Mr R Sutton v Virtus Partners Ltd — 2021

The claimant brought the case after an unsuccessful application for Associate Director/Director – Client Services in London. He said he first knew in September 2019 that the interview had been unsuccessful, and he presented his ET1 on 6 October 2020 after ACAS early conciliation the same day. The claim form ticked age and sexual orientation discrimination and referred to blacklisting and other payments, but the tribunal found it did not contain details capable of amounting to a public interest disclosure claim or a victimisation claim.

Applying section 123 Equality Act 2010 and the approach in Abertawe Bro Morgannwg University Local Health Board v Morgan and Robertson v Bexley Community Centre, the tribunal held that time started to run in September 2019. It found no satisfactory explanation for the delay and no late-discovered fact that justified extending time. The tribunal also said there was nothing in the respondent's conduct to suggest age or sexual orientation were factors in the decision, and it noted that the respondent contacted the claimant in October 2019 about a different role in Texas, which was inconsistent with the suggestion that the respondent simply did not want to employ him.

The tribunal accepted the respondent's evidence that an extension would prejudice it because the recruitment system used at the time no longer existed and the relevant recruitment files could not be traced. It therefore refused to extend time and dismissed the age and sexual orientation discrimination claims. It also said that, even if the claim form were read as alleging a detriment complaint under section 48 of the Employment Rights Act 1996, the complaint would still have been out of time because it was reasonably practicable for it to have been presented within the limitation period.