D'Souza v Lambeth Borough Council

For an out-of-time discrimination complaint, the decision to extend a statutory time limit on the just and equitable ground is primarily for the employment tribunal. An appellate court may intervene only for an error of law, not merely because another conclusion was available. Relevant circumstances may include the length of delay, prior awareness of the complaint, the opportunity to pursue it earlier, steps taken to obtain supporting information, the clarity of the discrimination case and the adequacy of particulars. Domestic time limits are compatible with European equal-treatment requirements if they are non-discriminatory and do not deprive claimants of effective remedies.

This was an application for leave to appeal to the Court of Appeal from an Employment Appeal Tribunal decision. The applicant alleged that his dismissal by the respondent local authority constituted sex discrimination under the Sex Discrimination Act 1975. The complaint was brought years after the dismissal and outside the statutory time limit.

The Industrial Tribunal refused to extend time, holding that it was not just and equitable to do so. The Employment Appeal Tribunal dismissed the appeal at the outset, finding no error of law. The central issue was whether the Industrial Tribunal’s conclusion was legally open to it.

Application refused unanimously. Hobhouse LJ gave the judgment and Pill LJ agreed.

1. The statutory scheme imposed a three-month time limit under section 76 of the Sex Discrimination Act 1975, subject to extension where that was just and equitable in all the circumstances. The issue went to the Industrial Tribunal’s jurisdiction.
2. An appellate tribunal or court hearing an appeal confined to questions of law must not substitute its own assessment for the Industrial Tribunal’s discretionary assessment. Different conclusions may both be lawful. Intervention is justified only where the conclusion reached was not lawfully open to the Tribunal.
3. There was no incompatibility with European equal-treatment law. Time limits could be applied under domestic law provided that they were non-discriminatory and did not deprive claimants of effective remedies. Hobhouse LJ relied on Fisscher (C-128/93) and the discussion and confirmation of those principles in Preston ([1997] I.C.R. 899).
4. The Industrial Tribunal had considered the relevant circumstances. They included the very substantial delay, the fact that the issue had surfaced earlier, the applicant’s prior awareness and opportunity to pursue it, his failure to take steps to obtain information, the absence of a clear case of sex discrimination and the inadequacy of the particulars. The factors identified in Keeble ([1997] IRLR 336) were not shown to have been overlooked. The applicant’s reliance on Marley UK Ltd v Anderson (The Times, 20th December 1995) did not establish an error of law.
5. The Industrial Tribunal was fully entitled to refuse an extension of time. No point justified granting leave to appeal. Order: application refused.

• Court of Appeal (Civil Division) Refused the application for leave to appeal, holding that no error of law had been shown.
• Employment Appeal Tribunal Dismissed the appeal at the outset because the Industrial Tribunal’s decision disclosed no error of law.
• Industrial Tribunal Refused to accept the out-of-time complaint and concluded that extending time was not just and equitable.