Out of time, but not out of the running

The EAT handed down its judgement in the appeal of Abertawe Bro Morgannwg University Local Health Board v. Morgan this month. The case is a reminder of the ability of the Tribunal to extend time for a claimant to bring their claim.
Ms Morgan was a psychiatric nurse therapist. Her employer dismissed her for being incapable of work due to reasons of ill health. She had been absent for 17 months due to severe depression. The Claimant filed claims to the Tribunal of disability discrimination (including breach of the duty to make reasonable adjustments), harassment and unfair dismissal.
The Tribunal heard the claim in early 2013. It upheld the claims of harassment arising from the conduct of two individuals, and the reasonable adjustments claim. The Tribunal found the Board should have re-deployed Ms Morgan to a suitable role. The Tribunal noted that Ms Morgan had presented all claims outside the normal three-month time limit, with one claim being made some three years after the incidents that gave rise to the claim occurring. However, the Tribunal decided that it would be just and equitable to extend time.
The Board appealed to the EAT. The EAT did not agree with the Tribunal’s findings on the reasonable adjustments claim and the EAT remitted the case to the Employment Tribunal. It also found the Tribunal had erred in its decision to extend time since it should have looked at the claims separately and considered the reason for Ms Morgan submitting the claims late. The EAT also remitted these matters to the Tribunal.
The matter did not come before the Tribunal until 9 February 2015. At the hearing the Tribunal agreed to extend time for the reasonable adjustments claim. On the harassment claims, the Tribunal decided to only extend time for one complaint.
The Board appealed against the Tribunal’s decision. The EAT referred to section 123 of the Equality Act 2010. This provides:
“(1) [Such 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 is just and equitable.…”
The EAT noted that it remains for the Claimant to persuade the Tribunal to exercise a judicial discretion to extend time. It also noted the Tribunal will do so if persuaded that, taking account of all relevant circumstances, it is “just and equitable” to do so. The Tribunal will consider the period of delay in presenting the claim. It will consider the reason(s) the Claimant did not present the claim within the initial three months and during any following period of delay. The Tribunal will consider the credibility and acceptability of the reasons. Finally, the Tribunal will consider the prejudice that each party will suffer because of a decision to extend or not to extend time.
The EAT undertook a critical analysis of the Tribunal’s reasoning in finding that time could be extended. It looked at the prejudice to both parties in extending time. The EAT was mindful of the fact Ms Morgan had been poorly and unable to pursue her claim and that if it did not extend time she would be unable to bring a well-founded claim. It also considered the Tribunal’s finding that Ms Morgan was pursuing an internal grievance intending to fully resolve her concerns. Her ill health also delayed this. The EAT did criticise the Tribunal for not expressing its reasons in a better way. However, it found the Tribunal did not take into account any matters which it should not have, or reach a conclusion which could be described as perverse. Therefore, the EAT found no basis on which to interfere with the Tribunal’s decision.
The case will now be remitted to the Employment Tribunal to determine appropriate remedies.

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Verity Buckingham

About Verity Buckingham

Verity is experienced in all aspects of employment law and corporate immigration matters. She deals mostly with corporate clients advising on contentious and non-contentious employment matters. Verity's contentious practice includes defending claims in the Employment Tribunal and experience of Employment Appeal Tribunal litigation in relation to claims of unfair dismissal, discrimination, equal pay and whistleblowing.

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