Tracey Smith v The Restaurant Group (UK) Ltd

The Employment Appeal Tribunal dismissed the claimant’s appeal against a preliminary Employment Tribunal decision that her discrimination and unauthorised deduction of wages claims were time barred. The tribunal correctly treated the first early conciliation certificate as the mandatory certificate for limitation purposes under the statutory scheme (including the interaction of section 18A of the Employment Tribunals Act 1996 and provisions excluding early conciliation time such as section 140B of the Equality Act 2010 and section 207B of the Employment Rights Act 1996). The EAT held that established authority (notably Sera Garau and the subsequent EAT authority Romero) remained binding and was not displaced by Sainsbury’s Supermarkets v Clark. The tribunal also lawfully exercised its discretion not to extend time under the applicable statutory test (relying on factors including length and reasons for delay, prejudice and the absence of evidential explanation from the claimant).

Background and procedure:

• The claimant commenced employment on 25 April 2022 and was dismissed on 17 November 2022 after failing probation. Two days before dismissal she submitted a grievance.
• Two early conciliation certificates were obtained: the claimant initiated early conciliation on 23 January 2023 (first certificate issued 3 February 2023) and a second early conciliation process began on 15 February 2023 (second certificate issued 29 March 2023). An ET1 was presented on 29 April 2023.
• The claimant brought claims under the Equality Act 2010 (sections 13, 15 and 20) for disability discrimination and under section 23 of the Employment Rights Act 1996 for unauthorised deduction of wages. A preliminary hearing before Employment Judge Wiseman (decision sent 1 November 2023) found the claimant was a disabled person for the relevant purposes but concluded the claims were time barred and the tribunal lacked jurisdiction.

Issues before the EAT:

1. Whether the first early conciliation certificate was the certificate to be relied upon for limitation purposes or whether a later, second certificate could be treated as the operative certificate, such that the claim would be in time.
2. Whether established EAT authority (Sera Garau) remained good law following the Court of Appeal decision in Sainsbury’s Supermarkets Ltd v Clark and whether the preliminary tribunal erred in applying that authority.
3. Whether the tribunal erred in exercising its discretion under the relevant statutory test (section 123(b), EqA as cited) and in the manner in which it assessed prejudice and the reasons for delay.

Reasoning and decision:

• The EAT held that Sera Garau correctly identifies that the mandatory early conciliation certificate required by section 18A(4) of the Employment Tribunals Act 1996 is the certificate referred to in the limitation provisions (section 207B ERA and section 140B EqA), and a later voluntary second certificate does not operate to extend the limitation period for the same matter. Sainsbury’s was not shown to have displaced that reasoning and Sera Garau had been followed and endorsed in Romero; no exceptional circumstances were shown to depart from that EAT line of authority.
• The tribunal had properly identified and balanced relevant factors when declining to exercise its discretion to extend time: the length and unexplained nature of delay, the claimant’s access to legal advice and the existence of the signed declaration, and possible prejudice. The tribunal was not required to reach the level of forensic detail urged by the claimant and was entitled to give weight to the claimant’s failure to explain the delay.

Outcome: The appeal was refused.

The appeal is dismissed. The EAT held that the Employment Tribunal correctly treated the first early conciliation certificate as the operative certificate for limitation purposes under the statutory scheme (section 18A Employment Tribunals Act 1996 read with section 140B Equality Act 2010 and section 207B Employment Rights Act 1996), that Sera Garau remains good law and was not displaced by Sainsbury’s Supermarkets Ltd v Clark, and that the tribunal did not err in the lawful exercise of its discretion not to extend time given the unexplained delay and other factors.

Appeal to the Employment Appeal Tribunal from a preliminary Employment Tribunal decision (Employment Judge Wiseman) dated 1 November 2023 which had held the claimant to be a disabled person for relevant purposes but that her claims were time barred and the tribunal lacked jurisdiction. The EAT delivered judgment on 1 November 2024 ([2024] EAT 168) refusing the appeal.