Summary: Can a tribunal extend time in a discrimination claim where the employees have waited to issue proceedings while pursuing grievances?
Yes, held the EAT in Wells Cathedral v Souter (available here) but not always.
Background: A discrimination claim must normally be submitted to a tribunal before the end of ‘the period of three months starting with the date of the act to which the complaint relates’ (s123(1)Equality Act 2010). However, the Tribunal can extend the time limit if the tribunal decides it is ‘just and equitable’ to do so (s123(3)Equality Act).
Facts: Mr Souter and Ms Leishman (a married couple) were employed by Wells Cathedral School as music teachers. Ms Leishman was diagnosed with cancer and had an extended period of leave until September 2017. Ms Leishman alleged that on her return to work she was subject to discriminatory acts, including not being permitted to return to her full teaching roster and being subjected to an informal capability process in early 2018. She made a data subject access request and the relevant documents were disclosed to her in mid-March 2018. These documents were also seen by Mr Souter at this time. He and Ms Leishman considered these documents showed that they had both been discriminated against in relation to Ms Leishman’s disability, with some acts dating back to 2016.
Ms Leishman brought an internal grievance in August 2018, with help from her solicitors. However, her grievance was not upheld and she was informed of the outcome in October 2018. Her appeal was dismissed on 21 December 2018 and she resigned on 4 January 2019. Ms Leishman completed Acas early conciliation and presented her discrimination and constructive dismissal claims on 26 April 2019.
Mr Souter was signed off work with stress from January 2018 and presented his own grievance in July 2018, again assisted by solicitors. Grievance hearings were held in February and March 2019, but the panel appointed to consider his grievance withdrew in April 2019 and it was not concluded. Mr Souter resigned on 25 April 2019. Following completion of the Acas early conciliation process, he presented his discrimination and constructive dismissal claims on 26 July 2019.
Both employees acknowledged that their claims had not been presented within three months of a number of the alleged discriminatory acts. Most of their complaints of discrimination were over a year old by the time they brought their claims. Further, the documents on which they based a number of their claims had been provided to them in mid-March 2018.
The tribunal considered whether to extend the time limit to allow their discrimination claims to proceed.
The tribunal held that it was just and equitable to extend the time limit.
In making its decision the tribunal considered the following factors which weighed against allowing the extension:
- Considerable delay of months or years in respect of many of the allegations.
- Employees aware of all the relevant facts and that they had claims by Spring/Summer 2018.
- Employees had received legal advice and decided not to issue a claim within the time limit.
However, the tribunal gave more weight to the following factors in favour of allowing an extension:
- The grievances were relevant in two ways:
- there was a genuine desire to use the process to resolve differences (which is to be encouraged); and
- they “crystallised” the allegations and put the employer on notice that the employees considered that their treatment had been discriminatory. Also that they had received advice, had contemplated proceedings and were pursuing internal procedures first. This allowed the employer to take steps to investigate and preserve evidence around the allegations.
- When considering prejudice to the employer, the tribunal took into account that it had been on notice since Summer 2018 that the employees considered they had discrimination claims. Further, there was no suggestion that the quality (or ‘cogency’) of either verbal or written evidence had been affected by the delay. Indeed, many of the allegations concerned written documents and these would not ‘dim or fade overtime’.
The employer appealed.
The EAT upheld the tribunal’s decision and allowed the extension of time. The tribunal had approached the issue correctly by considering all the facts and circumstances of the case and deciding on the weight of each of the relevant factors.
In respect of this particular case the tribunal was entitled to find that the pursuit of the grievance by itself was enough to justify extending time. In particular:
- the employer did not identify any particular prejudice it would suffer due to the delay.
- the detailed, clear and full factual context provided in the grievance (which was prepared with legal help and supported by documentary evidence) meant that the employer was fully on notice of all the allegations that it faced and that they involved alleged discriminatory treatment. Therefore there was no significant prejudice (or loss of evidence) caused by the delay.
- there was significant overlap between the complaints made in the discrimination and the constructive dismissal claim which was due to be heard. This meant that much of the evidence would need to be considered by the tribunal in any event.
However, the EAT made clear that this will not be the same in every case and that there is no automatic extension of time where an employee raises a grievance.
Implications: This decision is not good news for employers in that confirms it is acceptable for a tribunal to extend the time limit for a discrimination claim only on the basis that an employee is pursuing a grievance.
However, it is helpful that the EAT clarified that this will not always be the case and there is no automatic extension. In other words this decision does not give employees a blanket policy to complete an internal process, whilst their limitation period expires and then present a tribunal claim.
It is also helpful that the EAT has provided guidance on the type of facts and circumstances in which the time limit maybe extended where an employee has pursued their grievance.
In summary, if you are dealing with a grievance which is detailed or document based and the employee genuinely wants to resolve the issues, make sure you keep all evidence safe beyond the usual three month time limit. You may need them.