Adedeji v University Hospital Birmingham NHS Foundation

The discretion to extend time for a discrimination claim on a just and equitable basis is broad. A tribunal must address the relevant Keeble factors, but it decides the weight to give them.

When assessing a claim brought shortly out of time, the tribunal may take account of the effect on evidence concerning earlier events. Those events may be admissible as contextual background, even though the only timely-related cause of action is an alleged discriminatory constructive dismissal. An appellate tribunal will not interfere where the tribunal considered the relevant matters and reached a permissible evaluative decision.

The claimant, a consultant surgeon, resigned after capability proceedings and presented claims for constructive unfair dismissal and race discrimination three days after expiry of the primary limitation period for dismissal-related claims.

The Employment Judge held that the claims were out of time. She refused to extend time for the unfair dismissal complaint and, applying the just and equitable discretion, for the race discrimination complaint. The appeal was limited to a possible claim that the constructive dismissal was itself racially discriminatory.

The central issue was whether the Employment Judge had erred by refusing an extension despite the delay being only three days.

1. Appeal dismissed. The Employment Judge made no error of law in refusing to extend time for the possible discriminatory constructive dismissal claim.

2. The just and equitable discretion is broad. The relevant Keeble factors include the length of, and reasons for, delay; the likely effect on evidential cogency; cooperation with information requests; promptness after awareness of the claim; and steps to obtain professional advice. The Employment Judge had addressed all those matters.

3. The Judge was entitled to treat the three-day delay as not substantial, while considering the much longer period since the alleged discriminatory events. Those historic allegations could be admissible as background evidence on the alleged discriminatory constructive dismissal. Their age could therefore affect the cogency of evidence relevant to that claim.

4. It was for the Employment Judge to assign a permissible weight to the short delay and to the likely evidential consequences. Her reasoning, though scant, showed that she had done so. There was nothing unlawful or perverse in the exercise of her discretion.

• Employment Appeal Tribunal: Appeal dismissed; the refusal to extend time for the possible discriminatory constructive dismissal claim was upheld.
• Employment Tribunal: Employment Judge Woffenden dismissed the constructive unfair dismissal and race discrimination complaints as out of time. Reasons were dated 17 October 2018 and sent on 23 October 2018.