JK v Ealing Council

The Employment Appeal Tribunal allowed the appeal in part. The tribunal held that an anonymity order in the EAT should be made because fresh medical evidence showed publication of the claimant's name would cause a serious deterioration in her mental health, engaging Article 8 ECHR and outweighing the open justice principle. The EAT stayed the challenge to the employment tribunal's refusal of anonymity and referred that question back to the ET for reconsideration in light of the new medical evidence.

The EAT found material legal error in the employment judge's approach to complaints of disability discrimination and victimisation under section 123 Equality Act 2010: the judge repeatedly treated those matters as if they were applications to amend (Selkent-style balancing) rather than addressing the distinct statutory question whether it was just and equitable to extend time under section 123. The EAT also found a material error of fact about the claimant's sickness absences after starting new employment which had influenced the judge's reasoning. Those time-limit issues were remitted for rehearing by a different tribunal. A further ground concerning the length of delay was dismissed.

Background and parties. The claimant was a social worker who worked for the respondent until January 2022 and commenced new employment on 17 January 2022. After termination she brought claims including unfair dismissal, sex discrimination and a range of complaints of disability discrimination, reasonable adjustment failings, harassment related to disability and victimisation under the Equality Act 2010. Early conciliation began on 16 May 2022 and a claim form was received on 23 May 2022. The respondent denied the claims.

Procedural history. At case management hearings EJ Khan granted an amendment and ordered particulars; the claimant provided further and better particulars on 8 November 2022 which set out detailed disability complaints and victimisation under ss 13, 15, 20-21, 26 and 27 EqA. EJ Burns allowed the outstanding amendment application on 1 February 2023 (his decision recording that he did not decide whether the claims were in time) and listed time-limit issues for a further preliminary hearing. At a preliminary hearing on 18 April 2023 EJ McGrade decided that the unfair dismissal claim was out of time and reasonably practicable to have presented it in time, that time should be extended for sex discrimination complaints but that it was not just and equitable to extend time for the disability discrimination, harassment related to disability and victimisation complaints. The EJ also refused anonymity under rule 50 Employment Tribunal Rules 2013. The claimant appealed to the EAT on four grounds and sought anonymity in the EAT.

Issues before the EAT. (i) Whether an anonymity order should be made in the EAT and whether the ET should be asked to reconsider its earlier refusal in light of new medical evidence; (ii) whether the employment judge erred in law by treating the disability and victimisation complaints as applications to amend rather than as an application to extend time under s.123 Equality Act 2010; (iii) whether the employment judge failed to have regard to the length of delay; and (iv) whether the employment judge made a wrong and material finding of fact about the claimant's lack of sickness absences in early 2022.

Court’s reasoning and disposition. The EAT concluded on anonymity that new medical evidence (a GP letter and a clinical psychologist's report) showed publication of the claimant's name in EAT proceedings would contribute to a serious deterioration in her mental health. The tribunal invoked its procedural powers (including rule 23A and the s.30 Employment Tribunals Act 1996 power read compatibly with the Human Rights Act 1998 and authorities such as F v G) and ordered anonymity in the EAT. The EAT stayed ground 1 (challenge to the ET refusal) and directed the ET to reconsider anonymity in light of the new medical evidence.

On the time-limit grounds the EAT held that, although the EJ cited s.123 EqA and reached conclusions stated in s.123 language, his reasons repeatedly treated the matters as applications to amend (referring to Selkent and Vaughan and using language such as "if I allow the application to amend"). That represented a legal error because the proper statutory test was whether it was "just and equitable" to extend time under s.123 EqA; the route the EJ took might have produced a different outcome. The EAT also found the EJ had made an incorrect and material finding of fact about the claimant's absence record after starting new employment; that finding had informed his assessment of the claimant's capacity and therefore could have affected the result. For those reasons the EAT allowed grounds 2 and 4 and remitted the time-limit issues for rehearing before a different tribunal. Ground 3 (failure to have regard to length of delay) was dismissed. The sex discrimination claim extension had been allowed below and was later withdrawn by the claimant.

The appeal was allowed in part. The EAT granted anonymity for the EAT proceedings because fresh medical evidence established that publication of the claimant's name would seriously harm her mental health and that Article 8 considerations outweighed the open justice principle in this context. The EAT stayed the appeal on the ET's refusal of anonymity and directed the ET to reconsider in light of the new medical evidence. The EAT allowed the appeal on two grounds: it held that the employment judge committed a legal error by approaching disability discrimination and victimisation complaints as applications to amend rather than applying the s.123 Equality Act 2010 "just and equitable" test, and made a material error of fact about the claimant's sickness absences; those time-limit issues were remitted for rehearing by a different tribunal. A ground alleging failure to have regard to length of delay was dismissed. The EAT therefore remitted the time-limit issues for rehearing to resolve those matters properly under s.123 EqA.

The claimant's claims were heard in the employment tribunal at preliminary hearings. EJ Khan (18 October 2022) granted an initial amendment and ordered particulars. EJ Burns (decision sent 16 February 2023) recorded that the further amendment application was allowed and listed time-limit issues for hearing. EJ McGrade (preliminary hearing 18 April 2023; judgment sent 25 May 2023) refused extensions of time under s.123 Equality Act 2010 for disability discrimination and victimisation complaints and refused anonymity. The claimant appealed to the Employment Appeal Tribunal under rule 3(10); a rule 3(10) hearing on 8 May 2024 refused anonymity but permitted four grounds to proceed. This appeal was heard by the EAT (13 June 2025) and resulted in a partial allowance, anonymity granted in the EAT, ground 1 stayed for ET reconsideration, grounds 2 and 4 allowed and the time-limit issues remitted for rehearing before a different tribunal.