When considering whether to extend time outside the three-month limit so that a claim can be heard, the Employment Appeal Tribunal (EAT) has confirmed in Kumari v Greater Manchester Mental Health NHS Foundation Trust that tribunals are entitled to take into account the merits of the case. Even if in isolation the merits do not warrant the claim being struck out, tribunals can still consider them when refusing to extend time.


Basic facts

After Ms Kumari’s employment came to an end in August 2019, she started the ACAS Early Conciliation (EC) process on 16 January 2020. Her certificate was duly issued on 27 January. She presented tribunal claims of unfair constructive dismissal and direct race discrimination the same day. She subsequently applied to amend her claim to add a further Equality Act complaint.

Apart from the fact that she had lodged her tribunal complaints outside the three-month time limit, the trust pointed out that it had thoroughly investigated a formal complaint initiated by Ms Kumari after her employment had ended. Having completed the investigation, it wrote to her on 9 December 2019 stating that it had found no evidence of discrimination.


Tribunal decision

Rejecting Ms Kumari’s argument that the final act of discrimination was the letter from the trust dated 9 December, the tribunal held that the final act was on 7 or 8 October 2019. As she should therefore have started EC by 6 or 7 January 2020 (as opposed to 16 January), her claim in respect of the earlier alleged acts of discrimination were out of time unless the tribunal decided that it was just and equitable to extend the time limit.

Although she was only out of time by 10 days, the tribunal refused to extend time or to allow her to amend the claim because the merits of her case were so weak. For instance, her letter of resignation made no reference to race and although she had claimed that she was “burnt out” and in poor mental health, she had not sought medical advice and had not presented any medical evidence to the tribunal.

Ms Kumari appealed, arguing that the tribunal was wrong in law to take account of the merits of her claim when deciding whether it was just and equitable to extend time under section 123(1) of the Equality Act 2010, particularly as it had not found that it had no reasonable prospect of success. She also argued that, as a litigant in person, she had not been given fair warning that the merits of her complaints might be taken into account.


Relevant law

Section 123(1) states that a complaint “may not be brought after the end of:
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable”.


EAT decision

Dismissing the appeal, the EAT held that it was not necessarily an irrelevant consideration for a tribunal to consider the potential merits of a complaint when deciding whether it was just and equitable to extend time or to grant an application to amend, even if the case was not so obviously without merit that it would automatically be struck out.

Not only did the words of the statute confer a wide discretion on tribunals, but long-established case law also made clear that there was no definitive list of considerations that a tribunal had to take into account. As the tribunal, in this case, had carried out its assessment by reference to identifiable factors that were apparent at the preliminary hearing, there was no error of law.



Whilst the discretion of a tribunal on a just and equitable extension is wide, it usually needs to consider the prejudice to each party if an extension is allowed and this would normally involve considering the length and reasons for the delay, including the health of the claimant and whether they had taken legal advice, and how this would affect the evidence.

However, this was never an exhaustive list and the Kumari judgment confirms that the tribunal is also entitled to take into account the merits of the case, i.e. whether the claimant would be successful in any event, in considering this prejudice. As such, there was no error of law here. Whilst this is an unusual case, practitioners always need to consider merits, in addition to the usual factors, when seeking to argue for a just and equitable extension.