Court of Appeal considers relevant factors for the ‘just and equitable’ test

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Summary

In Dr Nicholas Jones v Secretary of State for Health and Social Care [2024] EWCA Civ 1568 the Court of Appeal has held that a claimant’s suspicion that they have been a victim of discrimination, or their firmly held belief based on their suspicion, is unlikely to be a relevant factor for the tribunal to take into account when considering whether it should or should not extend time on a ‘just and equitable’ basis.

Facts

Dr Jones, who is of African-Caribbean descent, applied for a position at the Respondent. He was interviewed on 28 March 2019. After the interview he asked several times about the outcome, but was only told on 3 July 2019 that his application had been unsuccessful. The reason given was that “on the day there was a stronger candidate.”

In late July, Dr Jones asked for information about the protected characteristics of the successful candidate. The Respondent was initially reluctant to provide this information, although they later agreed to do so, on condition that Dr Jones provided proof of identification, which he objected to. It was not until a preliminary hearing, on 23 July 2020, that the Respondent confirmed, for the first time, that the successful candidate was white.

By that time, Dr Jones had presented his claim for race and age discrimination but had done so late. In his claim he relied upon “the suspiciously and unexplained long period of time that it took to make a decision in his recruitment” and on the Respondent withholding information about the protected characteristics of the successful candidate.

The Respondent contended the claim was out of time and should be struck out as having had no reasonable prospect of success because Dr Jones had pleaded no facts on which to establish a prima facie case of discrimination, only that he was “suspicious” the Respondent was “hiding something.”

At a final hearing the tribunal dismissed the claim on the merits and found against Dr Jones on the time limit issue, holding that in August 2019 he had been aware “that he had the raw material to make a claim” and that “it is not at all clear why he did not then present his claim” in time.

EAT

The EAT dismissed Dr Jones’ appeal.

Court of Appeal’s decision

The Court of Appeal, however, upheld Dr Jones’s appeal.

Bean LJ found, firstly, that the ET’s decision not to extend time for Dr Jones to present his claim was perverse [39-44, 47]. The facts of Dr Jones being told he had not got the job, and the delay in the Respondent telling him, were simply not enough for him to formulate a claim. These facts, however, were relevant to why he delayed presenting the claim and should have been taken into account when the tribunal considered whether to extend time: “the reason why he did not bring a claim in the period from 3 July until 19 October is that the Respondent repeatedly failed or refused to answer the simple question of whether the successful candidate was white” [42].

Secondly, if a claimant knows all the facts necessary to establish a discrimination claim, but fails without good reason to act promptly, that is a relevant factor in the just and equitable test. However, mere suspicion of discrimination is not a relevant factor in considering whether to extend time. When presenting a discrimination claim the claimant must have some facts on which they can rely. As Bean LJ remarked, “this court, the EAT, and ETs should not encourage cases to be brought on mere suspicion” [46].

References

Dr Nicholas Jones v Secretary of State for Health and Social Care [2024] EWCA Civ 1568

Barnes v Metropolitan Police Commissioner UKEAT/0474/05

See also HSBC plc v Chevalier-Firescu [2024] EWCA Civ 550 (a case which Helena discusses in her LinkedIn post about this).