Employment Judge R SorrellMs K Carrick (instructed by Solicitor) for respondent(In attendance for respondentMr J Gillies for respondentTrainee Solicitor) for respondentOPEN PRELIMINARY HEARING for respondentDate 3 April 2025
JUDGMENT
The Judgment of the Tribunal is that it is just and equitable to extend the time limit in which to lodge the claim and therefore the Tribunal has jurisdiction to hear the claim. E.T. Z4 (WR)
REASONS
[1]The claimant lodged a claim for disability discrimination on 30 December 2024 and referred to section 39 (1) of the Equality Act 2010, in that, an employer must not discriminate against a person in the arrangements it makes for deciding to whom to offer employment.[2]The respondent resists the claim.[3]A case management preliminary hearing was held on 3 March 2025 in person at the Glasgow Tribunals Centre. At the hearing, Employment Judge Wiseman invited the claimant to seek some advice regarding the legal basis of his claim and made reference to Citizens Advice, or the Strathclyde University Law Clinic. The claimant was also ordered to provide a disability impact statement. As the respondent argued the claim was time-barred, it was agreed to list this preliminary hearing to determine the time-bar issue and to discuss further case management procedure.[4]This hearing took place in person at the Glasgow Tribunals Centre.[5]As the claimant was a party litigant, I explained the purpose and procedure for the hearing as well as the issues I had to decide in accordance with the law. I further explained that I was required to adhere to the Overriding Objective (under Rule 3 of the Employment Tribunal Rules of Procedure), of dealing with cases justly and fairly and to ensure that parties were on an equal footing.[6]It was agreed that the issue of time-bar would be heard first and the case management discussion would take place after that.[7]Parties lodged a joint bundle of productions.[8]Parties agreed that the relevant date in terms of the alleged act of discrimination is 6 August 2024. Findings in Fact The following facts are found to be proven or admitted;[9]The claimant’s date of birth is 18 November 1961.[10]The respondent is a local authority.[11]On 5 July 2024 the claimant applied for the role of Safety and Wellbeing Assistant with the respondent.[12]In his application, the claimant indicated his status as a “Routes to Work” client, which is a supported employment partner of the respondent, and that he considered himself to have a disability.[13]The respondent operates a Guaranteed Job Interview Scheme whereby job applicants who indicate they have a disability and who meet all the essential criteria of the role applied for are guaranteed an interview.[14]The respondent rejected the claimant’s application on 6 August 2024 because they considered the claimant did not meet all the essential criteria of the role applied for.[15]On 7 August 2024 the claimant’s Case Worker at “Routes to Work” queried the reasons for rejection of the claimant’s application which the respondent replied to on 8 August 2024.[16]On 27 August 2024 the claimant complained about the rejection of his application in a letter to the respondent and has received a response to that.[17]On 20 September 2024 the claimant instigated the ACAS early conciliation process. (D52)[18]During the early conciliation process, the claimant sought confirmation from ACAS that the process would stop the clock in terms of the time limit to lodge a claim. ACAS confirmed to him that it would.[19]On 1 November 2024, the ACAS early conciliation certificate was issued. (D2)[20]The claimant knew that the time-limits to lodge a claim were either 3 or 6 months less one day. He thought that as it was a discrimination claim, the 6 months less one day time limit applied.[21]The claimant relied on the experience and knowledge of the ACAS conciliator to steer the process in the right direction. He was not told that he needed to lodge his claim after the early conciliation process concluded.[22]The claimant did not ask ACAS about the time limits or seek advice from any other source, as his primary concern was that the respondent did not engage with the early conciliation process.[23]The extended deadline for the claimant to raise his claim was 17 December 2024.[24]The claimant lodged his Tribunal claim on 30 December 2024. (D3-18) He thought that he had lodged it in time. Respondent’s Submissions[25]I have read and digested the respondent’s written submissions which Ms Carrick has lodged and spoke to at the hearing, and referred to them in my findings where relevant. Claimant’s submissions[26]The claimant submitted that he asks the Tribunal to view his request favourably to extend the time limit so that the case can progress to the next stage. He complied with everything that ACAS asked him to do and he did it wholeheartedly. He had some expectation that ACAS would flag up the time bar issue or the potential for one. Had he realised at the time, he would have lodged the claim in time, but he had no way of knowing how this was going to end up. The respondent submits that the claim has no reasonable prospects of success. That is a matter for the Tribunal to decide and he asks the Tribunal to look favourably on that. It would be just and reasonable to extend the time limit in these circumstances.
