Alleged misunderstanding of early conciliation rules


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The Court of Appeal has held in Adedeji v University Hospitals Birmingham NHS Foundation Trust that it was not just and equitable to extend time for a race discrimination claim which was presented three days late due to an alleged misunderstanding of the early conciliation rules.

Mr Adedeji was employed as a consultant surgeon.  He resigned following a lengthy capability and conduct process and brought claims of constructive unfair dismissal and race discrimination.  His claims were presented out of time, and he stated that he believed he could benefit from an automatic extension of time under the early conciliation rules by contacting Acas again, even though an early conciliation (EC) certificate had already been issued.  He had been warned twice by his legal adviser to bring his claims within the primary time limits and had chosen to ignore that advice.

An employment judge refused to grant extensions of time, so his claim was out of time. The Employment Appeal Tribunal (EAT) dismissed his appeal, but allowed an appeal on whether it was just and equitable to extend time for the alleged discriminatory constructive dismissal claim.  The burden was on Mr Adedeji to persuade the tribunal that it was just and equitable to extend time. The Court of Appeal noted that he was a "highly educated man with ready access to legal advice", but chose to ignore that advice.  It could not be said to be unreasonable for the tribunal to treat this as weighing heavily against the grant of an extension.

In coming to its decision, the Court advised against a rigid adherence to the checklist of potentially relevant factors to consider contained in section 33 of the Limitation Act 1980 and also against taking a "mechanistic approach".  When it comes to exercising a discretion as to whether or not to extend time, tribunals must assess all relevant factors in a case, including "the length of, and the reasons for, the delay".


Take note:  The Court's decision in Adedeji demonstrates that, in deciding whether or not to extend time to allow a claim to proceed, a tribunal should consider all the relevant factors in the case.  Here the claimant was educated and had access to legal advice which he chose to ignore.

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