EAT Decision in Holbrook v Cosgrove KC & Ors Highlights Criteria for Extending Time in Discrimination Claims

Citation: [2023] EAT 168
Judgment on

Introduction

The Employment Appeal Tribunal’s decision in the case of Holbrook v Cosgrove KC & Ors provides a detailed examination of the criteria for granting an extension of time in discrimination claims. The decision explores the balance between an individual’s responsibilities in presenting a claim within the stipulated timeframe and the broader legal criteria that might justify an extension.

Key Facts

Mr. J Holbrook, an experienced barrister, was expelled from his Chambers following a tweet deemed discriminatory and offensive by his colleagues. Holbrook contended that his expulsion was due to his belief in social conservatism. However, he presented his claim of belief discrimination five months late, partly due to his understanding of a prior ruling in Forstater v Centre for Global Development [2019] (overturned on appeal after Holbrook’s claim deadline). Holbrook argued that his preoccupation with Bar Standards Board proceedings hindered his pursuit of the EAT judgment that might have supported his claim.

The Tribunal’s task was to apply the “just and equitable” standard as per s.123 of the Equality Act 2010 to determine whether to grant an extension for filing a late discrimination claim. This involved a multifaceted analysis, considering factors such as:

  1. Reasonableness of Delay: Holbrook’s belief that his claim would likely fail following the Forstater Employment Tribunal decision and his subsequent delay in presenting the claim. The appeal assessed whether it was reasonable for Holbrook to delay the claim based on his understanding of the legal landscape prior to the EAT’s decision in Forstater.

  2. Impact of External Proceedings: Holbrook’s focus on ongoing Bar Standards Board proceedings during the period following the publication of Forstater-EAT. The Tribunal considered if it was reasonable for this focus to exclusively consume his attention to the detriment of reading potentially favourable legal developments.

  3. Balance of Prejudice: Evaluating the relative prejudice to both parties if an extension of time were granted, including the assessment of the litigation’s merits. This included considering the potential prejudice of the claim being out of time and the respondent’s ability to recall motivations and thought processes significantly later.

  4. Nature and Importance of the Claim: The Tribunal assessed the qualitative nature of the claim’s importance, including Holbrook’s contention that it centered around fundamental rights of freedom of expression, which he deemed to weigh heavily in favor of an extension.

  5. Merits of the Case: Lastly, the Tribunal considered the underlying merits of Holbrook’s claim and how that influenced the decision on extending time.

The decision referred to key cases including Forstater v Centre for Global Development [2022] ICR 1, Chohan v Derby Law Centre [2004] IRLR 685, Department of Constitutional Affairs v Jones [2008] IRLR 128, and Dowokpor v Ministry of Justice UKEAT/0156/17/LA, illustrating the application of established principles to the facts of Holbrook’s claim.

Outcomes

The Tribunal found Holbrook’s delay in presenting his claim to be unreasonable. His belief that his claim would not succeed was not based on binding authority or a correct understanding of the law surrounding protected beliefs. Furthermore, the Tribunal concluded that his preoccupation with the BSB proceedings was not a good reason for failing to read Forstater-EAT, especially considering he tweeted about its significance for free speech. Finally, the balance of prejudice, the purported importance of the claim, and the underlying merits did not favor granting an extension of time. As a result, Holbrook’s appeal was dismissed.

Conclusion

The EAT’s judgment in Holbrook v Cosgrove KC & Ors reiterates the stringent criteria that claimants must meet to gain an extension of time for bringing discrimination claims. The ruling underscores the Tribunal’s requirement for claimants to act reasonably upon knowledge of potential claims and the unfavorable view taken when existing legal avenues are not pursued diligently. Holbrook’s appeal serves as a cautionary tale about the necessity of filing timely claims and the challenges of seeking extensions based on subjective beliefs about success prospects and preoccupations with related legal matters.