Thompson v Ark Schools

An employment tribunal deciding whether to extend time on just and equitable grounds must assess the relevant facts with care and explain how those facts support its conclusion. The discretion is fact-sensitive and appellate intervention is limited. However, material errors in the chronology, or failure to identify when illness ceased to impede a claimant’s ability to act, may amount to errors of law because relevant matters have been ignored or irrelevant matters considered. The tribunal must distinguish between knowledge of a possible claim, knowledge of the primary limitation period, and knowledge that an extension may be available. Its reasons must enable the parties and an appellate tribunal to understand why the discretion was exercised or refused.

The claimant’s job offer was withdrawn after she informed the respondent that she was pregnant. She later brought claims including pregnancy and maternity discrimination, but the claim was lodged outside the primary limitation period.

The London Central Employment Tribunal accepted the claimant’s account of serious physical and mental health difficulties but refused to extend time under section 123(1)(b) of the Equality Act 2010. It considered that she had periods when she could have taken further steps to pursue her claim.

The claimant appealed, alleging inadequate reasons and misapplication of the law and facts. The central issue was whether the tribunal had properly assessed the chronology, the claimant’s health, her developing awareness of her rights, and the steps taken before presentation of the claim.

1. Appeal allowed. The discretion under section 123(1)(b) of the Equality Act 2010 is for the employment tribunal. The Employment Appeal Tribunal must not substitute its own assessment and should read the tribunal’s reasons fairly and as a whole. Nevertheless, a material misdirection on the facts, failure to consider relevant matters, consideration of irrelevant matters, or reasoning which cannot be understood may constitute an error of law.
2. The tribunal had not rejected the claimant’s evidence and had accepted aspects of it at face value. It was therefore necessary for it to explain when it found that the claimant’s mental or physical condition no longer impeded her ability to take steps. The tribunal’s reasoning did not make that sufficiently clear.
3. The tribunal materially confused the chronology. It appeared to reverse the order between the claimant’s own research and the initial legal advice. That advice informed her of the three-month limit but did not tell her that an extension might be available. The tribunal failed to explain why the claimant could and should have done substantially more between receiving that advice late on 21 September and emigrating on 29 September.
4. The tribunal also failed to engage accurately with events after arrival in the United Kingdom. The evidence was that, after an unhelpful CAB appointment, the claimant immediately sought further legal advice and contacted ACAS on the same day or the following day. The tribunal nevertheless stated that nothing followed from the CAB visit and that days passed after the further advice before ACAS was contacted.
5. Those errors affected matters which the tribunal itself regarded as relevant to the just and equitable assessment. The decision was consequently unsafe. The EAT did not need to determine whether the tribunal had also been required to address the merits of the underlying claims or the period of early conciliation.
6. Having regard to Sinclair Roche & Temperley v Heard & Fellows, the matter was remitted to a differently constituted employment tribunal.

• Employment Appeal Tribunal: allowed the appeal against the London Central Employment Tribunal’s refusal to extend time and remitted the matter to a differently constituted tribunal.
• London Central Employment Tribunal: dismissed the claimant’s out-of-time claims, relevantly refusing an extension on just and equitable grounds.