O'Neill v Jaeger Retail Ltd

In deciding whether it is just and equitable to extend time for a discrimination claim, an Employment Tribunal has a broad, fact-sensitive discretion. A genuine misunderstanding about the effect of ACAS early conciliation does not prevent the Tribunal from considering whether the claimant should reasonably have made further enquiries.

However, the Tribunal must evaluate medical evidence fairly. It erred materially by treating a GP’s letter as offering no assistance about the claimant’s mental health after mid-January, when its natural reading described continuing difficulties over several months. The time-extension issue required a fresh hearing.

The claimant presented complaints of age, disability and sex discrimination under the Equality Act 2010 on 3 April 2018. The Employment Tribunal assumed in her favour that the alleged matters formed a continuing act, but held that the claim was over two months late and that it was not just and equitable to extend time.

The claimant had genuinely believed that initiating ACAS early conciliation and receiving its certificate commenced her Tribunal claim. She later learned that a claim form was required. She relied on bereavements, illness and depression as explaining why she had not made further enquiries sooner.

The Employment Appeal Tribunal considered whether the Tribunal had lawfully assessed the explanation for delay and the alleged forensic prejudice caused by it.

1. Appeal allowed. The Employment Tribunal’s refusal to extend time could not stand. The question whether it was just and equitable to extend time was remitted for a fresh hearing before a differently constituted Tribunal.

2. The Tribunal had correctly directed itself on the broad and fact-sensitive nature of the discretion under section 123 of the Equality Act 2010. An appellate tribunal should ordinarily interfere only where the discretionary decision is perverse in the legal sense, including where relevant matters were left out, irrelevant matters were taken into account, or the decision lacked an evidential basis.

3. A claimant’s genuine belief that she had already initiated a claim explains why she took no further procedural step. It does not, however, make it irrelevant to consider how that belief arose or whether, in all the circumstances, she should reasonably have followed up when she heard nothing further.

4. The Tribunal was entitled to consider the effect of the delay on witness recollection without specific evidence that a witness or document had been lost. The allegations were fact-sensitive and depended substantially on oral recollection, so a delay of a little over two months could potentially cause more than negligible forensic prejudice.

5. The material error concerned the GP’s letter. Its natural reading was that it described depression, difficulty with forms and communication, and related difficulties continuing over the months before it was written. It was not a fair reading to treat it as giving no assistance at all on the claimant’s mental health after mid-January. That error materially affected the assessment of her failure to act before she contacted ACAS again in mid-February and, consequently, the overall balancing exercise.

6. The EAT did not hold that an extension had to be granted. At the rehearing, the Tribunal must decide the issue afresh on all the evidence. It would likely be assisted by contemporaneous GP records as well as the letter.

• Employment Appeal Tribunal: appeal allowed and the issue whether time should be extended remitted for a fresh hearing before a differently constituted Tribunal.
• Employment Tribunal: on 15 October 2018, Employment Judge Franey dismissed the discrimination claims as out of time, holding that it was not just and equitable to extend time.