No extension of time granted for misunderstanding of early conciliation rules
Employment Matters e-update – March 2021
The Court of Appeal has held that it was not just and equitable to extend time for a race discrimination claim which was presented three days late due to an alleged misunderstanding of the early conciliation rules.
Adedeji v University Hospitals Birmingham NHS Foundation Trust
There are strict time limits in place for employees to commence the ACAS early conciliation process and thereafter submit a claim to the employment tribunal.
However, there is a degree of discretion for tribunals to permit claims raised out of time to proceed. The relevant test depends on the type of claim raised, with discrimination claims allowed to proceed on a “just and equitable” basis. In practice, this means that out of time discrimination claims are allowed to proceed, as it is usually viewed as more just and equitable for an employee to be given the chance to pursue their claim as compared to the employer’s disadvantage of having to defend it.
It is not, though, always the case, even when the time limit is only missed by a matter of days.
This case concerned a surgeon, who had taken legal advice and had been advised of the appropriate time limit twice. In these circumstances, the employment tribunal and Employment Appeal Tribunal held that it would not grant the extension of time. This was upheld by the Court of Appeal.
For employers, this may prove to be a useful case when arguing time bar. Whilst it may be viewed as exceptional, given the particular status of this individual, and that they had received appropriate legal advice, it is helpful to remind tribunals that they are permitted to take a relatively strict approach to a failure to comply with time limits, even in a discrimination claim.