Pal v Guy's and St Thomas' Hospital NHS Trust

For discrimination claims, the relevant act is the employer’s discriminatory act, not the claimant’s subsequent awareness of it. The statutory discretion to extend time where it is just and equitable does not require an employment tribunal to apply the Keeble checklist in every case. The checklist may be useful, but Parliament has prescribed no mandatory list of factors. The claimant must identify grounds justifying an extension. On a second appeal, the Court of Appeal is primarily concerned with the correctness of the tribunal’s reasons and will not interfere where the tribunal had evidence supporting its findings and committed no error of law.

Dr Pal complained of sex and race discrimination after three colleagues were promoted and her post was not regraded. The Employment Tribunal found that she knew of the promotions during October 1999, rejected her contrary evidence, dismissed the claim as out of time and refused to extend time on the just and equitable ground. It also considered the merits and accepted the employer’s explanation.

The Employment Appeal Tribunal dismissed her appeal at a preliminary hearing, holding that she had not crossed the high threshold for interference with the tribunal’s discretionary decision. Dr Pal sought permission to appeal, challenging the limitation calculation, the failure to apply the Keeble checklist, the treatment of prejudice and the decision to determine limitation preliminarily.

1. Application refused. Dr Pal had no real prospect of success and showed no other compelling reason for the appeal to be heard.
2. Under Race Relations Act 1976, section 68(1), and Sex Discrimination Act 1975, section 76(1), time runs from the doing of the act complained of. That act was the employer’s alleged discriminatory failure to promote or consider Dr Pal, occurring in October 1999. Her originating application on 6 June 2000 was therefore out of time.
3. The tribunal had evidence on which it could find that Dr Pal knew of the promotions in September or October 1999. The Court of Appeal would not re-try that factual issue. The Employment Tribunal was the only tribunal of fact and its conclusion was properly open to it.
4. The discretion to extend time on the just and equitable ground did not require the tribunal to use the checklist discussed in British Coal Corporation v Keeble [1997] IRLR 336. That checklist was derived by analogy from section 33 of the Limitation Act 1980, concerning personal injury and fatal accident claims. Parliament had not imposed such a checklist in discrimination cases. It might be appropriate in many cases, but was not mandatory in all cases.
5. The burden lay on the applicant seeking an extension to show why it was just and equitable. No relevant factor, beyond the rejected assertion that Dr Pal lacked knowledge of the promotions, had been advanced before the tribunal. The tribunal therefore made no error of law by failing to work through an unargued checklist.
6. Any omission by the EAT concerning authority on prejudice did not assist Dr Pal. On a second appeal, the Court of Appeal was more concerned with the correctness of the tribunal’s reasons than with the EAT’s reasons. The tribunal had considered the primary facts, so the preliminary determination of limitation disclosed no error.

• Employment Tribunal: dismissed the sex and race discrimination complaint as out of time and refused an extension of time; it also considered and rejected the claim on its merits.
• Employment Appeal Tribunal: dismissed the appeal at a preliminary hearing, finding that the high threshold for overturning the tribunal’s discretionary decision had not been met.
• Court of Appeal (Civil Division): refused permission to appeal.