Mehta v. The London Borough of Haringey

For an unfair dismissal claim, time may be extended only where it was not reasonably practicable to present the claim within the statutory period. For discrimination claims, the tribunal has a wide discretion to extend time where it is just and equitable to do so. That discretion is exceptional, and the claimant bears the burden of persuading the tribunal to exercise it.

A tribunal need not recite every factor in a statutory or analogous checklist. The question is whether it considered the material matters placed before it. An appellate tribunal must respect the first-instance tribunal’s evaluative discretion and may intervene only for an error of law or a decision outside the range of permissible conclusions.

The appellant appealed against Employment Tribunal decisions refusing to extend time for claims of unfair dismissal, sex discrimination and race discrimination. Her employment terminated on 31 July 2004, but she presented her claims on 8 November 2004.

She relied on advice from her union and ACAS, alleged confusion about the effective termination date, difficulties obtaining the correct ET1 form, illness and a pending internal appeal. The Employment Tribunal found that she knew of her right to bring proceedings and could have presented the claims earlier. The central issues were whether it had applied the correct tests and properly exercised its discretion.

1. Appeal dismissed. The Employment Tribunal applied the correct legal tests and its refusal to extend time disclosed no error of law.
2. For unfair dismissal, the relevant question was whether it was reasonably practicable to present the claim within the three-month time limit. The appellant knew of her right to claim, had discussed the matter with her union and had contacted ACAS. The Tribunal was entitled to find that presentation within time was reasonably practicable.
3. For the discrimination claims, the question was whether an extension was just and equitable. The discretion was wide but exceptional. The burden remained on the claimant, and there was no presumption in favour of extending time.
4. The Tribunal was not required to work mechanically through every factor in section 33(3) of the Limitation Act. As explained in London Borough of Southwark v Afolabi [2003] ICR 800, the essential question was whether any material factor had been left out of account.
5. The Tribunal had considered the delay, the appellant’s knowledge, the advice received, the form-related difficulties, the absence of medical evidence showing incapacity, and the fact that the discrimination allegations went back many years. Its conclusion fell within the broad ambit of its discretion.
6. The costs of an adjourned hearing were properly awarded against the appellant because of substantial non-compliance with Tribunal directions. The order was for payment of £900 within 21 days. Permission to appeal on costs was refused.

• Employment Appeal Tribunal: dismissed the appeal from Employment Tribunal decisions on review dated 22 March 2007 and 4 July 2007. The Tribunal’s refusal to extend time was upheld.