The claimant, a surgeon, brought an employment claim against the respondent trust on the basis of race discrimination and constructive dismissal.   The primary issue was that the claimant had presented his claim three days outside of the three-month time limit and the issue was whether the Judge should have used their discretion to allow an extension on just and equitable grounds. The extension had been refused by the Tribunal and the EAT and it was appealed to the Court of Appeal (click here for a reveiw of the earlier EAT decision).

The claimant notified ACAS of his intention to initiate conciliation as a result of allegations that had been made in relation to his work.   He gave three months’ notice of resignation on 25th August 2017 and he was advised by his solicitor that he would need to present his claim by 24th November 2017.  On 23rd November a fresh notification to ACAS was submitted outlining an entitlement to an extension of time.  He was advised again by his solicitors that he would have to present his claim on the 24th.  However, it was not lodged until the next working day, the 27th.   The race discrimination claim was based upon comments that had been made in November and December 2016.

In terms of the argument raised by the claimant, he stated that the three-month time limit had been extended as a result of the conciliation procedure. In the alternative, he also argued that he was entitled to an extension on just and equitable grounds.  There was a final argument that he had actually believed he had presented the claim on the 24th but this was not accepted. Notwithstanding that the ET and the EAT allowed for an extension of time stating that the three-day delay was not substantial.

On the point of Delay, the Court of Appeal acknowledged that the three-day delay was not substantial, yet the acts complained of had occurred long before the formal act of complaining was carried out.   As a result, the court needs to be aware of the effect it could have on the quality of the evidence when compared to a claim brought nearer to the time.  Furthermore, the Court took into account the fact that there was no misunderstanding and as a surgeon the claimant was an educated man who had taken legal advice and disregarded the deadline even though he had twice been expressly advised of it. Accordingly, the appeal was dismissed.

The Court of Appeal helpfully examined how the just and equitable granting of an extension in employment cases can be considered alongside other time limits within the Limitation Acts.  It was outlined that the factors in the Limitation legislation may illuminate the tribunal but it is not a starting point. Accordingly, the Court of Appeal advised against a mechanistic approach to factors to be considered instead opting for an assessment of all the factors in the case as to whether the broad general discretion should be used.

Practical Lessons

This case provides another examination of the way in which the three-month time limit operates in employment cases.   The interesting point arising from this case is that the Court of Appeal has outlined that all factors must be examined.  Part of this is clearly subjective in that one of the factors was the particular background and education of the claimant.  This went against the claimant in his request for an extension.  The subjective approach, in this regard, may give rise to greater uncertainty in the use of the discretion but the court does not want to make it mechanistic to ensure that it operates on that just and equitable basis.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/23.html