Khatun v HSBC Bank Plc

For an unfair-dismissal limitation extension, reasonable practicability is a fact-sensitive question. A claimant who knew the applicable time limit and consciously delayed while awaiting an internal process will not ordinarily establish reasonable ignorance or impracticability.

Medical evidence need not be considered as an explanation for delay where it was adduced for a different issue, the claimant did not rely on illness to explain the delay, and the evidence does not address capacity during the material limitation period. The discretionary just and equitable extension for discrimination claims may also be refused notwithstanding substantial prejudice to the claimant where the claimant knowingly took the risk that time would expire.

The claimant, a former bank employee, presented claims for unfair dismissal and disability and religious discrimination after the applicable time limits. Following reconsideration of an earlier dismissal made in her absence, the Employment Tribunal held that the claims were late and refused extensions of time.

The Tribunal found that she had spoken to ACAS well before expiry, had been told of the relevant three-month-less-one-day limit, and had delayed because she awaited the outcome of her grievance and dismissal appeal. The claimant appealed on the grounds that the Tribunal failed to consider her anxiety and medical evidence, and that it made insufficient findings about her knowledge of the time limit.

1. Appeal dismissed. The Employment Tribunal was entitled to find that it had been reasonably practicable to present the unfair-dismissal complaint in time under section 111(2)(b) of the Employment Rights Act 1996.

2. The claimant did not rely at the Tribunal hearing on ill health or anxiety as the explanation for delay. Her stated explanation was that she awaited the grievance outcome. The GP’s letter was directed to her inability to attend an earlier hearing and did not address her capacity between dismissal and expiry of the limitation period.

3. The Tribunal was not required to infer a medical explanation by joining together evidence tendered for a different issue. The claimant’s contacts with ACAS, submission of an early-conciliation certificate, and assertion that she believed she had presented her claim by the deadline provided an evidential basis for finding that she was not incapacitated from taking the necessary steps. The reasoning in Schultz v Esso Petroleum Co Ltd, [1993] 3 All ER 338, did not assist because no relevant medical impediment had been advanced or established for the material period.

4. The Tribunal’s findings that ACAS had told the claimant she had three months less a day, and that she believed she had lodged her claim by 8 June, sufficiently established that she was not reasonably ignorant of the relevant time limit. Further detailed findings about the ACAS discussion were unnecessary.

5. For the discrimination claims, the Tribunal was entitled to refuse a just and equitable extension under section 123(1)(b) of the Equality Act 2010. Although the balance of prejudice favoured the claimant, it could find that she had knowingly taken the risk of allowing time to expire. The findings were supported by evidence and disclosed no error of law or perversity.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s refusal to extend time for the unfair-dismissal and discrimination claims was upheld.
• Employment Tribunal: On reconsideration, the earlier judgment made in the claimant’s absence was revoked, but the Tribunal held that the claims were out of time and refused extensions.