Both Claimants brought grievances against the Respondent which were unsuccessful and so they brought claims, some months and even years out of time, to the ET. The ET weighed up all the factors for and against the granting of an extension of time, the following weighing more heavily in favour of the Claimants:

• Although a grievance did not automatically enable a Claimant to say that it was not just and equitable to have issued in time if the grievance process had exhausted the limitation period (see Apelogun-Gabriels v Lambeth LBC [2002] EWCA Civ 1619), it could have been a relevant factor.

• These were not claims which had been sprung on the Respondents from the depths of history. There was no suggestion that the cogency of the evidence had been affected, either documentary or oral.

The ET granted an extension and the Respondent appealed.

The EAT dismissed the appeal. The EJ did not err by treating pursuit of an internal grievance as conferring an automatic extension. The judge said in terms that this was not the law, correctly citing Apelogun-Gabriels. Nor did the judge make the error of thinking that the lack of forensic prejudice to the Respondents would point to an automatic extension. The judge correctly cited Miller and said that this was not determinative, though it heavily fed into his conclusion. He did not say that either of these features was in and of itself decisive. Rather, he set out that it was these two factors together that weighed more heavily in the Claimants’ favour than the factors against them.