Miller & Others v The Ministry of Justice & Ors (Part Time Workers)

Under regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the just and equitable extension is a broad, fact-sensitive discretion for the Employment Tribunal. It does not require a tribunal to rehearse a statutory checklist or expressly balance every potentially relevant factor.

The absence of forensic prejudice to the respondent does not itself favour an extension. A claimant must still establish that an extension is just and equitable. A test case, the prospect that timely claims would have been stayed, or a later moratorium cannot relieve claimants of the obligation to claim within time. Equivocal legal advice which identifies a risk that time is running is not equivalent to negligent advice and may not justify an extension.

Part-time judges brought monetary and pension claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Their claims were presented after the expiry of the three-month period which the Employment Tribunal held began when their relevant part-time appointments ended.

In Miller, the Tribunal rejected generic reasons for extending time, while allowing extensions in two individual cases. In Thompson, the Tribunal rejected an extension sought by a former fee-paid Valuer Chair who had received equivocal legal advice and had chosen not to issue promptly.

The claimants appealed, contending that the Tribunal had applied the wrong test, failed to balance prejudice, and failed properly to address the test-case litigation, the respondent's moratorium, and the advice received.

1. Both appeals were dismissed. The Employment Judge had applied the statutory question of whether it was just and equitable to extend time, rather than the distinct reasonably-practicable test applicable to unfair-dismissal claims.

2. The discretion under regulation 8(3) is wide and fact-sensitive. Subject to public-law limits, the Employment Tribunal determines which factors are relevant and the weight to give them. It need not recite the section 33 checklist in the Limitation Act 1980, nor conduct an express balancing exercise in every case.

3. The respondent's loss of a limitation defence is customarily relevant. Forensic prejudice can be highly significant and may be decisive against an extension. Conversely, the absence of forensic prejudice neither decides the issue in the claimant's favour nor necessarily has relevance on the facts found.

4. The Tribunal was entitled to reject the generic grounds in Miller. The claimants were sophisticated litigants, knew the material facts and the O'Brien litigation, and did not obtain timely advice or issue protective claims. A test case creates no special rule about time limits. The possibility that timely claims might have been stayed, or that many claims might have been presented, did not bear on whether it was just and equitable to extend time.

5. The later moratorium could not assist claimants whose claims were already out of time when it was published. It could justify an extension for a person who had relied on the respondent's promise not to take a time point, but it did not retrospectively make an extension just and equitable for others.

6. In Thompson, the claimant's advice was expressly qualified and made clear that time might be running. He knowingly took that risk. The Tribunal was entitled to treat cautious advice later shown to be wrong as materially different from negligent or unequivocally wrong advice, and to conclude that the claimant should have protected his position by presenting a claim.

• Employment Appeal Tribunal: Both appeals from Employment Tribunal refusals to extend time were dismissed: [2016] UKEAT 0003_15_1503.
• Employment Tribunal, London Central: In Miller, the Tribunal refused generic extensions of time but allowed two individual extensions. In Thompson, it refused an extension for the fee-paid service claim. No citation for either decision is stated in the judgment.