How wide is a Judge’s discretion on an application to extend time on just and equitable grounds?
Not impermissibly so, says the EAT (Eady P presiding) in Liepa v Polystar Plastics Ltd
L presented a claim without ACAS early conciliation number citing exemption on grounds PP had engaged with ACAS. Following telephone preliminary hearing on 12th May 2022 L lodged a fresh claim which was validly presented on 1st June 2022.
A preliminary hearing in public was listed to determine whether it was just and equitable to extend time for L’s race discrimination claim with the Parties filing statements primarily focussing on the reason for the failure to lodge the claim. L’s assertion that PP’s director had contacted him by telephone and told him they had engaged ACAS and to just take PP strait to tribunal was disputed by PP.
Having set out as in issue “the Claimant’s explanation for why he did what he did when he did it”, the Tribunal proceeded to find the telephone call had not taken place but, though inexplicable, L appeared to have a genuine belief in the call, the Tribunal finding the delay was reasonable attributed to the passage of the claim through the Tribunal process and PP had not disproved his belief on the balance of probability.
Overturning the decision, Eady P held that whilst there was an extremely wide discretion in such applications and it was not impermissible to extend time where there was no good reason for the delay, the reason for the delay was a relevant factor which the tribunal was required to take into account.
The Tribunal needed to show it had engaged with this question and properly weighed it in the balance. Having made a potentially permissible finding as to a genuine belief the Tribunal had not determined whether the belief had been reasonably held, focussing instead on what followed from the invalid presentation rather than the reasonableness of the circumstances behind it.
Whilst not of itself fatal to the decision the error in the analysis had been compounded by the finding of the belief turning on an alleged failure by the PP to disprove it to the civil standard, an error as to burden and standard of proof.
Substituting findings that L had (i) not show his belief was reasonable; and (ii) not shown that he had a good reason for his delay up to 12th May 2022, the EAT otherwise remitted the question of extension to the tribunal.=
The link to the case https://assets.publishing.service.gov.uk/media/64b5673871749c001389ecf8/Polystar_Plastics_Ltd_v_Mr_M_Liepa__2023__EAT_100.pdf or it’s also been published in Harveys on Industrial Relations & Employment Law Bulletin Vol 541 https://lexisweb.co.uk/source-guides/source-guide-bulletin-dwnld/file-64c912236ea3e.pdf
