Is the strength of the proposed complaint relevant to the question of whether the tribunal should extend the time limit for presenting a claim?
In the recent case of Kumari v Greater Manchester Mental Health NHS Foundation Trust, EAT (2022), the Employment Appeal Tribunal (EAT) held that an employment tribunal is entitled to assess the merits of the proposed complaints when considering whether it is just and equitable to extend the time limit for presenting discrimination complaints. It was also held that a tribunal can assess the merits of a claim when considering whether to allow an application to add a further out-of-time discrimination claim by way of amendment to the original claim.
Kumari brought a claim for race discrimination and harassment a few days after the relevant time limit had elapsed. Kumari’s claim detailed several incidents that were alleged to have occurred during her employment. She also applied to amend her claim to add a further race discrimination complaint which would also have been out of time if it was raised as a freestanding claim.
The tribunal refused to extend the time limit or allow Kumari’s amendment and, in reaching its decision, noted that the complaints lacked merit although not to the extent that the claim had no reasonable chance of success. Kumari appealed, arguing that the tribunal should not view the merits of a complaint when deciding whether it is just and equitable to extend time for a claim brought under section 123(1) Equality Act 2010, or when deciding whether to allow an application to amend an existing claim. Kumari argued that if a tribunal based its decision on the merits of the complaint, it would undermine the strike-out rule which applies to claims that have no reasonable prospect of success. In particular, Kumari asserted that considering the merits of a claim removes the ability for Claimants to make representations at a public preliminary hearing where their claim is at risk of being struck out.
The EAT noted that section 123(1) gives employment tribunals a wide discretion when considering whether the time for presenting a claim can be extended, while case law has established that there is no definitive list of relevant considerations. When considering applications to amend a claim, the EAT noted that this is a case management power based on the ‘balance of prejudice’. Each claim therefore turns on its own facts. On that basis, the EAT considered that the tribunal had conducted its assessment in the appropriate way and that the merits of a claim can be taken into account when considering an extension to the relevant time limits.