Time limits, forensic prejudice and reputational risk in Equality Act claims

Background

In the case of Rashad v The Chief Constable of Cleveland Police, the claimant, a police officer, brought a wide-ranging discrimination claim, including a complaint of victimisation arising from a failed promotion application.

The victimisation allegation related to the involvement of a senior officer on a promotion panel who had previously been named in earlier discrimination proceedings brought by the claimant, which was subsequently withdrawn. The claimant raised a grievance shortly after the interview, but tribunal proceedings were issued after the usual time limit had expired. The tribunal refused to extend time for this complaint, concluding that the delay caused prejudice to the respondent and that it would not be just and equitable to allow the claim to proceed.

The claimant appealed, arguing that the tribunal had wrongly assumed the quality of witness evidence had deteriorated and had taken into account an irrelevant factor by considering potential reputational damage to the senior officer, a non-party witness.

EAT decision

The Employment Appeal Tribunal (EAT) dismissed the appeal and upheld the tribunal’s decision.

The EAT confirmed that tribunals have a broad discretion to consider the effect of delay on evidence, particularly where claims depend on recollection and motivation. A tribunal does not need specific proof that witnesses’ memories have worsened; it is permissible to conclude that evidence is less reliable simply because time has passed. The tribunal had given adequate and sufficient reasons for its decision.

The EAT also rejected the argument that early awareness of the issue through an internal grievance removed any prejudice caused by late proceedings. The correct focus is to consider the forensic disadvantage to the respondent, not what might have happened had the claim been brought sooner. Forensic disadvantage refers to a party being prejudiced in its ability to present its case or challenge the other party's case.

On reputational issues, the EAT accepted that while unusual, potential reputational impact on individuals accused of discrimination is not an automatically irrelevant consideration. In this case, damage to the reputation of a senior police officer could also affect the reputation of the police force itself, and the tribunal was entitled to take that into account as part of the overall assessment of prejudice.

Overall, the EAT emphasised that decisions on extending time involve a wide discretion, and appellate courts will be slow to interfere where the tribunal has weighed the relevant factors and explained its reasoning.

Learning points

The decision reinforces that extensions of time are not a given, and tribunals can consider forensic disadvantage when using its broad discretion to extend time. Furthermore, even where grievances are raised promptly and investigated at the time, delay can still disadvantage respondents, particularly where evidence depends on witness recollection.

Employers can also take reassurance that tribunals are entitled to consider the wider impact of stale allegations, including reputational implications, when deciding whether it is fair to allow late claims to proceed.

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For more information or advice, please contact Rory Jutton in our Employment team.