C Labongo Alum v Thames Reach Charity

In deciding whether to extend time on a just and equitable basis, an employment tribunal has a broad discretion but must take account of all significant factors. An unexplained delay is relevant, but the tribunal must identify the delay accurately. Where a claim was posted within the limitation period, the posting date and the claimant’s reasonable expectation of timely receipt may materially affect the exercise of discretion, even though posting does not deem the claim presented on that date.

A decision founded on an erroneous assessment of the period of delay is erroneous in law and should ordinarily be remitted for the discretion to be exercised afresh.

The claimant appealed against the London South Employment Tribunal’s dismissal of claims for unfair dismissal, unpaid wages and discrimination. Her ET1 was received on 24 June 2019, three days after the extended deadline of 21 June 2019.

She had attempted to present the claim by email on 5 June and by hand on 11 June. The latter claim was returned because it omitted the ACAS Early Conciliation certificate number. She sent a corrected claim by post on 20 June. The Tribunal held that it was reasonably practicable to present the statutory claims in time and that it was not just and equitable to extend time for the discrimination claims, principally because of an unexplained delay between 13 and 24 June.

The central issue was whether the Tribunal had erred in its exercise of the just and equitable discretion.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the dismissal of the unfair dismissal and wages claims. It was open to the Tribunal to find that it was reasonably practicable to present a valid claim by 21 June 2019. After 13 June, the claimant needed only to add the ACAS Early Conciliation certificate number. That factual conclusion was not perverse.

2. The appeal succeeded in respect of the discrimination claims. Under Equality Act 2010, section 123, the Tribunal’s discretion to extend time is broad. It must consider all significant factors, while the choice of relevant matters is generally for the Tribunal. An unexplained delay is plainly relevant.

3. The Tribunal treated an unexplained period from 13 to 24 June 2019 as highly relevant, if not decisive. That premise was materially inaccurate. The documents before it showed that the corrected ET1 had been posted on 20 June. Nothing further could reasonably have been done after posting. Posting within the time limit, with a reasonable expectation of timely receipt, was also relevant to whether an extension was just and equitable, although the Employment Tribunal Rules contained no deeming provision fixing presentation by reference to posting.

4. Further, a letter dated 13 June and sent by post could not have been acted upon on that day. The unexplained period was therefore shorter than 11 days, although its precise length remained uncertain. The accepted evidence about the stress of moving home might carry greater weight in relation to a shorter delay. The claimant’s assistance by a lay friend did not remove the usual allowance for a litigant in person.

5. The Tribunal’s refusal to extend time was founded on an essentially incorrect factual premise and disclosed an error of law. The issue whether it is just and equitable to extend time for the discrimination claims was remitted to the same Tribunal for prompt determination. The claimant’s new reliance on dyslexia did not assist, because there was no good reason under [1954] 1 WLR 1489 for failing to adduce it earlier.

• Employment Appeal Tribunal: allowed the appeal in part and remitted the just and equitable extension issue for the discrimination claims: [2022] EAT 8.
• London South Employment Tribunal: dismissed the unfair dismissal, unpaid wages and discrimination claims for want of jurisdiction because the ET1 was received three days after the applicable deadline.