Adedeji v University Hospitals Birmingham NHS Foundation Trust

The Court of Appeal dismissed the claimant's appeal against the Employment Appeal Tribunal's decision upholding an employment tribunal's refusal to extend time to present discrimination and unfair dismissal claims. Key legal principles applied were the operation of the primary time limits in section 123(1) of the Equality Act 2010 and the requirement for early conciliation under section 18A of the Employment Tribunals Act 1996, together with the court's broad discretion to extend time under section 123(1)(b). The tribunal was entitled to take into account the length and reasons for the delay, the likely impact of delay on the cogency of evidence, the prejudice to the respondent and the public interest in enforcing time limits.

The tribunal’s factual findings were that the appellant had delayed bringing proceedings by adopting a deliberate high‑risk strategy of waiting for the General Medical Council outcome, had been advised correctly by solicitors about the deadline but chose not to act on that advice, and had not credibly shown he believed he had submitted a valid claim on 24 November 2017. Those findings justified refusal to grant an extension as not being just and equitable.

Background and parties: The appellant, a consultant colorectal surgeon, resigned with three months' notice after a prolonged capability and conduct process and then issued claims for unfair (constructive) dismissal and race discrimination against his employer, the Trust.

Procedural posture: The employment tribunal (Employment Judge Woffenden) held both claims were presented out of time and refused to grant extensions; written reasons were given on 23 October 2018. The Employment Appeal Tribunal (Kerr J) dismissed the appellant's appeal on 3 December 2019. Henderson LJ granted the appellant permission to appeal to the Court of Appeal on limited grounds on 6 April 2020. The Court of Appeal heard the appeal on 10 December 2020 and handed down judgment on 15 January 2021.

Nature of the claim and relief sought: The appellant sought to pursue claims of unfair (constructive) dismissal and race discrimination under the Equality Act 2010 and related employment law, and alternatively sought an extension of time under section 123(1)(b) of the Equality Act 2010 and under the equivalent test for unfair dismissal (reasonable practicability under section 111(2) of the Employment Rights Act 1996).

Issues framed:

• Whether the discrimination and unfair dismissal claims were presented within the primary time limits or, if not, whether the tribunal should exercise its discretion to extend time under section 123(1)(b) of the Equality Act 2010 (and the equivalent test under the Employment Rights Act 1996 for unfair dismissal).
• The legal effect of early conciliation and ACAS certificates (section 18A ETA 1996 and section 140B Equality Act 2010) on the time limits and whether the appellant’s understanding of the ACAS certificate justified an extension.
• The relevance of the short (three day) delay as compared with the historic nature of the events relied upon.

Court’s reasoning and conclusion: The Court of Appeal accepted the tribunal’s factual findings that the appellant had effectively withdrawn his earlier ACAS notification in May 2017, believed (until late 24 November 2017) that the May ACAS certificate was a nullity, had consciously pursued a high‑risk strategy by waiting for the GMC outcome, and had been advised by solicitors of the relevant deadline but did not follow that advice. The tribunal reasonably concluded that there was no good reason for the delay, that granting an extension would require investigation of historic events which occurred long before the substantive act complained of (affecting cogency of evidence), and that the public interest and prejudice considerations did not favour extension. The judge’s reliance on the familiar Keeble indicators as an aid to analysis was permissible but should not become a rigid checklist. The Court found no error of law in the tribunal’s exercise of discretion and dismissed the appeal.

The appeal was dismissed. The Court of Appeal held that the employment tribunal had not erred in law in refusing to extend time under section 123(1)(b) of the Equality Act 2010. The tribunal’s factual findings about the appellant’s delay, his access to and failure to follow legal advice, and the historic nature of the events relied upon justified its exercise of discretion to refuse an extension. The court also cautioned against mechanistic reliance on the Keeble checklist while accepting its utility as an aid to analysis.

Employment Tribunal (preliminary hearing) – Employment Judge Woffenden held both unfair dismissal and discrimination claims were out of time and refused extensions (hearing 24 July 2018; written reasons 23 October 2018). Employment Appeal Tribunal – Kerr J dismissed the appellant's appeal on 3 December 2019. Court of Appeal – permission to appeal granted by Henderson LJ on 6 April 2020 on limited grounds; Court of Appeal heard the appeal and dismissed it on 15 January 2021 ([2021] EWCA Civ 23).