D-BRIEF – Employment & Pensions Blog: Extension of Time

In Owen v Network Rail Infrastructure Ltd, the EAT has held that there is no need for evidence to support the granting of an extension of time for a discrimination claim on a ‘just and equitable basis.’

Background

The Claimant worked as a signaller in a male dominated environment with only two or three of the forty total staff being women. The Claimant’s case was centred around the claim that she experienced discrimination on the grounds of sex. The allegations of discrimination related to behaviour between November 2015 to May 2017, and the subsequent handling of the Claimant’s grievance between November 2017 and February 2020.

The Claimant issued a claim in June 2020, having been engaged in ACAS Early Conciliation between March and May 2020.

Under the Equality Act 2010, the basic rule is that there is a three-month limitation period from the date that the act in question was done, within which a claim can be brought to Tribunal.  This three-month period can be extended as a result of ACAS Early Conciliation. 

The Tribunal found that while the investigation into the Claimant’s grievance had been handled poorly and reached “inadequate” conclusions, it had not been an act of discrimination. The underlying allegations about sex discrimination were out of time, and so the dismissal of the allegations about the handling of the Claimant’s grievance meant that those earlier allegations could not be brought within time as a result of being part of a continuing act of discrimination.  An employment tribunal can extend time in discrimination cases where it believes it is just and equitable to do so but in this case the Claimant had provided no explanation or evidence as to why she had not brought a claim relating to the 2015 – 2017 allegations sooner.  The Tribunal therefore “reluctantly” decided that it could not exercise its discretion to extend time and as a result the entirety of the Claimant’s case had to be dismissed.

EAT

The Employment Appeal Tribunal held that the Tribunal had erred when deciding not to extend the time limit period. It was an error in law for the Tribunal not to grant an extension of time on the basis that there was no explanation from the Claimant. The EAT concluded that the lack of evidence provided by the Claimant with regards to the delay in bringing a claim was a relevant factor to consider but was not necessarily decisive. The EAT remitted the extension of time issue to the same tribunal for the point to be re-considered. 

Comment

Where some of the allegations in a claim are prima facie out of time, it will always be prudent for a claimant to set out why they did not bring their case sooner, even if their first hope is to get all of the allegations deemed to be ‘in time’ as a result of being part of a continuing act, the last act of which is definitely in time.  However, the failure to provide such explanation or evidence does not tie a tribunal’s hands when deciding whether or not to exercise its discretion to extend time.  A tribunal should consider the conduct of parties, whether the cogency of evidence will be affected by the delay and whether a fair trial is still possible among other factors in conjunction with whether the claimant has provided explanation or evidence for the cause of the delay.  A respondent facing a claim where some allegations are out of time should therefore ensure that its arguments for why time should not be extended cover all of those bases.