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Discrimination: Extensions of Time

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[Thanks to Anya Palmer of Old Square Chambers, who acted for the employee in this case, for writing this summary.]

In Carter v London Underground Limited, the EAT holds for what is by now the umpteenth time that the House of Lords decision in Lewisham v Malcolm does apply to disability related discrimination in employment. However, the decision is of interest for two other reasons.

Firstly, the EAT holds that the Tribunal was wrong to conclude that regulation 15 Employment Act 2002 (Dispute Resolution) Regulations 2004 meant it had no jurisdiction to hear a claim brought more than six months after the act of discrimination in question, and no discretion to extend time. It would be "extraordinary" if regulation 15 had that effect.

Secondly, and unusually, at paras.47-49 the EAT itself decides the question whether time should have been extended (but for the successful cross appeal). The claim in question had been brought a year out of time. Although this delay was said to be "substantial" and the EAT regarded the case as "near the borderline", the EAT said it was reasonable to accept that a depression of the severity experienced by the Claimant would have had a serious impact on the Claimant's ability to take decisions about legal proceedings. It was reasonable on the facts of this case for the Claimant to have focused on keeping his job rather than bringing legal proceedings. It was also relevant that the act in question had played an important part in the Claimant's mental deterioration; and that the Respondent could not show any serious evidential prejudice resulting from the delay.

Although the EAT is careful to emphasise that each case turns on its own facts, it makes a number of general observations and the decision will repay careful study both by claimant and respondent lawyers dealing with the discretion to extend time.