In a claim for discrimination under the Equality Act, employment tribunals have a wide discretion to extend the time limit on just and equitable grounds. In Jones v Secretary of State for Health and Social Care the EAT has highlighted the limited scope for appealing that discretion.
Basic facts
Mr Jones, who is of Afro-Caribbean descent, was interviewed for a job with Public Health England (PHE) on 28 March 2019, along with three other candidates.
Although the successful candidate, B, was offered and accepted the job on 2 April, the other candidates were not told of the outcome until three months later on 3 July. Mr Jones wrote back on 24 July asking for details about the successful candidate B, including his ethnic origin. He also indicated that he might lodge a tribunal claim, specifying (wrongly) that the time limit for doing so was 9 August. PHE said it could not disclose the information and he should make a Freedom of Information (FOI) request.
Mr Jones started early conciliation on 30 September 2019 and submitted a tribunal claim for race discrimination on 29 October relying on the “suspiciously and unexplained long period of time that it took [PHE] to make a decision”. PHE admitted at this point that the two other unsuccessful candidates were white but did not confirm that the successful candidate was white until a preliminary hearing in June 2020.
Tribunal decision
The tribunal dismissed Mr Jones’ claim, holding that candidate B was not an appropriate comparator because there were too many differences between them. Nor had Mr Jones provided any evidence of “conscious or sub-conscious consideration of racial characteristics” on the part of PHE.
In any event, his claim was out of time, and it was not “just and equitable” to extend time as Mr Jones could have started the process on 3 July, given that he was already suspicious of PHE by that date. In addition, despite pointing out to PHE in his email of 24 July that a time limit applied (albeit the wrong one), he did not submit his claim until 29 October. Nor did he follow their advice to submit an FOI request.
Mr Jones appealed. In relation to the time limit, he argued that he had not unreasonably delayed in submitting his claim because of the time it had taken for him to establish the race of the successful candidate. Furthermore, the tribunals decision was perverse given the late notification that he was unsuccessful.
EAT decision
After reviewing the authorities relating to the extension of time limits on just and equitable grounds, the EAT noted the wide discretion available to tribunals under the Equality Act which, unlike the Limitation Act 1980, does not specify a list of factors that a tribunal is required to take into account. However, it considered that the one factor that may be important is when the claimant knows the race of the comparator.
In this case, the EAT pointed out that Mr Jones had, in fact, submitted the claim before he knew the race of the successful comparator. Had he submitted an FOI request, he might have had the information earlier. The main reason he had delayed were the (unspecified) comments made by PHE in the email of 3 July 2019 which caused him to suspect that race may have been a factor and was why the tribunal had focused so much on this date.
The EAT also noted that the ground of appeal did not assert that the employment tribunal had made an error of law in applying its discretion. It, therefore, dismissed Mr Jones’ appeal, finding that the decision not to extend the time limit was not perverse.
Although the EAT dismissed the appeal, it was also critical of PHE for not disclosing the race of candidate B until the preliminary hearing. It warned that, in certain circumstances, failure could be taken into account by a tribunal when deciding whether it should draw an inference of discrimination.