Oscar Davies successful in the Employment Appeal Tribunal in disability discrimination claim on anonymity and ‘just and equitable’ extension test

Oscar Davies has successfully represented an employee claimant in the Employment Appeal Tribunal (EAT) in JK v London Borough of Ealing [2025] EAT 78, succeeding on two grounds of appeal and securing an anonymity order for the Claimant in her disability discrimination claim.

The judgment, by Deputy High Court Judge Michael Ford KC (sitting in the EAT) serves as a valuable clarification of the legal distinction between granting amendments and extending time under the Equality Act 2010 – a nuance that is frequently misunderstood at first instance – as well as confirmation of the law on anonymity orders.

Case background

The claimant, a social worker, had been employed by the London Borough of Ealing from 2013 until the termination of her employment in January 2022. She alleged that she was forced out of her role following a period of serious mental ill health, during which she experienced bullying, a lack of reasonable adjustments, and discrimination based on disability and sex. After her departure, she raised claims of unfair dismissal and discrimination. However, the Employment Tribunal dismissed her claims as out of time and rejected her request for anonymity, despite medical evidence indicating the impact of the proceedings on her mental health.

Test for amendment versus the test for ‘just and equitable’ extension

The EAT upheld the appeal on two key grounds. The first was misapplication of the legal test for an amendment. The EAT found that the Employment Tribunal had erroneously treated the disability discrimination and victimisation claims as if they were applications to amend, rather than applying the correct test of whether it was just and equitable to extend time under section 123 of the Equality Act 2010. This legal misdirection was found to be material, and the case was remitted to a new tribunal for reconsideration.

The Tribunal erred by treating these claims as if they were subject to a fresh amendment application and proceeded to conduct a Selkent-style balancing exercise (Selkent Bus Co Ltd v Moore [1996] ICR 836), weighing up procedural prejudice and case management fairness. That analysis was misplaced. The proper legal test was the broad discretionary standard under s.123, as clarified in key authorities including Southwark LBC v Afolabi [2003] ICR 800 and Adedeji v University Hospitals NHS Foundation Trust [2021] EWCA Civ 23.

The EAT provided useful guidance for practitioners as to the fundamental difference between the amendment and extension of time:

32. The source of the tribunal’s power to grant amendments is former rule 29 of the 2013 Rules (now rule 30 of the 2024 Rules), on case management, and former rule 41 (still rule 41) by which tribunals may regulate their own procedure. Neither gives any steer on how the discretion should be exercised but guidance is set out in familiar authorities such as Selkent and Vaughan to which the EJ referred at §27. Tribunals should, in general, consider the nature of the amendment, the applicability of time limits and the timing and manner of the application, all as part of an overall balancing exercise weighing the balance of justice and injustice of granting or refusing the amendment. The merits of the claim may be relevant.

33. An extension of time under s.123 EqA has a different statutory source, of course, which expressly directs tribunal to consider whether it is “just and equitable” to extend time. The extensive case law provides guidance on how tribunals should approach the exercise of the discretion in s.123. While the factors set out in s.33(3) of the Limitation Act 1980 may serve to illuminate the exercise, as the Holland J explained in the first appeal to the EAT in British Coal Corpn v Keeble ([1995] UKEAT 496/98), those factors are not to be applied mechanically or rigidly as some sort of check list in exercising what is a “very broad general discretion” in s.123: see Afolabi per Peter Gibson at §33 and Adeji per Underhill LJ at §37. Instead, the best approach is for the tribunal “to assess all the factors in the particular case it considers relevant…including in particular… the ‘length of and reasons for the delay’”: Adeji at §37. The merits of a claim may also be relevant to this exercise: see, e.g., Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 1321, cited by the EJ at §26.

The judge continued that whilst the two tests are similar, they will not necessarily lead to the same result:

42. There is clearly a degree of similarity between the guidance tribunals should follow on whether to grant an application to amend and the guidance on the application of s.123 EqA. For example, both may well involve balancing the prejudice to the parties and considering the length and reasons for the delay in not making the claim beforehand. I do not accept, however, that the questions to be asked on an application to amend and an application for an extension of time under s.123 are so similar that the ineluctable result of the EJ’s findings and reasoning, directed as I have found to what he treated as an application to amend, was that no extension of time would have been granted under s.123 EqA. The statutory question under s.123 is distinct to it and the discretion is framed in very wide terms, of what is “just and equitable”, as the authorities recognise. It is perfectly possible for a tribunal to reach different conclusions depending upon the lens through which it views an application. For example, according to Selkent whether the complaint is out of time and, if so, whether time should be extended is a relevant factor, whereas under s.123 it is the statutory question. In addition, the extent to which the complaint is making entirely new factual allegations probably has more weight in the Selkent exercise than it does under s.123. The width of the discretion under s.123 may also mean that a claimant is more likely to be given an extension of time than he is to be granted an amendment (or at least that some of the complaints are allowed to proceed because of the shorter length of delay or the limited evidential prejudice). All this is only to show that the EJ might have arrived at a different answer if he had not approached the matters as applications to amend.” (Underlining added)

In conclusion, the judge found that there were too many mentions of amendment rather than extension of time, and the appeal was allowed:

38. On balance, I consider the EJ’s reasoning on the disability complaints at §§40-44 is more consistent with his undertaking a Selkent exercise than focusing on “just and equitable” extension under s.123 EqA. For example, in §40 he noted that the Claimant was seeking to “introduce a very substantial number of claims of disability discrimination”, a consideration which looks more relevant to factor (a) – the nature of the amendment – referred to in the list of relevant factors in Selkent (844G) than it does to s.123. The subsequent passages fit with this explanation because EJ went on to consider that the claim was out of time and explanation for the delay (relevant to Selkent factor (c), the timing and manner of the application) and the respective prejudice to the parties of allowing or refusing the claims to proceed….

