Time extended on just and equitable grounds when a race discrimination claim was presented out of time.

The claimant is an American citizen. She moved to the United Kingdom with her husband and she started working for the respondent in October 2022. There were issues external to employment which affected the claimant and she moved to England in late January 2023.  This led to the claimant being dismissed. A letter was emailed to her referred to Probationary Meeting Review in February 2023 which stated that her employment should be terminated with immediate effect. 

The claimant made claims of race discrimination. She alleged less favourable treatment from line managers and that complaints made by her were not investigated properly or at all.  She stated that racially obnoxious words were used to her and that her neurodiversity was disclosed to other employees without her permission. 

The claimant felt that she had made contact with the LRA but the LRA had no record of that.  The record indicated that she made contact on 18th July 2023 with the early conciliation certificate being issued on 2nd August 2023. The ET1 was subsequently presented to the Tribunal on 1st September.

A preliminary hearing was undertaken as to whether the Tribunal had jurisdiction to hear the claims.

The unfair dismissal claim was dismissed on the basis that the claimant only had 3 months and no complaint was made within the ET1 relating to automatically unfair dismissal.  Therefore, there was not the requisite level of continuous service for the right not to be unfairly dismissed to crystallise.

In terms of the race discrimination claim, the issue was whether time could be extended to allow the claim.  The claim was submitted just shy of four months out of time. The Tribunal had to consider the just and equitable test as to whether time should be extended. The Tribunal accepted that the claimant would not be familiar with the law on unfair dismissal or race discrimination in Northern Ireland and it also took into account the personal circumstances faced by claimant during the tail end of employment, such as domestic violence, and having to move to England as having an impact. In addition to that, the claimant was a sole parent for two very young children of pre-school age and that did have to be taken into account.  Bearing those matters in mind it was held that it was just and equitable to allow time to be extended and for the race discrimination claim to be considered by the Tribunal. 

The exercise of the just and equitable test is well seen in this instance. It is a lower threshold than that seen with other claims where the not reasonably practicable test is used. To this end, the circumstances of the claimant were such to allow time to be extended. The unfair dismissal aspect was an easier one but it is good to be reminded of the need to have that one years’ continuous service for the right to crystallise.

NI Tribunal decisions are available on the OITFET website.