Judgment approved by the court for handing down
Mr J Logo v Payone Gmbh and others
they were principles of law, should cease. The proposition of law for which Robertson is authority
is that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds.
Our judgment upholding the decision of an Employment Tribunal not to extend time was
overturned by the Court of Appeal on the basis that we should have concluded that the decision of
the Employment Tribunal was perverse, but our approach to the law was not criticised: Jones v
Secretary of State for Health and Social Care [2024] EWCA Civ 1568, [2025] I.C.R. 738. Bean
LJ summarised the key authorities:
27. The EAT referred to the well-known judgment of Auld LJ in Bexley Community
Centre (trading as Leisure Link) v Robertson [2003] IRLR 434, at paras 23–24 :
“If the claim is out of time there is no jurisdiction to consider it unless the
tribunal considers that is just and equitable in the circumstances to do so. That
is essentially a question of fact and judgment for the tribunal to determine …
The tribunal, when considering the exercise of its discretion, has a wide
ambit within which to reach a decision.”
28. In Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 , Wall LJ
at para 24 said that Robertson emphasises the wide discretion which the ET has.
Sedley LJ said at para 31:
“There is no principle of law which dictates how generously or sparingly
the power to enlarge time is to be exercised. In certain fields (the lodging of
notices of appeal at the EAT is a well-known example), policy has led to a
consistently sparing use of the power. That has not happened, and ought not to
happen in relation to the power to enlarge the time for bringing ET
proceedings.”
29. In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018]
ICR 1194 Leggatt LJ, with whom I agreed, said:
“18. First, it is plain from the language used (‘such other period as the
employment tribunal thinks just and equitable’) that Parliament has
chosen to give the employment tribunal the widest possible discretion.
Unlike section 33 of the Limitation Act 1980 , section 123(1) of the Equality
Act 2010 does not specify any list of factors to which the tribunal is instructed
to have regard, and it would be wrong in these circumstances to put a gloss on
the words of the provision or to interpret it as if it contains such a list. Thus,
although it has been suggested that it may be useful for a tribunal in exercising
its discretion to consider the list of factors specified in section 33(3) of the
Limitation Act 1980 (see British Coal Corpn v Keeble [1997] IRLR 336 ), the
Court of Appeal has made it clear that the tribunal is not required to go through
such a list, the only requirement being that it does not leave a significant factor
out of account: see Southwark London Borough Council v Afolabi [2003] ICR
800, para 33 . The position is analogous to that where a court or tribunal is
exercising the similarly worded discretion to extend the time for bringing
© EAT 2025
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