Hall v ADP Dealer Services Ltd (Age Discrimination)

Under Equality Act 2010, the decision whether it is just and equitable to extend the time for a discrimination complaint is a broad discretionary assessment of all relevant circumstances. There is no presumption in favour of an extension, and an appeal succeeds only on an error of law or principle.

A tribunal need not recite statutory provisions or a checklist of possible factors. Its reasons are sufficient if they show that it addressed the real issue and the material matters raised by the evidence. Ill-health must be supported by evidence of a causal connection with the delay. A tribunal may also take account of the merits, while exercising caution before reaching conclusions on a fact-sensitive discrimination claim.

The claimant presented an age-discrimination claim after her employment had ended. She alleged discriminatory treatment, dismissal and age-related detriment arising from references. The Reading Employment Tribunal held that the dismissal and references complaints were out of time and declined to extend time. It separately struck out the in-time grievance-related complaint; that ruling was not challenged on appeal.

The claimant appealed the refusal to extend time. She contended that the Tribunal failed to apply the correct law, omitted relevant factors including ill-health and the grievance process, gave inadequate reasons, and made perverse findings about her ability to bring proceedings and the merits of the claim.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing an extension under section 123 of the Equality Act 2010.

2. The statutory question was whether an extension was just and equitable in all the circumstances. The judge did not need expressly to set out the statutory test or every potentially relevant factor. Her reasons showed that she addressed that question, understood the breadth of her discretion, and considered the factors material on the evidence.

3. The reference in the Tribunal’s reasons to merits as a factor it “must” consider was not a misdirection. In context, it meant that the merits were relevant in this case. The Tribunal was entitled to find that the claimant had the knowledge, expertise and ability to bring her claim earlier, and to take a succinct view of its prospects.

4. Ill-health can be relevant to an extension of time, but the claimant bore the burden of adducing evidence both of ill-health and of a causal link between it and the delay. The evidence did not establish that link. The Tribunal’s failure expressly to discuss it indicated the limited weight properly attached to it, not a legal error.

5. Delay while pursuing an internal grievance may be relevant. However, the claimant had not advanced at the hearing the explanation now put forward on appeal, and there was an unexplained period of more than two months after the grievance was rejected before presentation of the claim. The Employment Appeal Tribunal could not rely on a new evidential case on appeal.

6. Although a tribunal should be cautious when assessing the merits of a fact-sensitive discrimination claim without hearing full evidence, the Tribunal’s assessment here formed part of the time-extension discretion. Its decision was plainly open to it.

• Employment Appeal Tribunal: appeal dismissed; the refusal to extend time for the age-discrimination complaints was upheld.
• Reading Employment Tribunal: following a pre-hearing review, held that it lacked jurisdiction over the out-of-time dismissal and references complaints and declined an extension. The in-time grievance-related complaint was struck out and was not appealed.