1. Accessing ET decisions

In the UK, the enforcement of discrimination law (like individual labour law rights more generally) primarily depends on individuals bringing claims.Footnote ³ In relation to the workplace, discrimination claimants must first notify the statutory body Acas (the Advisory, Conciliation and Arbitration Service) or the Northern Ireland (NI) Labour Relations Agency of their claim (the ‘early conciliation’ process).Footnote ⁴ If the claim is not successfully conciliated, it may be filed with the relevant ET (or, in NI, the Industrial Tribunal (NITT) or Fair Employment Tribunal). ETs hear and adjudicate the vast majority of discrimination claims in the UK,Footnote ⁵ though only a small minority of claimants will pursue their case to a public hearing and judgment.Footnote ⁶ First-instance ET decisions, while having no precedential weight, offer important insights into the operation of individual enforcement in the UK.Footnote ⁷

However, until February 2017, ET decisions were notoriously difficult to access. In England and Wales, unless the parties or judiciary website chose to publish the decision, or it was selected for commercial publication, it was necessary to physically travel to the registry in Bury St Edmunds to locate a decision, or to file a written request and pay a fee for a decision's retrieval (£10, plus £5 for each additional decision).Footnote ⁸ Issues also arose with how judgments were stored and archived: Bury St Edmunds ceased to hold decisions more than six years old, and the location for storing the archive of decisions was not determined.Footnote ⁹ It is unclear where these historical decisions are now located. Scottish ET decisions similarly needed to be obtained separately from the relevant ET office where the case was heard (Aberdeen, Dundee, Edinburgh or Glasgow). NI decisions have been accessible online since the commencement of age discrimination law.Footnote ¹⁰

Existing academic research reveals just how complicated this made the analysis and scrutiny of ET decisions. Lockwood and others analysed a sample of 317 ET decisions relating to sexual harassment decided between 1995 and 2005.Footnote ¹¹ Rather than accessing files at Bury St Edmunds, however, the authors were unexpectedly able to obtain cases directly from the then Equal Opportunity Commission, which received relevant cases directly from the Tribunals service.Footnote ¹² However, the authors noted that the difficulties in accessing ET decisions, and a resulting lack of data, meant that debates around sexual harassment were occurring without any systemic understanding of ET litigation.Footnote ¹³

In her PhD thesis, Irving analysed all ET decisions in England and Wales relating to claims under the Employment Equality (Age) Regulations 2006, SI 2006/1031 from the Regulations’ commencement (1 October 2006) to 1 April 2010, that were held at Bury St Edmunds. This entailed identifying each decision on a computer database, then using the folio number of the decision to retrieve hard copy information in a separate file.Footnote ¹⁴ At that time, the computer database could only retrieve a certain number of records, meaning Irving had to search across a number of time periods to identify all relevant decisions.Footnote ¹⁵ Using this time-consuming method, Irving identified 4001 age discrimination cases in England and Wales.Footnote ¹⁶ However, most claims did not result in a judgment; Irving's analysis is therefore based on the 32% of claims that did result in a judgment.Footnote ¹⁷

Barnard and Ludlow later examined ET files at Bury St Edmunds to consider how EU-8 nationals enforced their employment rights in England and Wales.Footnote ¹⁸ Examining all ET decisions held at Bury St Edmunds from 1 January 2010 to 31 December 2012, Barnard and Ludlow coded decisions where ‘there was evidence to suggest that the claimant was an EU-8 migrant worker’.Footnote ¹⁹ As Barnard and Ludlow found, there was no easy way to determine nationality on the ET Judgment Register.Footnote ²⁰ Instead, the researchers relied on a number of assumptions to ‘trigger’ their examination of a case file, including around the claimant's name, a reference to nationality in the decision itself, and the nature of the dispute.Footnote ²¹ This generated a dataset of 1,548 decisions;Footnote ²² however, following further scrutiny, the researchers identified only 46 cases where they could say with certainty that the claimant was an EU-8 migrant worker.Footnote ²³ This research was enabled by grant funding and research assistance. It illustrates both the practical difficulties of collecting and analysing ET decisions, and the limited information that is present in many ET decisions. As Barnard and Ludlow explain,

Even where information is highly relevant to an ET's decision-making process (such as nationality in a discrimination claim), it is not necessarily included in the written ET decision. This is consistent with the findings of this study (see further below). These studies illustrate the practical complexity, cost and empirical limitations of studying hard copy ET decisions. All of these studies limited their scope to decisions in England and Wales, and did not attempt to visit the various tribunal offices in Scotland.

