Under section 123 of the Equality Act, claimants have to lodge their complaint within a three-month time limit, unless the tribunal thinks it is “just and equitable” to extend time. In Owen v Network Rail Infrastructure Ltd, the EAT held that tribunals are not bound by law to refuse an extension of time just because the claimant did not provide a reason for the delay in bringing their claim.
Basic facts
After moving to the signal centre at Wimbledon in November 2015, Ms Owen claimed that she was subjected to numerous incidents of direct sex discrimination and/or harassment by a number of male colleagues. She first raised her concerns in June 2017 and subsequently lodged a formal grievance in November that year, which was rejected. Her appeal against that decision, which was finally decided in February 2020, was also unsuccessful.
In June 2020, she lodged tribunal proceedings relating to the alleged conduct of colleagues between November 2015 and May 2017 as well as the way in which her grievance had been handled between November 2017 and February 2020.
Tribunal decision
The tribunal accepted Ms Owen’s factual account of her complaints during the period up to May 2017 and found that Network Rail’s investigation of her grievance had been a “shambles”.
However, it held that her claims were out of time unless it could find a link between them and her post-grievance allegations that would form a continuing act of discrimination. Despite the deficiencies of the investigation, the tribunal concluded that these had not arisen because of Ms Owen’s sex, but because the managers who investigated her complaints were not adequately trained or properly supported.
The only other option open to Ms Owen was to convince the tribunal that it would be “just and equitable” to extend time under section 123 of the Equality Act 2010. Noting that she had not provided any reason for the delay, despite receiving advice and assistance from her union early on in the process, the tribunal concluded that it could not extend time and dismissed the claim.
Ms Owen appealed arguing (among other things) that the decision in Abertawe Bro Morgannweg University Local Health Board v Morgan (LELR 573) had made clear that the legislation does not require claimants to provide a “good reason” for a delay before a tribunal can decide that it was “just and equitable” to extend the limit.
EAT decision
Noting the decision in Morgan, the EAT held that the tribunal was wrong to conclude that because Ms Owen had not given a reason for the delay, it was bound to refuse to extend time, as a matter of law.
Although this did not, in and of itself, mean that the tribunal had got the decision wrong, it clearly believed that its hands were tied when it said that it had to “reluctantly” conclude that because Ms Owen had not provided any evidence, it could not exercise the discretion to extend time. Likewise, it had said that “without explanation from the claimant, it is not possible for the tribunal to extend time.”
As the EAT pointed out, those statements suggested that the tribunal wanted to provide Ms Owen with a remedy but that because she had failed to explain the delay in lodging tribunal proceedings, it was legally not possible for it do so.
As the decision in Adedeji v University Hospitals Birmingham NHS Foundation Trust (LELR 709) made clear, tribunals should assess all the factors that they consider to be relevant which include the length of, and the reasons for, any delay.
As delay was not, therefore, the only factor to consider, the EAT allowed the appeal and remitted the case to the same tribunal.
