Jones v Secretary of State for Health And Social Care

Factual and Procedural Background

The appeal concerns the application of the "just and equitable" test for extending the time limit to bring a discrimination claim. The Plaintiff, a person of African-Caribbean descent, applied for a role at Company A on 8 March 2019 and was interviewed on 28 March 2019. Although considered appointable and scoring second highest among four candidates, the Plaintiff was not appointed. The successful candidate, who was white, was offered the role on 2 April 2019. The Plaintiff was only informed on 3 July 2019 that he had not been appointed, after repeated inquiries, which was found to be due to a genuine error. The primary three-month limitation period to bring a claim had expired two days earlier.

The Plaintiff raised queries about the ethnicity of other candidates and initiated a grievance on 24 July 2019, putting Company A on notice of a potential tribunal claim. Company A refused to disclose the ethnicity of the successful candidate citing data protection concerns and adherence to Freedom of Information policies, which the tribunal found was a procedural compliance rather than deliberate concealment. The Plaintiff commenced early conciliation with ACAS on 30 September 2019 and submitted a claim form on 29 October 2019, naming the Respondent as responsible for Company A.

The Respondent denied discrimination, asserted the claim was out of time and without merit, and applied to strike out the claim. The Employment Tribunal (ET) dismissed the claim on its merits, finding no evidence of discrimination and rejecting the Plaintiff’s delay in submitting the claim as unjustified. The Employment Appeal Tribunal (EAT) dismissed the Plaintiff's appeal against refusal to extend time, holding no error of law by the ET. The Plaintiff was granted permission to appeal to this court on the basis that the ET’s refusal to extend time was perverse, particularly given the Respondent’s failure to disclose the ethnicity of the successful candidate until a preliminary hearing.

Legal Issues Presented

1. Whether the Employment Tribunal erred in refusing to extend the time limit to bring the discrimination claim under the "just and equitable" test in section 123 of the Equality Act 2010.
2. Whether the Employment Appeal Tribunal correctly applied the legal test regarding prior knowledge and suspicion in deciding not to extend time.
3. Whether the existing test for prior knowledge, as applied in Barnes v Metropolitan Police Commissioner, is fair and appropriate.
4. Whether the Employment Tribunal’s refusal to extend time was perverse, given the Respondent’s withholding of information about the ethnicity of the successful candidate.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal’s finding that the Plaintiff had sufficient information by early July or August 2019 to bring a claim was incorrect.
• The delay in filing the claim was due to the Plaintiff seeking essential information about the ethnicity of the successful candidate, which was withheld by the Respondent.
• The Plaintiff’s information gathering should not have been held against him as it was necessary to bolster the claim.
• The existing "reasonable suspicion" test from Barnes v Metropolitan Police Commissioner is unfair and should be modified to focus on when the claimant had sufficient knowledge of facts to establish a claim, not mere suspicion.
• The refusal to extend time was perverse and should be set aside.

Respondent's Arguments

• The Employment Tribunal acted within its wide discretion in refusing to extend time, as the Plaintiff was aware by August 2019 that he had grounds for a claim.
• The Respondent provided sufficient information early on and did not hamper the timely presentation of the claim after 3 July 2019.
• The Plaintiff’s firm belief of discrimination, even without full knowledge of the successful candidate’s ethnicity, was significant.
• Appeals against refusal to extend time are rare and should only succeed if there is a clear error of law or perversity, which is not present here.
• The legal principles set out in established case law, including Caston and Abertawe Bro Morgannwg University Local Health Board v Morgan, support a wide discretion for the tribunal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bexley Community Centre v Robertson [2003] EWCA Civ 576	Wide discretion for Employment Tribunal to decide what is just and equitable in extending time limits.	Reiterated the tribunal’s broad ambit in exercising discretion on time extensions; no fixed formula.
Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298	Emphasises the wide discretion of ETs and rarity of appeals against refusal to extend time.	Supported the principle that appeals against refusal to extend time should be rare and only succeed on clear error.
Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 64	Employment Tribunal has the widest discretion to decide what is just and equitable; limited grounds for appeal.	Affirmed that tribunals are not bound to specific factors but must not omit significant ones; appellate courts should not substitute their view.
Barnes v Metropolitan Police Commissioner UKEAT/0474/05	Test for prior knowledge and reasonable suspicion relevant to discretion to extend time.	Applied by EAT; Court questioned fairness of the test and suggested modification to focus on knowledge of facts rather than suspicion.
Yeboah v Crofton [2002] EWCA Civ 794	High threshold for perversity appeals; must show no reasonable tribunal could have reached the decision.	Referenced to underline the difficulty of establishing perversity in appeals against ET discretion.

Court's Reasoning and Analysis

The court analysed the Employment Tribunal’s exercise of discretion under the "just and equitable" test in section 123 of the Equality Act 2010. It found that the ET erred in principle by concluding the Plaintiff had the necessary information to bring a claim by early July or August 2019. The court emphasised that mere suspicion is insufficient to trigger the time limit; rather, the claimant must have sufficient knowledge of facts to establish a claim.

The court noted that the Respondent had withheld the ethnicity of the successful candidate until the preliminary hearing, which was a significant factor contributing to the Plaintiff’s delay. The ET failed to properly consider this in its balancing of prejudice between parties. Additionally, the ET improperly held the Plaintiff’s information gathering against him, despite the necessity of that information to formulate a claim.

The court acknowledged the wide discretion granted to Employment Tribunals in these matters but highlighted that the ET must explicitly consider the length and reasons for delay and any prejudice caused to the Respondent. The ET’s failure to address these properly amounted to an error in principle.

The court also addressed the existing test from Barnes v Metropolitan Police Commissioner, expressing disagreement with the emphasis on suspicion as a trigger for time limits and suggesting a more appropriate focus on when the claimant had sufficient factual knowledge.

Accordingly, the court found the ET’s refusal to extend time was perverse, falling outside the wide ambit of reasonable decisions, and that the EAT’s upholding of this decision was also incorrect.

Holding and Implications

The court ALLOWED the appeal on the grounds that the Employment Tribunal’s refusal to extend time was perverse and set aside the order of the Employment Appeal Tribunal that upheld that refusal.

The case was remitted to the Employment Appeal Tribunal for reconsideration of the other grounds of appeal relating to the merits of the discrimination claim. No determination was made on the merits at this stage.

This decision clarifies the application of the "just and equitable" test under section 123 of the Equality Act 2010, particularly emphasizing that mere suspicion is insufficient to trigger limitation periods and that tribunals must carefully balance reasons for delay and prejudice. It also signals judicial willingness to reconsider established tests such as that in Barnes v Metropolitan Police Commissioner.