The Claimant’s claim form, containing complaints of discrimination, was presented a little over two months out of time, assuming, in her favour, that she might be able to establish a continuing act in relation to all of the allegations that she raised.
The Employment Tribunal accepted that the Claimant genuinely, but erroneously, thought that, having told the ACAS EC officer about her complaints, and obtained an Early Conciliation Certificate, there was nothing else she needed to do to in order to present her claim. The Certificate was obtained at the end of December 2017, and the extended primary time limit expired on 30 January 2018. She approached the ACAS EC officer again in mid-February 2018, and only then, the Tribunal accepted, understood that she should also have submitted a claim form to the Employment Tribunal, and was now out of time to do so. It was also only when she later spoke to someone else in ACAS, that she appreciated that she could still seek to put in a late Employment Tribunal claim, and then finally did so.
The heart of the Tribunal’s decision concerned why the Claimant had not approached ACAS again until mid-February 2018, and whether she ought to have appreciated sooner that something might be wrong, and taken some further pro-active step. In that regard, the Claimant relied on the state of her mental health as relevant, and in particular, on a GP’s letter of June 2018. The Tribunal accepted that various personal circumstances, including bereavements, had had a significant impact, but did not consider that the GP’s letter showed that her mental health had had a material impact beyond mid-January 2018 at the latest.
The Tribunal had properly directed itself as to the law, and taken a careful and well-structured approach to its fact-finding and overall decision. The EAT should only intervene if the decision was, in some material sense, perverse. However, on a fair reading of the GP’s letter, it was not a proper conclusion that it offered the Tribunal no assistance at all on the state of the Claimant’s mental health beyond the period up to mid-January 2018. That conclusion had significantly affected the Tribunal’s decision, which therefore could not stand. The matter would be remitted for a re-hearing of the question of whether it was just and equitable to extend time. It would be important for the Tribunal, at the re-hearing, to have the benefit of sight of all the relevant contemporaneous medical evidence that might be available, whatever it might or might not show, in particular, the GP’s records, and not just the letter.
Citations:
[2019] UKEAT 0026 – 19 – 0111
Links:
Jurisdiction:
England and Wales
Employment
Updated: 25 November 2022; Ref: scu.650904
