Odukoya v Hopkins & Ors

When determining the primary limitation period for a discrimination complaint, an Employment Tribunal must consider properly supplied further particulars where its case-management order requires it to do so. It should not adopt an over-technical reading of an unrepresented claimant’s ET1.

Under section 123(1)(b) of the Equality Act 2010, the claimant bears the burden of showing that an extension is just and equitable. The Tribunal must consider all relevant circumstances, but need not apply a checklist. Relevant matters commonly include delay, its explanation, relative prejudice and the apparent strength of the claim. Appellate intervention is confined to perversity or legal error.

The claimant brought discrimination complaints under the Equality Act 2010 against the Charity Commission, its employee, Mr Hopkins, and a recruitment agency, Redsnapper Recruitment Ltd.

At a preliminary hearing, the Employment Tribunal struck out the complaints against Mr Hopkins and Redsnapper as out of time and declined to extend time on a just and equitable basis. The appeal concerned whether the Tribunal had wrongly treated later allegations as not made against Mr Hopkins, and whether its refusal to extend time involved an error of law.

1. The appeal was allowed in part. The Employment Judge erred in holding that allegations 12 and 14 were not brought against Mr Hopkins. The claimant’s further particulars expressly named him, and the earlier case-management order required the time issue to be determined by reference to those particulars as well as the ET1. Given the claimant’s unrepresented status, treating the ET1 headings as conclusive was over-technical.

2. The error required remission to a fresh Employment Tribunal to decide whether the real complaints against Mr Hopkins were presented outside the three-month primary period in section 123(1)(a) of the Equality Act 2010. The EAT could not reject this ground merely because separate complaints against the Charity Commission had failed on their merits. No applicable estoppel or other basis for doing so was established.

3. On the assumed basis that the claims were late, there was no error of law in refusing an extension under section 123(1)(b). The claimant had to show that an extension was just and equitable. Relevant circumstances included the length and explanation of the delay, prejudice to each side, and the apparent strength of the claims. A Tribunal need not work through a formal checklist if it gives sufficient reasons.

4. The Tribunal was entitled to find that depression had not prevented timely presentation, that the claimant acted on an incorrect understanding of the time limit, and that the claims appeared weak. It was also entitled to regard the Commission’s potential responsibility for Mr Hopkins’s acts and the absence of demonstrated forensic prejudice as relevant. Its brief reasons concerning Redsnapper were adequate despite the two-day delay.

5. The primary-time-limit issue concerning Mr Hopkins was remitted to a fresh Tribunal. The appeal against the refusal of a just and equitable extension for both Mr Hopkins and Redsnapper was dismissed.

• Employment Appeal Tribunal: Allowed the appeal against the finding that the primary three-month period for the claim against Mr Hopkins expired on 8 April 2015, and remitted that issue to a fresh Employment Tribunal. Dismissed the appeal against refusal of an extension under section 123(1)(b) of the Equality Act 2010.
• Employment Tribunal: Employment Judge Glennie, in a decision sent on 18 February 2016 following a preliminary hearing, held that it lacked jurisdiction over the complaints against Mr Hopkins and Redsnapper and struck them out.