Equans Services Ltd v Cameron Bennett

An employment tribunal’s discretion to extend time for a discrimination complaint under section 123 of the Equality Act 2010 is wide, but exceptional. The claimant must satisfy the tribunal that an extension is just and equitable. The tribunal must consider all material circumstances, including the length and reasons for delay, the apparent strength of the claim, and prejudice to each party.

Forensic prejudice is crucial where a lengthy delay has left an employer without contemporaneous documents or the evidence of the principal alleged perpetrator. A tribunal errs in law if it fails to assess that prejudice or reaches a conclusion that no reasonable tribunal, properly directed, could reach.

The claimant brought an age-discrimination complaint against his former employer. The Employment Tribunal found that the alleged acts occurred between September 2018 and January 2019, but extended time under section 123(1)(b) of the Equality Act 2010 after an ET1 was presented in December 2021.

The employer appealed. It contended that the Tribunal had not applied the relevant principles, had failed to evaluate the very substantial delay and forensic prejudice, and had wrongly treated the departure of the claimant’s former manager as causing no prejudice because another employee might be available.

The central issue was whether the Tribunal had lawfully exercised its discretion to extend time on a just and equitable basis.

1. Appeal allowed. The Tribunal erred in law in extending time for the age-discrimination complaint and its decision was perverse.

2. The discretion under section 123(1)(b) of the Equality Act 2010 is broad but not absolute. It must be exercised in accordance with established principles and in all the circumstances. Although a tribunal need not address every factor in section 33(3) of the Limitation Act, it must not omit a significant factor. The material factors here included the length and reasons for delay and the prejudice caused by it: Bexley Community Centre trading as Leisurelink v Robertson, [2003] EWCA Civ 576; Abertawe Bro Morgannwg University Local Health Board v Morgan, [2018] ICR 1194.

3. The Tribunal did not address the extreme delay. The last alleged act was in January 2019, whereas the claim was presented in December 2021 and particulars were provided later. Nor did it properly assess forensic prejudice. The complaint depended on undocumented verbal exchanges; the alleged manager had left employment; and the proposed HR witness neither witnessed the exchanges nor remained employed. Any evidence from that witness would at best have been hearsay.

4. Forensic prejudice from faded memories, unavailable witnesses and missing documents was crucially relevant and could be decisive: Miller v Ministry of Justice, UKEAT/0003/15/LA. The Tribunal had no cogent evidence that ill-health prevented the claimant from bringing the claim after his resignation. Properly balancing the parties’ prejudice, no reasonable tribunal could conclude that an extension was just and equitable.

5. The EAT substituted its own decision. Time was not extended and the age-discrimination claims were dismissed.

• Employment Appeal Tribunal: Allowed the employer’s appeal in [2025] EAT 33, set aside the extension of time, and substituted a decision dismissing the age-discrimination claims.

• Employment Tribunal: At a preliminary hearing on 22 August 2023, held the age-discrimination complaint out of time but extended time on a just and equitable basis.