Dismissed after four years off sick: claim thrown out as too late
An overseas detainee custody officer who was dismissed after four years of sickness absence had his unfair dismissal and disability discrimination claims rejected because he presented them too late, despite the tribunal accepting he had a good reason for the initial delay.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #spinal-injury
- #multiple-sclerosis
- #out-of-time-claim
- #capability-dismissal
- #notice-pay
- #holiday-pay
Key facts
- The claimant was employed as an Overseas Detainee Custody Officer from 16 July 2012 until his dismissal on 27 July 2021.
- The claimant was signed off work with a back injury on 23 May 2017 and never returned to work.
- The claimant underwent spinal surgery on 1 November 2017 and 10 July 2019, and further surgery on 26 October 2021.
- The claimant was dismissed on grounds of capability after four years of sickness absence.
- The claimant presented his claim to the tribunal on 3 February 2022, after the primary time limits had expired.
- The tribunal found that it was not reasonably practicable for the claimant to present his claim within the primary time limit, but he did not submit it within a further reasonable period.
Timeline
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Employment started
The claimant began working as an Overseas Detainee Custody Officer.
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Sickness absence began
The claimant was signed off work with a back injury and never returned.
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First spinal surgery
The claimant underwent spinal surgery.
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Second spinal surgery
The claimant underwent further spinal surgery.
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Dismissal
The claimant was dismissed on grounds of capability with payment in lieu of notice.
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Third spinal surgery
The claimant underwent further spinal surgery and was in hospital until 29 October 2021.
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ACAS early conciliation started
The claimant entered into early conciliation with ACAS.
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ACAS early conciliation ended
An EC certificate was issued.
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Claim presented
The claimant submitted his claim form to the tribunal.
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Preliminary hearing
The tribunal heard the issue of whether the claims were presented in time.
The legal issue
The tribunal had to decide whether it had jurisdiction to hear claims for unfair dismissal, disability discrimination, and unlawful deduction of wages, all of which were presented after the primary time limits had expired. The key question was whether the claimant had a reasonable excuse for the delay and, if so, whether he acted promptly enough once that excuse ended.
The outcome
The tribunal dismissed all of the claimant's claims because they were presented too late.
- The claimant was dismissed on 27 July 2021 after four years of sickness absence due to a spinal injury and multiple sclerosis. He presented his claim on 3 February 2022, missing the primary time limit of 26 October 2021 for unfair dismissal and disability discrimination.
- The tribunal accepted that it was not reasonably practicable for the claimant to present his claim within the primary time limit because he was in hospital for spinal surgery on 26 October 2021 and recovering afterwards. However, he did not submit the claim until 3 February 2022, which was not within a further reasonable period after the obstacle ended.
- The respondent conceded the claim for 11 weeks' notice pay and 248 hours of accrued holiday pay, so the claimant was awarded £5,499.36 for those amounts.
Lessons & takeaways
- If you miss the primary time limit for an employment claim, you must act as soon as reasonably possible once the obstacle is removed — waiting weeks or months can be fatal.
- The 'further reasonable period' after an initial delay is usually short (often a matter of days or weeks), not months, even if you are still recovering from illness.
- Keep a clear record of when you became able to pursue a claim, as the tribunal will scrutinise the gap between that date and when you actually submitted the claim.
- Unfair dismissal and discrimination claims have strict time limits (usually three months minus one day from the dismissal date) — even a good reason for the initial delay does not guarantee an extension.
When ill health delays a claim — but not enough
This case shows the harsh reality of employment tribunal time limits. The claimant, an overseas detainee custody officer with nine years' service, was dismissed after four years of sickness absence caused by a spinal injury and multiple sclerosis. He underwent spinal surgery on 26 October 2021 — the very day his primary time limit for claiming unfair dismissal expired. The tribunal accepted that his hospitalisation made it not reasonably practicable to present his claim on time. But that was only the first hurdle.
The tribunal found that the claimant did not submit his claim within a 'further reasonable period' once the obstacle ended. He was discharged from hospital on 29 October 2021, but did not start ACAS early conciliation until 29 November 2021, and only presented his claim on 3 February 2022. The gap of over three months was too long. The tribunal noted that the claimant was capable of managing his own affairs during that period, as he had been in contact with his union and had prepared documents.
What the respondent did right
Mitie Care and Custody Limited conceded the claim for notice pay and holiday pay, which the claimant was awarded. This avoided a separate hearing on those amounts. The respondent also had a capability procedure in place and paid the claimant in lieu of notice at dismissal. However, the tribunal did not need to examine the fairness of the dismissal itself because the claims were out of time.
What this means for similar claims
If you are off sick and miss the deadline to bring a tribunal claim, you must act promptly once you are able. Even a serious medical condition will not give you unlimited extra time. The 'further reasonable period' is usually measured in weeks, not months. Keep evidence of when you became well enough to pursue your claim, and seek advice as soon as possible. The tribunal's sympathy for your illness does not extend to a long delay after recovery.
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