The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend time for a complaint of race or sex discrimination to be laid, and is entitled to consider anything that it considers relevant. The court of appeal can only interfere with the exercise of a discretion if it is plainly wrong and there has been some error of law or principle. In this case the court re-instated the employment tribunal’s decision.
Auld LJ set out the principles to be applied when considering the exercise of its discretion to extend time: ‘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’ and ‘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.’
Auld LJ, Chadwick LJ and Newman J
[2003] IRLR 434, [2003] EWCA Civ 576
Bailii
England and Wales
Citing:
See Also – Robertson v Bexley Community Centre (T/A Leisure Link) EAT 9-Jul-2001
Preliminary hearing – claim for race discrimination. . .
Appeal from – Robertson v Bexley Community Centre (T/A Leisure Link) EAT 4-Jul-2002
EAT Race Discrimination – Direct . .
Cited – Daniel v Homerton Hospital Trust CA 9-Jul-1999
The court considered an appeal against the tribunal’s exercise of a discretion. Gibson LJ said: ‘The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that . .
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Cited by:
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Department of Constitutional Affairs v Jones CA 18-Jul-2007
The employer appealed an order extending the time for the claimant to claim disability discrimination. The claimant had been suspended pending disciplinary proceedings, but became subject to severe depression, and his doctors said he was unfit to . .
Cited – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
Cited – Chief Constable of Lincolnshire Police v Caston CA 8-Dec-2009
The appellant challenged the extension of time given to the claimant to begin his claim for disability discrimination.
Held: The appeal failed: ‘the discretion under the Statute is at large. It falls to be exercised ‘in all the circumstances . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 01 November 2021; Ref: scu.185543