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Extension of Time

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Can a tribunal extend time in a discrimination claim where the Claimants have waited to issue proceedings while pursuing grievances?

Yes, held the EAT in Wells Cathedral v Souter. However, this will not always be the case.

The Claimants alleged acts of discrimination over a two-year period culminating in their resignation. They presented claims that were indisputedly out of time and asked the tribunal to exercise its s123(1)(b) discretion to extend time. The tribunal agreed it was just and equitable to extend time. The Respondents appealed.

The EAT upheld the decision of the tribunal. A balancing exercise is required for the just and equitable test. In this case the judge found that three factors weighed against the Claimants (1 to 3) whereas two were in their favour (4 and 5). The last two carried more weight. The factors were:

  1. The significant length of the delay.
  2. The Claimants' awareness of the factual matrix. They knew they had claims in 2018.
  3. They had received advice and decided not to issue within the time limit.
  4. The grievances were relevant in two ways: (i) there was a genuine desire to use the process to resolve differences (which is to be encouraged); (ii) the grievances crystallised the allegations and put the Respondents on notice which gave them the opportunity to investigate and preserve evidence.
  5. Prejudice: Point 4 heavily fed into the issue of prejudice but there was no suggestion that the cogency of the evidence had been affected.

In reaching its decision the EAT considered Miller v MOJ:

  1. The s.123(1)(b) discretion is wide.
  2. Time limits are to be observed strictly.
  3. The EAT can only interfere if the decision is Wednesbury unreasonable/perverse.
  4. The prejudice to the Respondent is "customarily" relevant.
  5. Section 33 of the Limitation Act 1980 contains a useful checklist.

Despite this judgment the mere bare fact that a grievance had been initiated was not automatically enough. It is open to different tribunals to reach different decisions based on the wider context.

Thanks to Karen Jackson of didlaw for preparing this case summary.