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Extension of Time

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Is it helpful for an employment tribunal considering an extension of time for a discrimination claim to focus on the factors in s33 Limitation Act 1980?

No, held the Court of Appeal in Adedeji v University Hospital Birmingham NHS Foundation Trust.

The Claimant, a surgeon, resigned after a protracted capability and conduct investigation. Having taken legal advice and been advised twice of the time limit, he presented his claim 3 days late. The tribunal dismissed his claims as out of time. The EAT and Court of Appeal rejected his appeals.

The court reviewed a number of recent cases involving the list of Limitation Act factors cited in British Coal v Keeble, quoting:

"The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) [Equality Act] is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular, "the length of, and the reasons for, the delay". If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking."

The tribunal has a wide discretion under the Equality Act to consider whether to allow in a claim out of time, the relevance of the factors in Keeble depends on the facts of the particular case.

Thanks to Ed McFarlane of Law at Work for preparing this case summary.