Dowokpor v Ministry of Justice

When deciding whether it is just and equitable to extend time under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, an Employment Tribunal must assess the claimant’s actual reasons for delay and whether they were reasonable. Reasonable ignorance of a legal right is relevant and is distinct from knowledge of the underlying facts.

Advice that a claim is time-barred does not conclusively resolve delay after that advice. The Tribunal must consider whether the claimant was told of a possible discretionary extension and whether the resulting inaction was reasonable. A generic judgment may be incorporated by reference only where the material facts and issues are sufficiently alike. The Tribunal must give individual consideration to materially different facts.

The claimant was a retired fee-paid part-time judicial office-holder who sought pension rights equivalent, on a pro rata basis, to those of salaried judges. His primary time limit expired in October 2007. He did not learn of the O'Brien litigation until August 2011 and was then told by solicitors that they could not progress his claim because he had retired in 2007. In April 2013 the solicitors informed him that a claim might qualify for a just and equitable extension, and he commenced proceedings within about 14 days.

The Employment Judge dismissed the application to extend time and the claim. The claimant appealed, contending that the Judge had failed to evaluate his ignorance of the right to claim, the effect of the 2011 advice, and the material differences between his circumstances and the generic claims considered in Miller.

1. Appeal allowed. The Employment Judge’s decision dismissing the extension application and claim was set aside. The claim was remitted to a differently constituted Employment Tribunal.

2. The claimant bore the burden of showing that it was just and equitable to extend the primary three-month limit under Regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The discretion required consideration of all relevant circumstances, including the length and reasons for delay, action taken after knowledge of a possible claim, professional advice, legal certainty, and prejudice to both parties.

3. The Judge erred in stating that the claimant had no explanation for the delay before August 2011. The undisputed explanation was that he did not know that he could claim a pension as a fee-paid part-time judge. Knowledge that he lacked a pension, while salaried judges received one, did not make knowledge of the legal right irrelevant. The Judge had to decide whether the claimant’s ignorance was reasonable and, if so, what weight it carried.

4. The Judge also erred in treating the view that the solicitors had not been negligent as conclusive. The solicitors’ unqualified statement that a claim had to be made within three months did not mention a just and equitable extension. The Tribunal had to find why the claimant did not proceed after the 2011 letter and decide whether, in light of the advice, that delay was reasonably explained. The advice neither wholly absolved the claimant nor necessarily defeated his explanation.

5. The Judge could not simply adopt generic reasoning from Miller. Incorporation by reference is permissible only if sufficient findings explain the result and the incorporated issues are relevant to the individual claim. Unlike many Miller claimants, this claimant had retired before the litigation became generally known and was not found to have known of it before August 2011. His individual circumstances required determination.

6. The Appeal Tribunal did not itself exercise the discretion because necessary facts had not been found. The new Tribunal must determine the reasons for each period of delay, their reasonableness, the length of delay, prejudice, and all other relevant circumstances. It must form its own view and is not bound by the generic views expressed in Miller.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the Employment Judge’s dismissal of the extension application and claim, and remitted the matter to a differently constituted Employment Tribunal.
• Employment Tribunal: Employment Judge Macmillan dismissed the claimant’s application for a just and equitable extension of time and dismissed the claim. The judgment was sent to the parties on 20 July 2016.