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‘Just and Equitable’ Extensions of Time: Assessing the Merits

08.09.22

In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, the EAT has held that an employment tribunal may, at a preliminary hearing, take into account its assessment of the merits of a claim when deciding whether to extend a limitation period on the ‘just and equitable’ basis or to allow an amendment.

Claims prima facie out of time and subject to amendment

The claimant presented complaints of race discrimination. In her claim form, she referred in vague terms to numerous incidents and allegations. All had been presented after the expiry of the primary three-month time limit. Accordingly, a judge ordered the claimant to particularise her complaints and listed a preliminary hearing to determine whether, under s. 123(1)(b) of the Equality Act 2010, the limitation period should be extended on the ‘just and equitable’ basis.

When the claimant provided the ordered particulars, she added a further allegation of race discrimination. The tribunal decided that an application to amend the claim was needed if this further allegation was to be advanced.

At the preliminary hearing, the tribunal, after hearing evidence from the claimant, held that it was not just and equitable to extend time, and refused to grant permission to amend the claim. In so deciding, the tribunal took into account on the ‘just and equitable’ question that “the claim does seem to be very weak”; and on the amendment application, it factored in that the proposed new allegation also appeared to be “a weak claim”. The tribunal stopped short (understandably: because it was not faced with a strike-out application) of finding that the claims had no reasonable prospect of success.

The decision on appeal

The tribunal’s assessment of the merits was not, of course, made after it had heard all, or indeed any, of the substantive evidence which it would hear at a final hearing. Nonetheless, the EAT (HHJ Auerbach sitting with members) upheld the tribunal’s decision. The essential reasoning of the EAT was principled, pragmatic and worth quoting in full, as follows.

As to the ‘just and equitable’ test, the EAT held:

  1. The tribunal is therefore not necessarily always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform.
  2. So: the tribunal needs to consider the matter with care, identify if there are readily apparent features that point to potential weakness or obstacles, and consider whether it can safely regard them as having some bearing on the merits. If the tribunal is not in a position to do that, then it should not count an assessment of the merits as weighing against the claimant. But if it is, and even though it may not be a position to say there is no reasonable prospect of success, it may put its assessment of the merits in the scales. In such a case the appellate court will not interfere unless the tribunal’s approach to assessing the merits, or to the weight attached to them, is, in the legal sense, perverse.

As to applications to amend, the EAT held:

  1. Turning to applications to amend, the overriding test is balance of prejudice and every case turns on its own facts as to what may be the relevant considerations in that case and the weight to be attached to them. Once again, there is no prescribed test or approach to the question of the merits, whether in statute or in rule. Once again, if the merits can be properly and fairly assessed as falling below the no-reasonable-prospect threshold, then the application should plainly not be allowed as it would be pointless; and, even if the prospects are thought to be better than that, this may still in a given case be outweighed by other factors leading to a refusal of permission to amend.

After a careful review of the authorities cited to it, the EAT found nothing which required a different approach to that set out in the passages quoted above.

Practice points

It may be predicted that employment judges will henceforth find citations of Kumari to be a common refrain in the submissions they hear on applications for amendment and for extensions of time. Although the reasoning in Kumari is perhaps unsurprising given the well-established proposition that on such applications “there is no necessarily definitive or exhaustive list of considerations that a tribunal may or must regard as relevant or irrelevant”,[1] it is likely to be relied on to argue that the strength or weakness of a claim should be actively considered when a party seeks to extend the limitation period or to amend.

The key point in making such arguments will be to anchor them in specific and identifiable features of the pleadings, evidence or other material before the tribunal. Kumari does not open the door to mini-trials, nor does it endorse a tribunal expressing a “general view” of the merits unsupported by any “reasoned basis”.[2] The usual caveats about summary disposals of discrimination claims remain. But if there is a rational argument to be made about the prospects of a claim succeeding, this factor should not now be held to be irrelevant.

[1] Kumari at [55].

[2] Kumari at [88].

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