Key Facts
- •Claimant's employment terminated on 17 November 2022 after failing probation.
- •Claimant submitted a grievance on 15 November 2022.
- •Claimant initiated two early conciliation processes.
- •Claimant brought claims for disability discrimination and unauthorised deduction of wages.
- •Employment Tribunal held claims were time-barred.
- •Claimant appealed the time-bar decision.
Legal Principles
Effect of section 18A of the Employment Tribunals Act 1996 on bringing claims without an early conciliation certificate.
HM Revenue and Customs v Sera Garau [2017] UKEAT/0348/16/LA
Principles for the EAT departing from a previous EAT decision (only in exceptional circumstances).
Romero v Nottingham City Council [2018] UKEAT/0303/17/DM and Secretary of State for Trade & Industry v Cook [1997] IRLR 150
Factors relevant when exercising discretion to extend time: length of delay, reasons for delay, and prejudice to the respondent.
Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640
The consequences of an ET claim form not giving the appropriate certificate number.
Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386
Outcomes
Appeal refused.
The Employment Tribunal correctly applied Sera Garau, which remains good law despite Sainsbury’s Supermarkets Ltd v Clark. The Tribunal properly exercised its discretion in refusing to extend time, considering the relevant factors, including the claimant's delay and lack of evidence explaining it.
Claims time-barred.
The first early conciliation certificate was valid, and the claim was brought 54 days late.
Tribunal's discretion not to extend time upheld.
The tribunal considered relevant factors (legal advice sought, initiation of early conciliation, lack of explanation for delay) and properly exercised its discretion. The potential for alternative remedies was also considered.