Emily Edwards
Posted on 26 Jan 2021

Time extension refused for alleged misunderstanding of early conciliation rules

Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23

The Court of Appeal has upheld an Employment Judge's refusal to extend time for a race discrimination claim following a claimant's alleged misunderstanding of the early conciliation rules which resulted in the claim being presented three days' late.

Background

Mr Adedeji (the Claimant) was employed by University Hospitals Birmingham NHS Foundation Trust as a consultant surgeon. He resigned in May 2017 and brought claims of constructive unfair dismissal and race discrimination after a lengthy capability and conduct process. He initially notified Acas under the Early Conciliation (EC) procedure on 20 May 2017, but then told Acas on 23 May that he was withdrawing his application so that he could wait until he could get representation. On 23 May, Acas issued an EC Certificate "to confirm that the prospective claimant has complied with the requirement under Employment Tribunals Act 1996 s18A to contact Acas before instituting proceedings in the Employment Tribunal". On 16 November, the Claimant contacted solicitors with a view to obtaining representation; the solicitors advised that he should present his claim by 24 November. The Claimant was again notified on 24 November of the deadline to bring his claim, however the Claimant believed that he had the benefit of an extension of time under the EC rules. The Claimant subsequently brought the claims of constructive unfair dismissal and race discrimination 3 days outside the time limits.

What did the ET find?

The ET ruled that the Claimant’s claims were out of time and that it was reasonably practicable for him to present his unfair dismissal claim in time, therefore it was not ‘just and equitable’ to extend time for the race discrimination claim.

What did the Employment Appeal Tribunal (EAT) find?

The EAT dismissed the majority of the Claimant's appeal, only allowing the appeal to proceed regarding the matter of the just and equitable extension for the alleged discriminatory constructive dismissal claim.

What did the Court of Appeal (CofA) find?

The Court of Appeal dismissed the appeal. There were two distinct aspects:

  1. the impact of the three days' delay; and
  2. the Claimant's misunderstanding of the position about the Acas certificate (which he had claimed was a nullity).

The starting point had to be that the EC certificate was valid, meaning the Claimant's discrimination claim was presented out of time and the Employment Judge had to consider if there was a reasonable excuse for that. The CofA noted that the Claimant had left it until very near the expiry of the primary deadline to take advice and that the alleged discriminatory acts took place long before the employment was terminated, therefore he could have complained of them when they occurred or immediately following his resignation. Whilst the Judge did not treat this factor as decisive when coupled with the fact that the Claimant also chose not to act on legal advice, the Judge placed more weight on the absence of any good reason for the delay.

Key take-away points

The CofA's decision provides important guidance on the exercise of the ‘just and equitable’ discretion in cases where the delay in presentation was only short. The CofA also re-emphasised that time limits in the Employment Tribunal are to be applied strictly.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.