Mulheron v Her Majesty’s Revenue & Customs — 2021

The claimant, Steven Mulheron, had been employed by HMRC from 15 February 2016 to 10 April 2017. He presented an ET1 on 22 September 2018 alleging disability discrimination and victimisation under sections 15, 19 and 27 of the Equality Act 2010 in relation to acts said to have occurred between 12 July 2016 and 10 April 2017. The tribunal recorded that ACAS early conciliation was initiated on 7 July 2017, the ACAS certificate issued on 24 July 2017, and the extended limitation date expired on 24 August 2017. It found that the claim was presented one year and 29 days out of time.

The preliminary hearing focused on whether that late presentation should nevertheless be allowed under the just and equitable limb of section 123(1)(b) Equality Act 2010. The claimant relied on mental health difficulties, including a major depressive disorder and general anxiety disorder, and gave evidence that his condition affected his concentration, focus and ability to progress the claim. The tribunal accepted that he had significant symptoms, but preferred the evidence of Dr Una Graham to that of Mrs Mary Keenan Ross on the issue of functional impact. It found that the claimant was able during the relevant period to consult and instruct solicitors about employment tribunal proceedings, commence a criminal injuries compensation claim, pursue grievances and a subject access request, write a detailed complaint letter to HMRC, and meet his MP about his employment issues.

Applying the broad discretion under section 123, and referring to the Keeble factors together with Robertson v Bexley Community Centre, Abertawe Bro Morgannwg Univ LHB v Morgan, Adedeji v University Hospitals Birmingham NHS Foundation Trust and Department of Constitutional Affairs v Jones, the tribunal held that the delay was very considerable and that the explanation was not primarily medical. It found that the claimant had likely known by about November 2017 that the claim was already out of time, but still did not issue proceedings until September 2018. The tribunal also found that the delay was likely to prejudice HMRC through fading memories and reduced cogency of evidence. It concluded that it was not just and equitable to extend time, so the claims were dismissed for want of jurisdiction.