Without ready access to ET decisions, it is difficult to assess the practical effectiveness (or otherwise) of the individual enforcement model. This is compounded by the limited data collected and published by the tribunals themselves. As revealed in Barnard and Ludlow's study, for example, there is no official data relating to the number of EU-8 migrant workers who bring ET claims.Footnote ²⁵ While ETs publish regular data regarding the claims that they receive and how those claims are resolved, there is limited information beyond these headline statistics. In particular, it is impossible to tell whether specific demographic groups are more or less likely to pursue their claims to an ET. As studies have found in other jurisdictions, there is an identifiable risk in age discrimination law that older women and younger workers, and those who experience intersectional discrimination, will be unable or unwilling to pursue their rights to tribunal.Footnote ²⁶ Given the gaps in official data, a more creative empirical means of examining these issues is required.

It is here that making ET decisions available online could make a radical difference. Online publication potentially reduces the cost, time and jurisdictional limitations of seeking hard-copy files. It may assist advocates to frame and refine their arguments, at both first instance and on appeal.Footnote ²⁷ It may also help individuals – if they have the inclination and capacity to navigate the website – to see others who have pursued their rights, and how their claims have resolved. This could fulfil an important educative function.Footnote ²⁸ Online publication could also perform a deterrent function, as employers become more attuned to the reputational impacts of having a claim filed against them.Footnote ²⁹ This may help to create a culture of compliance, as employers realise there are consequences for discrimination.Footnote ³⁰ Thus, the House of Commons Women and Equalities Committee has argued that ‘One simple change that can enable individual litigation to achieve wider change is enabling people to access and learn from previous judgments’, such as through the online publication of ET decisions.Footnote ³¹

More generally, then, making ET decisions relatively accessible is an important step in the broader project of increasing transparency in labour law and equality law. Equality law in particular is shrouded in secrecy, with most claims resolved via confidential conciliation with non-disclosure agreements attached.Footnote ³² Limited information is released publicly about the claims that are brought and settled in equality law, partly due to the onerous secrecy obligations imposed on statutory equality agencies and Acas.Footnote ³³ A lack of transparency in this area can have damaging consequences for legal development, and inhibits our ability to address systemic discrimination and identify repeat offenders. Making claims confidential – and cases inaccessible – risks relegating discrimination law and labour law more generally to the private sphere.Footnote ³⁴ Publishing ET decisions online can therefore be seen as part of a broader, radical project in seeking transparency in discrimination and labour law.

That said, online publication poses a number of risks. There are already a number of barriers to individuals pursuing their legal rights; a permanent online record of an individual's litigation history might well operate as a further deterrent to claiming.Footnote ³⁵ Concerns have been raised that employers might search for prospective employees on the ET decision website; it is likely to be difficult to challenge any victimisation of this nature.Footnote ³⁶ There is therefore a need to balance the benefits of transparency and accessibility with protections for individuals and their privacy, including those under Article 8 of the European Convention on Human Rights and the Human Rights Act 1998, and the Data Protection Act 2018.

These issues are keenly illustrated in the Employment Appeal Tribunal (EAT) decision in X v Y.Footnote ³⁷ In that case, the ET judgment referred to the claimant's transgender status and mental health, in the context of explaining why a claim for unpaid wages and holiday pay was out of time. The claimant was not present at the hearing due to his health; he had not expected these matters to be raised in the hearing or judgment, and ‘was aghast when he saw the contents of the Judgment’.Footnote ³⁸ The EAT made an anonymity order to protect the claimant's Article 8 rights to privacy and family life;Footnote ³⁹ however, the relevant passages were not redacted from the judgment.

