Price v Transport For London

When deciding whether it is just and equitable to extend time for an out-of-time discrimination claim, the tribunal must consider the justice of extending time for the whole period of delay. It need not warn the parties of the weight it proposes to give to particular evidence where the relevant issue and evidence were already before it. A failure to alert the parties will not justify appellate intervention unless it caused substantial prejudice. Matters raised for the first time on appeal must be assessed for their likely effect on the outcome. Continued complaints and an employer’s indication that the matter would be investigated do not necessarily justify an extension, particularly where there was no firm assurance of prompt redress.

The appellant brought disability discrimination and unfair dismissal claims against her former employer. The Employment Tribunal dismissed the unfair dismissal claim and struck out the reasonable-adjustments claim as out of time. It held that the claim could proceed only if time were extended on the just and equitable basis.

The appellant appealed only against the refusal to extend time. She argued that the Tribunal should have alerted the parties that it would treat a letter dated 28 January 2009 as marking the end of the relevant period and that further submissions might have altered the result. The central issue was whether that omission was an error of law or caused substantial prejudice.

1. Appeal dismissed. The Employment Tribunal had correctly treated the question of a just and equitable extension as requiring consideration of the entire period between expiry of the primary limitation period and presentation of the claim.
2. The parties knew that limitation and any extension of time were live issues. The letter of 28 January 2009 was in evidence. The Tribunal was not required to alert the parties to the weight it proposed to attach to each item of evidence.
3. Applying Stanley Cole (Wainfleet) Ltd v Sheridan [2003] EWCA Civ 1048, the failure to give such an indication would not make the hearing unfair without substantial prejudice. The additional matters relied on by the appellant would not have affected the outcome.
4. The appellant’s dyslexia did not materially inhibit presentation of a claim, particularly given the assistance available from her trade union and her ability to present a properly reasoned claim shortly after dismissal. Her continuing protests and the respondent’s indication that the complaints would be considered were immaterial. There was no firm assurance that the complained-of matters would shortly be remedied.
5. The Tribunal had therefore made no error of law in refusing the extension. The claim remained out of time and the appeal was dismissed.

The relevant limitation and extension provisions were in the Disability Discrimination Act 1995, section 4A(1)(a) and Schedule 3, Part 1, paragraph 3.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s decision entered on 6 October 2010.
• Employment Tribunal: held the reasonable-adjustments claim out of time and refused a just and equitable extension; the unfair dismissal claim was also dismissed, but that decision was not appealed.