Nkechi Leeks v Royal Marsden NHS Foundation Trust

The Employment Appeal Tribunal considered an appeal against an Employment Tribunal decision dismissing discrimination claims under the Equality Act 2010 and a whistleblowing (protected disclosure) claim under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018 as out of time. The EAT held that the Employment Judge had not properly analysed the specific time‑starting rules in regulation 5 of the 2018 Regulations and therefore remitted that issue back to the Tribunal for determination. The EAT also concluded that the Employment Judge had lawfully exercised her discretion not to extend time on just and equitable grounds in respect of the Equality Act claims and, on the assumption that the same start date applied to the whistleblowing claim, for that claim as well; that aspect of the decision was therefore dismissed on appeal.

Background and parties:

• The claimant applied for three catering assistant roles at the respondent hospital in March–June 2020, attended a taster session on 10 July 2020 and said she was orally offered a part‑time role on 30 June 2020. The respondent disputes the offer and other factual assertions; the Employment Judge made no findings on those disputes.
• The claimant issued tribunal proceedings alleging religious and disability discrimination under the Equality Act 2010 and detriment for protected disclosures under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018. The asserted detriment was the respondent's failure or refusal to provide a start date after a supposed offer.

Procedural history:

• The Employment Judge dismissed the claims as out of time, concluding time began to run at the end of July 2020 and refusing to extend time. The claimant appealed to the EAT; the appeal was allowed through to a full hearing by Her Honour Judge Tucker and heard by HHJ Shanks.

Issues before the EAT:

1. Whether the Employment Judge had correctly applied regulation 5 of the 2018 Regulations to determine when time started to run for the whistleblowing claim.
2. Whether the Employment Judge erred in refusing to extend time on the just and equitable basis for the Equality Act claims and the whistleblowing claim (on the assumption the same start date applied).

Court's reasoning and conclusions:

• Regulation 5: the tribunal record showed no proper analysis of which sub‑paragraph of regulation 5(3) applied. The EAT concluded the judge erred in law by failing to analyse whether the case fell under 5(3)(a) or (d) (decision communicated or withdrawal of an offer) rather than 5(3)(b)(ii) (deliberate omission to offer a contract). Because a different application of regulation 5 could change the start date for the whistleblowing claim, the EAT remitted that question to the Employment Tribunal for determination.
• Extension of time: the EAT reviewed the Employment Judge's reasoning on just and equitable extension of time and found she had taken relevant matters into account (claimant's state of knowledge, promptness, previous tribunal experience, weakness of the merits) and had not applied an inappropriate 'exceptionality' test. The EAT therefore dismissed the challenge to her exercise of discretion. The EAT noted that, if the remitted determination under regulation 5 produces a different start date, the Employment Tribunal may need to reconsider extension of time in light of that date.

Other observations:

• The EAT observed the respondent remained able to apply to strike out the claim later on grounds of no reasonable prospect of success.

Appeal allowed in part. The EAT found that the Employment Judge erred in law by failing to analyse which sub‑paragraph(s) of regulation 5 of the 2018 Regulations applied to the whistleblowing complaint and remitted that issue to the Employment Tribunal for determination. The EAT upheld the Employment Judge's exercise of discretion refusing to extend time on just and equitable grounds in respect of the Equality Act claims and, on the assumption that the same start date applied, for the whistleblowing claim; that challenge to the refusal to extend time was dismissed.

The Employment Tribunal (London South) before Employment Judge Morton dismissed the claimant's claims as out of time after a preliminary hearing on 16 November 2022. A preliminary step by Her Honour Judge Tucker on 6 March 2024 allowed the appeal through to a full hearing in the Employment Appeal Tribunal. The EAT delivered judgment in [2024] EAT 178 on 7 November 2024.