Employment Tribunal practice and procedure – 2022 case law review: time limits

Just and equitable extensions – 3 decisions

Applying the test to the facts of the case: Wells Cathedral School Ltd v Souter EA-2020-000801 (20 July 2021, unreported)

In Wells Cathedral School Ltd v Souter, the EAT emphasised a key point about exercising the just and equitable extension of time discretion within s.123(1) Equality Act 2010: what factors are relevant and how to weigh them up in the given case are matters for the tribunal.

Two teachers had brought discrimination claims. The claims were significantly after the three-month limitation period had expired but there had been ongoing grievances during that time. The tribunal had allowed an extension.

The employer’s argument on appeal was that Robinson v Post Office [2000] IRLR 804 (EAT) established that a reason (an ongoing grievance) alone, without other separate factors, is insufficient to justify an extension.

The EAT disagreed. Case law states only that the bare fact that a grievance had been initiated and pursued first, and/or may still be being pursued, is not automatically, in and of itself, enough for an extension.

However, there is no legal rule that there must be some additional factor aside from the grievance process (para 43).

The EAT repeated various useful principles and points of guidance from case law, including:

• that the tribunal’s discretion is wide
• an extension is the exception not the rule
• what factors are relevant to the exercise of the discretion – and how they should be balanced – are for the tribunal;
• the tribunal may find the checklist of factors in s.33 Limitation Act 1980 helpful; and
• the EAT will only interfere with the tribunal’s decision if it was “perverse”.

 Weighing in the merits of the claim: Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 (26 April 2022, unreported)

In Kumari v Greater Manchester Mental Health NHS Foundation Trust, the EAT addressed the issue of the merits of the claim impacting whether to grant a just and equitable extension.

The claimant made a late claim for discrimination. The tribunal declined to extend time, and took into account what it considered to be the weak nature of the claims on the facts before it. The claimant argued on appeal that it was wrong in law for merits to be taken into account for the purpose of considering the just and equitable extension discretion.

However, the EAT dismissed the appeal, stating that the tribunal’s wide discretion under s.123(1) Equality Act 2010 and body of case law do not necessarily set a definitive or exhaustive list of factors that the tribunal may or must consider.

There is nothing to say that the tribunal cannot weigh merits (over and above the conclusion that there are no reasonable prospects of success) in the balance - nor does doing so undermine or circumvent the strike-out rule.

The EAT then considered the correct approach – at preliminary hearing stage - to assessing merits, as part of considering a just and equitable extension, when the tribunal cannot say that there are no reasonable prospects of success.

It held that the tribunal may do so provided it exercises appropriate care, identifying particular reasons or features supporting the assessment based on the information and materials before it, and keeping in mind that it does not have all the evidence. The points relied upon by the tribunal should be reasonably identifiable and apparent without carrying out a mini-trial or complex analysis.

In addition, the EAT held that a litigant-in-person does not necessarily need to be warned that such an early assessment of merits could take place when the extension is considered.

Considering the consequences of granting an extension: Secretary of State for Justice v Johnson [2022] EAT 1 (28 September 2021, unreported)

In Secretary of State for Justice v Johnson the EAT considered the effect of a further delay, after the already-out-of-time claim had been submitted, on whether to grant an extension.

The claimant submitted the ET1 on 19 December 2013. This was at most seven months after the successful allegation of discrimination had occurred (the date either being 13 February, or early September, 2013 - the exact date had not, in the EAT’s view, been properly considered).

However, the claim was then paused pending resolution of the claimant’s High Court personal injury claim. The tribunal hearing did not take place until February 2020, when the issue of a just and equitable extension was determined.

The tribunal held that, insofar as delay was concerned, it was only the short delay between the act and the bringing of the claim that it must have regard to, not the delay in the claim being brought to trial which was the fault of neither party.

