JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant was seeking to pursue complaints of unlawful pregnancy and maternity discrimination in respect of the withdrawal of a job offer in February 2016, after she had informed the Respondent that she was pregnant. She had, however, only lodged her ET claim on 8 November 2016, several months out of time. The Claimant had given evidence to the ET of the physical and mental health issues she had suffered during the relevant period (her pregnancy had been high-risk and she had suffered depression and anxiety) and as to how she had only learned of her potential cause of action under English law (she had been living in Australia) sometime after the primary time limit had expired, initially thinking this meant she could no longer bring a claim. After emigrating to the UK with her husband and three young children, the Claimant suffered further ill-health but subsequently sought advice as to her rights from a CAB. Finding this unhelpful, she immediately undertook further research and spoke with a legal advisor, learning of the possibility of time being extended for a claim. This led the Claimant to enter the ACAS early conciliation procedure and to subsequently lodge her ET claim.
Although not rejecting the Claimant’s evidence, the ET found she had not remained incapacitated throughout the period from February to November 2016. It further found that she had obtained advice as to the potential cause of action arising from the Respondent’s withdrawal of the job offer and had been able to undertake her own researches at some stage during or after August 2016. It concluded that the Claimant could, and should, then have done more to progress the lodgement of her ET claim but had delayed until November 2016. In those circumstances, the ET did not consider it was just and equitable to extend time. The Claimant appealed.
Held: allowing the appeal.
The ET’s reasoning demonstrated a confusion and misunderstanding of the relevant chronology. It had either made material errors of fact – such as to mean it had failed to take into account all relevant matters and had had regard to that which was irrelevant – or it had failed to explain how it had reached its conclusions. Specifically, the ET had failed to make clear findings as to when the Claimant was incapacitated by ill-health (both when in Australia and after she had emigrated to the UK). Allowing that it could be inferred that the ET had found that she was not suffering a relevant impediment, at least from some period during or after a point in August 2016, it had apparently confused the order in which the Claimant undertook her own researches and then obtained some preliminary advice while she was still in Australia. The ET had further failed to have regard to the very short period of time between obtaining that advice (which was the product of her researches at the time and which had suggested that she was simply out of time to pursue a claim) and the Claimant’s emigration to the UK. Once in the UK, the ET had then made further material errors in its recitation of the history, failing to appreciate the Claimant’s immediate actions after her contact with the CAB, and suggesting she had then delayed when in fact she had immediately embarked upon further researches and had contacted a legal advisor and notified ACAS all within a day. These errors in reasoning and explanation rendered the decision unsafe and the appeal would accordingly be allowed.
Citations:
[2018] UKEAT 0244 – 17 – 3107
Links:
Jurisdiction:
England and Wales
Employment
Updated: 26 May 2022; Ref: scu.625449