by:
M Allison – 15 Solicitor
British Gas Services Respondent
Represented by:
V Kerr/J Cran – 20 Solicitors
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The judgment of the Employment Tribunal is that:
1. the Tribunal does not have jurisdiction to consider the claims for Unfair 25
Dismissal asserting breach of s 94 of Employment Rights Act 1996 (ERA
1996), her claims were presented after the expiry of the statutory time limit
and it was reasonably practicable for her to have presented her claim before
the time limit. Those claims are dismissed; and
2. the claimant’s claims of Disability Discrimination in terms of the s 15 of the 30
Equality Act 2010 (EA 2010) discrimination arising from disability do not
succeed.
3. the claimant’s claims of Disability Discrimination in terms of the ss 20 and 21
of the Equality Act 2010 (EA 2010) failure to make reasonable adjustments
do not succeed. 35
3331762/2018 Page 2
REASONS
Introduction
Preliminary Procedure
1. This claimant brought a complaint for Unfair Dismissal and Disability
Discrimination under sections 15 and 20 of the Equality Act 2010 (EA 2010).
5
The protected characteristic is disability, the condition relied upon is cancer,
the claimant in her ET1 had additionally relied upon osteoarthritis as basis for
impairment and qualifying condition, however the Tribunal was advised at the
outset of the Final Hearing that osteoarthritis is no longer relied upon as a
qualifying impairment. The respondent (BGas) assert that the reason for
10
dismissal was capability, that there was a fair dismissal and they had not
breached the EA 2010.
2. At Preliminary Hearing on 1 April 2019, for Ms. McGuinness it was identified
that she would wish to provide Further Particulars as to what was relied upon
before the dismissal, whether there was a continuing series of acts and any
15
argument on just and equitable extension. A period of 14 days was permitted
for such Further Particulars with BGas being afforded 14 days to respond, if
so advised. No Further Particulars were provided before or at the Final
Hearing.
3. At a Preliminary Hearing on 12 April 2019 and as identified in Tribunal Note
20
date 25 April 2019 (the April 2019 Note) it had been directed that Ms.
McGuiness would give evidence in chief by way of written statement “which
shall be intimated to the Respondents at least 7 days prior to the Final
Hearing”, at the Final Hearing it was intimated that no written statement had
been provided and that parties were agreed that Ms. McGuiness would give
25
oral evidence.
4. For BGas there was an identified existing issue of time bar (raised at para 31
and 32 of the ET3) which was referred to in the Preliminary Hearing on 12
April 2019 as identified the April 2019 Note. In particular, it was identified in
the April Note that this related to whether “there was a continuing series of
30
3331762/2018 Page 3
acts, and any argument on a just and equitable extension” and at para 6 “that
issues of time bar were appropriately dealt with after the evidence was
raised”. That is to say, it was in the context of the sequence of events which
Ms. McGuiness was relying upon and which occurred over a period. It was
not identified as being in relation to the date of termination.
5
5. It was agreed between the parties that BGas should lead.
6. No agreed chronology of events was provided to the Tribunal.
7. The April 2019 Note records at para 3 that Ms. McGuiness had not at that
stage provided her medical records and at para 4 it was indicated that parties
“agreed that a joint medical report may have been appropriate in the event
10
that matters were not all agreed” but that no order was considered required.
8. At the outset of the Final Hearing, on behalf of Ms. McGuiness it was
confirmed that, subsequent to the April 2019 Note and report from Ms.
McGuiness’s GP to her representative dated 22 May 2017 (provided in the
Joint Bundle to the Tribunal for the Final Hearing), a (non joint) medical report
15
had been commissioned and obtained, but that it would not be provided to the
Tribunal or the respondent.
9. What, toward the end of the Final Hearing, became a core issue, of the actual
date of termination and its impact, was not at an earlier stage identified by
either party as being in issue.
20
10. B Gas, in the course of the hearing, reflecting evidence given in the course of
cross examination of Ms. McGuiness, sought to argue that both the Unfair
Dismissal claim and Disability Discrimination claim had been lodged out of
time.
11. The issues for the Tribunal are as follows:
25
(i) Non-disclosure of a medical report;
(ii) What was the date of termination?; and
(iii) Unfair Dismissal -Time Limit and Jurisdiction
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