Neckles v Yorkshire Rider Ltd (t/a First Huddersfield)

When deciding whether it is just and equitable to extend time for a discrimination claim, the tribunal must address the actual grounds relied upon. That includes later-emerging material said to make the claim arguable, even where the claim could in principle have been brought earlier. A failure to confront that issue may make an appeal arguable. The question whether an extension is just and equitable is distinct from witness credibility. Acceptance of a claimant’s evidence does not, by itself, require an extension. Permission on the procedural issue does not determine whether an extension should ultimately be granted or whether the discrimination claim will succeed.

Mr Neckles sought renewed permission to appeal against a decision of the Employment Appeal Tribunal dated 1 February 2001. The Employment Appeal Tribunal had found the Employment Tribunal’s stated reason for refusing an extension of time to be plainly wrong when read literally, but upheld the result on a different basis.

The claim was brought four months out of time. Mr Neckles argued that material emerging after earlier 1997 proceedings had cast fresh light on events and made a racial discrimination claim arguable. He also argued that the tribunals should have required his oral evidence. The central issue was whether the application to extend time on the basis that it was just and equitable to do so had been properly considered.

1. Permission granted. The renewed application concerned whether the tribunals had properly considered the request to extend by four months the time for bringing the racial discrimination claim. The issue was arguable.

2. The Employment Appeal Tribunal’s reasoning focused on the fact that the racial discrimination claim could, in principle, have been raised in the earlier 1997 proceedings. That did not confront the distinct case advanced by Mr Neckles: subsequent events and newly emerged material were said to have made the claim arguable only after those proceedings. The relevant tribunal had to consider whether that circumstance made it just and equitable to extend time. The failure of both tribunals to confront that issue justified permission to appeal.

3. The procedural argument concerning oral evidence had little merit. Whether an extension is just and equitable is a different question from witness credibility. A tribunal may accept a witness’s credibility and admit a written statement without that conclusion requiring an extension of time.

4. Lord Justice Pill emphasised that permission would not determine the substantive application. If the applicant succeeded on the procedural point, the issue would return to a lower tribunal for consideration on the evidence and could still be decided against him. He also observed, without comprehensively considering the allegations, that the applicant faced considerable difficulty in establishing racial discrimination. The order directed that the appeal proceed before a three-judge constitution, with attention to be given to bundle referencing.

• Court of Appeal (Civil Division): On 1 November 2001, Lord Justice Pill allowed the renewed application for permission to appeal: [2001] EWCA Civ 1647.
• Employment Appeal Tribunal: Decision dated 1 February 2001. It found the Employment Tribunal’s stated reason plainly wrong when read literally but upheld the refusal of the extension on another basis.
• Employment Tribunal: Refused the application to extend time for the racial discrimination claim.