(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—
(a)the period of 6 months starting with the date of the act to which the complaint relates, or
(b)such other period as the employment tribunal thinks just and equitable.
(2)Proceedings may not be brought in reliance on section 121(1) after the end of—
(a)the period of 6 months starting with the date of the act to which the proceedings relate, or
(b)such other period as the employment tribunal thinks just and equitable.
(3)For the purposes of this section—
(a)conduct extending over a period is to be treated as done at the end of the period;
(b)failure to do something is to be treated as occurring when the person in question decided on it.
(4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—
(a)when P does an act inconsistent with doing it, or
(b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.
Cases considering section 123 131
[2024] EWCA Civ 1568 · 13 December 2024Interprets
The court treats section 123 as creating a three-month period or such other period as the tribunal thinks just and equitable. It confirms that the discretion is wide and does not require a fixed checklist, although delay and prejudice are almost always relevant (see paras [24]-[29]).
Section 123(1) does not establish an inflexible primary limit which can be extended only exceptionally. Where the tribunal considers another period just and equitable, that alternative period is the statutory time limit (see paras [24]-[26]).
[2024] EWCA Civ 1550 · 11 December 2024Interprets
The Court used section 123 to identify the statutory time-limit framework, including the treatment of conduct extending over a period. (see paras [64]; [73])
The Court treated the three-month limit in section 123(1) as the starting point for the just-and-equitable enquiry. (see paras [64]; [73])
The Court applied the three-month period beginning on the date of the act complained of. (see para [73])
The Court held that the discretion to extend time is wide but must be exercised judicially, using legally relevant considerations and particular attention to the claimant’s knowledge and subsequent delay. (see paras [73]-[75]; [100]-[103])
The Court noted the rule for treating conduct extending over a period as done at the end of that period when explaining the statutory time-limit framework. (see paras [64]; [73])
[2022] EWCA Civ 24 · 14 January 2022Interprets
Interpreted as the statutory framework in which a complaint must be brought within three months unless extended as just and equitable, and in which conduct extending over a period is treated as done at the end of that period. The court applied that framework to distinguish a one-off de-equitisation from continuing conduct. (see paras [15]; [34]-[47])
Applied the three-month starting point to the limitation issue; the relevant question was whether section 123(3)(a) postponed the date by treating the conduct as continuing. (see paras [15]; [47])
Left the just and equitable extension for the Employment Tribunal after holding that the claim was out of time under section 123(3)(a). (see paras [2]; [47])
Interpreted as requiring a distinction between a one-off discriminatory decision with continuing consequences and conduct or a continuing state of affairs extending over a period. The de-equitisation was a one-off act ending when the change in status took effect. (see paras [15]; [38]; [41]-[47])
Confirmed that a failure to do something is treated as occurring when the person concerned decides upon it; this was contrasted with the continuing-act analysis and did not determine the appeal. (see paras [15]; [36])
111 more judgments, and what each says about section 123, are in the
case-law panel in the full Act.
399.This section deals with time limits for cases in the employment tribunals. A person must bring a claim within three months of the alleged conduct taking place. The exception to that rule is a case involving an armed forces complaint, which must be brought within six months. If a person wants to make a claim after that period it is at the tribunals’ discretion whether they grant permission to allow them to do so. The test applied by the tribunals is what is “just and equitable” in the circumstances.
400.Where the conduct in respect of which a claim under the Act might arise continues over a period of time, the time limit starts to run at the end of that period. Where it consists of a failure to do something, the time limit starts to run when the person decides not to do the thing in question. In the absence of evidence to the contrary, this is either when the person does something which conflicts with doing the act in question; or at the end of the time when it would have been reasonable for them to do the thing. This section does not apply to a breach of an equality clause or an equality rule, which is covered by section 129.
401.This section is designed to replicate the effect of provisions in previous legislation.