Can a grievance extend time for pursuing a claim in the Employment Tribunal for discrimination?

January 18th, 2022

In order to pursue an Employment Tribunal claim for unlawful discrimination contrary to the Equality Act (for example age, sex, race, disability, sexual orientation, religion or belief), there is a very strict three month time limit to commence such a claim. Ordinarily this means that an employee must commence the ACAS Early Conciliation process within three months of the act of discrimination complained of. However, I am often asked whether employees who miss this time limit can still pursue claims out of time.

The short answer is possibly. An Employment Tribunal has a discretion to extend the relevant time limit on a “just and equitable” basis. There are many factors that would be relevant to the exercise of an Employment Tribunal’s discretion in this regard. An employee’s knowledge of the relevant time limit and indeed access to legal advice will always be relevant, as will the explanation for any delay. Employees often assume that if they are pursuing an internal grievance about discrimination, the time limit will run from when that internal process has been exhausted. This is not necessarily the case. Whilst the pursuit of an internal grievance process is a relevant factor for an Employment Tribunal to consider, it is not always a determinative factor. That said, it will clearly be one of a number of factors for an employee to rely upon in attempting to persuade a Tribunal to allow them to pursue a complaint out of time.

The recent case of Wells Cathedral School Limited v. Souter is a good example of this. In that case, the two claimants were out of time for pursuing their claims for disability discrimination. Both claimants had submitted grievances and argued that they had effectively been attempting to resolve the matter without recourse to litigation. They also made the point that no prejudice could have been caused to their employer by the delay when it came to assessing and considering relevant evidence as the evidence was fully considered during the grievance process. Whilst the Tribunal did not treat the existence of either the grievances or the lack of any prejudice as decisive to the application to extend time, both factors were clearly relevant. However, interestingly, the Employment Appeal Tribunal commented that it was relevant that the claimants’ attempts to pursue internal resolution were genuine and that the decision ran very close to the margin. Clearly, therefore, employees cannot be guaranteed to be successful in relying upon an internal grievance process in extending the relevant time limits.

In the circumstances, my advice would always be to seek immediate legal advice on your options when considering a potential discrimination claim, as the three month time limit is very short.

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