Adams v British Telecommunications Plc (Jurisdictional Points: Extension of time: reasonably practicable)

Where a defective claim is rejected and a corrected second claim is late, the reasonably-practicable inquiry must address the second claim. A timely but defective first claim does not preclude an extension. The tribunal must decide whether a reasonable impediment, including a genuine and reasonable mistaken belief that the first claim was validly presented, prevented timely presentation of the corrected claim.

For a just-and-equitable extension of time in discrimination proceedings, the tribunal must consider all material factors. The balance of prejudice is material. An omission to consider the claimant’s loss of the claim, where a short delay causes no actual prejudice to the respondent, is an error of law.

The claimant delivered an ET1 before expiry of the limitation period for unfair dismissal and unlawful race discrimination. The form omitted two digits from the ACAS early-conciliation certificate number and was validly rejected. On receiving the returned form after the limitation period, she filed a corrected claim two days late.

The Employment Tribunal declined jurisdiction. It held that timely presentation had been reasonably practicable and refused a just-and-equitable extension for the discrimination complaints. The claimant appealed. The central issues were whether reasonable practicability had to be assessed by reference to the corrected claim, and whether the Tribunal had failed to consider the relevant balance of prejudice.

1. Appeal allowed. The Employment Judge erred in treating the timely presentation of a defective first claim as decisive of whether it was reasonably practicable to present the corrected second claim in time. The relevant inquiry concerned the second claim. A rejected first claim did not, as a matter of principle, preclude that inquiry.

2. The test required consideration of any impediment to presenting the second claim, including a claimant’s objectively reasonable ignorance or mistaken belief: Wall’s Meat Co Ltd v Khan [1979] ICR 52. The Judge had considered only why the first form contained an incorrect certificate number. She had not considered that the claimant genuinely and reasonably believed, until notified of the defect, that the first form had been correctly presented and that no second claim was needed.

3. The claimant was entitled to use the full limitation period. However, presenting a claim at its end could be relevant because it increased the risk that a defect could not be corrected in time. On the facts, the claimant’s mistaken belief was a reasonable impediment. She acted promptly on notification of the defect. It had not been reasonably practicable to present the second unfair-dismissal claim in time, and the two-day delay was a reasonable further period.

4. The Tribunal also erred in refusing a just-and-equitable extension under Equality Act 2010. That discretion is broad, although the claimant bears the onus and appellate intervention is exceptional. The balance of prejudice was a material factor. The Judge did not consider the claimant’s prejudice in losing the discrimination claim. The respondent suffered no actual prejudice from the two-day delay; any concern about older allegations was not caused by that delay and was in any event mitigated by a documented grievance investigation.

5. Time was extended for both the unfair-dismissal and unlawful race-discrimination claims. The proceedings were remitted to the Employment Tribunal to continue in the ordinary course.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2016] UKEAT 0342_15_0803, extended time for both claims, and remitted the proceedings.
• Employment Tribunal: Employment Judge Grewal, in reasons sent on 30 September 2015, held that the Tribunal lacked jurisdiction over the unfair-dismissal and unlawful race-discrimination complaints because the corrected claim was late.