JK v Ealing Council

Where permission to amend has already been granted, an employment tribunal must decide any limitation issue under the distinct statutory question in section 123 of the Equality Act 2010. It errs if it instead re-determines whether the amendment should be allowed. Similar factors may arise in both exercises, but their similarity does not make the error immaterial.

The length and reasons for delay will almost always be relevant to section 123, but the tribunal retains a broad discretion as to relevant factors and weight. A material factual error about a claimant’s health and capacity may require remission where the appellate court cannot say the result would inevitably have been the same.

The claimant appealed an employment tribunal judgment sent on 25 May 2023. The tribunal dismissed her unfair-dismissal claim as out of time, extended time for direct sex-discrimination claims, but refused a just and equitable extension for disability-discrimination, disability-related harassment and victimisation complaints. It also refused anonymity.

Earlier case-management proceedings had already allowed the claimant to amend to include disability-discrimination and victimisation complaints. The appeal concerned whether the tribunal nevertheless treated those matters as fresh amendment applications, whether it considered delay, and whether it made a material factual error about sickness absence after the claimant began new employment.

The claimant also relied on new medical evidence in seeking anonymity in the Employment Appeal Tribunal and reconsideration of the tribunal’s anonymity decision.

1. The appeal was allowed in part. An anonymity order was made for the EAT proceedings. The new medical evidence showed that publication of the claimant’s name would seriously worsen her health. Giving proper weight to open justice, the balance nevertheless favoured protecting her Article 8 rights.

2. The challenge to the employment tribunal’s refusal of anonymity was stayed. The usual and appropriate course was for the tribunal to reconsider that decision first in light of the new evidence.

3. Ground 2 succeeded. The tribunal had repeatedly addressed whether to allow or refuse amendments, although a previous employment judge had already granted permission to amend. The issue was therefore whether it was just and equitable to extend time under section 123 of the Equality Act 2010. The amendment discretion and the statutory limitation discretion may involve overlapping considerations, but they are distinct exercises. The tribunal’s reasoning showed that it took the wrong legal route, and the EAT could not conclude that a correctly directed tribunal would inevitably have reached the same result.

4. Ground 3 failed. The tribunal had referred to both the dates of the alleged conduct and the date on which the amendment application was made. It had therefore considered the length of delay. The weight to attach to that factor was for the tribunal.

5. Ground 4 succeeded. The tribunal incorrectly found that the claimant had undertaken her new role without absence. Her undisputed evidence was that she had been absent through sickness. That finding was material because the tribunal relied on her supposed ability to cope with the new role when rejecting ill health as an explanation for delay. The EAT could not say the result would inevitably have been the same without the error.

6. The time-limit issues were remitted for rehearing before a differently constituted tribunal. The withdrawn sex-discrimination claim was excluded from the remission.

• Employment Appeal Tribunal: Appeal allowed in part: anonymity granted for the EAT; the tribunal anonymity issue stayed for reconsideration; and the time-limit issues remitted for rehearing.
• Employment Tribunal: Judgment sent on 25 May 2023. The tribunal dismissed unfair dismissal and the disability-discrimination and victimisation complaints as out of time, extended time for direct sex discrimination, and refused anonymity.