Can time be extended if I have a discrimination claim?
The EAT in Jones v Secretary of State for Social Care denied a Claimant’s appeal after the Tribunal found he was out of time to present his race discrimination claim.
The Claimant applied for a role as Assistant Business Manager, on 8 March 2019. He was interviewed alongside another four candidates and was found to be the second highest scoring, however, another of the candidates was appointed, on 2 April 2019. Due to an error, none of the candidates were told their application was unsuccessful until three months after the appointment.
The Claimant raised a grievance after chasing a response from the Respondent and requested information regarding the nationality of the successful candidate; the Respondent refused, citing GDPR. The Claimant commenced ACAS Early Conciliation on 30 September 2019. He later commenced a Tribunal claim on the grounds of race discrimination, as he believed he did not get the role as he was of African-Caribbean descent.
The Respondent in its defence stated the claim was out of time and denied discrimination. It was later confirmed in a preliminary hearing that the successful candidate was white. The Tribunal found that the discrimination had not occurred as there was too many material differences in the circumstances of the candidates. They also concluded that the claim was out of time.
The Tribunal considered it was not just and equitable to extend the time. The Claimant was aware by August that he was not a successful candidate, so he therefore had the material required to make a claim. They also considered that the delay in presenting the claim would prejudice the Respondent in regard to the cogency of the evidence.
The Claimant appealed on the basis that the Tribunal had erred in law by assuming that “a reasonable and honest assessment of performance in interview meant that there could not have been any race discrimination” and further, that they had erred in their approach to the hypothetical comparator. The appeal failed on the basis that the EAT found the original decision in respect of the time limit was not perverse.
The Respondent relied on a case called Robertson – often cited by Respondents in time limit cases – as authority for the proposition that “time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule”.
Here EAT deprecated that approach – these were not principles of law, and the ET will always have a wide discretion to extend time (or to decline to extend it).
That is helpful, from a Claimant’s perspective, in so far as it limits the Respondent’s arguments as to “strict application” of time limits. On the other hand, EAT is making it clear here that successful appeals against such ET decisions will be few and far between – as a rule, the ET’s wide discretion means that it will be the final arbiter in most cases.
Where there are potential time limit issues in discrimination claims, an individual should seek advice swiftly in order to present their claim as soon as possible. In some cases, a just and equitable extension can be used to present a claim out of time. This is a very complex area of law, and the history always requires careful consideration before a claim out of time is made.
Author: Erin Garnham, employment law.
