Was pursuing an internal grievance process sufficient reason to extend the time limit to bring discrimination claims?

In some cases, delaying legal proceedings to pursue a grievance process will mean it is just and equitable to extend time.

How long do claimants have to bring a discrimination claim?

The time limit for employees to bring claims under the Equality Act 2010 to an employment tribunal is three months from the date of the act complained of, or the date of the last in a series of discriminatory acts. In practice, this means that potential claimants must notify Acas of their complaints within three months of this date for the purposes of early conciliation before proceeding with a claim to an employment tribunal.

Unlike unfair dismissal claims, Equality Act claims can be brought during employment and employees may decide to begin legal proceedings before any internal processes are concluded to ensure that their claims are not out of time.

When will the time limit for discrimination claims be extended?

In general, time limits in the employment tribunal are strict and there is a presumption that the time limit will not be extended.

Employment tribunals can decide to allow Equality Act claims to proceed which they consider have been presented within a further “just and equitable” period after the normal time limit. The onus will be on the claimant to persuade the tribunal that there is some good reason why it would be just and equitable to extend time in the given case.

This is a discretionary decision for the tribunal to make but there are some common factors which are usually considered based on case law. These include:

• the prejudice to the claimant in not being able to pursue time-barred claims;
• the prejudice to the respondent in having to defend claims which would otherwise be time-barred;
• the extent of the delay;
• the reasons for the delay; and
• whether the claimant had taken legal advice and was aware of the time limits.

Case law has made clear that there is no automatic extension of the time limit where the delay is due to an internal grievance process.

A recent decision of the EAT has provided useful guidance on when tribunals will decide it is just and equitable to extend time because of an internal grievance process.

Case details: Wells Cathedral School Ltd v Souter & Leishman

Mr Souter and Ms Leishman (a married couple) were employed by Wells Cathedral School as Head of Strings and a visiting violin teacher respectively. Ms Leishman was diagnosed with cancer and had an extended period of absence. She alleges that on her return to work, she was subject to discriminatory acts including that she was not permitted to return to her full teaching roster and was subjected to an informal capability process. She submitted a data subject access request. Mr Souter then had sight of documents which he alleged showed that he had been discriminated against in relation to his wife’s disability. Some of their allegations dated back to 2016.

Ms Leishman presented an internal grievance in August 2018, assisted by her solicitors. The grievance outcome of October 2018 was not in her favour. On appeal, the original grievance decision was upheld on 21 December 2018. Ms Leishman resigned on 4 January 2019. She completed Acas early conciliation and presented her discrimination and constructive dismissal claims on 26 April 2019.

Mr Souter was signed off work with stress from January 2018 and presented his own grievance in July 2018, again assisted by solicitors. Grievance hearings were held in February and March 2019, but the panel appointed to consider his grievance withdrew in April 2019 and it was not concluded. Mr Souter resigned on 25 April 2019. Following completion of the Acas early conciliation process, he presented his discrimination and constructive dismissal claims on 26 July 2019.

The factors considered by the employment tribunal

The employment tribunal had to consider at a preliminary stage whether the claimants were out of time to bring their Equality Act claims. The tribunal decided that both claimants had brought their claims within a just and equitable period and so their claims could continue to a full hearing.

In making this decision the tribunal considered the following factors which weighed against allowing the extension:

1. The delay was considerable in this case, being some months in respect of many of the allegations, and years in the case of others;
2. The claimants were aware of the relevant facts by Spring or Summer of 2018; and
3. The claimants did not argue that they had received negligent advice and appeared to have taken deliberate decisions not to issue legal proceedings sooner.

However, the following factors in the claimants’ favour weighed more heavily and were the basis of the tribunal’s decision to allow an extension of time:

4. Although a grievance does not automatically make it just and equitable to extend time, it can be a relevant factor. The tribunal stated that the grievances were relevant in two ways:
a. they showed the claimants' desire to pursue an internal process with a view to resolving their differences with their employer and this was to be encouraged; and
b. more importantly, they served to “crystallise” the allegations and put the employer on notice that the claimants considered that their treatment had been discriminatory, that they had received advice, had contemplated proceedings and were pursuing internal procedures first. This allowed the employer to take steps to investigate and preserve evidence around the allegations.
5. When considering prejudice to the respondent, the tribunal took into account that it had notice from Summer 2018 that the claimants considered they had discrimination claims, and there was no suggestion that the cogency of either oral or documentary evidence had been affected by the delay.

The EAT decision

The EAT dismissed the employer’s appeal against this preliminary decision.

It made clear that tribunals have a wide discretion to decide whether it is just and equitable to extend time in discrimination claims, and held that the tribunal was entitled to find from the facts in this case that there was no significant prejudice to the respondent caused by the delay. However, it made clear that this will not be the same in every case, that there is no automatic extension of time where an employee raises a grievance, and that there will be cases where delay because of a grievance process will not mean it is just and equitable to extend the time limit.

The EAT also noted that the tribunal had considered the prejudice to the respondent in having to defend otherwise time-barred claims and had taken into account that many of the allegations would need to be considered in any event in relation to the constructive dismissal claims.

The window of uncertainty

The time limits for bringing claims in the employment tribunal provide employers with some certainty as to when the risks of a claim will subside. However, as can be seen in this case, there are circumstances where claimants will be allowed to present claims after the normal time limit. Employers should be alert to this extended period of uncertainty and ensure that document retention policies and risk management procedures take this into account.

In other employment claims, such as unfair dismissal, tribunals must rather decide whether it was “not reasonably practicable” for the claimant to bring the claim within the normal time limit. It is arguably easier for claimants to persuade a tribunal to extend time in discrimination claims because the tribunal has wider discretion and can take any factors into account when deciding on what is a just and equitable period in which the bring the claim.

Employers should also be aware that the time limit for bringing a discrimination claim can be extended by further allegedly discriminatory acts, including allegations of victimisation relating to previous complaints about discrimination. This might include the way a grievance process has been handled, or the grievance outcome itself. Readers may be interested in our recent article on a related topic: Is there a risk of discrimination claims where disability is first raised in a post-dismissal grievance process (available on our website).