Mr N Siddall QC (Counsel) For the v Respondent — 2021

The claimant brought a first ET claim alleging age discrimination after the refusal to extend his service beyond retirement age, but that claim was later held to be a nullity because High Court permission had not been obtained before it was filed. He then brought the second claim under case number 3302290/2020, which replicated the age discrimination complaint and added a complaint of discrimination on grounds of religious belief. The hearing before Employment Judge Milner-Moore was therefore directed to limitation and ACAS issues rather than the merits of the discrimination allegations.

The tribunal held that the second claim had been presented about 10 months out of time under s.123(1)(a) Equality Act 2010. Applying the just and equitable discretion under s.123(1)(b), and the authorities it cited including Robertson, Caston, Abertawe University v Morgan, Adedeji, and British Coal v Keble, the tribunal concluded that the claimant had not shown that time should be extended. It accepted that the claimant had some mental health difficulties in 2019 and that his representatives had been instructed about the need for High Court permission, but found that this did not fully explain the delay. The claimant knew from earlier proceedings that permission was required, yet did not check that it had been obtained, and after the respondent’s grounds of resistance exposed the problem there was still further delay before the High Court application was made.

In weighing prejudice, the tribunal noted that witnesses had retired, recollections would fade, and the respondent would face greater practical difficulty in securing evidence because of the delay. It also treated the addition of the religious belief complaint as significant because that complaint introduced new factual allegations, including matters said to involve a disciplinary process, an alleged assault by another clergy member, and alleged coercive control by senior clergy. The tribunal said there was no good reason why those matters had not been included in the first claim and concluded that it was not just and equitable to allow them to proceed.

On ACAS, the tribunal held that a new ACAS certificate was not required for the religious belief complaint because it related to the same matter as the age discrimination complaint: the refusal to extend the claimant’s service. It referred to s.18A Employment Tribunals Act 1996 and authorities including Compass Group v Morgan, Science Warehouse v Mills, and Akigbe. Despite that finding, the tribunal dismissed the claims in their entirety because the second claim remained out of time and no extension was granted.