Edomobi v La Retraite RC Girls School

An Employment Tribunal has a wide discretion under section 123 of the Equality Act 2010 to extend time where it is just and equitable. The claimant bears the burden of showing that an extension is justified.

The Tribunal need not work through every factor in the Keeble checklist. It must, however, consider all significant factors. The reason for and length of the delay, promptness, prejudice and the merits may be relevant according to the facts. Where a claimant gives no acceptable explanation for delay, strong merits will ordinarily not justify an extension. An appellate court will not interfere with a properly directed evaluative decision that was open to the Tribunal.

The Claimant, an agency learning support assistant, brought claims including age and race discrimination after the primary limitation period had expired. The Employment Tribunal at London South held that the discrimination claims were out of time and that it was not just and equitable to extend time.

The Claimant appealed. She contended that the Tribunal had failed adequately to consider prejudice, the asserted merits of her discrimination claim, her pursuit of the Respondent’s complaints procedure, and the period spent in early conciliation. She also challenged the Tribunal’s treatment of evidence about advice received from ACAS and other advisers.

The central issue was whether the Tribunal had made a material error of law in refusing an extension under section 123 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal correctly directed itself on the just and equitable discretion under section 123 of the Equality Act 2010. Its refusal to extend time was an evaluative decision open to it on the facts.

2. The relevant factors are fact-sensitive. Following the approach in London Borough of Southwark v Afolabi, a Tribunal need not mechanically address every item in the Keeble checklist, provided that it leaves out no significant factor. The relevance of any proposed factor is principally for the Tribunal, subject to the Wednesbury standard of review.

3. The Tribunal was not required to assess the merits of the discrimination claim. Unlike the cases in which the merits and time issue had been heard together, it had not heard the merits evidence, the Respondent disputed discrimination, and the material said to show that the complaint had been upheld was not before it.

4. The Claimant’s pursuit of an internal complaint and the early-conciliation period were considered sufficiently. Even allowing for the complaint process, there remained substantial unexplained delay after its outcome and further delay after she had been told that the claim was out of time and how to present it.

5. Any inaccuracy in describing the precise advice received was immaterial. The Tribunal’s findings that the Claimant knew, or ought reasonably to have known, of the time limit, and that she did not act promptly thereafter, independently justified refusal of an extension.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s refusal to extend time was upheld.
• Employment Tribunal, London South: decision announced on 23 February 2016. The discrimination claims were held to be out of time and no just and equitable extension was granted.