In claims for discrimination, it is a legal requirement that a claim is issued (or ACAS Early Conciliation commenced) within three months of the act complained of. This time limit can only be extended in discrimination cases if the tribunal deems, on the facts, that it would be “just and equitable to do so”. In the recent case of Holbrook v Cosgrove and others, the Employment Appeal Tribunal emphasised the importance of claims being issued in a timely manner.
In this case, the Claimant was a barrister who was expelled from his Chambers after expressing socially conservative views on twitter. His expulsion occurred on 1 February 2021. The primary time limit for any belief discrimination claim was, therefore (subject to any extension for ACAS Early Conciliation), 30 April 2021. The Claimant did not submit his claim for belief discrimination until 30 September 2021, five months out of time.
The Claimant made an application for an extension of time, claiming that he had only realised that his socially conservative views may form a protected belief under Equality Act 2010 when the EAT handed down its judgment in June 2021 in the case of Forstater v CGD Europe Ltd (which had held that gender critical views could be a protected belief). Unfortunately, the Claimant didn’t read the EAT’s judgment in Forstater for several weeks and then took legal advice on it before issuing his own claim. He also said he was preoccupied with separate bar standards board (BSB) proceedings at the time. The Employment tribunal held it would not be just and equitable to extend time. The Employment Appeal Tribunal agreed, making the following points:
- The EAT’s decision in Forstater, far from being a ‘game-changer’, did no more than restate long-established principles relating to freedom of speech and apply them to the specific context of the gender-critical views relied upon in that case.
- The same Grainger v Nicholson test regarding whether a belief is a protected belief under Equality Act 2010 applied to the Claimant’s claim both before and after the EAT’s decision in Forstater.
- Even if it would have been just and equitable to extend time until after the EAT’s judgment in Forstater, it was not just and equitable to extend time to cover the Claimant’s further three-month delay following publication of the Forstater judgment.
- For the entirety of the period in question, the Claimant was not required to do anything in relation to the BSB proceedings so it was not just and equitable to extend time on the ground that he had been preoccupied with them.
This case is a useful reminder that, although the tribunal’s discretion to extend time in discrimination claims is wider than that which applies in unfair dismissal claims (which are subject to a narrower “not reasonably practicable” test), it is still carefully applied. The high value of the case was not relevant. The Claimant was claiming over £3 million. He is not now able to pursue his claim at all.
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