Perth & Kinross Council v Townsley

When deciding whether it is just and equitable to extend the time limit for a discrimination claim, a tribunal must consider all the circumstances. A claimant’s ignorance of the right to bring proceedings is relevant only if the ignorance was reasonable and remained reasonable during the primary limitation period. The tribunal must also take account of the actual legal and evidential basis of the claim, including whether the alleged requirement has been clearly identified and could produce the alleged disparate impact. Material factual errors or failure to consider relevant evidence may amount to an error of law. An appellate tribunal may set aside the decision where the discretion was exercised on such an erroneous basis.

The claimant alleged indirect race discrimination after she was not invited to interview for a site manager position. She presented her claim approximately 19 months after the alleged discriminatory act and sought an extension under section 68 of the Race Relations Act 1976.

The Employment Tribunal extended time for the indirect discrimination claim but refused extensions for the other claims. It later refused the respondent’s review application. The Council appealed, arguing that the tribunal had misunderstood the qualification requirement, failed to consider whether the claimant’s ignorance was reasonable, and proceeded on the basis that there was a viable indirect discrimination claim.

1. Appeal allowed. The Employment Tribunal had erred in law in exercising its discretion under section 68(6) of the Race Relations Act 1976.
2. The tribunal had wrongly found that applicants required standard grades. The evidence, which the Employment Judge accepted as truthful, established three alternative routes: standard grades, a vocational qualification, or relevant experience. The alleged requirement therefore did not have the factual foundation assumed by the tribunal. Once the evidence was correctly understood, the foundation of the indirect discrimination claim fell away.
3. Ignorance of the availability of an Employment Tribunal claim may be relevant to a just and equitable extension, but the relevant question is whether the claimant was reasonably ignorant. The Employment Judge considered whether the claimant was genuinely ignorant but failed to consider whether that ignorance was reasonable and remained reasonable. The claimant had discussed the matter with a race equality caseworker, knew of another traveller pursuing a recruitment discrimination complaint through the courts, and knew that the Commission for Racial Equality would not continue supporting individual court action. These matters required explanation and had not been adequately addressed.
4. The absence of a proper basis for the indirect discrimination claim was itself a relevant circumstance in deciding whether an extension was just and equitable. The tribunal’s assessment of prejudice was also unsound. It had assumed that a witness could readily explain thought processes from several years earlier and had not sufficiently considered the evidential difficulties caused by the destruction of application forms and the need for appropriate comparison statistics.
5. The review application raised substantially the same matters as the first ground of appeal and should not have been rejected as an attempt to obtain a rehearing.
6. Paragraph 1 of the Employment Tribunal’s judgment was set aside. The claim was time-barred under section 68(1)(a) of the Race Relations Act 1976 and was dismissed.

• Employment Tribunal: By judgment registered on 23 December 2009, extended time for the indirect discrimination claim under section 68(8) of the Race Relations Act 1976, refused extensions for the other claims, and refused a review.
• Employment Appeal Tribunal: Allowed the Council’s appeal, set aside the extension of time, held the claim time-barred, and dismissed it.