Employment Judge GreerIn person for claimantDate 21 October 2025
JUDGMENT
[1]The complaint of discrimination was not presented within the applicable time limit, but it is just and equitable to extend the time limit. The complaint of discrimination will therefore proceed.
REASONS
[1]The Claimant, Mr T Kazmi, was employed by the Respondent as a Business Performance Practitioner from 31 October 2022 until 4 September 2024.[2]On 6 August 2024, the Claimant was issued a notice of redundancy, following a consultation process.[3]The Claimant worked until 8 August 2024 to conduct a handover and was then placed on garden leave until his employment ended on 4 September 2024.[4]The Claimant suffered a mental health crisis in late June 2024, including suicidal ideation, and remained unwell through July.[5]Internal communications within the Respondent’s organisation discussed the Claimant’s mental health and short service in the context of redundancy planning.[6]The Claimant submitted a Data Subject Access Request (DSAR) on 16 December 2024, seeking internal communications relating to his dismissal.[7]The DSAR response was received on 15 January 2025. On the Claimant’s interpretation of email correspondence within that DSAR file, internal emails that suggested the Claimant’s health and short service were factors in the redundancy decision.[8]The Claimant contacted ACAS on 2 February 2025, and early conciliation was completed on 7 February 2025.[9]The Claimant submitted his ET1 claim form on 20 February 2025, 98 days after the adjusted statutory deadline.[10]The Respondent argues the claim is out of time and should be struck out for lack of jurisdiction. The Claimant argues that he only became aware of the potential discriminatory basis for his dismissal upon receiving the DSAR, and that it would be just and equitable to extend time.
The Hearing
[11]The hearing took place by way of a hybrid hearing over the Cloud Video Platform. I joined the hearing from Alexandra House, Manchester. The other participants joined the hearing by video from remote locations. The Claimant represented himself. The Respondent was represented by Mr Draper, a solicitor of Counsel. The hearing lasted half a day.[12]I was assisted by a carefully prepared agreed bundle, which was provided to the Tribunal on 2nd October 2025. I heard evidence from the Claimant. He was cross examined by Mr Draper. During cross examination, the Claimant indicated that he wished to rely upon medical evidence relevant to his state of mind between his leaving the Respondent’s employment and issuing his claim.[13]After hearing the evidence, I heard helpful submissions from each side. Mr Kazmi told me that he did not wish to hear an oral decision and he only wanted to receive written reasons. In such circumstances, and keeping in mind the Claimant’s circumstances, I reserved my decision to writing.
The Issues
[14]Before me, the parties agreed that the following issues fell to be determined in this matter: Timeliness Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 4th September 2024 may not have been brought in time. (1) Was the discrimination complaint made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1. Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period? 2. If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: (i) Why were the complaints not made to the Tribunal in time? (ii) In any event, is it just and equitable in all the circumstances to extend time?
The Law
[15]Claims of discrimination pursuant to section 13 of the 2010 Act are subject to a time limit stipulated in section 123(1) of that Act, namely that such a claim: “may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.”[16]The three-month period in section 123(1)(a), the “primary lookback period”, is extended by the period of early conciliation pursuant to section 140B of the 2010 Act. The effect of section 207B is to extend the limitation period by the duration of early conciliation.[17]Time limits for filing discrimination complaints are set by Parliament and should ordinarily be observed. However, the Court of Appeal in Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576, [2003] IRLR 434 confirmed that the Tribunal has a wide discretion to extend time on just and equitable grounds.[18]As Leggatt LJ (as he then was) observed in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194: “It is plain from the language used (‘such other period as the employment tribunal thinks just and equitable’) that Parliament has chosen to give the employment tribunal the widest possible discretion.”[19]HHJ Auerbach in Owen v Network Rail Infrastructure Limited [2023] EAT 106 stated: “There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay.”[20]To exercise discretion under section 123(1)(b), the Tribunal must have material on which to properly exercise that discretion (Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327). The onus is on the applicant to satisfy the Tribunal that it is just and equitable to extend time. This does not require exceptional circumstances (Pathan v South London Islamic Centre EAT 0312/13). British Coal Corporation v Keeble and others [1997] IRLR 336, EAT[21]There is no prescriptive list of factors. However, the following are almost always relevant (Morgan):(a) The length of, and reasons for, the delay; and(b) Whether the delay has prejudiced the respondent (e.g. by preventing or inhibiting investigation while matters were fresh).[22]Prejudice may include:(a) General prejudice of having to meet a claim that would otherwise be timebarred; and/or(b) Forensic prejudice caused by fading memories, loss of documents, or unavailable witnesses (Miller and ors v Ministry of Justice EAT 0003/15).[23]If forensic prejudice is present, it will be “crucially relevant” and may be decisive (Miller).[24]Other relevant factors may include:(a) The extent to which the respondent cooperated with requests for information;(b) The promptness with which the claimant acted once aware of the relevant facts;(c) Steps taken to obtain legal advice (see section 33 of the Limitation Act 1980);(d) Ignorance of legal rights;(e) Whether the claimant felt able to raise the matter internally (Keenan v Benugo Ltd ET 2203590/12);(f) The reaction received when raising the matter (Burden v Chief Constable of Hampshire Constabulary ET 3100659/14);(g) The claimant’s state of health (Burden, Thompson v Ark Schools [2019] ICR 292);(h) The strength of the claim (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132).[25]Reasonable ignorance of time limits can be a relevant factor in deciding whether or not it is just and equitable to extend time. See: Director of Public Prosecutions v Marshall 1998 ICR 518 EAT. In such cases, the date from which a Claimant could have become aware of the right to present a worthwhile complaint is relevant.[26]The Tribunal must weigh the relative prejudice to the respondent and the claimant (Pathan). Analysis Is it “just and equitable” for time to extend time by 98 days?
