Adedeji v University Hospitals Birmingham NHS Foundation Trust

Under section 123(1)(b) of the Equality Act 2010, an employment tribunal has a broad discretion to extend time when it considers this just and equitable. It must assess the factors relevant to the particular case, especially the length of and reasons for delay and prejudice. It should not treat the checklist derived from section 33 of the Limitation Act 1980 as a mandatory framework.

A tribunal may take account of the practical consequence that a short formal delay would require investigation of much older events. It may also give substantial weight to a claimant's failure to act on clear legal advice about a deadline. Reasons are sufficient where their substance makes clear why those matters justified refusal of an extension.

The appellant, a consultant colorectal surgeon, resigned after a capability and conduct process and brought claims for constructive unfair dismissal and race discrimination. The Employment Tribunal held both claims out of time and refused an extension. It found that the discrimination claim based on the termination was only three days late, but that the appellant had delayed despite access to advice and had not acted on clear advice about the deadline.

Kerr J dismissed the appellant's appeal to the Employment Appeal Tribunal. Permission to appeal was confined to whether the tribunal had sufficiently addressed the effect of the additional three days' delay and the appellant's misunderstanding of an ACAS early-conciliation certificate. The central issue was whether the tribunal had erred in law in refusing a just and equitable extension under section 123(1)(b) of the Equality Act 2010.

1. Appeal dismissed unanimously. Underhill LJ, with whom Moylan and Newey LJJ agreed, held that the Employment Tribunal had made no error of law in refusing to extend time for the race-discrimination claim.

2. The tribunal was entitled to regard the relevant issue as more than the additional three days after expiry of the primary limit. Although that formal delay could not itself affect evidential cogency, an extension would require examination of the underlying conduct in 2016 and earlier conduct relied on to characterise the termination as discriminatory. A tribunal may take that staleness into account in its overall discretionary assessment, even where it does not treat the factor as decisive.

3. The tribunal had adequately addressed the appellant's mistaken belief that his first ACAS certificate was ineffective. That misunderstanding was not unnatural for a lay person, but the appellant had deliberately waited to seek advice, had then been told by solicitors that the claim should be lodged by 24 November 2017, and chose not to act on that advice. It was open to the tribunal to give substantial weight to those findings. Its reasons sufficiently explained why there was no good reason for the delay.

4. In concluding observations, the Court cautioned against treating British Coal Corporation v Keeble as prescribing a mandatory checklist. Section 123(1)(b) of the Equality Act 2010 confers a very broad discretion. A tribunal should assess all factors relevant in the particular case, including the length of and reasons for delay. It may check those factors against the considerations in section 33 of the Limitation Act 1980, but should not use that list as the framework for its reasoning.

• Court of Appeal (Civil Division): Appeal dismissed: [2021] EWCA Civ 23 .
• Employment Appeal Tribunal: Kerr J dismissed the appeal on 3 December 2019.
• Employment Tribunal: Employment Judge Woffenden held the claims out of time, refused extensions, and dismissed them. Written reasons were sent on 23 October 2018; reconsideration was refused.