British Transport Police v Norman

An Employment Tribunal may consider a just and equitable extension of time before finally determining when time began to run. It must nevertheless proceed on a clear factual or assumed basis for the extent of the delay. If it cannot determine the limitation issue without all the evidence, it may assume the position most adverse to the claimant.

The claimant bears the burden of explaining both why the primary time limit was missed and why the claim was not brought sooner. The Tribunal may take a flexible approach to the evidence used, but it cannot resolve disputed matters by unsupported assumptions in the claimant’s favour. An extension founded on such assumptions is unsafe.

The claimant, a police officer dismissed on ill-health grounds, presented claims of disability discrimination. By the relevant preliminary hearing, only his complaint of failure to make reasonable adjustments remained.

The Employment Tribunal held that it could not determine the limitation issue without hearing all the evidence. It nevertheless ruled that, if the claim was late, it was just and equitable to extend time. The respondent appealed against that discretionary ruling.

The central issue was whether the Tribunal could grant an extension while leaving disputed facts unresolved, particularly the claimant’s explanation for delay.

1. Appeal allowed. The Employment Tribunal’s extension of time was quashed because its exercise of discretion was unsafe.

2. The guidance in British Coal Corporation v Keeble, [1997] IRLR 336, does not require an Employment Tribunal invariably to decide finally, at a preliminary hearing, when time began to run. It must, however, work on a clear basis for the extent of the default. Where that issue requires all the merits evidence, the Tribunal may consider an extension on the assumption that the respondent’s limitation case is correct, namely on the basis most adverse to the claimant.

3. The claimant bears the burden of establishing that an extension is just and equitable. Applying the questions in ABM University Local Health Board v Morgan, the Tribunal had to address why the primary limit was missed and, separately if necessary, why the claim was not presented sooner after expiry. There may be flexibility in the material used to answer those questions, as explained in Accurist Watches Ltd v Wadher. But a disputed factual explanation requires an evidential basis or an agreed assumption.

4. The Tribunal had expressly made no findings on whether the respondent’s assurances led the claimant to believe that the duty to make adjustments continued. It nevertheless treated that account as material to the extension. It also assumed, without evidence, that the claimant’s advisers misunderstood the relevant limitation principles and that he withdrew other claims without appreciating the consequences. Those were impermissible assumptions in favour of a party bearing the burden of proof.

5. The limitation and extension issues were remitted to the Employment Tribunal for determination with the full merits hearing. No direction was made that a different Employment Judge should hear the case.

• Employment Appeal Tribunal: allowed the respondent’s appeal, quashed the Employment Tribunal’s conditional just and equitable extension, and remitted the issue for determination at the Full Merits Hearing.
• Employment Tribunal, London (Central): held that it could not determine limitation without all the evidence, but ruled that it would be just and equitable to extend time if the reasonable-adjustments claim had been presented late.