Dr Nicholas Jones v The Secretary of State for Health and Social Care

Under section 123 of the Equality Act 2010, the Employment Tribunal has a broad discretion to select such period for bringing discrimination proceedings as it thinks just and equitable. There is no presumption that extensions should be granted or refused, and no prescribed checklist. The length and reason for delay, and prejudice caused by delay, will usually be important.

An appeal against that evaluative discretion succeeds only for an error of principle or a conclusion outside the wide range of reasonable decisions. A claimant’s lack of information about a potential comparator may be relevant, but does not compel an extension where the claimant already suspected discrimination, had sufficient material to present a claim, and delayed while seeking further evidence.

The claimant, who is Black Caribbean, applied for an Assistant Business Development Manager role. He was interviewed, scored second, and was notified on 3 July 2019 that another candidate had been appointed. He began ACAS early conciliation on 30 September 2019 and presented his claim on 29 October 2019.

The Reading Employment Tribunal dismissed his direct race discrimination claim on its merits. It also held that the claim was out of time and that it would not be just and equitable to extend time. The claimant appealed, principally contending that the refusal of an extension was perverse because the respondent had not told him the successful candidate’s race before he brought the claim.

1. Appeal dismissed. The Employment Tribunal’s refusal to extend time was not perverse. That conclusion disposed of the appeal, so the Employment Appeal Tribunal did not determine the remaining grounds concerning comparators and interview scoring.

2. Section 123 of the Equality Act 2010 confers the widest possible discretion. The three-month period is a useful shorthand, but the statutory question is whether a different period is one which the tribunal thinks just and equitable. There is no rule that the discretion must be exercised sparingly, no presumption either way, and no exhaustive statutory list of factors.

3. The tribunal must take account of significant factors. The length and reason for delay, and prejudice to the respondent, will ordinarily matter. Appellate intervention is strictly limited: the Appeal Tribunal cannot substitute its own assessment merely because it would have exercised the discretion differently. It may interfere only for an error of principle or a conclusion outside the very wide ambit of reasonable decisions.

4. The claimant’s ignorance of the successful candidate’s race was capable of being relevant. However, the tribunal permissibly found that he suspected discrimination and had enough information to bring a claim when notified on 3 July 2019. He in fact brought the claim before learning the candidate’s race, but more than three months after that notification. The tribunal was entitled to conclude that his information-gathering exercise did not adequately explain the delay.

5. The tribunal also permissibly weighed prejudice. A delayed claim impaired the respondent’s ability to preserve documents and obtain reliable recollections of non-verbatim interview answers. Its conclusion fell within the permissible range.

Obiter: where proceedings have begun, information about a successful applicant’s protected characteristics may be sought under Rule 31 of the ET Rules. In an appropriate case, a failure to provide basic information may contribute to an inference of discrimination.

• Employment Appeal Tribunal: appeal dismissed. The tribunal’s refusal to extend time on a just and equitable basis was upheld.

• Employment Tribunal, Reading: following a remote hearing on 14–17 December 2021, the claim was dismissed on the merits and held to be out of time. The judgment was sent on 22 January 2022 and written reasons were provided on 22 April 2022.