EAT Jurisdictional Points: Extension of Time: Just and Equitable – Having concluded that it was not possible to determine whether the Claimant’s claims (of disability discrimination by reason of a failure to make reasonable adjustments) were brought out of time without hearing all the evidence (and, thus, would need to be considered at a Full Merits Hearing), the Employment Tribunal nonetheless went on to find that it would be just and equitable to extend time to permit the claims to be brought out of time in any event. Although it was questionable whether the ET had made clear that it was proceeding on assumed facts as to when the primary time limit expired (the first factor laid down in the guidance laid down in British Coal Corporation v Keeble [1997] IRLR 336), that might be inferred from the recitation of the Respondent’s case in this regard. The real issue was the ET’s approach to the Claimant’s explanation. The relevant questions were those proposed by Langstaff P in ABM University Local Health Board v Morgan UKEAT/ 0305/13/LA, at paragraph 52: (1) why was it that the primary time limit had been missed? (2) Why after expiry of the primary time limit was the claim not brought sooner than it was?
Having found that the Claimant had not provided an explanation, the ET’s reasoning was based upon assumptions made in the Claimant’s favour. Given that he bore the burden of proof on these questions, and the ET had expressly not made findings of fact (presumably not wishing to touch on matters that might fall to be determined at the Full Merits Hearing), this was not a permissible approach and the Judgment that it was just and equitable to extend time was thereby rendered unsafe.
Given the ET had held it was not possible to determine whether the claim had been brought out of time (and there had been no appeal against that conclusion) and the difficulty of then making findings on the questions that arose in respect of the ET’s discretion to extend time, the appropriate course was for this point to be remitted for consideration at the Full Merits Hearing.
Eady QC HHJ
[2015] UKEAT 0348 – 14 – 0203
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546429