Relevant Law
[27]Section 123(1) of the Equality Act 2010 provides that proceedings on a complaint within section 120 may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable. This is subject to the extension of time limits provision to facilitate conciliation before institution of proceedings introduced by the Enterprise and Regulatory Reform Act 2013.[28]In exercising their discretion to allow out of time claims to proceed, tribunals may have regard to the checklist contained in section 33 of the Limitation Act 1980, as modified by the EAT in the leading authority of British Coal Corporation v Keeble and ors 1997 IRLR 336. This includes the consideration of the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case. In particular, the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued has cooperated with requests for information, the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Issue to be Determined by the Tribunal[29]The Tribunal identified the following issue required to be determined: (i) Is it just and equitable in all the circumstances to extend the time in which to lodge the claim?
Conclusion
[30]I have carefully considered all the evidence in the round and taken account of the relevant factors in terms of British Coal Corporation v Keeble and ors 1997 IRLR 336. In doing so, I am satisfied that in applying these facts to the authorities of Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA and Pathan v South London Islamic Centre EAT 0312/13, it is just and equitable in all the circumstances to extend the time in which to lodge the claim.[31]It was not in dispute that the claimant lodged his claim after the expiry of the statutory limitation period. Parties agreed that the date of the alleged discriminatory act was 6 August 2024 and that following the time extension under the ACAS early conciliation provisions, the statutory time limit expired on 17 December 2024.[32]Overall, I accepted the claimant’s account of events as reasonably credible in respect to his reasons for lodging the claim when he did.[33]In reaching this view, I found that the claimant had instigated the ACAS early conciliation process in time on 20 September 2024. While he mistakenly believed that the time limit for lodging a discrimination claim was 6 months less than one day, I accepted that he placed reliance on his ACAS officer to advise him of the need to lodge his claim after the early conciliation process had concluded. In cross examination, he recognised that he should have asked ACAS about the time limits or sought advice about them from another source, but that his focus at that time was more about his concern that the respondent did not engage with the conciliation process. In this regard, I noted that the claimant had also not yet received a response to his complaint submitted to the respondent of 27 August 2024.[34]In terms of the prejudice that either party would suffer as a result of the decision reached, I found that the claimant would not suffer any prejudice if the claim was allowed to proceed, but would suffer considerable prejudice if it were not allowed to proceed as he would be prevented from seeking legal redress.[35]In respect of the respondent, I found they would not suffer any prejudice if the claim were not allowed to proceed and that on balance would suffer less prejudice if the claim were allowed to proceed than the prejudice the claimant would suffer if it were not allowed to proceed.[36]This is because while the respondent would suffer the obvious prejudice of having to meet a claim that would otherwise have been defeated by a limitation defence and which had been submitted 13 days late, I did not consider this was a substantial delay. In this regard, I did not find the facts of this case to be comparable with the facts in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 EWCA Civ 23, referred to in the respondent’s submissions. The respondent had also been put on notice of the claimant’s complaint on 27 August 2024 when the claimant submitted a complaint to the respondent and did not suggest there was any forensic prejudice. Furthermore, as the claimant is still in the process of obtaining legal advice in order to provide a clearer legal basis for his claim, the merits of the claim could not be considered as a relevant factor in undertaking this balancing exercise.[37]For all these reasons, the Tribunal has jurisdiction to hear the claim.[38]The respondent rejected the claimant’s application on 6 August 2024 because they considered the claimant did not meet all the essential criteria of the role applied for.[39]On 7 August 2024 the claimant’s Case Worker at “Routes to Work” queried the reasons for rejection of the claimant’s application which the respondent replied to on 8 August 2024.[40]On 27 August 2024 the claimant complained about the rejection of his application in a letter to the respondent and has received a response to that.