Asking a tribunal to extend time is always going to be difficult

In Holgrove v Cosgrove & Ors the EAT upheld the decision of the Tribunal that it was not just and equitable for time limits to be extended for a belief discrimination claim that was submitted after the learning the outcome in Forstater v CGD Europe and Ors. 

The Claimant, a practising barrister had presented his claim five months out of time and sought an extension of the time limit on the basis that he had delayed because the original tribunal outcome in the Forstater case meant he considered his claim to have little prospects of success. The Forstater decision was overturned by the EAT on 10 June 2021 yet the Claimant, did not present his claim until September 2021 having not read the Forstater EAT judgment until August 2021 as he had been ‘preoccupied’ with Bar Standards Boards proceedings against him that related to his social media activity. On reading the EAT judgment in Forstater the Claimant realised he may have a claim and presently it shortly thereafter.  He contended that in the circumstances, it was just and equitable for the Tribunal to extend time.

Following a Preliminary Hearing, the Claimant’s application to extend time was rejected on the basis that he had not reasonably held the belief that his claim would not succeed, the BSB proceedings were not enough of a reason for the Claimant not to have read the Forstater EAT judgment and that the balance of prejudice pointed to the refusal of an extension of time.  

The Claimant appealed to the EAT citing that the Tribunal had failed to appreciate the significance of the ‘conflict of rights’ test in Grainger both before and after the EAT’s decision in Forstater. The Claimant asserted that the landmark decision by the EAT in Forstater meant that his belief may not have been afforded protection in the past and would not certainly qualify.

The EAT dismissed the appeal and rejected the Claimant’s argument based on Grainger. It also went on to decide that even if the appeal decision in Forstater was landmark the Tribunal had been entitled to reject the Claimant’s case that his preoccupation with the BSB proceedings was a reasonable explanation as to why his tribunal claim was presented out of time and three months after the EAT decision in Forstater had been handed down. The EAT noted that there was no error of law in the Tribunal’s decision in respect of prejudice and the value of the claim was not a reason for an extension to be granted and nor was the fact that the Claimant felt his case to be seminal in the area of free speech. All his arguments were rejected by the EAT when considering the exercise of discretion in extending time.  

This is another case that highlights the strict time limits for pursuing employment tribunal claims. The exercise of discretion in extending time is narrow and designed to apply to the few rather than the many. If you can issue your claim within the time limit you must. If you cannot then it must be presented as soon as reasonably practicable after the time limit. Any delay beyond that will be fraught with difficulty. 

This blog was written by Elizabeth McGlone, Partner at didlaw.