The EAT disagreed, holding that Abedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, [2021] ICR D5 (which had not been decided at the time of the tribunal hearing) states that when considering extending time, it is relevant for the tribunal to consider the consequences of granting an extension, including having to make determinations about matters which occurred long before the hearing. As such, the delay between 2013 and 2020 was relevant, irrespective of being neither party’s fault. The case was remitted to the tribunal.

Impact on time limits of continuing act of discrimination vs one-off act with continuing effect: Parr v MSR Partners LLP [2022] ICR 672; [2022] EWCA Civ 24

In Parr v MSR Partners LLP the Court of Appeal considered the distinction between a discriminatory course of conduct (for which time runs from the end of the period within which the conduct took place) and a one-off act with continuing effects. More specifically, the issue was whether application of a rule or policy was of continuing application (and therefore a course of conduct), or a one-off application with continuing effect.

The claimant was an equity partner. The firm had a normal retirement age of 60 for partners, subject to the managing partner’s discretion to disapply it.

Upon reaching 60 the claimant was allowed to continue for two years, but as an ordinary non-equity partner. When the firm was then to be part-sold, as a non-equity partner he was not entitled to any sale proceeds. He claimed age discrimination, seeking losses related to the sale proceeds.

The Court of Appeal agreed with the EAT that the decision that the claimant could continue was a one-off exercise of discretion (which had been exercised differently in the past with others).

Bean LJ highlighted that “there is no logical reason why a demotion should be treated differently [to a dismissal, which is a one-off act] just because [the parties] remained in a contractual relationship” (at para 42).

Bean LJ also highlighted a policy reason supporting the decision. If a demotion could leave firms exposed to a discrimination claim on the basis of it being a continuing act so long as the contractual relationship continued, it would encourage greater ruthlessness in enforcing retirement age clauses.

The ‘not reasonably practicable’ test – extending time under s111(2)(b) Employment Rights Act: Cygnet Behavioural Health Ltd v Britton [2022] EAT 108, [2022] IRLR 906

The final word goes to a successful EAT appeal based on the tribunal’s decision having been perverse. This is a useful reminder of the stricter test for extending time under section 111(2)(b) Employment Rights Act 1996, as well as the type of factors which can count against an extension being granted.

In Cygnet Behavioural Health Ltd v Britton, the claimant brought an automatic unfair dismissal claim 62 days after expiry of the primary three-month time limit (s.111(2)(a) ERA 1996).

Under s.111(2)(b) time can be extended to “such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”. If it was not reasonably practicable to claim in time, the claim must still have been presented within a reasonable further period.

The tribunal had granted an extension on the basis of the time and effort the claimant, a physiotherapist, had expended dealing with a fitness to practice investigation, which it held had been exacerbated by his dyslexia and mental health issues. The respondent did not allege any error of law, appealing on the sole ground of perversity (i.e. that no reasonable tribunal would have reached that decision).

The EAT agreed, noting that:

1. The strictness of the s.111(2)(b) test has been emphasised in case law. The power to disapply the statutory three-month period is therefore very restricted, and is not available when considering “all the circumstances”, or when it is “just and reasonable”, nor even when the tribunal considers there is good reason. It is about practicability (paras 19-20).
2. It was perverse for the tribunal to have found that the claimant’s mental health problems and dyslexia, and his focus on the fitness to practice investigation, meant it was not reasonably practicable to claim in time. Someone considering bringing a claim is expected to appraise themselves of the relevant time limits; it is their responsibility (para 53) (in addition, the finding that the claim was submitted in a reasonable time thereafter was perverse: it was filed over two months after limitation expired).
3. There was no explanation in the tribunal’s judgment of why the claimant, despite the above-mentioned issues, did a great deal between dismissal and the time limit expiring. He had appealed dismissal, contacted ACAS (and been told to issue the claim as soon as he could after early conciliation), completed early conciliation, took on new work, moved house, and participated in the investigation – the tribunal found the only thing he was unable to do was identify the time limit (paras 54-56).