ET decisions have now been available online for over three years. The ET decision website remains difficult to navigate, with a fairly basic search function, and the vast majority of decisions are withdrawn (whether settled or not).Footnote ⁴⁰ There is no way to filter out withdrawn cases.Footnote ⁴¹ This (perhaps inadvertent) opacity may help to protect individuals from future employment repercussions due to their history of litigation.Footnote ⁴²

That said, the comparative ease with which ET decisions may now be analysed is illustrated by Bengtsson's examination of age stereotyping in CJEU and ET decisions.Footnote ⁴³ Bengtsson's study draws on a sample of 100 full ET decisions relating to direct age discrimination, handed down from 1 October 2006 to 1 April 2018. While older decisions were sourced through a search of the internet, Michael Rubenstein Publishing and obtaining full judgments through written requests to Bury St Edmunds, more recent decisions were obtained through the ET website.Footnote ⁴⁴ Given the ease with which the author could access more recent decisions, it is unsurprising that the sample in this study significantly favours later decisions, with 17 of the 100 cases analysed filed in 2017, and another 19 filed in 2016 (36% of the total sample).Footnote ⁴⁵ Thus, while making ET decisions available online will not just assist labour law researchers, the advantages of this shift for academic research cannot be understated.

3. The case sample

Of the 1208 cases in the sample, 804 (66.6%) had an age discrimination claim which was withdrawn or not pursued (including following settlement), whether or not the rest of the claim was withdrawn or not pursued. In an additional 34 cases, the age claim disappeared, most likely having been withdrawn or abandoned over the course of proceedings, though it was not possible to tell definitively.

These figures are lower than UK Tribunal statistics for age discrimination claims: in 2017–18, for example, 18% of claims resulted in Acas conciliated settlements, 27% were withdrawn, and 38% were dismissed upon withdrawal; in total, this represents 83% of claims (see Table 1). This disparity may be because the period I studied does not align neatly with the period reported in the ET statistics. That said, uploading decisions to the ET website appears to be a manual process, dependent on individual tribunal registries. There can be a delay in uploading decisions, and there is a risk that not all decisions are uploaded.Footnote ⁶⁶ This may limit the comprehensiveness and reliability of the ET decision website for analysing these sorts of statistics.

Table 1.

UK ET disposals for age discrimination claims, by year, 2007/08 to 2018/19

Source: UK Tribunal Statistics

Acknowledging the potential limits of these decisions as a source of data, there are still revealing insights that can be gathered from the decisions themselves. Across the sample, there were 244 substantive decisions, and 162 interlocutory decisions. There were 43 cases where age discrimination claims were successful.

In relation to the demographics of claimants, a few clear trends emerge. First, where the age or age range of the claimant was specified (138 cases), claimants had a median age of 57.Footnote ⁶⁷ Where possible to discern, the majority of claims –136 – related to a claimant who alleged that they were seen as ‘too old’; only 20 claims related to claimants who were ‘too young’. Older workers were substantially more likely to bring a claim than younger workers.Footnote ⁶⁸

Secondly, in relation to gender, the sample included 664 male claimants, and 573 female claimants, as determined using claimants’ titles (Mr, Miss, Ms, Mrs, or – in the case of Dr – pronouns used in the decision itself).Footnote ⁶⁹ Some cases involved multiple claimants – where possible, the gender of each individual claimant was added to this analysis, meaning the numbers exceed 1208.Footnote ⁷⁰ In some claims, the gender of the claimant was not specified – these cases were omitted from the gender analysis.

Men were therefore slightly more likely to bring a claim than women. This disparity increases once we filter out withdrawn or probably withdrawn claims. When considering only claims that are not withdrawn, there were 218 male claimants and 173 female claimants. Table 2 analyses withdrawal rates by gender across this sample; women represent a smaller proportion of claimants once withdrawn claims are removed, indicating that women are slightly more likely to withdraw their claim.

