Welcome back to another case of the week.  Last week our newsletter covered a professor who suffered victimisation, harassment and direct discrimination for expressing her views at a Women’s Place UK talk, mass redundancy at Port Talbot and DPD learning that it’s not just disgruntled employees that can be disloyal when its own AI chatbot stated “DPD is the worst delivery firm in the world”.  For those who missed it can find it here. This week we’re looking at a race discrimination claim in the case of Dr Nicholas Jones v The Secretary of State for Health and Social Care.

The Claimant applied to the Respondent, Public Health England for the role of Assistant Business Developer Manager but was unsuccessful in his application. The Claimant was of African Caribbean descent and felt that because of his race he had been discriminated against resulting in him not being successful in his application.  The Claimant scored the second highest score out of four candidates in the application process.  On 2 April 2019, the candidate who scored the highest mark was offered the job.

The Respondent delayed informing the Claimant and the other two candidates that their applications were unsuccessful until three months after the interviews. The Claimant was informed on 3 July 2019 that he had been unsuccessful.  This was after the three-month limitation period for the Claimant to present a race discrimination claim, the last day to have brought a claim would have been 1 July 2019.

On 24 July 2019, the Claimant wrote to the Respondent asking for the age, gender and ethnic origin of the successful candidate and whether there were any candidates that represented a minority group that were considered for the role.  The Respondent informed the Claimant that under the GDPR, it could not disclose the requested information but it did refer him to his rights to make a Freedom of Information request, the Respondent being a public body (Readers will be relieved that FOI requests can’t be made to private sector employers).

The Claimant mistakenly thought he had until 9 August 2019 to bring a claim. He commenced ACAS early conciliation on 30 September 2019. This was just short of three months since he was informed that he was unsuccessful in his application for the role, we know these dates seem back to front…you can read the judgment here. The Employment Tribunal received the Claimant’s claim form on 29 October 2019.

Eventually, during a preliminary hearing on 23 June 2020, the Respondent confirmed that the successful candidate is white.

The claim was heard by Reading Employment Tribunal between 14-17 December 2021 and the Tribunal dismissed the Claimant’s race discrimination claim finding that there was no evidence to demonstrate conscious or unconscious discrimination in the Respondent’s choice of candidate. The successful candidate had a higher score than the Claimant resulting in him being a stronger candidate overall.

The Employment Tribunal also found that the Claimant’s claim was out of time as he had started early conciliation more than three months after the decision not to appoint the Claimant. The Tribunal considered whether it was just and equitable to extend the time limit but held that the Claimant was aware that there was a time limit, even if he had mistaken the date on which it expired. It was not clear why the Claimant had waited a significant period before bringing a claim after being notified that he was unsuccessful with his application. It was therefore not just and equitable for the Tribunal to exercise their discretion to extend time.

The Appeal

The Claimant appealed arguing that he was waiting until he knew the race of the successful candidate and the Respondent withholding such information was evidence of discrimination.  The Employment Appeal Tribunal (EAT) dismissed the appeal finding the Claimant did bring a claim about race discrimination before he knew the race of the successful candidate he could have known this information earlier if he had made a Freedom of Information Act request as the Respondent had suggested.

Takeaway Points

Most Employment Tribunal claims have a time limit of three months less one day.  Although the Employment Tribunal may grant an extension of time on just and equitable grounds in discrimination claims, the hurdle to be jumped, to establish it would be just and equitable to extend time, is a high one. Here, the reason for the Claimant’s delay in commencing his claim was not enough to get over that hurdle, leaving his claim out of time.

Even though the Claimant was informed 3 months after his interview that he had been unsuccessful with his application, he should have made a claim as soon as he was notified by the Respondent. When considering the just and equitable test, the Tribunal will consider how quickly the Claimant acted once he was told he had been unsuccessful outside of the normal limitation period. If the Claimant had acted more quickly after he had been notified, he might have had a better chance of obtaining a just and equitable grounds to extend the time extension, bearing in mind the Respondent’s culpability in not notifying the Claimant promptly that his application hadn’t been successful.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.