Employment Judge BrewerMr R Crabtree for respondentConsultant for respondentDate 16 June 2025
JUDGMENT
The judgment of the Tribunal is that the Tribunal does not have jurisdiction to hear the claimant’s claims brought under the Equality Act 2010 and those claims are dismissed.
REASONS
[1]This was a preliminary hearing to consider whether the tribunal has jurisdiction to consider the claimants claims under the Equality Act 2010.[2]At the hearing the claimant represented himself and the respondent was represented by Mr Crabtree, a consultant.[3]I was provided with a bundle of documents running to 144 pages, a witness statement from the claimant and written submissions from Mr Crabtree.[4]The claimant provided oral evidence was cross examined by Mr Crabtree. I also asked the claimant some questions. At the end of the hearing, I reserved my decision which I set out below.[5]I add for the sake of completeness that on 11 and 12 March 2025 a preliminary hearing heard by Judge Doherty determined that the claimant’s claims were submitted out of time (a matter which was not in dispute), and that in relation to his claims for constructive unfair dismissal brought under the Employment Rights Act 1996 and under regulation 11 of the Working Time Regulations 1998, the Tribunal did not have jurisdiction to hear those claims because it was reasonably practicable for the claims to have been brought in the primary three month time limit under the relevant legislation.
Issues
[6]In relation to this hearing, the claimant brings claims for indirect disability discrimination, Discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability.[7]It is accepted that the last possible date that any discrimination could have taken place was 29 February 2024, the date when the claimant left his employment with the respondent. The claimant made contact with ACAS for early conciliation on 7 June 2024. He received his early conciliation certificate on 18 July 2024, and he presented his Tribunal claim on 12 August 2024.[8]The issue therefore in this case is whether it is just and equitable to allow the claims to proceed.
Relevant Law
[9]Section 123 of the Equality Act 2010 (“EQA”) provides that: “123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 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.”[10]Section 140B EQA permits an extension of time where ACAS early conciliation is undertaken in certain circumstances, but this is not relevant in this case.[11]In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA, Auld LJ stated, when employment tribunals consider exercising the discretion under what is now S.123(1)(b) EqA, as follows: “23. I turn now to the second issue. The decision by the employment tribunal not to exercise its discretion to consider the claim on just and equitable grounds. There are a number of basic propositions of law to which Miss Outhwaite has referred us which govern the way in which this exercise has to be undertaken. If the claim is out of time, there is no jurisdiction to consider it unless the tribunal considers that it is just and equitable in the circumstances to do so. That is essentially a question of fact and judgment for the tribunal to determine, as it did here, having reconvened for the purpose of hearing argument on it. 24 The tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision. If authority is needed for that proposition, it is to be found in Daniel v Homerton Hospital Trust (unreported, 9 July 1999, CA) in the judgment of Gibson LJ at p.3, where he said: 'The discretion of the tribunal under s.68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong.' 25 It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.”[12]Robertson is thus authority for the proposition that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere. The comments of Auld LJ relate to the employment law context in which time limits are relatively short and that that time limits should be complied with. But there remains a wide discretion permitting an extension of time on just and equitable grounds.[13]As to the exercise of the discretion, this was summarised by Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at paragraph 17-19: “17 The board’s other grounds of appeal all seek to challenge the decisions of the employment tribunal that it was just and equitable to extend the time for bringing(a) the claim based on a failure to make adjustments and(b) the claim alleging harassment by Ms Keighan. Before turning to those grounds, the following points may be noted about the power of a tribunal to allow proceedings to be brought within such period as it thinks just and equitable pursuant to section 123 of the Equality Act 2010.[18]First, 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. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act 2010 does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corpn v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2009] 1 WLR 728, paras 30–32, 43, 48 and Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72, para 75.[19]That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).” 14. I also refer to the judgment in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, CA. In that case, the Court of Appeal upheld an