Table 2.

Withdrawal rate by gender, ET age discrimination decisions, February 2017 to April 2019

Thirdly, many claims involved multiple causes of action, the most common being unfair dismissal (764); breach of contract (337); disability discrimination (284); sex discrimination (267); race discrimination (245); and unlawful deduction from wages (282).

Fourthly, where possible to discern, many cases related to dismissal (127), retirement (5) and redundancy (33); that is, the end of the working relationship. Other claims relating to matters during or at the commencement of the employment relationship were less common, including recruitment (23), training (3), promotion (8), demotion (3), working time (23), benefits (15) and performance processes (18). Harassment, however, or ‘everyday’ ageism, was fairly common (29).

Fifthly, it is possible to examine representation at Tribunal, acknowledging that people may have more than one type of representation (for example, over two separate hearings, or two days of hearing, or appearing in person with assistance). For claimants, representation was specified in 538 cases. Nearly half (48.1% or 259 claimants) appeared in person, though 187 (34.7%) were legally represented. Eighty-four claimants had some other form of representation or assistance (eg by a friend, spouse, or parent, or – rarely – a union representative), and 28 did not appear. For respondents, where representation was specified (541 cases), only 28 appeared ‘in person’ (that is, without external representation); 446 were legally represented (82.4%), and 48 had some other form of representation. Twenty-two did not appear, and one attended to observe only.

Thus, there was a substantial disparity in these cases between the levels of legal representation for claimants and respondents: claimants were far less likely to be legally represented, but often faced a respondent who was legally represented. This probably means that claimants were substantially disadvantaged in putting forward their case. It was particularly rare for a claimant to be legally represented, but for a respondent to not be represented. Angeli v The Orthopaedic Footwear Company Ltd Footnote ⁷¹ was a rare case where the claimant was represented, but the respondent was not; that said, the claimant only briefed counsel one week prior to the hearing, likely limiting the benefit of that representation.

If we exclude withdrawn and probably withdrawn cases and preliminary cases from our analysis, there were 215 substantive cases that actually dealt with an age discrimination claim. Of these cases, only 43 (20%) were successful for the age discrimination claim specifically; there were seven cases where success in the age discrimination claim was unclear. ‘Success’ was defined as success for the claimant overall; this could be at the ET or later on appeal. Sargeant v London Fire and Emergency Planning Authority,Footnote ⁷² for example, was successful at the Court of Appeal,Footnote ⁷³ and leave to appeal to the Supreme Court was refused. This was counted as ‘success’. That said, only three cases progressed to the EAT over this period – Heskett,Footnote ⁷⁴ Sargeant and McCloud;Footnote ⁷⁵ the latter two cases progressed to the Court of Appeal.

The median age of claimants in successful claims where age was specified (22 cases) was 59.5, which was slightly higher than for the general claimant population (57). Twenty-four successful cases involved claimants who alleged they were seen as ‘too old’; only six involved claimants who alleged they were ‘too young’.Footnote ⁷⁶ The majority (31) of successful claimants were men; only 17 successful claimants were women.Footnote ⁷⁷ In 20 successful cases the claimant was legally represented (46.5%), which is substantially higher than for the general sample of cases (34.7%) and for substantive cases where the claimant was not successful (36.4% represented) (see Table 3). Thus, legal representation appears to be associated with claimant success.

Table 3.

Success and legal representation, ET age discrimination decisions, February 2017 to April 2019

Of the successful cases, 10 (23.2%) were successful due to rule 21 of the Employment Tribunals Rules of Procedure 2013.Footnote ⁷⁸ Rule 21 says:

1. (1) Where on the expiry of the time limit … no response has been presented, or any response received has been rejected and no application for a reconsideration is outstanding, or where the respondent has stated that no part of the claim is contested, paragraphs (2) and (3) shall apply.

2. (2) An Employment Judge shall decide whether on the available material (which may include further information which the parties are required by a Judge to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly. Otherwise, a hearing shall be fixed before a Judge alone.

