Polystar Plastic Limited v M Liepa

Under section 123(1) of the Equality Act 2010, an Employment Tribunal has a broad discretion to extend time where it thinks this just and equitable. The length of, and reasons for, delay will almost always be relevant, but a claimant need not establish a good reason for delay before an extension may be granted.

Where a claimant relies on a reasonable belief to explain delay, the claimant must establish that belief. A tribunal must explain how it has assessed a genuine but mistaken belief when weighing the reasons for delay. Failure to do so may render the exercise of discretion unsafe, even where there is no prejudice to the respondent.

The claimant brought race discrimination and victimisation complaints arising from events in September and October 2021. His first claim omitted an ACAS early conciliation certificate number and was not validly presented. After a case management hearing on 12 May 2022, he submitted a fresh claim which was validly presented on 1 June 2022, nearly four months late.

The Employment Tribunal found that the claimant genuinely believed that the respondent had contacted ACAS, although it was unclear how that belief had been formed. It extended time under section 123(1) of the Equality Act 2010. The respondent appealed, challenging the Tribunal’s approach to the claimant’s explanation for delay and the burden it placed on the parties.

1. Appeal allowed. The Employment Tribunal erred in its treatment of the claimant’s asserted belief that the respondent had contacted ACAS. The claimant was advancing that positive case and had to establish it. It was wrong to reason that the respondent had not disproved the claimant’s understanding or that it had not proved he acted unreasonably.

2. The Tribunal could permissibly find that the claimant genuinely held the belief. It had, however, rejected the factual account said to explain it and did not determine whether the belief was reasonably held. Nor did it explain how the genuine but mistaken belief was weighed when assessing the reason for the delay before 12 May 2022. That failure to engage adequately with a significant factor rendered the discretionary decision unsafe.

3. On the Tribunal’s findings, the only permissible conclusions were that the claimant had not established that his belief was reasonable and had not established a good reason for the relevant delay. To the extent that the Tribunal decided otherwise, its conclusion was perverse.

4. Those substituted findings did not compel refusal of an extension. Section 123(1) of the Equality Act 2010 gives a very broad discretion. An absence of a good reason for delay is relevant but is not a legal precondition to an extension; the Tribunal might still conclude that an extension was just and equitable, including in light of the absence of prejudice.

5. The extension decision was set aside and remitted to the Employment Tribunal for determination at the listed merits hearing. The Regional Employment Judge was to decide whether the matter should be heard by the same or a different Tribunal.

• Employment Appeal Tribunal: Allowed the respondent’s appeal, set aside the Southampton Employment Tribunal’s extension of time, substituted findings on the claimant’s belief and reason for delay, and remitted the remaining just-and-equitable question.
• Employment Tribunal: Southampton Employment Tribunal, Employment Judge Gray sitting alone, held on 25 August 2022 that the second claim was validly presented on 1 June 2022 and extended time under section 123(1) of the Equality Act 2010.