De Souza v Manpower UK Ltd

Whether it is just and equitable to extend the limitation period for a race-discrimination claim is a broad evaluative judgment. The tribunal may have regard to the length of, and reason for, delay and to prejudice, but it need not mechanically address every Keeble factor.

A short delay does not itself require an extension. Where a claimant knew of the claim and deadline, had professional advice, and the delay was wholly the claimant’s responsibility, an Employment Tribunal may refuse an extension. The Employment Appeal Tribunal will not substitute its own assessment absent an error of law.

The claimant was dismissed on 21 May 2009 and presented claims, including racial discrimination, on 21 August 2009. The Employment Tribunal held that every claim was one day late. It refused an extension for the discrimination complaint under section 68(6) of the Race Relations Act 1976.

The claimant appealed only the refusal of the just-and-equitable extension. She contended that the Tribunal had not properly considered the one-day delay and the reasons for it. The respondent’s cross-appeal concerning the grievance procedure was conceded to be without substance.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing a just-and-equitable extension. Its finding that responsibility for the one-day delay lay entirely with the claimant was open to it.

2. The Tribunal had directed itself to Keeble and considered the relevant feature emphasised on appeal: the length of, and reason for, delay. A short delay is relevant but not decisive. The claimant had received expert advice, was aware of the time limit, and needed only to arrange filing of the prepared ET1. The case was not one of an adviser’s error, and no exceptional explanation was established.

3. The appellate tribunal could not substitute its own assessment for the Employment Tribunal’s evaluative decision. Although the Employment Tribunal’s statement that there was no prejudice to the claimant was difficult to understand, the reasons read as a whole showed that its operative conclusion rested on the claimant’s responsibility for the delay.

4. Waiting for the conclusion of an internal grievance procedure is not, as a matter of law, a basis for delaying presentation of a claim. In any event, that procedure had concluded within the primary limitation period.

5. The respondent’s cross-appeal on the statutory grievance point was dismissed as moot.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the refusal to extend time for her race-discrimination claim.
• Employment Tribunal (East London): judgment sent on 22 March 2011, with reasons dated 6 July 2011, held the claims out of time and refused a just-and-equitable extension under section 68(6) of the Race Relations Act 1976.