Did an employment tribunal act perversely in refusing an extension of time in a discrimination case where the Respondent had not told the Claimant the race of his comparator?
No, held the EAT in Jones v Secretary of State for Health and Social Care.
The Claimant employee, who was of African-Caribbean descent, applied for a promotion. He was unsuccessful. The successful applicant accepted the role on 2 April 2019. The Claimant did not find out he hadn’t got the job until 3 July 2019. He asked for details of the successful candidate but this was not provided by the Respondent. The claimant issued a claim for race discrimination on 29 October 2019.
The tribunal held that the Claimant's claim was out of time. The primary time limit ran from 2 April 2019 and it was not just and equitable to extend time. The EAT agreed. The EAT was only able to overturn the tribunal's conclusion that it was not just and equitable to extend time if it was perverse. The tribunal had correctly weighed the issues the Claimant had in discovering the race of the successful candidate and the prejudice to the Respondent caused by the delay.
The EAT did, however, criticise the Respondent for not disclosing the race of the successful candidate until after the submission of its ET3. The EAT reflected that failure to provide such basic information might, in appropriate circumstances, lead to an inference of discrimination. Respondents should not hold back information about potential comparators.