Ndow v University Hospitals Birmingham: EAT dismisses appeal on time limit grounds

The Employment Appeal Tribunal has dismissed an appeal by a former healthcare assistant against a Birmingham Employment Tribunal's decision that her claims of unfair dismissal and disability discrimination were presented out of time. The judgement, handed down on 30 April 2026 by Lord Fairley, President, illustrates the difficulties facing appellants who seek to advance arguments on appeal that were never placed before the tribunal below.

Miss Ndow had been employed by University Hospitals Birmingham NHS Foundation Trust as a healthcare assistant from July 2009 until her dismissal on 8 June 2022, following an absence management procedure. The Trust concluded she was not medically fit to continue in her role. She lodged an internal appeal on 22 June 2022, attended a hearing on 18 November 2022, and was notified of its refusal the following day. Her ET1 claim forms, presenting complaints of unfair dismissal and disability discrimination, were not filed until January 2023 — more than four months after the primary limitation period expired.

At the preliminary hearing before Employment Judge Wedderspoon in January 2024, the tribunal found it would have been reasonably practicable for Miss Ndow to have brought her unfair dismissal complaints in time. Despite her health difficulties and caring responsibilities for a son with autism, she had been able to participate in the internal appeal process and had taken no steps to research her legal rights after her union withdrew support. The discrimination complaints were similarly dismissed, the tribunal declining to exercise its just and equitable discretion under section 123 of the Equality Act 2010.

Permission to appeal was initially refused on the papers but granted following a rule 3(10) hearing in January 2025, at which amended grounds were substituted with the assistance of ELAAS counsel. The two amended grounds contended, first, that the tribunal had failed to consider the relevance of the internal appeal to the question of reasonable practicability; and second, that it had failed to consider whether the refusal of that appeal on 19 November 2022 was itself a discriminatory act forming part of a continuing course of conduct, which would have brought all discrimination complaints within time.

Lord Fairley rejected both grounds without hesitation. On the first, he noted that Miss Ndow had not at any point relied upon the internal appeal as a cause of her delay in bringing proceedings. The tribunal could not speculate about factors unsupported by evidence, and the burden of establishing the reason for delay rested squarely on the appellant. On the second ground, it had never formed part of her pleaded case that the appeal refusal was a discriminatory act. Employment Judge Childe's case management note, agreed by Miss Ndow and unchallenged within the specified timeframe, had identified the dismissal of 8 June 2022 as the final alleged act of discrimination.

The President was careful to note the procedural difficulties Miss Ndow faced at the hearing, participating by mobile phone without access to the documents, and took particular care to walk her through the relevant grounds and materials. She ultimately accepted, in substance, that neither argument had been advanced before the tribunal below.

The judgement reaffirms the orthodox principle that the EAT's function is to review the decision on the case actually presented, not the case that might have been presented. Arguments withheld or overlooked at first instance will not ordinarily be entertained on appeal, regardless of their potential merit.