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In the case of Chouafi v London United Busways Ltd [2005], the claimant was employed as a bus driver by the defendant company. In October 2003, he was diagnosed with severe depression and was signed off work until February 2004. He was dismissed in January 2004 on the grounds of his medical condition and complained to the use tribunal of unfair dismissal and disability discrimination.

The Employment Rights Act 1996 provides that an employment tribunal shall not consider a criticism for unfair dismissal unless it's presented to the tribunal among three months of the effective date of termination of employment.

However this three-month limitation period could be extended if the tribunal considers that in the relevant case, it was not moderately practicable for the complaint to be presented inside the three months.

There are similar provisions under the Incapacity Discrimination Act 1995.

The tribunal determined that:-

The grievance of unfair dismissal had not been presented among the 3-month point in time, pursuant to s 111 of the Employment Rights Act 1996;
The complaint of disability discrimination had not been presented among the 3-month cut-off date, pursuant to the para 3 Schedule three of the Incapacity Discrimination Act 1995; and
Accordingly, the tribunal didn't have jurisdiction to listen to the claims.
The worker appealed to the Employment Charm Tribunal ("EAT") against the decision. The EAT held that:-

Selections on whether or not or not a claim would be admitted out of your time, for unfair dismissal or disability discrimination, were essentially questions of facts on which the tribunal ought to decide based upon the evidence submitted by the parties;
The onus of proof was on the claimant to indicate it wasn't fairly practicable to bring an action at intervals the three-month limit;
If the claimant didn't discharge that burden of proof, his/her case would inevitably fail;
In this case, the claimant failed to attend the hearing and provide more proof about his mental health; and
The Tribunal was right in concluding that the worker had failed to supply an adequate clarification for filing his claim outside the time limit ; and
The tribunal's decision would be upheld.
The claimant's charm was so dismissed.

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© RT COOPERS, 2005. This Briefing Note will not offer a comprehensive or complete statement of the law regarding the issues mentioned nor does it constitute legal advice. It is supposed solely to spotlight general issues. Specialist legal advice should invariably be sought in relation to explicit circumstances.

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