The ‘Just and Equitable’ extension in discrimination claims

Owen v. The Network Rail Infrastructure Limited

The Employment Appeal Tribunal (EAT) had to consider whether or not to extend time, where a claim was over the primary three-month limitation period.


In discrimination law if a Claimant is late with their claim, a Tribunal has to consider whether it is ‘just and equitable’ to extend the time limit in any event.  This test is wide and far more beneficial for Claimants than the test for an unfair dismissal claim (where the Tribunal has to consider whether it was ‘reasonably practicable’ to bring the claim within the primary limitation period).

On the facts of this case, the Claimant alleged various acts of discrimination between 2015 and 2017 and complained about the way her grievance had been handled from November 2017 to February 2020.  She submitted her claim in June 2020.  

The Tribunal accepted that the various incidents up to 2017 might be discriminatory on the grounds of sex, however they found that the handling of the grievance did not form part of a continuing act of discrimination, which meant that the earlier incidents from 2015 to 2017 were out of time, unless it was ‘just and equitable’ to extend time.
The Tribunal considered that the Claimant did not provide any information about why she had delayed in bringing a claim and took the view that, without any explanation from her, it was not possible to extend time, holding that its hands were tied.

The Claimant appealed the decision to the EAT.

The EAT found, looking at a Court of Appeal decision, that, whilst the lack of evidence for a delay was a relevant consideration, it was not the only consideration. The Tribunal should have considered the matter in any event despite the lack of a reason for the delay by the Claimant.  The EAT found there was a conflict in case law on this point but overall found that the absence of any explanation for a delay did not mean that the Tribunal is bound to refuse an extension, it was just a matter to be taken into account.  The EAT sent it back down to the Tribunal to consider afresh whether or not it was just and equitable to extend time on the facts of this case.


Our clients often have cases where acts of discrimination appear to be out of time, because the allegations occurred sometime before a Tribunal claim was made.  This case is a reminder that the Tribunal’s discretion to extend time is wide and even giving no explanation for a delay does not mean that the Tribunal might not extend time, if it considers it just and equitable to do so.