Rowena Owen v Network Rail Infrastructure Limited

For a just and equitable extension of time under Equality Act 2010, the absence of an evidential explanation for delay is a relevant consideration but is not a legal precondition to an extension. The tribunal must assess all relevant circumstances, including delay, any explanation, prejudice and the consequences of refusing an extension.

Evidence bearing on delay need not be given in a claimant’s witness statement, but submissions must identify supporting evidence. Where prejudice through faded recollection is relied on, the tribunal must explain the actual disadvantage found, particularly if the respondent chose not to call witnesses. A tribunal may determine the reason for impugned conduct without first formally deciding whether the burden of proof has shifted, provided it engages with material evidential features.

The claimant alleged sex discrimination, sexual harassment and victimisation arising from conduct at a signalling centre between November 2015 and May 2017, and from the handling of her grievance and appeal between November 2017 and February 2020.

The Employment Tribunal accepted her factual account of the earlier incidents but rejected the later complaints on their merits. It held that there was no continuing act and refused a just and equitable extension of time for the earlier complaints because she had given no explanation for delay. It also rejected complaints concerning the grievance investigator’s conduct.

The claimant appealed the tribunal’s approach to time limits and, separately, to the burden of proof concerning the grievance investigator.

1. The appeal was allowed in part. The Employment Tribunal’s decision refusing a just and equitable extension of time was quashed. The matter was remitted to the same tribunal.

2. The tribunal did not err merely by stating that submissions are not evidence. Read fairly, its reasons showed that it understood evidence concerning delay could derive from oral testimony, documents or other evidential material, rather than only from the claimant’s witness evidence. It was entitled to find that the available evidence did not require it to conclude that ill health caused or contributed to the delay.

3. However, the tribunal erred by treating an explanation from the claimant as legally indispensable. Under section 123, the absence and nature of an explanation are relevant matters in the discretionary assessment. They do not make an extension legally impossible. The tribunal’s language indicated that it regarded its discretion as unavailable in the absence of such explanation, contrary to Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 and Concentrix CVG Intelligent Contact Ltd v Obi [2022] EAT 149.

4. The tribunal was aware that refusal would deprive the claimant of a potential remedy, so its failure expressly to restate that loss did not itself establish error. Its reasoning on prejudice to the respondent was nevertheless unclear. Fading memories could be a relevant consideration, and a respondent need not show that delay caused any disadvantage. But the tribunal had to explain what actual disadvantage it found where the respondent had chosen not to call the relevant witnesses.

5. The burden-of-proof ground failed. A tribunal may make positive findings as to the reasons for conduct without first deciding whether the burden shifted. It must nevertheless engage with facts capable of bearing on discriminatory or retaliatory motivation. This tribunal had done so and permissibly found that the investigator’s deficient handling of the grievance resulted from inexperience, inadequate training and lack of support, not sex or the grievance.

6. Remittal was necessary because a fresh conclusion on extension of time might require further findings on the earlier complaints. The existing tribunal was best placed to conduct that exercise.

• Employment Appeal Tribunal: allowed the appeal in part, quashed the refusal of a just and equitable extension, and remitted that issue to the same tribunal: [2023] EAT 106.
• Employment Tribunal: dismissed the later discrimination and victimisation complaints on their merits, held that there was no continuing act, and dismissed the earlier complaints as out of time after refusing an extension.