The Employment Appeal Tribunal allowed an appeal where an employment judge erroneously treated complaints of disability discrimination and victimisation as amendment applications rather than addressing the correct statutory test for time extensions under the Equality Act 2010 (EqA). The EAT granted an anonymity order based on fresh medical evidence and remitted the matter for rehearing.

Background 

JK, a social worker employed by Ealing Council, brought claims including unfair dismissal, sex discrimination, disability discrimination, harassment and victimisation following the termination of her employment in January 2022. The employment tribunal rejected her applications to extend time for the disability-related complaints under s.123 EqA, finding it was not just and equitable to do so. Permission to amend to add these complaints had already been granted at an earlier case management hearing before Employment Judge Burns.

The claimant appealed on four grounds, including challenges to the employment judge’s legal approach and factual findings, whilst also seeking an anonymity order due to her mental health condition.

Judgment

Deputy Judge Michael Ford KC allowed the appeal on two grounds. Critically, the EAT found that Employment Judge McGrade had repeatedly referred to “granting or refusing applications to amend” when the correct issue was whether to extend time under s.123 EqA. This constituted a fundamental legal error, as the judge applied the Selkent Bus Co Ltd v Moore [1996] ICR 836 test for amendments rather than the “just and equitable” test established in Adedeji v University Hospitals NHS Foundation Trust [2021] ICR D5.

The EAT emphasised that whilst similar factors may be relevant to both applications, the statutory discretion under s.123 is “framed in very wide terms” and it was “perfectly possible for a tribunal to reach different conclusions depending upon the lens through which it views an application.”

The EAT also found that the employment judge had made a material error of fact over the claimant’s health, incorrectly stating she had no sickness absences in her new role when her uncontested evidence indicated otherwise. This was relevant to the judge’s conclusions regarding her ability to present claims in a timely manner.

An anonymity order was granted on fresh evidence of a serious deterioration in the claimant’s mental health caused by the public disclosure.

Endnote

There is a distinction to be drawn between amendment applications and time extension applications under the equality legislation. Employment judges must apply the correct legal test and cannot conflate these separate procedural routes, even where overlapping factors arise. The judgment also demonstrates the EAT’s willingness to grant anonymity orders where compelling medical evidence establishes genuine detriment to mental health.

Read the full judgment of the Employment Appeal Tribunal: JK v Ealing Council [2025] EAT 78