Extension of time is possible without explanation for late submission of a discrimination claim

Under the Equality Act, the time limit for bringing discrimination claims is three months from the last act of discrimination (extended for ACAS early conciliation). However, the Employment Tribunal has the power to extend time limits for bringing discrimination claims by any period it considers “just and equitable”.

The Employment Appeal Tribunal (EAT) has ruled that a Tribunal was wrong in deciding it could not, as a matter of law, exercise this discretion where no explanation for the delay was provided in the Claimant’s oral or documentary evidence. 

The Claimant alleged sex discrimination, sexual harassment and victimisation by her employer from November 2015 to February 2020. She claimed these were continuing acts of discrimination. If correct, this meant the time limit for filing a claim would only start to run in February 2020.

The Tribunal found that only the incidents from November 2015 to May 2017 were unlawful, and the rest were not. This meant that the claim was filed too late.  

The Tribunal held that, as no clear explanation was provided in the evidence as to why the Claimant couldn’t bring the claim earlier, their hands were tied and they could not legally extend the time limit. The Tribunal struck out the claim on this basis.

The EAT held that the absence of an explanation for the delay in filing a discrimination claim was not necessarily decisive but rather one factor for the Tribunal to weigh in the balance when assessing extension of time applications. The case was remitted back to the Tribunal for reconsideration.

This case serves as a good reminder to Respondents. Even if the Claimant does not provide an adequate reason for delay in filing a discrimination claim, this does not mean the claim will automatically be struck out. When arguing that an extension of time should not be granted in discrimination claims, Respondents would be wise to also address other factors - for example, whether a fair hearing is still possible and whether there would be any prejudice if an extension of time is granted.