Gbidi v Edwards & Anor

When deciding whether it is just and equitable to extend the time for a discrimination claim, an Employment Tribunal must evaluate the actual prejudice to each party. It must not assume that the proposed respondent was prejudiced by delay. The effect of delay on that respondent’s evidence, knowledge and ability to defend the claim may be decisive.

The Employment Appeal Tribunal may intervene where an evaluative time-extension decision omits an essential factor. Unless the correct result is plain, the issue should be remitted for a fresh evaluation rather than determined on appeal.

The claimant, a nurse, brought race discrimination proceedings arising from her dismissal and related workplace events. She later issued a separate claim against Mrs Archer after receiving material connected with Nursing and Midwifery Council proceedings.

An Employment Judge dismissed the claim against Mrs Archer as out of time under section 68(1) of the Race Relations Act 1976. The Judge also continued a stay of the remaining claim against Mrs Edwards pending Nursing and Midwifery Council proceedings.

The claimant appealed. The central issues were whether the Judge had properly assessed whether it was just and equitable to extend time, and whether the stay should remain.

1. Appeal allowed. The order maintaining the stay was set aside. The order dismissing the claim against Mrs Archer as time-barred was revoked, and the extension-of-time issue was remitted to a differently constituted Employment Tribunal.

2. The Employment Appeal Tribunal’s appellate jurisdiction is confined to errors of law under section 21(1) of the Employment Tribunals Act 1996. It does not intervene merely because it might have reached a different evaluative conclusion. It may intervene where the Tribunal applied the wrong legal principles, omitted an essential consideration, or relied on a wholly irrelevant consideration.

3. The Employment Judge was entitled to regard the claimant’s tactical delay, after obtaining advice, as a significant consideration. But the reasons did not evaluate the position and actual prejudice of Mrs Archer. Mrs Archer might have been seriously prejudiced by delayed notification, but she might instead have had contemporaneous evidence and the events in mind because of the Nursing and Midwifery Council proceedings. The Judge’s general observation about the cogency of evidence did not address that issue.

4. Paragraph 57 of Mrs Archer’s witness statement also required evaluation. If it showed that the claimant knew of Mrs Archer’s involvement earlier than alleged, it could weigh strongly against an extension. If its reliability were doubtful, that could materially affect the assessment of prejudice. The omitted evaluation was an error of law. The outcome was not plain, so substitution was inappropriate.

5. A stay pending proceedings elsewhere is a case-management matter within the Employment Tribunal’s broad discretion and must serve a real purpose. Here the Nursing and Midwifery Council proceedings had concluded. The stay was in any event conditional upon a decision by the wrongly named committee, so it was revoked.

6. Applying the criteria in Sinclair Roche & Temperley v Heard, the remitted issue should be heard by a different Employment Judge. The earlier short hearing had occurred more than a year before, and a fresh tribunal could grant, refuse, or defer the extension question to the merits hearing.

• Employment Appeal Tribunal: Allowed the claimant’s appeal; revoked the stay and remitted the just-and-equitable extension issue for reconsideration by a different Employment Judge.
• Employment Tribunal: Employment Judge Roper, by judgment dated 13 June 2013, maintained a stay of the claim against Mrs Edwards and dismissed the claim against Mrs Archer as out of time.