It is a rare case where all allegations of discrimination in
an ET1 have been issued timeously. Thus the possibility of an extension of time
under s123 of the Equality Act 2010 (“EA”) is a matter oft considered. In
conducting that exercise how relevant are the merits of the claim? How do they
impact on the balance of prejudice? What is the position if the Employment
Tribunal rejects an explanation of a Claimant as to their delay in issuing a
Nicholas Siddall analyses the recent judgment of the EAT in Rathakrishnan-v-Pizza
Express  UKEAT/0073/15 and seeks to distill the relevant principles.
The Claimant was a pizza chef employed by the Respondent. He
asserted that he had been subjected to various incidences of unlawful treatment
including a claim of a failure to make reasonable adjustments as regards his
disability. In its ET3 the Respondent had not taken the issue of time but at
the final hearing it became clear that the reasonable adjustments claim had
been issued 17 days late.
The Claimant asserted that the reason why he had not brought
the same within time was that he feared recrimination from the Respondent. The
Employment Tribunal rejected that explanation on the basis that the Claimant
was “not backward in coming forward”. He had also consulted solicitors
timeously and thus the Employment Tribunal held that he had failed to satisfy
them that an extension of time was appropriate.
The Claimant asserted that the Employment Tribunal erred in
dismissing the claim in two respects. They were:
(1) The Employment Tribunal ought to have
weighed the respective balance of prejudice in allowing an extension of time;
(2) In assessing that balancing exercise
the Employment Tribunal erred in failing to make findings as to the merits of
the case having heard all the evidence on that issue at the full hearing.
An additional issue however arose on the basis of a conflict
between the unreported decisions of the EAT in Pathan v South London Islamic Centre  UKEAT/0312/13/DM,
and Szmidt v AC Produce Imports
Limited  UKEAT/0291/14/MC as contrasted with the decision of
Langstaff J in Habinteg Housing
Association Limited v Holleran  UKEAT/0274/14/BA. Habinteg was submitted to suggest that in the absence of a credible explanation for
the delay then an extension of time was not open to a Claimant.
The judgment of HHJ Clark is characteristically
illuminating. From a review of the authorities he derived the following
(a) The onus is on a Claimant to advance a
case why a just and equitable extension of time is appropriate. In the absence
of a case then such an argument must fail.
(b) That situation is different from one
where an explanation has been given and then rejected. The rejection of a
proffered explanation does not disentitle the Claimant to an extension of time
and the decision of Habinteg is (if to be understood as preventing the same) is
incorrect in that regard.
(c) Whilst the balance of prejudice is
not referred to in s33 of the Limitation Act 1980 Employment Tribunals are
correct to have regard to the same. It is a multi-factoral assessment with no
one consideration being determinative.
(d) Having heard all of the evidence as to
the merits of the reasonable adjustments claim the Employment Tribunal was in
error in not addressing the same in its decision as they were relevant to the
balance of prejudice assessment.
A close reading of Habinteg suggests that the decision
does not suggest that rejected explanation disentitles a Claimant from an
extension of time as a matter of course. Thus the perceived disagreement
between Langstaff J and HHJ Peter Clark may not be of huge consequence. However
this decision offers comfort to Claimants (and their representatives) that an
Employment Tribunal’s rejection of their reasons for any delay is not a “knock
out” as regards their prospects of an extension of time
However a wider issue of concern for Respondents is the
observation by the EAT that in determining an extension of time at a full
hearing the Employment Tribunal is required to consider and assess the merits
of the case in assessing the balance of prejudice. Thus there is every
incentive for Respondents to seek to persuade an Employment Tribunal to hold a
preliminary hearing, if it can, to address such issues before evidence as to
their merits is heard. Otherwise the Employment Tribunal is required to
consider the same. It may well have been the case that in the past that Employment
Tribunals were subconsciously influenced by the merits of the case in deciding
to extend time. However the import of the decision in Rathakrishnan is now that
they shall commit an arguable error of law if they fail to be so influenced.