Gavin v The Equality and Human Rights Commission & Ors

An Employment Appeal Tribunal should refuse to interfere with an Employment Tribunal’s discretionary decision unless an error of law is shown. In deciding whether to extend time for discrimination claims, the Tribunal must balance all relevant circumstances, including the length and reasons for delay, the claimant’s knowledge and experience, and prejudice caused by stale allegations. A compromise agreement covering the outstanding claims may provide an additional reason why re-litigation would be unfair. The overriding objective may justify proceeding where a postponement application is unsupported by a satisfactory explanation and the claimant had notice of the hearing.

The claimant appealed against an Employment Tribunal judgment registered on 24 September 2009. The Tribunal had upheld the respondents’ applications concerning claims brought out of time, the absence of grounds for extending time, compromise of the claims, and estoppel against re-litigation.

At the Employment Appeal Tribunal, the claimant was absent despite having received notice of the hearing and having prepared written materials. The central issues were whether the hearing should be postponed and whether the Tribunal had erred in refusing to allow the claims to proceed.

1. Postponement. The application to postpone was refused. The claimant had received the hearing notice, had taken steps consistent with preparing for the hearing, and offered no satisfactory explanation for her absence. In those circumstances, postponement was inconsistent with the overriding objective.
2. Time limits. The Employment Tribunal was entitled to find that the claims were substantially out of time. It was also entitled to conclude that it was reasonably practicable to present the unfair dismissal claims in time and that there was no sufficient basis for extending time.
3. Discrimination claims. The decision whether to extend time on just and equitable grounds involved a sensitive balancing of the circumstances for and against exercising the discretion. Relevant considerations included the staleness of the allegations, substantial prejudice to the respondents, the claimant’s intelligence, legal background and experience, her access to trade union and independent legal advice, and her continuing knowledge of the facts giving rise to the claims. London Borough of Southwark v Afolabi [2003] IRLR 220 did not assist because the claimant had known the relevant information within time.
4. Compromise. The Tribunal was entitled to take account of the agreement compromising the outstanding claims and its finding that it would be unfair to permit re-litigation. Those findings were auxiliary to the primary conclusion on time limits but supported the judgment.
5. No error of law was shown. The appeal was refused and no further action was ordered. The claimant was given 14 days from transmission of the transcript to apply for permission to appeal.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal judgment registered on 24 September 2009. The appeal was refused.