3. (3) The respondent shall be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.

In all bar two of these decisions, there was no full written judgment uploaded onto the ET website (presumably because the claimant did not request written reasons). Indeed, 17 successful cases had no full record of the ET's reasons online. This demonstrates a significant gap in the ET ‘dataset’, as full written reasons are often not requested or uploaded.

Eleven cases in the sample involved respondent companies that were explicitly noted to be in liquidation, and a further two with respondent companies in administration. Five claims against respondents in liquidation were successful (though four were against the same company); one against a company in administration was successful. This was a much higher success rate than for the general case sample.

Overall, then, this ‘dataset’ of age discrimination decisions indicates that age discrimination law is more likely to be used, and more likely to be used successfully, by older men. Claims most often relate to dismissal, and are more likely to be successful if assisted by legal representation. The vast majority of complaints are withdrawn. This is consistent with Irving's earlier study,Footnote ⁷⁹ and with findings in other jurisdictions.Footnote ⁸⁰

4. Case study: time limits and delays

To illustrate how these new forms of data might be used in practice, in this Part I consider the issue of time, which manifests across two interrelated issues: time limits for bringing an ET claim, and ET delays.

Complaints relating to work under the Equality Act 2010 are subject to time limits under s 123(1), which says:

though this period is extended to facilitate Acas conciliation.Footnote ⁸¹ Conduct which extends ‘over a period is to be treated as done at the end of the period’.Footnote ⁸² This is a shorter time limit than that for claims in the civil courts (the latter is set at six months).Footnote ⁸³

Time limits of this nature are not precluded by EU law. For example, Article 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupationFootnote ⁸⁴ (the Framework Directive) says:

In Bulicke Footnote ⁸⁵ the CJEU was clear that ‘the question of time-limits for initiating a procedure for the enforcement of obligations under the Directive is not governed by European Union law’.Footnote ⁸⁶ In that case, the CJEU held that the Framework Directive did not preclude a time limit requiring an age discrimination claim to be made within two months, so long as the time limit was not less favourable than that for similar domestic employment law actions, and the time limit (and point at which time started to run) did not render practically impossible or excessively difficult the exercise of those rights.Footnote ⁸⁷

Relatively short time limits for bringing claims to ETs are consistent with the original intention in establishing the ET system: that they should be a forum for resolving work-related disputes that ‘is easily accessible, informal, speedy and inexpensive’.Footnote ⁸⁸ Time limits are justified on a number of bases, including ensuring quality evidence (as witnesses may forget details over time, staff may leave, and documents may be destroyedFootnote ⁸⁹); not unduly burdening or prejudicing respondents with having to respond to antiquated claims; and allowing both parties to focus on their dispute, then move on.Footnote ⁹⁰ Hepple argues that the choice of a three-month time limit specifically appears to be striving to make discrimination law consistent with time limits for unfair dismissal claims; there is no other discernible justification for distinguishing claims relating to work from those relating to non-work.Footnote ⁹¹ Indeed, the Sex Discrimination Act 1975 – the first statute that gave individuals the right to claim compensation for unlawful discrimination at work directly in a tribunal – set a time limit of three months, in similar terms to the Equality Act 2010.Footnote ⁹²

In relation to unfair dismissal claims, time limits have been in place since the introduction of individual unfair dismissal rights.Footnote ⁹³ The International Labour Recommendation Termination of Employment Recommendation, 1963 (No 119) (which was influential in framing the recommendations of the Donovan report) merely recommended that individuals be required to bring claims of unfair dismissal ‘within a reasonable time’.Footnote ⁹⁴ The Donovan report applied this strictly:

Ultimately, however, a more lenient limit of three months was imposed.Footnote ⁹⁶

While there are merits to the arguments in favour of time limits, they are undermined substantially by the extensive delays within the ET system. ETs are no longer (if they ever were) expeditious, accessible, or informal: as Corby argues, ‘these yardsticks are essentially not applicable today’.Footnote ⁹⁷ Even writing in 2007, Dickens noted that:

