A Ndow v University Hospitals Birmingham NHS Foundation Trust

An Employment Tribunal determines time-limit issues on the case advanced in the pleadings, evidence and submissions. It is not required, and would be wrong, to speculate about an unadvanced factual explanation for delay.

Similarly, the Tribunal cannot be criticised on appeal for failing to treat an internal appeal outcome as a discriminatory act, or as part of a continuing course of conduct, where that allegation was never made below. An appeal concerns the case actually presented to the Tribunal, not a case which might have been presented.

The appellant, a health care assistant, was dismissed on 8 June 2022 following an absence-management procedure. Her internal appeal was refused on 19 November 2022. She presented claims for ordinary and automatic unfair dismissal and disability discrimination in January 2023.

At a preliminary hearing, the Employment Tribunal held that the claims were out of time. It found that presentation of the unfair-dismissal claims in time had been reasonably practicable and that it was not just and equitable to extend time for the discrimination claims.

On appeal, the appellant contended that the Tribunal should have considered her internal appeal as explaining delay and should have treated the refusal of that appeal as a discriminatory act forming part of a continuing course of conduct.

1. Appeal dismissed. Neither ground disclosed an error of law because neither point formed part of the case presented to the Employment Tribunal.

2. The burden lay on the appellant to establish the reasons for delay. Although she gave evidence about delay, she did not rely on her internal appeal as a cause of it. The Tribunal was entitled to decide the issue on the evidence before it. It would have been wrong to speculate that the appeal had caused delay without evidence of such a causal effect.

3. The appellant had identified her dismissal on 8 June 2022 as the final alleged discriminatory act in her claim forms and at case management. She did not allege that the refusal of her internal appeal was discriminatory, whether in her pleaded case, during case management, in evidence or in submissions. The Tribunal therefore had no obligation to consider whether that refusal extended a course of conduct for the purposes of section 123 of the Equality Act 2010.

4. The role of the Employment Appeal Tribunal is to review the decision on the case actually advanced below. It does not decide whether a different case, which could have been advanced, might have succeeded. The Tribunal’s dismissals of the claims as time-barred therefore stood.

• Employment Appeal Tribunal: dismissed the appeal in [2026] EAT 64.
• Employment Tribunal, Birmingham: following a preliminary hearing, held the unfair-dismissal and disability-discrimination complaints to be out of time and dismissed them.