Discrimination: Time Limits

Kumari v Greater Manchester Mental Health NHS Foundation Trust

Unlike unfair dismissal, in discrimination claims where a Claimant submits a claim that is out of time, the test is not whether it is reasonably practicable to extend time (as in the case above in this update), but whether it is “just and equitable”.


In this claim, the Claimant presented complaints of direct discrimination and harassment to the Employment Tribunal which were beyond the original time limit.  She also wanted to add a further complaint under the Equality Act, which was out with the original time limit.

At a preliminary hearing, the Employment Tribunal had to decide whether to extend time and, in its determination, took the view that the merits of the complaints appeared to be weak and that was a factor in refusing the extension.  

When the Claimant appealed to the EAT, she argued that it was wrong in law for the Employment Tribunal to take account of its view of the merits at such a preliminary stage, when it did not have all the evidence, and where it did not consider it was so weak that it had no reasonable prospects of success. The Claimant also contended that as a litigant in person, she had not had fair warning that the merits of her proposed complaint would be considered.

The EAT dismissed the appeal by the Claimant.  It held that the proposed merits of a complaint, which was not so weak that it would fall to be struck out, are not necessarily an irrelevant consideration when deciding whether it is “just and equitable” to extend time. It said that merits can be taken into account.  If it does assess the merits at a preliminary hearing, that assessment must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing and taking into account that, at that stage, the Employment Tribunal does not have all the relevant evidence before it.  The Employment Appeal Tribunal found that the Employment Tribunal had properly considered those points.


It is far easier for employees to extend time limits in discrimination cases on the “just and equitable test” than it is in unfair dismissal cases on the “reasonably practicable test”.  The case is a reminder however that it is still open to employers to put forward arguments about weak merits, if such an application is made, and that can be persuasive to a Tribunal.