Background
Mr Kofkin worked for Warburtons as a secondary delivery driver and had generalised anxiety disorder, which was accepted to be a disability. Warburtons’ 2021 “Route Rationalisation” programme eliminated fixed daily routes. The employment tribunal found that the resulting loss of consistency placed Kofkin at a substantial disadvantage because it aggravated his stress and anxiety.
Kofkin alleged that Warburtons failed to make reasonable adjustments between September 2021 and February 2022, including by failing to offer him a route incorporating locations with which he was familiar. Although he presented his claim form on 23 June 2022, that particular complaint first appeared in an amendment application dated 22 July 2022. The tribunal held that the complaint was out of time and declined to extend the Equality Act 2010 limitation period on just-and-equitable grounds.
The tribunal considered that Warburtons suffered forensic prejudice because two managers could no longer clearly recall critical oral discussions from September 2021. Those gaps concerned which route was discussed, whether it was firmly offered, Kofkin’s response, and whether it remained available after he returned to work. Kofkin appealed the refusal to extend time.
The Court’s Holding
The Employment Appeal Tribunal dismissed the appeal. It held that the tribunal was entitled to find real forensic prejudice arising from faded memories about facts material to whether Warburtons had taken all reasonable steps. That conclusion was properly grounded in the witnesses’ evidence and in the tribunal’s assessment that contemporaneous texts and meeting notes did not resolve the evidential gaps.
The EAT rejected the argument that the tribunal could consider only prejudice caused by the formal period of lateness, which on one analysis was about a month. Applying Adedeji v University Hospitals Birmingham NHS Foundation Trust and Concentrix CVG Intelligent Contact Limited v Obi, it held that a tribunal may consider the practical consequence of reopening factual issues arising substantially earlier than the limitation deadline.
The tribunal’s failure expressly to state that Kofkin would lose the opportunity to have the complaint decided on its merits was not an error of law because that consequence was obvious and inherent in the statutory exercise. Nor had Kofkin already succeeded on the complaint’s facts: the tribunal had identified that he would prevail on the available evidence, but also found that the evidential gaps caused by faded memories might have enabled Warburtons to establish its defence had the complaint been brought promptly.
Key Takeaways
- When deciding whether to extend time, an employment tribunal may consider forensic prejudice affecting events that predate the formal period of delay.
- Faded memories can justify refusing an extension where the missing recollections concern factual issues capable of changing the outcome and contemporaneous documents do not fill the gaps.
- A tribunal need not invariably spell out the self-evident prejudice that a claimant will lose an out-of-time complaint, although expressly acknowledging it is preferable.
Why It Matters
The decision confirms that the just-and-equitable discretion under section 123 of the Equality Act 2010 is not confined to measuring the number of days or weeks by which a claim was late. The tribunal may examine whether permitting the claim would require a fair determination of older events for which material evidence has deteriorated.
For practitioners, the case also distinguishes between a complaint that has succeeded on its merits and one that appears sustainable only on an evidential record impaired by delay. A tribunal may refuse an extension where better-preserved evidence could realistically have supported the respondent’s defence.