Extension of Time in the Employment Tribunal - What Evidence Is Needed?
The Employment Appeal Tribunal (EAT) has found that a Tribunal could have considered whether it was just and equitable to extend time in a discrimination case, despite a lack of evidence from the claimant as to why she was late to lodge her claim.
Background
A claimant must usually bring a discrimination claim within three months of the date of the alleged discriminatory act. Acts occurring after that time limit have expired can still be included in the claim if they can be said to be part of "conduct extending over a period", and the claim is brought within three months of the end of that period. If a claimant has missed the deadline for bringing a discrimination claim, the Tribunal can extend the time limit by such a period as it considers "just and equitable".
In the case of Owen v Network Rail Infrastructure Ltd, the claimant was employed as a 'signaller'. In 2020 she brought an Employment Tribunal claim for sex discrimination and harassment. Her claim related to alleged incidents that had taken place between 2015 and 2017. She also complained that a grievance she had brought about the alleged conduct had been poorly handled between 2017 and 2019.
Tribunal Decision
The Tribunal found that the alleged conduct occurring between 2015 and 2017 could be potentially discriminatory. However, it found that the employer's handling of the grievance did not form part of a continuing act of discrimination. It therefore found that the incidents that had occurred between 2015 and 2017 were out of time. The Tribunal found that because the claimant had not provided any evidence to explain why she had delayed bringing her claim, it was unable to extend time. On this basis, the Tribunal dismissed the claim and the claimant appealed to the EAT.
Appeal
The EAT upheld the appeal and remitted the case to the Tribunal for determination of the question of whether it would be just and equitable to extend time. Whilst the claimant had not provided evidence to explain why she brought her claim when she did, this did not mean that the Tribunal is obliged to refuse an extension. The lack of evidence is a relevant factor to consider, but it is not determinative of the outcome.
Learning Points
Tribunals can exercise their discretion to extend time in discrimination cases, where there is a good reason to do so. Previous case law on the same point has held that the Tribunal's emphasis should be on whether the delay has affected the Tribunal's ability to conduct a fair hearing.