Section 123 of the Equality Act 2010 states that claimants must submit their claim for discrimination within three months less one day of the date of the act they are complaining about unless it is “just and equitable” to extend time. The EAT held in Holbrook v Cosgrove and ors that the tribunal was correct not to extend time as the reason Mr Holbrook did not submit his claim in time was due to a mistaken belief that it was unlikely to succeed because of an earlier non-binding tribunal decision.
Basic facts
Mr Holbrook, a practising barrister of over 30 years standing, sent a tweet which his colleagues considered to be racist. After refusing to remove it, he was expelled from his chambers with effect from 1 February 2021. The Bar Standards Board (BSB) subsequently investigated 18 of Mr Holbrook tweets to which he responded by submitting a 33-page report on 4 May 2021.
Although he considered that his treatment was based on his belief in social conservatism and, therefore, potentially discriminatory, he did not lodge a tribunal claim. He said this was because he reasonably believed that his claim would fail because of the tribunal decision in Forstater v CGD Europe and ors in December 2019, which held that a person's gender-critical belief did not constitute a protected characteristic under the Equality Act.
This decision was overturned by the EAT (ELR 730) on 10 June 2021, However, Mr Holbrook did not read the decision until 23 August because he was preoccupied with the BSB investigation. After consulting a specialist barrister on 29 September, he issued his claim for belief discrimination the next day, 30 September. By this point, his claim for belief discrimination was five months out of time under section 123 of the Equality Act 2010.
Mr Holbrook argued that it would be “just and equitable” for the tribunal to extend time because of his “reasonable belief” that a claim under the Equality Act would fail as a result of the tribunal decision in Forstater. He also argued that it was reasonable for him not to have read the EAT decision until 23 August because he had been focused on proceedings brought against him by the BSB.
Tribunal decision
Dismissing his application to extend time, the tribunal held there was no legal impediment to Mr Holbrook bringing the claim in time. In particular, he had made a judgment that his claim would not succeed even though he knew that the tribunal decision in Forstater was not binding and concerned a completely different set of beliefs to his.
As to the argument that he had acted promptly after 23 August, the delays up until that date were entirely his responsibility for which there was no good reason. The EAT had handed down its judgment on 10 June 2021 and Mr Holbrook had tweeted about the importance of the decision on 24 June.
The tribunal found that he had decided not to investigate the legal arguments in the period between 10 June and 23 August. When considering the balance of prejudice it held that while Mr Holbrook would be prevented from pursuing his claim, the prejudice to his erstwhile colleagues of defending a claim, the merits of which were not strong, weighed the balance in their favour. As such the tribunal considered there was very little reason to extend time.
Mr Holbrook appealed, arguing (among other things) that the EAT decision in Forstater was a "game-changer" in that a belief that would not previously have qualified for protection, would now almost certainly qualify. Had the judge focused, as she ought to have done, on the reasonableness of the delay and his perception of the law, rather than on whether or not there was a "legal impediment" to bringing a claim, she would have been bound to conclude that the delay was not unreasonable.
EAT decision
Dismissing the appeal, the EAT held that far from being a “game-changer”, the EAT decision in Forstater simply restated long-established principles relating to freedom of speech and applied them to the specific context of that case.
In any event, the tribunal decision in Forstater was far from directly analogous to his claim as it had nothing to do with social conservatism which was just as likely to be protected as any other political or religious belief about which there had been no adverse ruling. Thus, even if the decision had been considered to be a correct application of established principles on freedom of expression, there was no reason to assume that it closed the door on bringing a claim relating to his belief.
Comment
While this case is particular to its facts it is a reminder that appeals against a tribunal discretion not to extend the time limit are hard to challenge where it has correctly applied the principles to the facts as it did in this case.
In another case where there is a relevant appeal pending, the safest option is to lodge the claim in time and apply to the tribunal for a stay (putting the case on hold) pending the outcome of the appeal.
