Employment tribunal wrong to refuse extension of discrimination claim limitation period

Background

The facts of Jones v Secretary of State for Health and Social Care are as follows. The Claimant, who was of Afro-Caribbean descent, was unsuccessful in applying for an Assistant Business Developer Manager role at Public Health England. He was the second highest scorer in a test taken by four applicants during the application process and he believed that the Respondent had discriminated against him because of his race.

The Respondent did not inform the Claimant and the other two candidates that they had been unsuccessful in the application process until three months after interviews had taken place. By this time, the Claimant had chased the Respondent numerous times for feedback and the limitation period for the Claimant to bring a race discrimination claim had passed. Under the Equality Act 2010, a discrimination claim may be brought within three months of the date of the act complained of or within such other period as the employment tribunal thinks “just and equitable”.

The Claimant asked the Respondent for confirmation of the gender, age and race of the successful candidate but the Respondent refused to disclose this information for data protection reasons. Around three months after receiving the Respondent’s decision on his application, the Claimant brought a race discrimination claim against the Respondent in the employment tribunal. On the merits, the tribunal dismissed the claim due to there being no evidence of discrimination. The successful candidate had scored highest in the test and was the strongest candidate overall.

Tribunal decision

Regardless of the merits, the tribunal had also found that the claim was out of time as the Claimant had commenced ACAS conciliation more than three months after the decision not to hire him was made. The tribunal applied the statutory “just and equitable” test and concluded that the time limit should not be extended on the following grounds:

• the Claimant had been aware of the relevant limitation period; and
• the Claimant had waited a significant period before bringing the claim after being told he had been unsuccessful in the application process.

EAT decision

The Claimant appealed to the EAT. He argued that the reason for his delay in bringing the claim was that he had been waiting for confirmation of the race of the successful candidate before doing so and the Respondent had withheld this information. It was not until a preliminary hearing during the employment tribunal proceedings that the Respondent eventually confirmed that the successful candidate was white.

The EAT dismissed the appeal and agreed it was not just and equitable to extend time. Citing the case of Barnes v Metropolitan Police Commissioner and another, it held that as the Claimant already had “reasonable suspicion” of discrimination on hearing that he had been unsuccessful in securing the role, he should have brought the claim immediately after this, even though the limitation period had already passed by this time.

Court of Appeal’s decision

The Claimant appealed to the Court of Appeal, claiming that the “reasonable suspicion” test cited in Barnes and applied by the EAT was unfair and should be modified.

The Court of Appeal agreed that to the extent that Barnes laid down a formula regarding “reasonable suspicion”, this was wrong. It explained that where a Claimant has knowledge of the facts necessary to bring a claim and fails without good reason to do so then this would be highly relevant to the exercise of the “just and equitable” discretion. However, merely having a suspicion is not enough.

The Court upheld the Claimant’s appeal. It was perverse and an error of law for the tribunal not to grant a “just and equitable” extension of time, considering that:

• the successful candidate’s race was information that would be essential to his claim;
• the Respondent had gone to great lengths not to disclose this information;
• the reason the Claimant had failed to present his claim within the three-month limitation period was the Respondent’s failure to inform him of the outcome of his application; and
• there was no evidence that the delay had caused any prejudice to the Respondent.

Accordingly, the Court held that the relevant orders of the tribunal and the EAT be set aside.

Comments

While each case will turn on its facts, and it remains important for claims to be brought promptly, the Court of Appeal’s decision demonstrates that a Claimant should not be prevented from securing a “just and equitable” extension of time simply because they suspected (rather than had knowledge of) discrimination. Otherwise, claimants would be encouraged to bring speculative claims based on suspicion alone.

This case is significant and helpful in understanding the application of the “just and equitable” test. Going forward, tribunals should ensure that all factors surrounding the Claimant’s actual knowledge before and after the expiry of the limitation period are considered.