Concentrix CVG Intelligent Contact Limited v D Obi

An employment tribunal has a wide discretion under section 123(1)(b) of the Equality Act 2010 to extend time where just and equitable. It must consider the length of, and any explanation for, delay, but an absence of explanation does not of itself compel refusal.

Where a complaint is late, the tribunal must also weigh any real-time forensic prejudice caused by requiring the respondent to defend historical allegations. That remains relevant even where a course of conduct makes the claim formally late by only a day. A tribunal errs if it considers only prejudice caused by the formal lateness and omits material earlier findings of unavailable witnesses or fading memories.

The claimant brought complaints of sexual harassment arising from three incidents involving her line manager in November 2017 and January 2018. The Employment Tribunal found the complaints well founded and held that the incidents were conduct extending over a period under section 123(3)(a) of the Equality Act 2010.

Time therefore ran from the final incident, but the claim was still one day late. The tribunal extended time under section 123(1)(b). It had earlier refused an extension for a racial-harassment complaint concerning one of the same incidents, finding forensic prejudice from departed witnesses and fading memories.

The employer appealed only the just-and-equitable extension. It argued that no explanation for delay was fatal and that the tribunal had failed properly to assess forensic prejudice.

1. Appeal allowed. Ground 1 failed. The tribunal had considered the absence of evidence explaining why the claimant had presented her claims late. Under section 123(1)(b) of the Equality Act 2010, that was a relevant factor, but it was not a rule of law that an extension must be refused whenever no explanation appears. The discretion is broad and its exercise is unlawful only on ordinary principles, including omission of a plainly relevant and significant factor.

2. Ground 2 succeeded. In applying the reasoning in Adedeji, the EAT held that, where adjudication requires examination of events occurring substantially before the date from which limitation runs, the tribunal must consider the forensic prejudice to the respondent of defending those historical allegations. The principle applies both to constructive discriminatory dismissal and to discrete discriminatory incidents treated as conduct extending over a period.

3. The tribunal had erred by treating the absence of prejudice caused by the claim being one day late as decisive. It did not weigh the forensic prejudice it had already found in relation to the same November incident: the unavailability of witnesses, including the alleged harasser, and fading memories. Those matters also required consideration in respect of the earlier sexual-harassment incident and, as applicable, the January incident.

4. The EAT added that the formal extent of lateness and subsequent witness unavailability may both be relevant, but neither may exclude material forensic prejudice from the balance. The extension decision could not stand; the appeal succeeded.

• Employment Appeal Tribunal: Allowed the employer's appeal against the Employment Tribunal's just-and-equitable extension of time: [2022] EAT 149.
• Employment Tribunal: Found three sexual-harassment complaints well founded, held them to be conduct extending over a period, and extended time by one day under section 123(1)(b) of the Equality Act 2010. It refused an extension for a separate racial-harassment complaint.