The Claimant resigned after suffering from stress and having two periods of sickness absence. He made claims of unfair dismissal, disability and age discrimination but the supporting particulars of claim made no reference to age discrimination. Further particulars were provided after a request from the Respondent in which the Claimant named the person (a Mr Brown who had left the company on 2020) who had made verbal comments. He accepted he relied upon these verbal comments as evidence of age discrimination but they were not supported by any documentary evidence. The ET allowed the claim to proceed despite it being 14 months out of time saying that, given the timeline of the Claimant’s time of work due to (his claimed) ill-health and the period in which he returned to work and eventually resigned, may have caused him to delay bringing such a claim. The ET also allowed the extension on the basis that, because there were other current employees of the Respondent who advised the Claimant, there was no prejudice to the Respondent by reason of Mr Brown being no longer employed as other employees remained employed. The Respondent appealed.

The EAT allowed the appeal. The ET did not direct itself as to the need to consider the length of, and reasons for, the delay or the balance of prejudice to the parties; it did not consider the prejudice to the Respondent of having to meet a claim which would otherwise be defeated by a limitation defence; and it failed to balance the relative prejudice to the parties. Further, the ET erred in its finding that there was no prejudice to the Respondent simply because the alleged perpetrator of the discrimination was no longer employed by the Respondent. This finding failed to take account of the fact that he was the sole or main alleged perpetrator of the discrimination and/or his consequent availability as a witness for the Respondent and the effect of the delay upon the quality of any evidence that he could give. Alternatively, this finding was perverse.