When the claimant told the respondent that she was pregnant a previous offer of employment was withdrawn. Nine months later she presented a complaint of unlawful sex and maternity discrimination to an employment tribunal. At a preliminary hearing to determine whether it would be just and equitable to extend time to hear her complaint, the claimant gave evidence of physical and mental health complications during her pregnancy, that she was a foreign national living abroad with her family and had only known of any potential cause of action through contacting an English employment law adviser when she was still abroad. She gave evidence that although she had been told that any claim had to be made within three months of the alleged offence she was only informed of the possibility of extending the time limit when she had relocated to England seven months after the withdrawal of the employment offer and as a result of her visit to the Citizens’ Advice Bureau and her own inquiries which led to her approaching the same law advisor as she had previously. The tribunal found that there was a significant delay between the date of the alleged discrimination and the claimant’s steps to present her claim; that she had not remained incapacitated throughout that period and there were times when she would have been well enough to deal with business matters. It concluded that she could have done more to pursue her claim once she had been advised of a potential cause of action and that it would not be just and equitable to extend time within the meaning of section 123(1)(b) of the Equality Act 2010.
On an appeal by the claimant—
Held, appeal allowed and case remitted to a differently constituted tribunal. Time limits were exercised strictly in employment cases and a tribunal could not hear a complaint made outside the prescribed time limit unless the applicant convinced the tribunal that it was just and equitable to extend time. The tribunal’s discretion to extend time depended on the facts of the particular case and, provided the tribunal had applied the correct test, had had regard to what was relevant, including any possible prejudice to the respondent, and had not taken into account irrelevant factors or reached a perverse conclusion, it would not be open to the Employment Appeal Tribunal to interfere. When reading the tribunal’s reasoning as a whole, without an overly critical or unrealistic scrutiny, an appellate tribunal should ask itself whether it could understand why the tribunal had reached the decision it had. However, the employment tribunal had failed to explain clearly at what point the claimant was sufficiently able to deal with matters in terms of her health and had failed to show how it concluded that there was significant delay between the alleged discriminatory act and the tribunal claim. It had also made mistakes as to the chronology of events, which amounted to errors in the findings of fact on matters it had identified as being relevant to its determination in a case which required a clear explanation of its findings, and those factors made the decision unsafe (paras 14, 16, 20, 23, 47, 50).
David Mitchell (instructed by Equality and Human Rights Commission) for the claimant.
Jesse Crozier (instructed by Katten Muchin Rosenmann UK llp) for the respondent.