Rathakrishnan v Pizza Express (Restaurants) Ltd

An application to extend time in a discrimination claim on the basis that it is just and equitable requires a multi-factorial assessment. The claimant’s explanation for delay is important, but an unsatisfactory explanation does not inevitably require refusal of an extension.

The tribunal should consider all material circumstances, including the balance of prejudice and the potential merits or demerits of the claim. Where the tribunal has heard the substantive evidence, it may be well placed to assess those matters. A failure to consider relevant prejudice and merits, and to terminate the exercise solely because the explanation for delay was rejected, is an error of law.

The claimant brought several claims against his former employer, including a claim for failure to make reasonable adjustments. The Employment Tribunal found that the reasonable-adjustment claim concerned a period ending on 7 April 2013 and had been presented 17 days outside the primary limitation period.

The tribunal rejected the claimant’s explanation for the delay and refused to extend time without considering the balance of prejudice or the merits of the claim. The claimant appealed, contending that those were relevant factors, particularly because the tribunal had heard all the evidence on the substantive claim. The central issue was the proper approach to the just and equitable extension of time.

1. Appeal allowed. The Employment Tribunal had erred in law by ending its consideration after rejecting the claimant’s explanation for delay.
2. The discretion to extend time on a just and equitable basis involves a multi-factorial assessment. No single factor is necessarily determinative. The tribunal is not required mechanically to consider every factor listed in Limitation Act 1980, section 33(3), provided that no significant factor is omitted.
3. Relevant considerations included the length of and reasons for the delay, the balance of prejudice between the parties, and the potential merits or demerits of the claim. The absence of a satisfactory explanation does not inevitably prevent an extension where the overall circumstances make an extension just and equitable.
4. Here, the claim was only 17 days late. The respondent had defended other in-time claims, had led evidence on the reasonable-adjustment issue, and there was no suggestion that the delay impaired its ability to defend the claim. The tribunal had heard the evidence and was therefore well placed to assess the merits.
5. The limitation question was remitted to the same tribunal, if practicable, for reconsideration on submissions only. No further evidence was required. If time were extended, the tribunal could determine the reasonable-adjustment claim and compensation.

• Employment Tribunal: Refused to extend time for the reasonable-adjustment claim after finding it 17 days out of time. The claim consequently failed without determination on its merits.
• Employment Appeal Tribunal: Allowed the appeal and remitted the limitation question to the same Employment Tribunal for reconsideration.