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 employment tribunal of unfair dismissal and disability discrimination.

The Employment Rights Act 1996 provides that an employment tribunal shall not consider a complaint for unfair dismissal unless it is presented to the tribunal within three months of the effective date of termination of employment. However this three-month limitation period may be extended if the tribunal considers that in the relevant case, it was not reasonably practicable for the complaint to be presented within the three months. There are similar provisions under the Disability Discrimination Act 1995.

The tribunal decided that:-

The complaint of unfair dismissal had not been presented within the three-month time limit, pursuant to s 111 of the Employment Rights Act 1996;

The complaint of disability discrimination had not been presented within the three-month time limit, pursuant to the para 3 Schedule 3 of the Disability Discrimination Act 1995; and Accordingly, the tribunal did not have jurisdiction to hear the claims. The employee appealed to the Employment Appeal Tribunal ("EAT") against the decision. The EAT held that:-

Decisions on whether or not a claim would be admitted out of time, for unfair dismissal or disability discrimination, were essentially questions of facts on which the tribunal should decide based upon the evidence submitted by the parties;

The onus of proof was on the claimant to show it was not reasonably practicable to bring an action within the three-month time limit;

If the claimant failed to discharge that burden of proof, his/her case would inevitably fail;

In this case, the claimant failed to attend the hearing and provide more evidence about his mental health; and The Tribunal was right in concluding that the employee had failed to provide an adequate explanation for filing his claim outside the time limit; and

The tribunal's decision would be upheld.

The claimant's appeal was therefore dismissed.

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