Out-of-Time Discrimination Claims Acceptance Rules (Employment Tribunal)

Discrimination claims in the Employment Tribunal must normally be submitted within strict statutory time limits. Under the Equality Act 2010, most claims must be brought within three months less one day of the discriminatory act. Where a claim is submitted after this deadline, it is considered out of time.

However, out-of-time claims are not automatically rejected. Employment Tribunals have a limited discretion to accept late discrimination claims where specific legal tests are met. These rules are set out primarily in section 123 of the Equality Act 2010, along with established tribunal case law.

This article explains how tribunals decide whether to accept late discrimination claims, what legal tests apply, and what factors influence whether a claim may proceed.

What “Out-of-Time” Means in Discrimination Claims

A discrimination claim is “out of time” when it is submitted after the expiry of the statutory limitation period.

In most cases, this means:

• More than 3 months minus 1 day has passed since the discriminatory act
• Or, in continuing discrimination cases, more than 3 months has passed since the last act in the series

Being out of time does not automatically end the claim, but it places a legal burden on the claimant to justify why the tribunal should still accept it.

The Legal Test for Accepting Late Discrimination Claims

The “just and equitable” test

The primary legal test is whether it is just and equitable for the tribunal to extend time.

This test gives tribunals discretion but does not create an entitlement to a late claim being accepted.

The tribunal will assess fairness between:

• The claimant's reasons for delay
• The employer's ability to defend the claim
• The overall interests of justice

Key Factors Tribunals Consider

There is no fixed checklist, but tribunals consistently consider the following factors.

1. Length of the delay

The longer the delay, the harder it is to justify acceptance.

• Short delays (days or weeks) may be more easily excused
• Long delays (months or years) require strong justification

2. Reason for the delay

Tribunals examine whether the claimant had a reasonable explanation, such as:

• Serious illness or incapacity
• Lack of awareness of facts necessary to bring a claim
• Exceptional personal circumstances

However:

• Ignorance of legal time limits is rarely sufficient on its own
• General delay or indecision is usually not accepted

3. Knowledge of rights and facts

A key distinction is made between:

• Knowing the facts of discrimination
• Understanding that those facts may amount to a legal claim

Time usually runs from the act itself, not from when the claimant realises it may be unlawful.

4. Prejudice to the respondent

The tribunal considers whether the employer would be unfairly disadvantaged, for example:

• Loss of key witnesses
• Missing or destroyed documents
• Difficulty reconstructing events due to passage of time

5. Availability of evidence

The tribunal assesses whether:

• Evidence remains available and reliable
• Witness memory has deteriorated
• Documentary records still exist

The fairness of a delayed trial is central to the decision.

6. Conduct of the parties

Tribunals may also consider:

• Whether the employer contributed to delay (for example through concealment)
• Whether the claimant acted promptly once aware of the issue
• Whether there were ongoing grievance or appeal processes

Interaction With Continuing Acts of Discrimination

Before applying out-of-time rules, tribunals first consider whether the discrimination is a continuing act.

If a continuing act is established:

• Time runs from the last act in the series
• The claim may still be in time without requiring an extension

If the tribunal finds there is no continuing act:

• The claim is treated as out of time
• The just and equitable test becomes relevant

ACAS Early Conciliation and Out-of-Time Claims

ACAS Early Conciliation affects timing but does not guarantee acceptance of late claims.

Key principles:

• The limitation period is paused during conciliation
• Time resumes once the certificate is issued
• ACAS does not revive claims that are already out of time

If a claim is already late before ACAS is contacted:

• The tribunal will still treat it as out of time
• The claimant must rely on the just and equitable test

Examples of Situations Where Late Claims May Be Accepted

Tribunals may accept out-of-time claims where there are strong factual reasons, such as:

• Severe medical incapacity preventing action
• Evidence that discrimination only became apparent later
• Employer concealment of relevant facts
• Exceptional personal crises directly preventing action

Even in these cases, acceptance is not guaranteed.

Examples Where Late Claims Are Usually Rejected

Tribunals commonly refuse out-of-time claims where delay is due to:

• Forgetting or overlooking deadlines
• Waiting for internal grievance outcomes
• Misunderstanding ACAS or tribunal processes
• Lack of urgency without exceptional reason
• Simple delay in seeking legal advice

The key issue is whether the delay was objectively justifiable.

Burden of Proof in Out-of-Time Applications

The claimant bears the burden of showing that:

• The delay occurred
• There is a sufficient reason for it
• It is fair for the tribunal to allow the claim

If no adequate explanation is provided, the tribunal is likely to strike out the claim without considering its merits.

Procedural Handling of Out-of-Time Claims

Out-of-time issues are often decided:

• At a preliminary hearing, or
• As part of an early case management decision

Tribunals may:

• Strike out the claim entirely
• Allow it to proceed to a full hearing
• Require evidence specifically on limitation issues

Limitation disputes can therefore determine whether the claim is ever heard.

Relationship With Other Tribunal Time Limit Rules

Out-of-time discrimination claims are closely linked to:

• The three-month limitation rule
• The ACAS Early Conciliation pause rules
• The continuing act doctrine
• Extension principles under Equality Act 2010 section 123

These elements are assessed together when deciding whether a claim is admissible.

Key Takeaways

Out-of-time discrimination claims may still be accepted by an Employment Tribunal, but only if it is considered just and equitable to do so under section 123 of the Equality Act 2010. Tribunals carefully assess delay length, reasons for delay, availability of evidence, and fairness to both parties. While limited discretion exists, late claims are not routinely accepted, and strong justification is required. Understanding these acceptance rules is essential because limitation issues often determine whether a discrimination claim can proceed at all.