Thompson v Ministry of Justice & Ors (Part Time Workers)

The discretion under Regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is wide, but limitation periods are ordinarily to be observed. A claimant must persuade the Employment Tribunal that an extension is just and equitable.

The Tribunal decides which factors are relevant and the weight to give them. It need not rehearse the section 33 checklist or expressly balance every possible prejudice. The absence of forensic prejudice to the respondent does not itself justify an extension.

A claimant who knowingly delays while awaiting the outcome of a test case, or acts on equivocal advice while appreciating the risk that time is running, may properly be refused an extension. A later moratorium cannot justify extending claims already out of time before it was issued.

Two conjoined appeals challenged Employment Tribunal decisions refusing to extend time for claims by part-time judicial office-holders concerning pension and monetary rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

In Miller, the Tribunal rejected generic grounds for extending delays ranging from weeks to many years, save for reliance on the respondent's 2013 Moratorium and two individual cases. In Thompson, the claimant's fee-paid service ended in April 2011. He brought his claim nearly two years after the applicable time limit had expired, having received cautious but equivocal legal advice in 2012.

The central issue was whether either Tribunal had erred in concluding that it was not just and equitable to extend time.

1. Appeals dismissed. The Employment Judge applied the correct just-and-equitable test and was entitled to refuse extensions of time in both appeals.

2. Regulation 8(3) confers a wide discretion, but time limits are normally to be observed. The claimant bears the burden of showing that an extension is just and equitable. The Employment Appeal Tribunal may not substitute its assessment of the facts or weight of relevant matters unless the Tribunal has made an error of law, including perversity or failure to consider a relevant factor.

3. The Tribunal determines which factors are relevant on the facts and how they should be balanced. It was not obliged to recite the section 33 factors in the Limitation Act 1980, to conduct an express balancing exercise in every case, or to consider what would have happened had claims been presented in time. The claimant prejudice from losing a valuable claim was considered. The respondent did not have to establish separate forensic prejudice, and an absence of such prejudice was not decisive for an extension.

4. The Judge was entitled to reject the generic reliance on the O'Brien litigation as a test case. The claims were not based on a newly emerging ground of complaint. The claimants knew the relevant facts, many knew of the litigation for years, and they chose not to protect their positions by presenting claims or seeking advice. A possible stay or a potential flood of claims did not alter the statutory obligation to present a claim in time.

5. The 2013 Moratorium could assist only a person who relied on it. It was issued after these claims had already been presented and could not make it just and equitable to extend time for claims already time-barred before it existed.

6. In Thompson's case, cautious advice given “on balance” that time might not yet run conveyed uncertainty and a risk. The Employment Judge was entitled to find that the claimant knowingly took that risk. Such advice, though subsequently shown to be wrong, was not equivalent to negligent or unequivocal advice that time had not begun to run.

• Employment Appeal Tribunal: dismissed the conjoined appeals from refusals to extend time under Regulation 8(3) on 15 March 2016.

• Employment Tribunal, London Central: in Miller, decision sent on 2 January 2014, refused generic extensions subject to the Moratorium and individual exceptions; in Thompson, decision sent on 13 March 2014, refused an extension for the fee-paid-service claim.