Bozeat-Manzi v Telefonica UK Ltd

For a just and equitable extension of time, an Employment Tribunal must consider all relevant circumstances. It need not mechanically address every factor in Keeble, but it must not omit a significant factor, including a very short delay and the absence of demonstrated prejudice to the respondent.

There is no absolute requirement for oral evidence on an extension application. However, where a potentially relevant factual assertion is disputed and a litigant in person relies on another person who conducted the claim, the Tribunal should give that person an opportunity to give evidence and warn that the case may be prejudiced without it. The narrower reasonable-practicability test asks whether timely presentation was reasonably feasible.

The claimant was dismissed on 28 April 2011. His father-in-law conducted the proceedings because the claimant was said to be too ill to do so. The ET1, advancing unfair dismissal, disability discrimination and contractual payment claims, was presented one day after the primary limitation period expired.

At a pre-hearing review, the Employment Judge dismissed all claims as out of time without hearing oral evidence. She found that the father-in-law knew of the three-month time limit and that the asserted later effective date of termination was unsustainable. She declined a just and equitable extension for the discrimination claim and found that timely presentation of the other claims had been reasonably practicable.

The appeal concerned the omission to consider relevant factors in the just and equitable discretion, and the absence of an opportunity for the father-in-law to give evidence.

1. Appeal allowed in part. The appeal against dismissal of the disability-discrimination claim was allowed. The question whether time should be extended under section 123(1) of the Equality Act 2010 was remitted to a different Employment Judge. The appeal concerning unfair dismissal and the contractual payment claims was dismissed.

2. In exercising the just and equitable discretion, the Employment Judge did not have to work through every factor identified in British Coal Corporation v Keeble [1997] IRLR 336. However, the one-day delay and the absence of evidence or suggestion of prejudice to the respondent, or of reduced evidential cogency, were material factors. The judgment did not address them or explain any lesser weight accorded to them. That was an error of law.

3. Oral evidence is not invariably required on a time-limit issue. A Tribunal may use other material capable of supporting proper factual findings. The just and equitable discretion is wider than the reasonable-practicability exception, and cases requiring oral evidence will be more common in the former context.

4. Here, potentially relevant factual assertions were disputed. The claimant could not give evidence and had played no practical part in preparing or presenting the claim. The relevant potential witness was his father-in-law. The Employment Judge erred by not informing him that his own evidence might be important and that the claimant's case could suffer without it. The possibility that his evidence might have affected the factual conclusions could not be excluded.

5. By contrast, the test under section 111(2) of the Employment Rights Act 1996 was whether timely presentation was reasonably feasible. On the undisputed facts, the father-in-law knew of the time limit and could reasonably have presented the claim earlier rather than waiting until the final day or days. Oral evidence about the asserted termination date or attempted online submission could not alter that conclusion.

• Employment Appeal Tribunal: Allowed the appeal on the just and equitable extension for the disability-discrimination claim, remitting it to a different Employment Judge; dismissed the appeal on reasonable practicability for the other claims: [2013] UKEAT 0389_12_0307.
• Employment Tribunal, Bristol: At a pre-hearing review, dismissed the unfair dismissal, disability discrimination and contractual payment claims as presented out of time. The judgment appealed citation was not stated in the judgment.