Although claimants are normally required to lodge a complaint within three months, tribunals have a discretion to extend time in relation to discrimination cases when it is just and equitable to do so. In Wells Cathedral School Ltd and anor v Souter and Leishman, the EAT held that the tribunal was right to extend time in a situation where the claimants had delayed lodging a claim because they were pursuing an internal grievance.
Mr Souter and Ms Leishman – who are husband and wife - had worked in the school’s music department since 2008 and 2009 respectively.
After being diagnosed with cancer in October 2016, Ms Leishman had an extended period of absence. Shortly after her return in September 2017, allegations were made about her capability and in 2018 she became the subject of an informal capability process. Ms Leishman then made a subject access request which uncovered a series of internal emails which, she said, demonstrated a plan to remove both her and her husband from their posts as far back as 2016. She brought a grievance in August 2018 which was not upheld and she resigned in January 2019.
Mr Souter also alleged a longstanding campaign against him. In January 2018 he was signed off work with stress and brought a grievance in July that year. He resigned in April 2019.
Although both had repeatedly expressed their hope that they would be able to resolve their grievances internally, Ms Leishman lodged a complaint of constructive unfair dismissal and disability discrimination in April 2019; while Mr Souter complained of constructive unfair dismissal and disability discrimination by association in July that year. As some of their discrimination claims were over a year old and therefore long outside the requisite three-month time limit, the tribunal had to decide whether it was just and equitable to extend time under section 123(1)(b) of the Equality Act 2010.
Whilst acknowledging that the delays were significant, the tribunal judge held that, on balance, time should be extended. He was swayed in particular by the fact that these “were not claims which had been sprung on the Respondents from the depths of history”. Instead, they were complaints of which the school was aware from at least July and August 2018. In addition, it could not be said that the cogency of the evidence, whether documentary or oral, would be adversely affected by extending time.
The school appealed, arguing that as both claimants had knowingly chosen to pursue internal grievances as opposed to lodging tribunal claims within the requisite time period, the tribunal should not have granted an extension.
Dismissing the appeal, the EAT held that, when coming to a decision as to whether or not it is just and equitable to extend time, tribunals must take account of all the factors that are relevant in any given case. Although it was not therefore the role of the EAT to give tribunals detailed instructions about how to exercise their wide discretion when reaching a decision, it warned that they should avoid taking a mechanistic approach as the concept of what is a good or a bad reason for delay is “inherently malleable, variable and fact-specific”.
It followed that pursuing an internal grievance, as in this case, was just one factor out
of many for the tribunal to consider. Although it would not automatically lead to an extension of time, tribunals were entitled to give it weight as part of their considerations.
In this case, the EAT held that as there was “no error of principle as to the law, and, reading this decision in the round, the necessary elements of the reasoning are all present, they are sound, and the decision is not perverse or … unreasonable”.
The tribunal hearing this case considered the usual factors when deciding whether to use its discretion to extend the limitation period, including:
- The length of the delay
- The claimant’s awareness of the relevant facts
- Whether the claimant had received advice (and the nature of that advice)
- Whether the claimant had pursued an internal grievance procedure
- Whether the cogency or quality of evidence would be disrupted by the delay.
In this case, the tribunal and the EAT found in favour of the claimants because, while the tribunal decided that there were factors pointing against an extension, their genuine desire to resolve their differences internally was to be encouraged. In addition, the content of the grievances involved complaints that relied on documentary evidence rather than witness memories.
This decision certainly does not mean that a claimant who has brought an internal grievance regarding an alleged act of discrimination will get an automatic extension of time. Indeed, the EAT stressed that these decisions are extremely fact sensitive and involve a balancing of all the factors which the tribunal considers to be relevant.