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

For an equality claim brought outside the three-month period, Equality Act 2010, section 123 gives the employment tribunal a very wide discretion to allow such other period as is just and equitable. The tribunal need not apply a fixed checklist, but the length and reasons for delay and prejudice to the respondent are almost always relevant. An appellate court must not substitute its own view. It may intervene only for an error of principle or a conclusion outside the very wide range of reasonable decisions. Knowledge of all facts necessary to formulate a claim may make delay unreasonable. Mere suspicion, even if firmly held, should not encourage proceedings before essential information is available.

The appellant applied for a post with Public Health England. He was not told that he had been unsuccessful until the three-month limitation period had expired. He sought information about the successful candidate’s ethnicity, which was not disclosed until a preliminary hearing.

He presented an equality claim after the primary period. The Employment Tribunal dismissed the claim on its merits and declined to extend time on just and equitable grounds. The Employment Appeal Tribunal, in 2024/EAT/2/21, upheld that decision and dismissed the appeal. The central issues were whether the tribunal had erred in exercising its discretion and whether suspicion of discrimination could properly be treated as relevant prior knowledge.

Appeal allowed. The Employment Tribunal’s refusal to extend time was outside the very wide ambit of reasonable decisions, and the Employment Appeal Tribunal’s order upholding it was set aside.

1. Section 123 of the Equality Act 2010 gives the employment tribunal the widest possible discretion to determine whether a period other than three months is just and equitable. Parliament has prescribed no mandatory checklist. The length and reasons for delay and prejudice to the respondent are factors almost always relevant. The statutory reference to three months as the primary period is useful shorthand, but the provision permits the tribunal to determine a different statutory period.
2. On appeal, the court must not substitute its own view of what is just and equitable. It may intervene for an error of principle, such as failing to consider a plainly relevant and significant factor or giving weight to an irrelevant factor, or where the conclusion falls outside the very wide ambit within which reasonable tribunals may differ. This approach was applied from Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 64.
3. The Employment Tribunal erred in finding that the appellant had the raw materials for a claim in July or August. Being told that he had not obtained the post, and being suspicious about the delay, did not by themselves provide sufficient information to formulate proceedings. The ethnicity of the successful candidate was an essential part of the proposed claim, and the appellant’s attempt to obtain it should not have been held against him.
4. The tribunal should have addressed the reasons for the whole delay, including the employer’s repeated failure to disclose the information, and whether the respondent had suffered actual prejudice. The respondent had been put on notice of a possible claim by 24 July, and the merits findings disclosed no actual, as opposed to theoretical, prejudice.
5. The court rejected the formula in paragraph 19 of Barnes v Metropolitan Police Commissioner and another UKEAT/0474/05 to the extent that it treats suspicion, or a belief based on suspicion, as a significant basis for requiring prompt proceedings. Knowledge of all facts necessary to establish a claim may be highly relevant, but tribunals should not encourage claims based on mere suspicion.

The remaining pleaded grounds concerning the merits were remitted to the Employment Appeal Tribunal for determination.

• Court of Appeal (Civil Division) — allowed the appeal, set aside the Employment Appeal Tribunal’s order, and remitted the remaining merits grounds to that tribunal.
• Employment Appeal Tribunal, 2024/EAT/2/21 — held that the Employment Tribunal had made no error of law in refusing an extension of time and dismissed the appeal.
• Reading Employment Tribunal — dismissed the discrimination claim on its merits and held that it was not just and equitable to hear the claim outside the statutory period.