Although claimants must lodge their complaint within three months of the date of the act to which it relates, tribunals can extend time in discrimination claims if it is “just and equitable” to do so. In Leeds & Yorkshire Housing Association v Fothergill, the Employment Appeal Tribunal (EAT) held that when exercising that discretion, tribunals must identify the facts and assess the relative weight to be given to all relevant factors.
Mr Fothergill, who described himself as a BME worker on his claim form, started work for the housing association in mid-November 2017 on a temporary contract. In late November,one of their property surveyors resigned and Mr Fothergill applied for the job. He was shortlisted and interviewed in January 2018 but was unsuccessful. Shortly afterwards, another surveyor resigned and Mr Fothergill’s application was reconsidered in February but again he was unsuccessful.
His temporary contract was extended at this point, followed by further extensions during 2018. However, in April 2019, the association gave notice to terminate his contract on 3 May.
After contacting ACAS on 25 June 2019, Mr Fothergill lodged a tribunal claim on 27 June, asserting that each rejection of his application for the role of property surveyor had constituted an act of race discrimination. Mr Fothergill argued that the reason for the delay in presenting his claim was because he had been unaware that he had any rights until he spoke with a friend in May 2019, who had experience of employment discrimination.
The tribunal acknowledged that the association could be potentially prejudiced by extending time for Mr Fothergill as it had a policy of only retaining employment information for 12 months. Given the delay in this case, most of the relevant documentation had been destroyed. Nevertheless, the tribunal held that Mr Fothergill’s ignorance of his rights was genuine and reasonable. As such, it decided to extend time to present the claims on the basis that it was just and equitable to do so.
The association appealed on two main grounds. Firstly, it argued that no reasonable tribunal could have reached the conclusion that Mr Fothergill could have remained ignorant of his rights throughout the period from January 2018 to 27 June 2019. Secondly, the tribunal had failed to explain why it had concluded that this ignorance was reasonable and outweighed any other factors, such as prejudice to the association’s ability to defend the claims.
The EAT held that, having found that Mr Fothergill had been genuinely ignorant of his legal rights, the tribunal should have considered whether such ignorance had been reasonable at all material times. In order to do so, it should have identified the facts which had informed that conclusion by asking itself the following questions:
- Why had Mr Fothergill not made enquiries, undertaken any research and/or sought advice, from February 2018 onwards?
- Following his conversation in early to mid-May 2019 with a friend and subsequent internet searches, why had he not sought legal advice until June 2019, or presented his claim until 27 June 2019?
As the tribunal had failed to ask these questions, it had not been in a position to determine the question of reasonableness and the finding that Mr Fothergill’s ignorance was reasonable throughout the relevant period was perverse.
With regard to the issue of prejudice to the association, the EAT held that the tribunal had failed to consider the reasonableness of Mr Fothergill’s ignorance of his legal rights and consequently had not undertaken an analysis of what was just and equitable. This meant the tribunal had failed to assess his ignorance against the accepted prejudice to the employer due to their policy of destroying relevant documentation and the extent to which that could be offset by the recall of the witnesses, given the lengthy delay (more than 16 months) in issuing the claim. The association’s appeal succeeded on this basis.
The EAT therefore remitted the matter to a differently constituted tribunal to decide whether it was just and equitable, in the circumstances, to extend time.