Mr A Smith v Saxton 4 x 4 Limited — 2018

At a preliminary hearing on 22 June 2018, Employment Judge Russell considered Mr A Smith's complaints of harassment related to sexual orientation and victimisation against Saxton 4 x 4 Limited. The respondent did not attend, but the tribunal was satisfied it had proper notice and proceeded in its absence. The claim was out of time, so the issue before the tribunal was whether time should be extended on a just and equitable basis under section 123 of the Equality Act 2010.

The tribunal accepted the claimant's evidence that, in summer 2015, he sought advice through Stonewall, the Mary Ward Centre and ACAS, and that he knew he could not afford the then-applicable tribunal fees of £250 on issue and £950 for a hearing. It accepted his bank statements showed very modest means, including taking out a loan in July 2015 and later moving into overdraft, while his savings account showed a nil balance. The tribunal did not find the respondent's November 2014 payslip persuasive evidence of his means at the relevant time.

Applying the just and equitable discretion, and referring to Robertson v Bexley Community Centre, British Coal Corporation v Keeble and R (on the application of Unison) v Lord Chancellor, the tribunal held that the fees regime had prevented the claim from being brought in time. It also found the claim was not obviously weak, that contemporaneous documents and witness evidence remained available, and that a fair trial was still possible despite the delay. Time was therefore extended and the claim was allowed to proceed; no findings were made on the substance of the harassment or victimisation complaints.