N Kumari v Greater Manchester Mental Health NHS Foundation Trust

When deciding whether it is just and equitable to extend time under section 123 of the Equality Act 2010, or whether to permit an amendment, an employment tribunal may take account of the prospective merits of the complaint even where it is not so weak as to have no reasonable prospect of success.

The tribunal must act with care. It must identify readily apparent and sound reasons for its assessment from the material available, avoid a mini-trial, and recognise that it does not have all the evidence, particularly in discrimination claims. The parties must have a fair opportunity to address the issue. There is no general duty specifically to warn an unrepresented claimant that merits may be considered.

The claimant, acting in person, presented claims including race discrimination after commencing ACAS early conciliation. The Employment Tribunal held that the alleged conduct during employment and an incident in October 2019 could arguably be a continuing act, but that a later response to her complaint was not linked to it. The original discrimination claims were therefore late.

The Tribunal refused a just and equitable extension under section 123(1) of the Equality Act 2010. It also refused to allow the later response to be advanced as a freestanding discrimination complaint by amendment. In each exercise it regarded the proposed complaint as weak, alongside delay, evidential prejudice and hardship. A reconsideration application was refused.

The claimant appealed, contending that merits could not be considered unless the strike-out threshold was met, and that she had not had fair warning or a fair opportunity to address merits.

1. Appeal dismissed. The Employment Tribunal did not err in law by taking account of the apparent weakness of the discrimination complaints when refusing both a just and equitable extension and permission to amend.

2. Section 123(1) of the Equality Act 2010 confers a broad discretion. The statute prescribes no exhaustive list of relevant factors. The strike-out test of no reasonable prospect of success is not imported into the just and equitable exercise. A tribunal may, in an appropriate case, weigh its assessment of merits even where it cannot properly strike out the complaint. A meritorious claim does not automatically justify an extension, since other prejudice may outweigh that factor.

3. A preliminary assessment of merits must be undertaken cautiously. The tribunal must identify sound and readily apparent features in the available material which support its view. It must recognise that it lacks the full evidence, especially in a discrimination case, and must not conduct a mini-trial. If it cannot safely make such an assessment, it should not treat merits as weighing against the claimant. Weight is ordinarily a matter for the Employment Tribunal and is reviewable only for perversity.

4. The same approach applies to an amendment application. The governing exercise is the balance of hardship or prejudice in all the circumstances. A proposed claim that would inevitably be struck out should not be added, but merits which are better than that threshold are not necessarily irrelevant. Any merits assessment must nevertheless have a reasoned and fair basis.

5. Natural justice requires a fair opportunity to advance and answer the parties’ cases. It does not require a tribunal in every case specifically to warn an unrepresented claimant that it may assess merits. The tribunal should make appropriate case-management directions where needed, while avoiding the provision of legal advice or the false impression that the preliminary hearing is a trial of all underlying evidence.

6. On the facts, the Tribunal had taken the claimant’s factual case at its highest and identified an apparent absence of material linking the alleged treatment, including the later response, to race. It had fairly raised and considered those matters. Its assessment of prejudice from stale and largely oral allegations was also open to it. The later response was not linked to the earlier conduct for the purposes of section 123(3)(a), and refusal of the amendment was likewise lawful.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 132.
• Employment Tribunal: At a preliminary hearing, the Tribunal dismissed the unfair-dismissal complaint as out of time, refused a just and equitable extension for the race-discrimination complaints, and refused permission to amend to add a further discrimination complaint. It later refused reconsideration.