The Claimant retired after 14 years of service as a part-time fee-paid Judge on 27 July 2007. The Claimant received communication from the SSCSA fee-paid Tribunal Judges/LQPN pensions group in August 2011 about the O'Brien case, saying that any fee-paid tribunal judge approaching retirement who wished to apply for a judicial pension should issue protective proceedings in the Employment Tribunal before retirement or within three months thereafter because any later claim was likely to be out of time. However, the solicitor acting for judges who made up a multiple claim said that Claimants should not be retired as a judge or they should have retired on or after 1 July 2011. Therefore this ruled out the Claimant. His application to extend time was refused by the ET and he appealed.

The EAT allowed the appeal. The error at the heart of each ground was the failure of the EJ to decide on the facts of this particular case in respect of the relevant periods the reason for the delay and whether in the light of that reason, the delay was reasonable.