J Kofkin v Warburtons Limited

When deciding whether it is just and equitable to extend time for a discrimination complaint, a tribunal may consider the age of the factual issues that an extension would bring before it, even if the formal delay is short. Where potential forensic prejudice is apparent, the tribunal must consider it. Fading memories and documentary gaps may support a finding of prejudice where better recollections might have affected the respondent’s ability to establish its case. The claimant’s loss of a merits hearing is an inherent consequence of refusing an extension; a tribunal’s failure to mention it expressly does not, by itself, establish an error of law. A finding that the complaint succeeds on the evidence available does not show that the merits could fairly be decided independently of the time issue.

Mr Kofkin, a disabled secondary driver employed by Warburtons Limited, complained that changes to delivery routes from September 2021 failed to accommodate his anxiety disorder. He first raised the reasonable-adjustment complaint in an amendment application made on 22 July 2022. After a full merits hearing, the Employment Tribunal found that the evidence did not establish that Warburtons had taken all reasonable steps during the relevant period, but declined to extend time because fading memories caused forensic prejudice to the employer. Mr Kofkin appealed, arguing that the tribunal had not established actual prejudice and had failed to weigh his loss of a merits hearing and the apparent success of his complaint on the evidence before it. The central issue was whether the tribunal erred in refusing the just and equitable extension.

The appeal was dismissed. The Employment Tribunal was entitled to refuse an extension of time for the out-of-time reasonable-adjustment complaint.

1. The tribunal was not confined to the period between the limitation deadline and the date the complaint was raised. In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the Court of Appeal recognised that a short formal delay may open up issues arising much earlier. Concentrix CVG Intelligent Contact Limited v Obi [2022] EAT 149 applied that reasoning to conduct extending over time. The tribunal had to address the events of September 2021 because those events were material to whether reasonable adjustments had been made.

2. The tribunal’s finding of real forensic prejudice was properly grounded in the evidence. The respondent’s managers could not clearly recall the discussions about a possible route, what the claimant understood or wanted, or why he went off sick. The text messages and meeting notes did not fill those gaps. Better recollections might have enabled the respondent to establish that it had taken reasonable steps. The tribunal did not have to find that it certainly would have done so. Its analysis was materially different from Logo v PAYONE GmbH [2025] EAT 95, where no real relevant prejudice had been identified, and from Bahous v Pizza Express Restaurant Limited UKEAT/0029/11/DA and Szmidt v AC Produce Imports Limited UKEAT/0291/14/MC, which likewise involved no forensic prejudice.

3. The claimant’s loss of a merits hearing is the ordinary consequence of refusing an extension; conversely, an extension exposes the respondent to a complaint that would otherwise be out of time. Although it would have been better for the tribunal to mention the claimant’s prejudice expressly, that omission did not itself show an error of law. The tribunal had considered the case-specific reasons for delay and the respondent’s forensic difficulty.

4. The tribunal’s findings on the available evidence did not make the merits fairly determinable independently of the time issue. Its assessment that the respondent had not proved it made the necessary adjustment was reached against gaps on material facts. Those gaps could have affected the outcome and reinforced the tribunal’s conclusion that an extension would be unfair to the respondent.

1. Employment Appeal Tribunal — On 18 September 2026, the appeal was dismissed. [2026] EAT 140
2. Employment Tribunal — After a full merits hearing in February 2024, the tribunal refused to extend time for the reasonable-adjustment complaint and dismissed it as out of time. No citation for the tribunal decision is stated.