Discrimination – time limits
Section 123(1) of the Equality Act 2010 says that discrimination claims must be brought within three months of the alleged discriminatory act or such other period that the tribunal thinks is ‘just and equitable’ in the circumstances. An extension of time will be the exception not the rule. The tribunal can consider anything it thinks is relevant when making that decision, including the length of the delay and the reasons for it, the effect of delay on the cogency of evidence and how quickly the employee acted once they knew that they had a potential legal claim. The employment appeal tribunal (EAT) has looked at a case recently where the tribunal had considered the merits of the potential claim when deciding whether to grant an extension of time.
In Kumari v Greater Manchester Mental Health NHS Foundation Trust, the employee lodged her claims too late. She then applied to amend the same claim to add another claim, which was also out of time. The tribunal refused to allow the claim or the amendment. Among other things, they considered that the merits of the claims appeared to be weak, though not so weak that they had no reasonable prospects of success at all. The employee appealed, saying the tribunal should not have taken the merits of the claims into account because to do so would undermine the strike out regime that the employer could call on afterwards if felt the merits of the claims were poor.
The EAT dismissed the appeal. There is no exhaustive list the tribunal must go through when deciding about extensions of time. There is nothing to say that the merits cannot be one relevant consideration in a particular case. The tribunal must make its decision based on relevant factors identified during the hearing, bearing in mind that they will not have all the evidence at this preliminary stage. In this case, the evidence showed that the tribunal had weighed up all relevant matters including the apparently poor merits. The claims suggested that some of the conduct was not targeted at the employee, and it was difficult to link anything in the claim to race. It was relevant that the tribunal had allowed the employee to address these points during the hearing. The ‘balance of prejudice’ test in amending claims was also fact-specific and there was nothing to say why considering the merits of a potential claim was unreasonable.
This case is a reminder that extensions of time for claims lodged late will be the exception rather than the rule. There is a presumption that late claims will not be accepted, meaning an employee will have to show why it is just and equitable to extend time, rather than the employer having to show why it is not. Employers should never roll over in relation to late claims but make employees prove that the extension is justified.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539