1/ Wells Cathedral School v Souter: EAT makes clear it's open to an EJ to extend time for an EqA claim where the claimant waited for an internal grievance to be heard, & is open for an EJ to decide the other way. It's a matter of weighing up the relevant factors.
#ukemplaw
#ukemplaw
2/ Claims of constructive unfair dismissal & disability discrim were made by a husband & wife (with the husband's disability claim being an associative one). An SAR uncovered emails said by the Cs to show plans to undermine them & to remove them from the school.
3/ They both raised grievances reliant in part on those emails & resigned following determination of those grievances. They brought their claims in time as against their grievances/resignations but not as against any of the alleged EqA breaches or from seeing the emails.
4/ At a PH, the EJ held time should be extended. The EJ noted both Cs wanted to avoid legal proceedings if possible & found the extension wouldn't cause the Rs forensic prejudice. Importantly, he considered the time taken for the grievance processes a relevant factor. 
5/ WCS appealed on the basis of misdirection/perversity re reliance on the grievances & re reliance on the absence of forensic prejudice.
6/ The EAT noted from Miller v MoJ, Morgan & Adedeji that the factors relevant to exercising discretion to extend time under the EqA are case-sensitive. Whilst some features (such as length of delay & reason for it) are often relevant, an ET should avoid a mechanistic approach.
7/ The EAT disagreed with WSC's submissions that the mere fact of raising an internal grievance could never be decisive. It may 'not necessarily' suffice, but that doesn't preclude an ET from allowing the extension absent added reasons. This was consistent with the case law.
8/ The EAT noted that, in any event, the fact of raising an internal grievance will not in reality be presented as an unadorned fact standing on its own but part of some wider case-specific factual context/narrative. Sometimes it may persuade the ET, sometime it may not.
9/ Moving on to forensic prejudice, whilst it was held in Miller not to be decisive & sometimes not relevant, that doesn't set a limit to how the ET takes the existence/lack of forensic prejudice into account in weighing the balance.
10/ It is perhaps a shame that the EAT didn't consider at this point Underhill LJ's comments in Adedeji on forensic prejudice where matters are recorded in writing/reliant on documents, though I don't suggest that would have altered the result.
11/ The EAT found the EJ hadn't considered the pursuit of an internal grievance as conferring an automatic right to the exercise of the discretion to extend, but had carried out a perfectly appropriate fact-sensitive consideration of the relevant features in reaching his decision
12/ For those who've decided to use New Year's Eve (or the 25 minutes leading up to it) to read this thread, your reward is the link to the judgment: bailii.org/uk/cases/UKEAT… #ukemplaw
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