Oluwafunto Dada v The Scottish Ministers

When exercising the discretion under section 123(1)(b) of the Equality Act 2010, an employment tribunal must assess all factors relevant to whether an extension of time is just and equitable. The length of, and reasons for, the delay are particularly relevant, but there is no statutory checklist or requirement for exceptional circumstances.

Authorities applying the distinct reasonable practicability test, and the checklist approach derived from section 33 of the Limitation Act 1980, should not govern that exercise. A tribunal must also consider whether a proposed amendment is relevant to the limitation decision before determining whether to extend time.

The appellant, a former Fiscal Officer employed by the respondent, brought two race-discrimination claims after her resignation on 13 October 2023. The Employment Tribunal dismissed the claims as time barred and refused an application to amend the claim by adding an allegation of harassment concerning an incident on 1 March 2023.

The appellant appealed against the tribunal’s approach to the just-and-equitable extension of time, the adequacy of its reasons, and the sequence in which it considered limitation and amendment. Permission was granted on the first, third and fourth grounds. The central issues were whether the tribunal had applied the correct statutory test and whether it should have considered the proposed amendment when deciding limitation.

1. Appeal allowed. The Employment Tribunal’s order of 19 September 2024 was set aside and the case was remitted to the same tribunal to reconsider the matters afresh.

2. Under section 123(1) of the Equality Act 2010, the claimant bears the persuasive burden of satisfying the tribunal that it is just and equitable to extend time. The proper approach, drawn from Adedeji [2021] EWCA Civ 23, is to assess all factors relevant to that question, with particular attention to the length of and reasons for delay.

3. The tribunal had erred by referring to British Coal Corporation v Keeble [1997] IRLR 336, which encouraged a checklist approach, and to Times Newspapers Ltd v O’Regan [1977] IRLR 101 and Alliance & Leicester plc v Kidd UKEAT/0078/07/RN, which concerned the different reasonable-practicability test. Those references were inappropriate and each arguably amounted to a misdirection. The EAT could not conclude that they had made no material difference. Ground 1 therefore succeeded.

4. The proposed amendment had not been considered at all when the tribunal decided whether to extend time. Although the present case was distinguishable from Sakyi-Opare, the tribunal should have identified whether any part of the amendment was relevant to the just-and-equitable exercise. Ground 4 succeeded.

5. Ground 3, challenging the adequacy of reasons, did not require determination in light of the conclusion on Ground 1. Remittal to the original tribunal was appropriate because it had heard the evidence and assessed the witnesses; rehearing was unnecessary.

• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal’s order, and remitted the case to the same tribunal for reconsideration: [2026] EAT 13.
• Employment Tribunal: In a judgment dated 19 September 2024, dismissed the race-discrimination claims as time barred and refused the appellant’s amendment application.