A ‘just and equitable’ extension can be granted without explanation for delay

A recent Employment Appeal Tribunal (EAT) judgment has found that a claimant does not need to explain why they have brought their claim out of time for a ‘just and equitable’ extension, which would allow for late submission to be granted.

In the case of Owen v Network Rail Infrastructure Ltd (NRI), the Claimant was employed by NRI as a signaller. She brought a claim for sex discrimination and harassment on 4 June 2020 in relation to alleged sexist behaviour by male colleagues that occurred between November 2015 and May 2017. In addition, Owen complained about the way in which her internal grievance appeal had been handled by NRI between June 2017 and February 2020.

Whilst the Employment Tribunal (ET) accepted that there may have been merit in relation to Owen’s allegations about the various incidents that occurred between 2015 and 2017, it did not accept that the way NRI had handled the grievance formed part of the ‘continuing act of discrimination’. This meant that the claim was presented out of time. The ET held that, if the Claimant wished for the claim to be considered then ‘some explanation for the delay was, as a matter of law, a pre-requisite for the extension of time’. In the absence of an explanation, the ET concluded that it was precluded from considering an extension.

Upon appeal, the ET’s ruling was overturned on a point of law. Whilst the EAT acknowledged that there had previously been conflicting judgments, the recent case of Concentrix v Obi (2022) – which coincidently was published after the ET gave its reserved decision in the Owen case – had settled this point: there is no rule of law that the tribunal is bound to refuse an extension in the absence of an explanation for delay.

Arguably, this a case of extraordinary good timing. However, it also serves as a reminder of the wide discretion the ET has when considering an extension of time for late claims.

It is up to the ET to decide what factors are relevant, and what weight it attaches to each, when exercising its discretion to grant an extension of time. Whether there is evidence provided to explain a delay or not will all be thrown into the mix and balanced against other evidence and relevant factors. The absence of evidence to explain a delay is not necessarily a deciding factor to grant or refuse an extension of time.

Nonetheless, to give a claimant client the best chance of success, it’s always best to explain and evidence a late submission.

If you have any questions about the issues raised in this case, please call our Employment Law team today on 0113 207 0000.