Did an employment tribunal act unreasonably in denying an extension of time in a discrimination case whereby the Respondent had not informed the Claimant of the race of their comparator?
No, it was held in Jones v Secretary of State for Health and Social Care, a case which provides a key insight into the rules regarding discrimination and out-of-time claims.
In this case, the Claimant who was of African-Caribbean descent, applied for a promotion but was unsuccessful. The successful applicant accepted the role in April 2019; however, the Claimant did not find out till later in July 2019 that he was unsuccessful. This meant that the 3-month limitation period for bringing a claim to the Employment Tribunal had expired. The Claimant asked for details of the successful candidate, but this was not provided by the Respondent. This led the Claimant to issue a claim for race discrimination in October later that year.
The Employment Tribunal claimed that there was nothing in the evidence which could have led them to draw an inference of discrimination. They stated that there was no evidence of any conscious or sub-conscious consideration of racial characteristics, and that the Respondent genuinely chose the best candidate for the role based on their performance at interview. Despite the Claimant’s criticisms, the Respondent did provide him with information and an explanation of their actions quite early on. It was determined the Claimant was given enough information to understand the interview process should he wanted to present a claim to the Tribunal.
The tribunal held that the Claimant’s claim was out of time. The primary time limit ran from 2 April 2019, and it was not just and equitable in the circumstances to extend time. The EAT agreed with this conclusion, and it was held that the EAT can only overturn a tribunal’s decision that it was not just and equitable to extend time if it was ‘perverse’.
It was found that the tribunal had acted correctly in weighing the issues the Claimant had in discovering the race of the successful candidate and the prejudice to the Respondent caused by the delay. The EAT did, however, criticise the Respondent for not disclosing the race of the successful candidate until after the submission of its ET3. The EAT reflected that failure to provide such basic information might, in appropriate circumstances, lead to an inference of discrimination.
This case highlights the need for employers to share information on potential comparators to relevant employees where necessary. It also demonstrates the importance of adhering to strict time limits when presenting a claim to the tribunal. Most Employment Tribunal claims have a time limit of 3 months less one day to bring a claim however, for certain claims this time limit is extended to 6 months less one day.
Although the Employment Tribunal may grant an extension of time on just and equitable grounds in discrimination claims, the hurdle to be jumped, to establish it would be just and equitable to extend time, is a high one. Here, the reason for the Claimant’s delay in commencing his claim was not enough to get over that hurdle, leaving his claim out of time.