40. For these reasons, I do not accept that the structure of the EJ’s reasoning points towards his addressing the s.123 question rather than an application to amend. Once that submission is rejected, the repeated references in the reasons to “applications to amend” or granting “amendments” in §§27, 41, 43 and 46 of the EJ’s reasons – which Mr Williams accepted it was hard to treat as innocuous slips – all indicate that the EJ erred in his approach to the complaints of disability discrimination and victimisation. On a fair reading of the judgment as a whole, without being hypercritical or pernickety, the EJ wrongly focused on whether he should grant applications to amend. This error meant, in essence, that he asked himself the wrong question, wrongly directed his reasons to whether the amendment application should be granted or refused and did not sufficiently focus on the actual statutory language and question under s.123. In my judgement, his decision is not rescued by his conclusion at the end of each section that it was not just and equitable to allow the complaints of disability discrimination and victimisation to proceed (§§44 and 46) and nor by the conclusion in the judgment itself. His reasons display a legal error in the route he followed to reach that end point.

43. For all those reasons, I do not consider that the EJ’s legally erroneous approach cannot have affected the result or was immaterial, nor that I am able to decide, based on the EJ’s findings of fact, what the inevitable result would have been if he had directed himself correctly: see Laws LJ in Jafri v Lincoln College [2014] ICR 920 at §21. It follows that the question must be remitted to the employment tribunal.” (Underlining added).

Material error of fact

The second material ground granted was that the Tribunal had incorrectly found that the claimant had no absences in her new employment due to illness, contrary to her unchallenged evidence. This factual error influenced the Tribunal’s assessment of her mental health and capacity to bring a timely claim, and therefore also required the decision to be set aside:

53. It was, of course, open to the EJ to reach the conclusions he did at, for example, §§31 and 40 about the effects of the Claimant’s ill-health even if the Claimant did have some absences once she started her new job. But his reasons to that conclusion referred to the Claimant’s ability to cope in her new role, to which the earlier finding of fact was potentially relevant. As a consequence, and in accordance with Jafri, I do not consider I can say that the result would inevitably have been the same had the wrong finding of fact not been made.

Anonymity order granted in the EAT

Additionally, anonymity was granted in the EAT, following the submission of new medical evidence that demonstrated a serious risk to the claimant’s mental health if her identity were made public. The Tribunal accepted that the claimant’s Article 8 rights under the European Convention on Human Rights outweighed the principle of open justice in this case.

The EAT provided instructive guidance in terms of the approach when considering making an anonymity order in the EAT:

9. The EAT has specific power in rule 23A to make restricted reporting order in proceedings governed by s.32 of the Employment Tribunals Act 1996 (“ETA”), relevant to disability (it applies to appeals against employment tribunal to make or not to make a restricted reporting order). The power under rule 23A to grant anonymity extends to ET proceedings as well as EAT proceedings; but it is restricted to a restricted reporting order “until the promulgation” of the EAT’s decision: see rule 23A(2).

10. However, the EAT’s general power to regulate its own procedure under s.30 ETA, interpreted in accordance with the Human Rights Act 1998, gives it a wider power to grant anonymity and restrict disclosure beyond the promulgation of the decision where necessary in order to protect ECHR rights: see A v B [2010] ICR 849, EAT and A v X [2019] IRLR 969. There is guidance on how to exercise such powers in F v G [2012] ICR 246 (Underhill J) at §§23-24 which, though directed to orders in the employment tribunal, is equally of some relevance to the exercise of powers in the EAT.

11. Applying that guidance, I consider it is appropriate to make the anonymity order sought in the EAT proceedings. I accept on the medical evidence before me that the publication of the Claimant’s name in these proceedings will affect her Article 8 rights: in particular, the evidence indicates it will lead to a serious deterioration in her health. That is not sufficient to justify making an order, because I must give full weight to the important principle of open justice. I bear in mind, too, that for the moment the ET judgment, disclosing information about the Claimant’s health, is available on the ET’s website, so that to some extent information about her health is already in the public domain. But there is now new medical evidence which may cause the ET to reconsider its decision (see below) and the medical evidence shows that the publication of the Claimant’s name in the EAT proceedings will independently contribute to a deterioration in her health. In those circumstances, I consider her Article 8 rights bear substantial weight, and the result of the balancing exercise is in favour of the anonymity order sought.

Oscar is an award-winning barrister and is ranked as a ‘Rising Star’ in the Legal 500. Oscar undertakes a range of civil and public law work, including employment, education, human rights, commercial and property/housing.

Oscar is part of the employment and discrimination law team and is available for instructions by solicitors or direct access.