Analysis
[27]Length of delay: The Claimant’s claim against the First Respondent was filed 98 days after the final day in the primary limitation period. On any view, the length of delay is a long one as that is more than limitation period itself. To grant an extension of time would be to more than double the usual limitation period. This is a matter weighing heavily against the exercise of the Tribunal’s discretion.[28]Reasons for the Delay: The Claimant did not know, and could not reasonably have known, that his mental health and short service were discussed internally as factors in the redundancy decision until 15 January 2025, when he received the response to his Data Subject Access Request (DSAR). The DSAR disclosed internal emails that had not previously been available to the Claimant and which, for the first time, revealed that his health and length of service were considered when determining whether to dismiss him from his job.[29]I accept Mr Draper’s submission that the Respondent acted in accordance with the applicable legislation and provided that information with all reasonable celerity. But the fact remains that it was not available to the Claimant until after the limitation period had ended.[30]Although the Claimant had raised his concerns that his redundancy was motivated in part due to his mental health at an earlier stage, this was a case of suspicion and not yet reasonable belief. The Claimant’s believe moved from a general suspicion to reasonable belief on having sight of those documents. That aligns with the approach in HSBC Bank plc v Chevalier-Firescu [2025] ICR D7 (CA), where the reasonableness of a claimant’s knowledge was central, and with Jones v Secretary of State for Health and Social Care [2024] EWCA Civ 1568, which cautions against the Tribunal treating suspicion alone as sufficient to trigger limitation. Here, the Claimant’s awareness of the factual basis for his claim crystallised only upon receipt of the DSAR. This is a matter weighing in the Claimant’s favour in his application for an extension of time.[31]The Claimant presented his ET1 36 days after receiving the DSAR. That is a relatively short period and weighs in favour of the exercise of discretion. As emphasised in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5 (CA), while a short delay is not decisive, it is a material factor. The decision in Alum v Thames Reach Charity [2022] EAT 8 further highlights that the Tribunal’s focus should be on the real period that needs explaining. In this case, the 36 days following the emergence of key facts. On any view, the Claimant acted promptly once the factual foundation of his claim became known.[32]Mr Draper submitted that the Claimant ought to have acted more swiftly upon receipt of the DSAR, particularly given that the claim was already significantly out of time. However, I accept the Claimant’s evidence that he sought legal advice and that his ability to formulate and submit his claim was materially affected by his mental health at the time. Contemporaneous medical records dated 17 February 2025, which is to say three days prior to the submission of the ET1, record the Claimant expressing that the stress associated with Employment Tribunal proceedings was adversely impacting his health.[33]The Claimant candidly acknowledged that his mental health fluctuates and he identified two distinct periods of deterioration (“dips”) lasting approximately five weeks in total between his dismissal and the submission of the claim. Neither of these dips took place after the Appellant received the DSAR. I accept the Claimant’s submission that mental health is not a binary state, and that his capacity to articulate his claim without legal representation would have been impaired even outside those acute episodes. On the evidence before me, I am satisfied that the delay following receipt of the DSAR was influenced by genuine health related limitations. This is a consideration weighing in favour of an exercise of discretion in the Appellant’s favour.[34]Balance of Prejudice: If time is not extended, the Claimant will lose a cause of action. By contrast, the Respondent’s prejudice is modest. The decisionmakers remain employed, the contemporaneous records were recently located for the preparation of the DSAR file, and, whilst there is a suggestion of faded memories, things happened around a year and a half ago. The litigation burden is the ordinary one faced in any claim and does not outweigh the Claimant’s loss of access to justice. This weighs in favour of an extension.[35]The claim was submitted approximately 98 days late in total. While not trivial, the events are still recent at the date of the hearing before me. The dismissal occurred in September 2024, and the claim was issued in February 2025. The documentary evidence upon which the Claimant’s claim is based, continues to be in existence and is within the DSAR file. This mitigates concerns about forensic prejudice. Unlike cases such as Secretary of State for Justice v Johnson [2022] EAT 1 or Concentrix CVG Intelligent Contact Ltd v Obi [2022] EAT 149, which involved much older incidents, the delay here is confined to a few months and concerns a single, recent dismissal.[36]While the merits are not determinative, the DSAR material gives the claim arguable substance. The internal communications indicate that the Claimant’s health was considered in the redundancy process. That is sufficient to tip the balance slightly in favour of allowing the claim to proceed, without pre-judging its ultimate outcome. As noted in Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, the Tribunal may weigh apparent merits at a preliminary stage where they are identifiable on the face of the material.
Conclusions
[37]Standing back and considering matters as a whole, I am satisfied that it would be just and equitable to grant the Claimant an extension of time.