What does “just and equitable” mean in an Employment Tribunal claim?

What happens if you miss the deadline for an Employment Tribunal claim? Can you still get the claim heard by the Tribunal even if you're out of time? The short answer is that you can ask, but it's not easy, and you're definitely not guaranteed success. However, you can make an argument to the Tribunal that it would be “just and equitable” for them to allow you to go ahead with your discrimination claim even though you are out of time.

A quick reminder about Tribunal deadlines because they are so important: you have three months minus one day after the incident at work to start the early conciliation process, which is the next step to go to Tribunal. If you don't do it within that timeline, your claim will be out of time, and the respondent will likely argue that your claim should be thrown out. So, you'll want to combat this with the just and equitable argument.

To be clear, there is no specific list of acceptable reasons for being out of time, and there is no set guidance for employment Tribunal judges on granting extensions. It's a highly subjective matter, and judges have described it as one of the most complex parts of the process. However, we can look at how employment Tribunal judges and Tribunal appeals have handled such cases in the past.

One case is particularly useful for understanding the rules and thought process behind granting an extension. In this case, the judge allowed an extension for one claim but denied it for a second claim. Here are the three reasons the claimant used to justify the extension:

1. They were trying to address the matters internally.

2. They were going through a lot of pain and having to deal with that.

3. They didn't know about the Tribunal process.

The first reason was successful in this case because the claimant was actively trying to resolve the issue internally. However, the third reason didn't hold up because the claimant did have access to a trade union, making the judge question its legitimacy. The second claim was denied an extension, mainly because it was added later and wasn't addressed internally simultaneously.

In another case, the argument of trying to resolve the matter internally was successfully employed again. The claimant also passed the just and equitable test, in part because they had been actively trying to resolve the matter with their employer internally.

If you're considering making this argument, it's highly recommended to study these types of cases to get a better idea of how to present your case effectively. It's important to note that the "just and equitable" argument is only for discrimination claims, so if you have another claim, you'll need to figure out another argument.