Over time, ET cases have increased in complexity and value, and waiting times between filing and hearing have ballooned.Footnote ⁹⁹ As the Law Commission has noted, ‘arguably the short, strict time limits … [in ETs] are anomalous when claims may take as long as 10 or 12 months to proceed to a hearing’.Footnote ¹⁰⁰ The Council of Employment Judges has noted that the current target for getting claims to hearing from the issue of proceedings is six months; a final remedy determination could take much longer. As the Council has recognised:

Delays in practice are even more substantial. In July 2019, it was reported that average waiting time between an ET receiving a claim and the claim being heard had increased to 237 days (nearly eight months),Footnote ¹⁰² well in excess of the six-month target. Delays in the ET system have worsened over time, with the progressive defunding of the tribunal system.Footnote ¹⁰³ Rather than deal with the delays and structural limitations of the ET system, government policy has focused on limiting the number of claims that proceed to tribunal, including by introducing substantial fees for ET claims (subsequently ruled unlawful in the UNISON decision)Footnote ¹⁰⁴ and requiring claimants to notify Acas before submitting a tribunal claim, via the process of early conciliation. Since fees have been removed, the number of cases progressing to tribunal has again increased.Footnote ¹⁰⁵ Anecdotal evidence from practitioners indicates that delays in the ET system are substantial.Footnote ¹⁰⁶

Management information from Her Majesty's Court and Tribunal Service reveals just how chronic these delays are, and the extent to which they are compounding over time. Data from March 2019 to March 2020 for ETs (Table 4) shows the progressive increase in the average clearance time (that is, from receipt to disposal) for single ET claims; this has exceeded 30 weeks since August 2019. Covid-19 has further exacerbated these delays, with tribunals ‘pausing’ proceedings or being forced to work remotely.Footnote ¹⁰⁷

Table 4.

Management information, ETs, March 2019 to March 2020

Source: HMCTS

As Table 4 shows, the number of outstanding cases has also been progressively increasing. According to the minutes of the ET National User Group meeting held in June 2020, this is a chronic systemic issue, which has been further exacerbated by Covid-19.Footnote ¹⁰⁸ Outstanding cases have increased from approximately 10,000 single cases awaiting determination in March 2017, to 19,000 in March 2018, to 27,000 in March 2019.Footnote ¹⁰⁹ In the week ending 21 February 2021, there were 45,297 outstanding single cases in England, Wales and Scotland, up from the ‘pre-Covid baseline’ of 30,687 in March 2020.Footnote ¹¹⁰ The number of outstanding cases is increasing by about 1% each week.Footnote ¹¹¹

The cases in this sample provide an empirical illustration of the contradiction between strict time limits for bringing an action, and pervasive delays in the tribunal system. In this sample, delays in getting to hearing and a final remedy were significant. Where the date of the ET1 claim form was discernible in the ET decision (79 cases), the median time to decision was 278 days, though this ranged from 51 days to 1780 days. The time to a decision is represented in Table 5.

Table 5.

Number of days to decision by number of cases, ET decision sample

These figures relate to the date of publication of the decision, rather than the date of hearing (which is what the relevant targets relate to), and could be the time to a preliminary decision, or to a final remedy decision, or anything in between, which might account for the diversity in time taken.

That said, the longest time taken – 1780 days – is nearly five years. This particular case – Fenton v Pennine Acute Hospitals Trust Footnote ¹¹² – had not even been resolved fully within those 1780 days; the remedy for the successful unfair dismissal claim was still to be determined. The delay was so extraordinarily long that the ET noted and apologised for the delay,Footnote ¹¹³ which was variously attributable to postponements at the parties’ request; the hospitalisation of the Employment Judge; illness of a panel member; the sheer scale of evidence presented by the parties; and ‘pressure of judicial business’.Footnote ¹¹⁴ Lengthy delays were also acknowledged (and apologised for) by the ET in Gibson v Newcastle upon Tyne Hospitals NHS Foundation Trust Footnote ¹¹⁵ (653 days to final decision, remedy not yet determined); and in Kumar v Guy's and St Thomas’ NHS Foundation Trust Footnote ¹¹⁶ (673 days to final decision, where it was – somewhat ironically – determined that the age discrimination claim was out of time by roughly 285 days; it took another 53 days for an application for reconsideration to be refused).

