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The Employment Appeals Tribunal (EAT) has recently considered the circumstances where it might be just and equitable to extend the limitation for bringing discrimination claims where the claimants have waited to issue proceedings while pursuing grievances.
28 February 2022
Case Study
In Wells Cathedral School Limited v Souter & Stringer & Leishman the claimants each lodged tribunal claims outside of the normal three-month time limit for doing so.
Ms Leishman and Mr Souter, who were wife and husband, were both employees of the school and claimed that they had been discriminated against for several years (with Mr Souter saying he had been discriminated against as a result of his association with his wife who was allegedly disabled). Both raised internal grievances with the school which concluded in December 2018 and April 2019. Following the conclusion of the internal grievance processes, both resigned (Ms Leishman on 04 January 2019 and Mr Souter on 25 April 2019). Ms Souter lodged claims for disability discrimination and constructive unfair dismissal on 26 April 2019 and Mr Souter presented similar claims on 26 July 2019.
Both Ms Leishman and Mr Souter sought to rely on alleged acts of discrimination that occurred over a two-year period, and which culminated with their resignations. They acknowledged that certain aspects of their claim were technically out of time but requested that the tribunal exercise its discretion to extend the limitation period under section 123(1)(b) Equality Act 2010 (EqA). They argued that it would be just and equitable to do so.
From early 2018, both Ms Leishman and Mr Souter had the benefit of legal advice. However, they were not advised to delay issuing proceedings until the grievance process was complete, nor were they told that they were not able to issue proceedings until internal processes had completed. No real explanation was provided by either claimant in their evidence as to why there was a delay.
During correspondence with the school both had indicated that they felt they had been told they had strong claims but would prefer to reach an understanding with the school. Ms Leishman additionally said that she wanted to avoid litigation due to concerns about her mental health.
Case Study
Substantively, at tribunal the claimants argued that it was just and equitable to extend the limitation period because failing to do so would prejudice their complaint from being heard. The tribunal agreed with the claimants, citing five factors they had considered:
Noting that points 1 to 3 above weighed against the claimants and points 4 and 5 were in their favour, the tribunal attributed more weight to points 4 and 5 and agreed to extend the limitation period to allow the claims to be heard.
The school appealed. However, the EAT upheld the tribunal’s decision, finding that the tribunal had been correct in its approach of undertaking a balancing exercise when applying the just and equitable test.
Generally, employers should note that there is no presumption in favour of an extension. It is for a claimant to prove that it is just and equitable for the limitation period to be extended and each case will be considered on its own facts. However, it is clear from this case that employees will need to be able to demonstrate that their initial grievance is sufficiently detailed and on a substantially similar basis to any later claims they seek to bring. Employers will need to take this into consideration when determining whether, tactically, it is better to delay grievance processes with the aim of allowing the limitation period to expire.
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