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

The Court of Appeal considered the application of the "just and equitable" discretion under section 123 of the Equality Act 2010 to extend the three month time limit for presenting discrimination claims. The appeal concerned whether the Employment Tribunal (ET) was perverse in refusing to extend time where the claimant delayed while seeking disclosure of the successful candidate's ethnicity. The court held that the ET had erred in principle by concluding the claimant had the "raw material" for a claim in early July and by treating the claimant's information‑gathering as a blameworthy delay. The court criticised reliance on suspicion as a sufficient ground for denying an extension and found the ET failed to give adequate weight to the respondent's withholding of the ethnicity information and to the limited prejudice shown. The appeal was allowed and the remainder of the grounds were remitted to the Employment Appeal Tribunal for determination.

Background and facts:

• The claimant, Dr Nicholas Jones, applied for a role with Public Health England in March 2019, was interviewed and was scored second highest. The successful candidate (later revealed to be white) was appointed; the claimant was not informed of the outcome until 3 July 2019.
• The claimant queried the ethnicity of the successful candidate on 24 July 2019 and sought information; the employer declined to disclose the profiles on data‑protection grounds and referred to internal FOI/SAR procedures. The claimant commenced ACAS conciliation on 30 September 2019 and presented his ET1 in late October 2019, outside the three month primary period.

Procedural posture: At first instance the Reading Employment Tribunal dismissed the substantive discrimination claim and refused to exercise the discretion under section 123 to hear the time‑barred claim on just and equitable grounds. The Employment Appeal Tribunal (EAT) upheld the ET decision. The claimant obtained permission to appeal to the Court of Appeal.

Nature of the claim and relief sought: The claim alleged direct and/or indirect discrimination (race and/or age) and sought to present the discrimination complaint to the ET; the principal contested relief on appeal was an extension of time under section 123 of the Equality Act 2010.

Issues before the Court of Appeal:

1. Whether the ET was perverse in refusing to extend time as not being just and equitable.
2. Whether the EAT and ET applied an unduly severe test permitting a denial of an extension on the basis of suspicion that discrimination had occurred, and whether the test in Barnes (EAT) required modification.

Court's reasoning:

• The court reviewed the scope of the ET's wide discretion under section 123 and the limited scope for appellate interference (following Robertson/Bexley, Caston, Abertawe authority quoted in the judgment).
• The Court of Appeal found errors in the ET's reasoning: it was wrong to conclude the claimant had the "raw materials" for a claim in early July; it was wrong to penalise the claimant for seeking essential factual information (the ethnicity of the successful candidate); and the ET failed to give appropriate weight to the respondent's conduct in withholding that information.
• The court observed there was little evidential showing of actual prejudice to the respondent from the delay, and that the respondent had been on notice of a possible claim from July.
• The court also expressed reservations about treating mere suspicion or a firm belief based on suspicion as a sufficient basis to deny an extension and was critical of the Barnes formulation in that respect.

Disposition: The Court of Appeal allowed the appeal against the ET's refusal to extend time, set aside the EAT's order upholding that decision and remitted the other grounds on the merits to the EAT for determination.

This was an appellate appeal. The Court of Appeal allowed the appeal. The court concluded the Employment Tribunal had erred in principle in refusing to exercise its discretion under section 123 of the Equality Act 2010 to extend time: the ET was wrong to find the claimant already had the "raw material" to bring a claim in early July and wrongly treated reasonable information‑gathering (seeking the ethnicity of the successful candidate) as culpable delay. The ET also failed to give proper weight to the respondent's withholding of relevant information and to the lack of demonstrated prejudice. The Court of Appeal therefore set aside the EAT's dismissal of the appeal and remitted the remaining grounds on the merits to the Employment Appeal Tribunal.

Employment Tribunal (Reading) hearing 14-17 December 2021: claim dismissed on merits and ET refused to extend time (written reasons provided 22 April 2022). Employment Appeal Tribunal (Judge Tayler et al) hearing 4 January 2024: appeal dismissed (EAT decision handed down 23 January 2024; case ref 2024/EAT/2/21). Permission to appeal to the Court of Appeal granted 17 May 2024 (Elisabeth Laing LJ). Court of Appeal judgment [2024] EWCA Civ 1568, 13 December 2024: appeal allowed and remitted to the EAT.