These lengthy proceedings and delays potentially make a mockery of strict time limits. Extensive delays undermine key arguments in favour of time limits: delays mean ETs are not a forum for the timely, efficient resolution of disputes;Footnote ¹¹⁷ the quality of evidence is jeopardised;Footnote ¹¹⁸ respondents have to respond to antiquated claims; and neither party can move on.Footnote ¹¹⁹ Further, short time periods for filing a claim put an unreasonable burden on claimants, who must undergo the process of ‘naming, blaming and claiming’Footnote ¹²⁰ while under tight time pressure. As the National Association of Schoolmasters Union of Women Teachers submitted to the Law Commission,

This time pressure compounds the mental burden of bringing a discrimination claim, particularly for members of impacted groups, who are likely to also be experiencing other forms of disadvantage and demands on their time (particularly for those with caring responsibilities). Indeed, for many claimants, managing a discrimination claim is on top of the already onerous process of finding a new job, or navigating a discriminatory or toxic workplace on a day-to-day basis. Managing a discrimination claim is already stressful and demanding, let alone under time pressure; short time limits are likely to affect claimants’ mental wellbeing.Footnote ¹²² Further, justifying why a claim is out of time – and why it would be just and equitable to extend time – forces claimants to disclose sensitive and personal information, which is now generally released into the public sphere with the online reporting of ET judgments. This is likely to have adverse effects on individual privacy and wellbeing.Footnote ¹²³ Unsurprisingly, then, the Law Commission has concluded that the current three-month time limit for bringing a claim to an ET is ‘undesirably short’, and has recommended that time limits be six months for all claims brought in an ET (including discrimination claims).Footnote ¹²⁴

The Law Commission's recommendations are given further weight by the results of this study. Among all decisions in this case sample, time limits were raised as an issue in 98 cases (8.1%): in 74 cases time limits proved fatal to a claim, and in 24 cases the claim (in all or part) was allowed to proceed. While ETs have discretion to extend time where it is ‘just and equitable’ to do so, this was rarely used in practice. In only 18 cases was time extended,Footnote ¹²⁵ noting that time could be extended for some complaints and not others. In other cases where time limits were not fatal, this was because it was determined that time had not expired;Footnote ¹²⁶ the issue had not yet been finally determined;Footnote ¹²⁷ or the conduct was a continuing act.Footnote ¹²⁸

The cases in this sample where time was at issue illustrate the strict, technical, and often problematic application of time limits to individual cases.Footnote ¹²⁹ The cases also show the many and compounding forms of disadvantage being experienced by individual claimants. For example, in O'Neill v Jaeger Retail Ltd,Footnote ¹³⁰ the claimant had experienced a range of difficult circumstances, which could explain why her claim was out of time:

However, despite these complications, the ET held that the claimant had actually failed to submit her ET1 claim form as she was not aware that she had to file an ET claim herself:

The claimant was able to act promptly once her misunderstanding was corrected, and she took no action to contact Acas or do research on their website for over six weeks after the early conciliation certificate was issued.Footnote ¹³³ The claimant had also received CAB advice prior to contacting Acas; the ET held that the CAB advisor must have informed her of the need to file an ET claim at the end of early conciliation.Footnote ¹³⁴ It was therefore not just and equitable to extend time.Footnote ¹³⁵ Thus, individual disadvantage is less significant than a mistake or misapprehension as to legal requirements (though these things must, to some extent, be interlinked); misunderstanding the law is no excuse.

