De Souza v Manpower UK Ltd

When deciding whether to extend time for a race discrimination claim, the tribunal must consider whether an extension is just and equitable in all the circumstances. A short delay does not by itself justify an extension. The tribunal may assess the reason for delay, prejudice, the claimant’s evidence and other relevant circumstances. It need not follow a particular checklist or refer to Keeble v British Coal Corporation. An erroneous statement about prejudice is immaterial if the decision as a whole shows that the statutory test was applied. On an application to extend time for an appeal, the merits may also be considered. A substantially delayed and demonstrably weak proposed appeal justifies refusal.

The claimant’s employment ended in May 2009. Her race discrimination claim was presented one day late. The Employment Tribunal refused an extension under section 68(6) of the Race Discrimination Act and dismissed the claim. The Employment Appeal Tribunal found no material error of law. The claimant then filed her appellant’s notice out of time and applied to the Court of Appeal for an extension of time and permission to appeal. The central issues were whether the delay should be excused and whether the Employment Tribunal had erred in its treatment of prejudice, the reason for delay and an alleged continuing history of discrimination.

1. Application refused. Lord Justice Maurice Kay delivered the judgment, with Lord Justice Davis and Sir Stanley Burnton agreeing. The Court refused both an extension of time for filing the appellant’s notice and permission to appeal.
2. The appellant knew that time was running from the Employment Appeal Tribunal’s order and had been told that the transcript would not be available for several weeks. Her appellant’s notice was filed after approximately twice the 21-day period. The explanation that she needed the transcript before filing was unpersuasive. The merits of the proposed appeal were also relevant. They were demonstrably weak, so there was no reason to take a more relaxed view of the delay.
3. For the race discrimination claim, section 68(6) of the Race Discrimination Act required consideration of whether an extension was just and equitable in all the circumstances. The Employment Tribunal was not obliged to refer to Keeble v British Coal Corporation. Its essential duty was to apply the statutory test. The one-day delay was not determinative. The tribunal permissibly found that the claimant had legal advice, had known of her rights for more than six months, had substantially prepared the claim and had failed to provide a convincing explanation. Her financial, family and housing difficulties did not justify an extension. The strict approach to time limits was consistent with Robertson v Bexley [2003] IRLR 434.
4. The Employment Tribunal’s statement that refusal caused no prejudice to the claimant was plainly erroneous, since refusal stopped the claim. Read in context, however, it was an error of expression. The tribunal had properly considered the circumstances overall, and the error was immaterial.
5. The pleaded particulars and the case-management issues disclosed no discriminatory act after dismissal. The alleged continuation of the grievance procedure did not establish continuing discrimination. Neither tribunal had made an error of law.

• Court of Appeal (Civil Division) — Refused the application for an extension of time and permission to appeal.
• Employment Appeal Tribunal — Found no material legal error in the Employment Tribunal’s decision.
• Employment Tribunal — Refused to extend time for the race discrimination claim and dismissed it as presented one day out of time.