It can be dangerous to wait to submit an Employment Tribunal claim

If you want to bring a discrimination claim in the Employment Tribunal, it is crucial to consider time limits. A strict time limit applies and a Tribunal will rarely accept a claim submitted out of time. 

The statutory time limit for submitting discrimination claims is three months minus one day from the act complained of. In practice, a worker needs to submit an Acas notification form within this 3-month period. If a worker has been subjected to a number of discriminatory acts, and it can be proven that those acts form part of a series of acts, then the time limit may start from the last act in the series of acts complained of. It pays always however to be cautious and you should check the time limits as soon as you are aware you might have a case. 

In rare circumstances, a Tribunal may extend the time limit, to enable a claim that would have otherwise been out of time to be heard. When deciding whether to grant a time extension in discrimination claims, the Tribunal is required to consider whether it would be ‘just and equitable’ for the time limit to be extended in the circumstances of the case. They rarely agree that there was a good reason for the time limit to be missed. 

One scenario which sometimes results in Claimants asking Tribunals for a time limit extension, is when Claimants discover the alleged discriminatory conduct significantly after the discrimination occurring. A Tribunal will sometimes allow an extension of time on the basis of late discovery of the discrimination occurring. Whether they do grant an extension will depend on the specific facts of each case. 

Jones v The Secretary of State for Health and Social Care [2024]

This issue was addressed by the Employment Appeal Tribunal (‘EAT’) in the case of Jones v The Secretary of State for Health and Social Care. The Claimant brought claims for race discrimination. He believed he was not appointed to a role because of his race. The role was offered to another candidate in April 2019, therefore the standard time limit would have required the Claimant to submit his claim by July 2019.The Claimant did not start Acas Early Conciliation until September 2019. This was some three months after the standard time limit had expired.  

The Claimant asked for an extension on the basis that he was not informed of the race of the individual who was appointed to the role he applied for. He submitted his claim after he became suspicious by the delay in the recruitment process, and because of comments made by the employee managing the recruitment process.

The Employment Tribunal decided that it was not just and equitable to extend time, on the basis that the Claimant had the ‘raw material to make a claim’ in August and he was aware of time limits. The Tribunal accepted that he was on an ‘information gathering exercise’, but stated there was no reason he had to wait for this process to conclude before submitting a Tribunal claim. The Tribunal held that the Claimant had sufficient information about the basis of the claim in July, when he was informed he had not been given the job.  

The Tribunal also found that the Respondent would have disclosed the successful candidate’s race earlier if the Claimant had complied with their Freedom of Information policies. 

The Tribunal considered the balance between how the Claimant would be unfairly prejudiced if the extension was not granted, and how the Respondent would be unfairly prejudiced if the extension was granted. They stated that the Respondent would be unfairly prejudiced because of the impact on the evidence: an earlier claim would have resulted in greater preservation of documents and witness statements being taken sooner for more accurate recollection. 

The Claimant appealed to the EAT, to determine whether the Employment Tribunal had failed to sufficiently consider the fact that the Respondent delayed telling the Claimant the ethnicity of the successful candidate until the Tribunal proceedings had commenced. The Claimant asserted that he could not be expected to bring a claim whilst he did not know the race of the successful candidate, because the race of the successful candidate was a necessary component of the race claim.

The EAT rejected the appeal against the Employment Tribunal’s decision to not grant an extension. The EAT stated that the original Tribunal had considered the delay in the Respondent informing the Claimant of the successful candidate’s race, and the Tribunal had used its discretion appropriately in refusing to grant the time extension. The EAT referred to the Claimant already being suspicious in July 2019 when he was informed he was unsuccessful. The EAT noted that the Claimant then submitted his claim to the Tribunal whilst still not having confirmation of the race of the successful candidate, undermining the argument that he could not submit a claim without knowing the race of the successful candidate. 

The Tribunal and the EAT provided valuable insight in this case as to how they assess cases when considering whether to grant time limit extensions. Both tribunals noted in this case that the Claimant had suspicions in July and was aware that submitting tribunal claims was time-sensitive but he chose to delay starting Acas Early Conciliation . 

And the moral of this tale? If you suspect discrimination, start your claim within the 3-month time limit. Never risk waiting to receive the full facts before submitting a claim if their time limit is about to expire.  

This blog was written by Yavnik Ganguly, Solicitor at didlaw.