J Holbrook v Tom Cosgrove KC & Ors

When deciding whether it is just and equitable to extend time under section 123 of the Equality Act 2010, an Employment Tribunal must assess all the circumstances, including the reason for delay, prejudice and, where relevant, the broad merits. A claimant’s misapprehension of the law may be relevant, but it must be reasonable in context. A non-binding first-instance decision concerning a different belief, or academic disagreement about it, will not ordinarily make delay reasonable.

The appellate court will not interfere with this broad discretion unless the tribunal erred in principle or reached a conclusion outside the wide range of reasonable outcomes. Reasons must be read fairly and as a whole. A claimant who voluntarily gives a potential claim lower priority than other matters, despite known time limits, will not generally have a good reason for delay.

A practising barrister was expelled from chambers after a tweet was regarded as offensive and discriminatory. He alleged that the expulsion was because of his belief in social conservatism. His claim under the Equality Act 2010 was presented five months after the primary limitation period.

The Employment Tribunal refused a just-and-equitable extension. It found that he had made a considered decision not to claim, that his reliance on the first-instance decision in Forstater was unreasonable, that Bar Standards Board proceedings did not justify his failure to read the successful Forstater appeal promptly, and that the balance of prejudice favoured refusal.

He appealed on the tribunal’s treatment of his legal assessment, his reasons for delay while the regulatory proceedings were pending, and prejudice. The central issue was whether the tribunal had erred in exercising its discretion under section 123.

1. Appeal dismissed. The Employment Tribunal had applied the correct question: whether the claimant’s delay and his understanding of the law were reasonable in the circumstances. Its reference to there being no legal impediment to claiming was a relevant factor, not a substitution of a different test.

2. Grainger plc v Nicholson did not establish a binding, low-threshold rule for conflicts of rights. Its discussion of potentially objectionable political philosophies was obiter, illustrative and concerned no conflict of rights. The fifth Grainger criterion derived from existing authority. Forstater in the EAT applied those established principles; it did not produce a seismic legal change.

3. The claimant could not reasonably treat the first-instance Forstater decision as closing the door on protection for social conservatism. It was non-binding, concerned a different belief and was not directly analogous. Academic or professional disagreement did not make his legal misapprehension reasonable.

4. The tribunal was entitled to reject the asserted explanation that Bar Standards Board proceedings prevented consideration of a claim. The claimant was interested in, and publicly commented on, the successful Forstater appeal. He made a voluntary choice not to investigate a possible legal avenue while time limits ran. That will not generally provide a good reason for missing them.

5. The tribunal had considered the claimant’s loss of the claim, the respondents’ forensic prejudice, the asserted importance and value of the claim, and its broad merits. It did not discount the claimant’s prejudice merely because he was responsible for delay. Its conclusion lay within the wide discretion conferred by section 123.

• Employment Appeal Tribunal: appeal dismissed; the refusal to extend time was upheld.
• Employment Tribunal (London Central): at a preliminary hearing on 22 June 2022, refused a just-and-equitable extension under section 123 of the Equality Act 2010 and dismissed the out-of-time discrimination claim.