We will take a brief look at the case of Adams v BT PLC  UKEAT/0342/15/LA. The case is significant because it reminds tribunals that there are occasions when a Judge’s discretion can be used to allow a claim which had been originally lodged in time and rejected. Then the amended claim was lodged as soon as practical, but out of time.
References made are in relation to the case. A link to the case can be found at the end of this article
Ms Adams claims against her employers was that she had been unfairly dismissed and discriminated because of her race.
Ms Adams went through the early conciliation process. It was not successful. Conciliation was completed on 18 January 2015, it was on this date she received an early conciliation certificate.
The time limit for both of these complaints was three months. Time expired on 17 February 2015; a month after the end of conciliation certificate had been received. Ms Adams went to her solicitors on 16 February 2015. He drafted the claim and it was submitted at the East London Employment Tribunal that day. The claim was rejected because Ms Adams had not put the correct ACAS early conciliation number on the claim.
The rejected claim was received on 19 February 2-16 by the Claimant’s solicitor who immediately made the necessary amendments. The claim was resubmitted before 4pm on 19 February 2015.
Case at first instance
The Judge decided it was correct for the tribunal to reject the defective claim form. The Judge felt she had no alternative but to reject the second claim form which was correct, because it had been issued out of time. In her judgement the Judge focused on the first claim and not the second.
The Judge rejected the claim because although the legislation allowed for amendments; if rectified. It was clear that if your lodged a rectified claim, the claim would be treated by the tribunal, as being presented to the tribunal on the date that the defect was rectified and accepted by the tribunal; accordingly under this rule the claim was out of time[i] (19 February 2015).
The Judge looked at the issue of whether it was reasonably practical for the Claimant to have presented her unfair dismissal claim on time. The Judge felt that it was the Claimant’s own fault and that of her representative for the incomplete form why it was not presented on time. The Judge was satisfied that it was reasonably practical for the first claim to have been presented on 17 February 2015.
In relation to whether it was just and equitable to grant an extension of time to allow the race discrimination claim. The court held that there was no explanation why the Claimant did not complain of the earlier acts of discrimination within 3 months of them occurring.
The judge felt having examined and considered all matters In this case, she was not satisfied that it would be just and equitable for the race discrimination claim to proceed, notwithstanding the fact that it has not been presented in time[ii].
Appeal to the EAT
On appeal for the Claimant it was stated that there was an error of law on the part of the Judge as she had concentrated on the first claim when the correct focus should have been on the second claim and whether it was reasonably practical to present the second claim in time. The Claimant relied on the authority of Software Box. A case to which the Employment Judge had failed to refer.
The Respondent’s representative accepted elements of the Claimant’s argument, that the Judge should have looked at the second claim and that Software Box was a relevant authority. However he argued that the tribunal judge was not prevented however from taking into consideration the first claim, nor was she wrong in her conclusion on the law. The Claimant at the end of the day could have submitted her claim on time without defects. She had the support of a competent solicitor.
The Judge stated that the Employment Judge had focused too much on the first claim to the exclusion of the second claim. The Employment Judge had erred in law, so that her decision on the question whether it was reasonably practicable to present the second claim in time could not stand[iii]. The focus should have been on the second claim and whether there was any impediment to the timely presentation of that claim. The failure to address this issue was an error of law.
In relation to the issue of whether it was just and equitable to allow the race discrimination claim to succeed, it was argued on the Claimant’s behalf that the Judge had made an error of law by not taking into consideration the balance of prejudice between the parties and in particular prejudice to the Claimant[iv].
The Respondent’s representative tried to argue that the Employment Judge had by implication considered the issue of prejudice. This was rejected by the Judge.
The balance of prejudice is a material factor and was significant in this case. It was not a factor the Judge had taken into consideration. The question of prejudice is significant because on one hand the Claimant lost the right to bring a discrimination claim on its merits, and on the other hand the short delay caused no prejudice to the Respondent’s in conducting its defence of the claim.
The failure to take this into account is a significant factor. The tribunal’s decision that it was not just and equitable to extend time could not stand. The court held it was just and equitable to extend time for the presentation of the racial discrimination claim.
Conclusion and Tips
Employees who wish to present a claim, try and do so a week before the deadline. Just in case there are minor issues as presented by this case.
It is always good, if you are the lawyer acting for a client who is about to submit a claim ‘just in time’ to get a third party to check it for any obvious errors.
Link to case
[i] Paragraph 8
[ii] See paragraphs 13 & 14
[iii] Paragraph 21
[iv] Paragraph 2