Claimants have to lodge a tribunal complaint within a three-month time limit and extensions to that time limit will only be granted in certain, defined circumstances. The Court of Appeal doubled down on the strictness of the time limit while also advising in Adedeji v University Hospitals Birmingham NHS Foundation Trust, that when considering whether to extend time for a claim to be heard, tribunals should assess all the factors it considers relevant including the length of, and the reasons for, the delay.
Mr Adedeji, a consultant surgeon, was the subject of a prolonged capability and conduct process following the death of a patient in 2014 which resulted in his demotion in 2017. He resigned on 25 May that year, giving three months’ notice and his employment ended on 25 August.
Mr Adedeji had notified ACAS to start the early conciliation (EC) process on 20 May 2017, but then contacted them again on 23 May to “withdraw” his application. ACAS issued the EC certificate on the same day confirming that he had complied with the requirement under section 18A of the Employment Tribunals Act 1996 to contact them before instituting proceedings in the tribunal.
On 16 November Mr Adedeji telephoned a firm of solicitors for advice. They informed him (twice) that the deadline for his claim was 24 November. On 27 November, he lodged claims of unfair (constructive) dismissal and race discrimination which included historical complaints dating back to 2016.
Relevant time limits
Section 123 of the Equality Act 2010 provides that a complaint of discrimination may not be brought after (a) the end of a period of three months starting with the date of the act to which the complaint relates (the primary time limit); or (b) within such other period as the employment tribunal thinks just and equitable.
Section 140B of the Equality Act provides for the automatic extension of the primary time limit to allow for early conciliation.
Tribunal and EAT decisions
The Trust argued that the claims were out of time. Mr Adedeji (who was representing himself) explained before the tribunal judge that, although he had received an EC certificate on 23 May, he had assumed it was a nullity. He argued that he could benefit from the extension of time by contacting ACAS afresh even though he already had an EC certificate. Alternatively, he argued that it was just and equitable to grant him an extension under section 123(1)(b) of the Equality Act.
The tribunal rejected his argument that he could benefit from the extension of time by contacting ACAS again on the basis that the statutory EC provisions do not allow for more than one EC certificate per “matter” to be issued by ACAS.
The tribunal also held that it was not just and equitable to extend the time limit. It considered there was no clear evidence explaining why his largely historical complaints of discrimination had not been brought in time and that this could affect the cogency of the arguments. He was not ignorant of his rights and had chosen to ignore the clear advice he had received from solicitors.
The EAT also considered that it was not just and equitable to extend the time limits. Although his claim was only three days late, it had to be considered in the context of the much longer delay surrounding the discriminatory events that he had relied on.
Decision of Court of Appeal
The Court of Appeal held that as the EC certificate was valid, his claims for discrimination were out of time. As a result, the tribunal had to consider if Mr Adedeji had a reasonable excuse and the burden was on him to persuade the tribunal that it was just and equitable to extend the time limit.
The Court held that the tribunal had rightly considered the impact of the cogency of the evidence given the historic nature of the claims which were relied on as part of a series of continuing acts. It also cautioned against tribunals from sticking too closely to the factors listed in section 33 of the Limitation Act. Instead, it advised tribunals to assess all the factors which it thinks are relevant including "the length of, and the reasons for, the delay".
The case is a reminder that the discretion to extend time limits will be strictly applied by the tribunals.