The Claimant, who is of African-Caribbean descent, applied for the role of Assistant Business Development Manager on 8 March 2019. The Claimant was considered to be appointable and scored the second highest of the four candidates. The candidate who received the highest score, Candidate B, was offered and accepted the role on 2 April 2019. The Claimant was not told until 3 July that he had been unsuccessful which meant that the 3 month limitation period for bringing a claim to the ET had expired. Also, the Claimant was not told until the preliminary hearing in June 2020 that Candidate B was white. The ET dismissed the claim on the merits. In summary, the ET concluded that Candidate B could not be an actual comparator because “there are too many differences in material circumstances”, stating that this was “particularly so given what the Claimant says about the alleged inferiority of Candidate B’s qualifications and experience”. The ET stated that there was “nothing in the evidence we have heard which leads us to draw an inference of discrimination”, including that there was “no evidence of any conscious or sub-conscious consideration of racial characteristics”, that the Respondent “genuinely chose those who they assessed as the best candidate for the role based on their performance at interview” and there was “no material breach of procedure from which the ET could draw an adverse inference of discrimination”. On the time issue point, despite the Claimant’s criticisms, the Respondent did in fact provide him with information and an explanation of its actions quite early on in the chronology. It gave him enough information to know that there was a claim for him to make if he wanted to present it to the Tribunal. The Respondent certainly did not hamper or prevent the presentation of the claim in a timely manner after 3 July. An extension of time was therefore rejected. The Claimant appealed.

The EAT dismissed the appeal, concluding that the Claimant could not establish that the decision of the ET not to exercise its discretion to extend time on just and equitable grounds was perverse, which was the single ground of appeal pursued in respect of the time issue.