As noted in the Law Commission's report on employment law hearing structures, one of the common challenges in adopting strict time limits relates to the delays likely occasioned by employees trying to resolve their disputes via internal grievance processes.Footnote ¹³⁶ Internal processes – either unwittingly or deliberately – can take longer than the three-month time period allowed for filing a claim.Footnote ¹³⁷ This was evident in the sample of ET cases: three cases in the sample were out of time due to the claimant waiting for employer appeal or grievance processes to run their course. It was held that this was not sufficient to extend time:Footnote ¹³⁸ time was not extended in any of these cases.

In Chatten v Sky Subscribers Services Ltd,Footnote ¹³⁹ for example, the ET noted that ‘The claimant's case is simply that he genuinely believed that it was not necessary to present his claim form until such time as he received the outcome of his appeal’.Footnote ¹⁴⁰ This was not the case, and nor was this sufficient to extend time, even if ‘the respondent may be open to criticism for the length of time it took to undertake the claimant's appeal’.Footnote ¹⁴¹

In the NI case of Gillespie v Santander UK plc Footnote ¹⁴² the claimant alleged she was told by her union that she would need to wait for internal processes to conclude before she could lodge a claim. She also assumed that the union would file a claim on her behalf; this was not the case.Footnote ¹⁴³ The NIIT held that the claimant should have been far more proactive in managing her own claim:

Ironically, the claimant was proactive: she wrote to her union representative and HR repeatedly in an attempt to expedite internal processes,Footnote ¹⁴⁵ but did not file her Tribunal claim ‘because she wanted to see if a solution to the problem could be found’.Footnote ¹⁴⁶ Unfortunately, this was not the form of ‘responsibility’ or action the NIIT required.

This approach to the enforcement of time limits – where waiting on employer processes does not mean it is ‘just and equitable’ to extend time – is likely to undermine the local resolution of discrimination allegations; to comply with time limits, claimants will need to escalate matters by filing their claim in the ET before local processes have run their course. This may undermine goodwill between the parties, and prevent the efficient resolution of disputes. Alternatively, it may leave claimants without recourse to an ET when the internal process is finally complete, as occurred in these three cases. Neither option is desirable.

Time limits are also legally complex, raising issues with their application in practice. For example, it can be practically difficult to tell when time starts running, making time limits a largely arbitrary limit for some claimants. In the NI case of Mawhinney v Chief Constable of the Police Service of Northern Ireland Footnote ¹⁴⁷ time started to run when the claimants sat a test which was allegedly discriminatory, even if they had not yet been informed of the result:

Unfortunately the claimants did not present evidence to demonstrate it would be just and equitable to extend time, and the claim was held to be out of time.

While the claimants in Mawhinney were too late in bringing their claim, and assumed their claim would crystallise when they actually experienced loss, the claimant in the NI case of Barlow v Gallagher Ltd Footnote ¹⁴⁹ faced the opposite problem, with the respondent arguing that the claim was premature, as the claimant's employment was ongoing, and he had not yet been made redundant; according to the respondent, the cause of action had not yet crystallised.Footnote ¹⁵⁰ The NIIT held, however, that the claim was not premature: the claimant had been informed that he would be excluded from an enhanced redundancy payment scheme, his grievance had been rejected, then appealed and rejected. For the NIIT,

The question then becomes: if the claimant had waited until he was actually made redundant, would his exclusion from the enhanced redundancy payment scheme have been out of time? It is likely that this would depend on whether it was held to be conduct that extended over a period of time.

These examples demonstrate the potential complexity of navigating time limits, especially for litigants in person. For those who do not have legal training, these distinctions can appear absurd and arbitrary. Time limits are made even more complicated by the complex rules around how Acas conciliation extends time, which have generated confusion among claimants.Footnote ¹⁵²

Overall, then, the cases in this sample offer strong arguments against the application of strict time limits for discrimination complaints. The extension of time provisions are rarely exercised in a way that recognises the complex multiple burdens encountered by discrimination claimants. To resolve this, the Law Commission has recommended increasing time limits to six months for all ET claims. It is unclear whether this will be sufficient to address all these complexities; indeed, even a six-month time limit is likely to operate as a barrier for many claimants.