Szmidt v AC Produce Imports Ltd

When deciding whether it is just and equitable to extend time for a discrimination complaint, an Employment Tribunal must consider and balance the prejudice to each party. A claimant’s failure to explain delay is relevant, but does not remove the need for that balance. The Tribunal must consider the claimant’s loss of an otherwise valid claim and whether the respondent has suffered actual prejudice from the delay. A failure to consider those matters is an error of law.

The claimant, a Polish employee, presented claims after her employment ended. The Employment Tribunal upheld her unfair-dismissal and written-particulars claims. It also found that a director’s remark on 7 January 2013 was direct racial discrimination.

That discriminatory act was isolated. The Tribunal held that the complaint was presented outside the primary limitation period and declined to extend time on a just-and-equitable basis. The claimant appealed solely against that refusal.

The issue before the Employment Appeal Tribunal was whether the Tribunal had lawfully exercised its discretion to refuse an extension of time.

1. Appeal allowed. The Employment Tribunal erred in law by failing to take account of the balance of prejudice between the parties when exercising its discretion to extend time.

2. The Tribunal had directed itself by reference to British Coal Corporation v Keeble [1997] IRLR 336 and the factors associated with section 33 of the Limitation Act 1980. However, it did not address the prejudice to the claimant arising from the loss of a claim which, on its own findings, would otherwise have succeeded.

3. Nor did it decide whether the respondent had suffered actual prejudice from the seven-week delay. The issue was a discrete factual allegation that had been pleaded, denied and determined after oral evidence. The Tribunal’s general observation that responding to late discrimination claims is in principle prejudicial did not answer that question.

4. The claimant’s failure, while unrepresented, to give an explanation for the delay was a relevant factor favouring the respondent. It was not determinative and did not dispense with the required balancing exercise. This was consistent with Pathan v South London Islamic Centre (EAT 0312/13/DM, 14 May 2014).

5. The extension question was remitted to the same Employment Tribunal for reconsideration. The outcome was not inevitable. If time were extended, the established discrimination complaint would succeed and the Tribunal would determine compensation for injury to feelings. Applying the Court of Appeal guidance, the EAT did not determine the discretion itself without agreement. The respondent was ordered to pay the claimant’s £1,200 EAT hearing fee.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the refusal to extend time and remitted that issue to the same Employment Tribunal.

• Employment Tribunal, London (South): By reserved judgment promulgated on 17 February 2014, found one act of direct racial discrimination but dismissed that complaint as out of time after refusing a just-and-equitable extension.