Tribunal procedure: merits of a case and extensions of time

The facts

In Miss N Kumari v Greater Manchester Mental Health NHS Foundation Trust Miss Kumari (who was a litigant in person) was employed by Greater Manchester Mental Health NHS Foundation Trust.  After her employment had terminated, she brought claims of race discrimination and/or harassment in the employment tribunal.  Her claims were all out of time.  She later applied to amend her claim and add a further discrimination claim which, had it been raised as a free standing claim, would also have been out of time. 

At a preliminary hearing, the employment tribunal refused to extend time or to allow the amendment.  In considering whether it was just and equitable to extend time and/or allow the amendment, the tribunal weighed in the balance its view that the merits of the complaint appeared to be weak. 

Miss Kumari appealed to the EAT, arguing that it was wrong in law for the tribunal to take its view of the merits of a complaint into account. In particular, she argued that this would undermine or circumvent the strike out rule and the safeguards relevant to the strike out rule.  She argued that, if time were extended, the Trust could make a strike out application, which could be fairly considered at a separate hearing with the safeguards attached to strike out applications. She also argued that she had not had fair warning that the merits would be taken into account.

The appeal was dismissed. The EAT held that the potential merits of a proposed complaint which (as with the merits Miss Kumari’s claim) is not plainly so weak that it would be struck out, is not necessarily an irrelevant consideration in deciding whether it is just and equitable to extend time or grant an application to amend. The tribunal has a wide discretion in respect of such applications. If a tribunal does weigh in the balance against the claimant an assessment of the merits formed at a preliminary hearing, the assessment must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing and taking proper account of the fact that the tribunal does not have all the evidence before it. This, the EAT commented, is particularly the case in discrimination cases. The EAT considered that the tribunal had done this. The EAT also considered that Miss Kumari had been given a fair opportunity to advance her case and submissions on these points, both in her pleadings and in the hearing itself.

What does this mean for employers?

The EAT’s decision that it will not necessarily be wrong for a tribunal to take the merits of a complaint into account when considering applications to extend tribunal time limits is helpful where the claimant’s prospects are weak and will  be useful for employers who are facing tribunal claims, potentially saving time and legal costs. DAC Beachcroft LLP was instructed by Greater Manchester Mental Health NHS Foundation Trust in this case.

Hilary Larter and Zoë Wigan are consultants and Ceri Fuller is a practice development manager/legal director at DAC Beachcroft.