C Labongo Alum v Thames Reach Charity

The Employment Appeal Tribunal allowed the claimant's appeal in part and remitted the matter to the Employment Tribunal for reconsideration of whether it would be "just and equitable" to extend time for the discrimination claims under section 123 of the Equality Act 2010. The EAT upheld the Tribunal's finding that it was reasonably practicable to present the unfair dismissal and related Employment Rights Act 1996 claims within time under section 111(2) ERA, but found an error of law in the Tribunal's assessment of the period of unexplained delay relevant to the just and equitable discretion.

The EAT concluded the Tribunal had treated the period of unexplained delay as longer than it could have been because the claimant had posted a corrected ET1 on 20 June 2019, within the extended time limit to 21 June 2019, and therefore the factual premise for refusal was flawed. The matter was remitted to the same Tribunal to determine, taking the correct period of delay and the claimant's earlier attempts to present the claim into account, whether an extension should be granted in respect of the discrimination claims.

Background and nature of the claim:

• The appellant was dismissed by reason of redundancy on 6 March 2019 and brought claims for unfair dismissal, unlawful deductions from wages and discrimination.
• She entered ACAS Early Conciliation on 26 March 2019, obtaining a certificate on 11 April 2019 which extended the time for presenting claims from 5 June 2019 to 21 June 2019.

Procedural history and facts:

• The claimant attempted to present her ET1 by email from Uganda on 5 June 2019 (email is not an accepted filing method), then hand-delivered an ET1 on 11 June 2019 but omitted the ACAS certificate number; that form was returned by letter dated 13 June 2019.
• The claimant says she posted a corrected ET1 including the ACAS number on 20 June 2019 (first-class post) but the Tribunal recorded receipt on 24 June 2019, three days late.
• The respondent sought a preliminary hearing on jurisdiction; the Employment Tribunal (Employment Judge Truscott QC) concluded the claims were presented out of time and refused to extend time for the discrimination claims as not just and equitable, finding an unexplained period of delay.
• Permission to appeal to the EAT was granted by HHJ Shanks.

Issues framed by the court:

• Whether it was reasonably practicable to present the Employment Rights Act 1996 claims in time (section 111 ERA).
• Whether the Tribunal should extend time on "just and equitable" grounds for discrimination claims under section 123 of the Equality Act 2010.
• Whether the Tribunal erred in its factual assessment of the period of unexplained delay and in the exercise of its discretion.

Court's reasoning and outcome:

• The EAT accepted the Tribunal's factual and legal conclusion that it was reasonably practicable to lodge the ERA claims within time and did not interfere with that part of the decision.
• On the just and equitable discretion, the EAT held the Tribunal relied on an essentially incorrect factual premise because the claimant had taken the step of posting the corrected ET1 on 20 June 2019, which meant the period of unexplained delay was shorter than the Tribunal had treated it. That factual error vitiated the exercise of discretion.
• The EAT did not decide the extension question itself because of remaining factual uncertainty and remitted the discrete issue (extension for discrimination claims) to the same Tribunal to determine promptly, noting permissions and rules about adducing further evidence.

Other matters: The claimant relied for the first time on dyslexia and on practical difficulties of moving home; the EAT observed these points had not been adduced below and, absent an acceptable explanation for late adducing of evidence, did not advance the claimant's case on appeal.

Appeal allowed in part. The EAT held that the Employment Tribunal erred in law by basing its refusal to exercise the "just and equitable" discretion on an essentially incorrect factual premise concerning the length of unexplained delay. The EAT upheld the Tribunal's finding that it was reasonably practicable to present the ERA claims within time but remitted to the same Tribunal the discrete question whether, taking the correct period of delay and the claimant's prior attempts into account, it would be just and equitable to extend time for the discrimination claims.

Employment Tribunal (London South), Employment Judge Truscott QC: claims dismissed for being presented out of time (ET recorded receipt 24 June 2019); permission to appeal to the EAT granted by HHJ Shanks; Employment Appeal Tribunal [2022] EAT 8 (Choudhury J) allowed the appeal in part and remitted the issue of extension of time for discrimination claims to the same Tribunal.