[41]On 20 September 2024 the claimant instigated the ACAS early conciliation process. (D81)[42]During the early conciliation process, the claimant sought confirmation from ACAS that the process would stop the clock in terms of the time limit to lodge a claim. On 9 October 2024 ACAS confirmed to him that it would. (D83)[43]On 29 October 2024 the claimant was informed by ACAS that the early conciliation period will end on 1 November 2024 at which point the early conciliation certificate will be automatically issued to him by email and that once the certificate is received, the clock starts ticking to submit a claim to the Tribunal. They further advised that if he is unsure about the deadline to submit a claim, their guidance is to do so within one calendar month less one day of receiving the certificate. (D84)[44]On 1 November 2024 the ACAS early conciliation certificate was issued. (D3)[45]The claimant ignored the information and guidance he received from ACAS on 29 October 2024.[46]The extended deadline for the claimant to raise his claim was 17 December 2024.[47]The claimant lodged his Tribunal claim on 30 December 2024. (D4-17)
Relevant Law
[48]In exercising their discretion to allow out of time claims to proceed, tribunals may have regard to the checklist contained in section 33 of the Limitation Act 1980, as modified by the EAT in the leading authority of British Coal Corporation v Keeble and ors 1997 IRLR 336. This includes the consideration of the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case. In particular, the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued has cooperated with requests for information, the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Issue to be Determined by the Tribunal[49]The Tribunal identified the following issue required to be determined: (i) Is it just and equitable in all the circumstances to extend the time in which to lodge the claim?
Conclusion
[50]I have carefully considered all the evidence in the round and taken account of the relevant factors in terms of British Coal Corporation v Keeble and ors 1997 IRLR 336. In doing so, I am satisfied that in applying these facts to the authorities of Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA and Pathan v South London Islamic Centre EAT 0312/13, it is not just and equitable in all the circumstances to extend the time in which to lodge the claim.[51]It was not in dispute that the claimant lodged his claim after the expiry of the statutory limitation period. Parties agreed that the date of the alleged discriminatory act was 6 August 2024 and that following the time extension under the ACAS early conciliation provisions, the statutory time limit expired on 17 December 2024.[52]I found that the claimant did not have a credible reason for lodging the claim when he did. Whilst he corresponded with and obtained information from ACAS about the early conciliation process and the time limits in which to lodge a claim, he did not dispute that he ignored the clear guidance they provided that a claim should be lodged within one month less one day of receiving the early conciliation certificate.[53]Furthermore, I did not find his evidence reliable that perhaps he had comprehension issues about this information or been overwhelmed by it, as he had not previously raised that and there was no evidence to suggest he had made any further inquiries with ACAS about the information if that was the case.[54]In terms of the prejudice that either party would suffer as a result of the decision reached, I found that the claimant would not suffer any prejudice if the claim was allowed to proceed, but would suffer prejudice if it were not allowed to proceed as he would be prevented from seeking legal redress.[55]In respect of the respondent, I found they would not suffer any prejudice if the claim were not allowed to proceed and that on balance would suffer more prejudice if the claim were allowed to proceed than the prejudice the claimant would suffer if it were not allowed to proceed.[56]This is because while the claimant would suffer the obvious prejudice of being prevented from seeking legal redress for lodging a claim 13 days late which was not a substantial delay and the respondent did not suggest any forensic prejudice, the respondent would suffer the considerable and greater prejudice of having to meet a claim which, irrespective of the length of delay, had been lodged after the expiry of the statutory limitation period without any credible reason.[57]For these reasons, the Tribunal does not have jurisdiction to hear the claim.[58]Accordingly, the hearing fixed on Thursday 19 June 2025 to determine the issue of disability status and the Final hearing fixed for two days on Monday 21 July and Tuesday 22 July 2025 are cancelled.