Act of discrimination – extension to three month time limit
In the case of Kumari v Greater Manchester Mental Health NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s (ET) decision that it could assess the merits of a claimant’s claim when considering whether it was just and equitable to extend the time limit required to pursue an act of discrimination claim.
If a person wishes to pursue a complaint of discrimination in an ET they must start Acas Early conciliation “three months less than one day” from the discriminatory act. If conciliation is unsuccessful, an Early Conciliation certificate will be issued with a reference number which an individual must include on their ET form.
An ET has discretion to extend the time limit if it is just and equitable to do so. It may also allow a claimant to amend their claim to add further complaint(s). However, as it is at their discretion, they can also refuse.
This is what happened here. Mrs Kumari was a litigant in person. She commenced Acas early conciliation after the three-month deadline. At a preliminary hearing, the ET considered whether it was just and equitable to extend the limitation period and whether Mrs Kumari could amend her claim form to include a new act of discrimination.
In making its decision, the ET assessed the merits of Mrs Kumari’s claims based on information presented at the preliminary hearing which included her resignation letter and asking Mrs Kumari questions. The ET determined that there was no link between the act of discrimination in question and her claim appeared to be “weak” based on the fact that there was no evidence presented to link the treatment to a protected characteristic. In this case, her race. Because there were no complaints in time, and she was not permitted to amend her claim form, the claims fell away. As such, Mrs Kumari’s claim was dismissed.
At the EAT, Mrs K argued that it was an error in law for the ET to assess the merits of her complaints. The EAT upheld the decision of the ET. The EAT noted that there was no binding authority to support Mrs Kumari’s assertion that it is, as a matter of law, wrong to assess the merits of a case when considering whether to permit an extension of time and or application to amend a claim. As long as the assessment is properly reached by reference to identifiable factors, and it balances that against the fact, it will not have all of the evidence before it at the preliminary hearing.
This serves as a reminder to those pursuing claims of discrimination, particularly for those who are litigants in person, and the importance of being aware of the deadlines and filing your claims in time to avoid having to rely on the just and equitable exception. Early legal advice is important to understand limitation dates. Didlaw has a team of experienced lawyers who can provide practical guidance and support to those wishing to embark on litigation.
The Judgment in Kumari v Greater Manchester Mental Health NHS Foundation Trust can be read here.
This case update was written by Jo Sinclair, Solicitor at didlaw.