Claims of unlawful discrimination under the Equality Act 2010 normally need to be instigated no later than three months less a day from the date of the act complained of (or last in a series of acts complained of), by first submitting an ACAS Early Conciliation Request.

Employment Tribunals do however have discretion under the Act to consider whether to allow discrimination claims out of time on a ‘just and equitable’ basis.

In in Owen v Network Rail Infrastructure Ltd, the Employment Appeals Tribunal considered whether the employment tribunal needs evidence to support granting an extension of time for a discrimination claim on a ‘just and equitable’ basis.

The EAT concluded that the employment tribunal was wrong in finding that it could not consider whether it was just and equitable to extend time to bring a discrimination claim where the claimant had provided no evidence to explain the late submission of the claim. The absence of any explanation in the evidence for the delay in presenting the claim did not mean that the tribunal was bound to refuse an extension. It is a relevant consideration, but it is not necessarily conclusive. The EAT sent the matter back to the same Tribunal to consider the issue further.

In practice though, a Claimant really should offer an explanation why the claim was not presented in time together with any supporting evidence.

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