Employment Appeal Tribunal Upholds Decision to Dismiss Out-of-Time Disability Claim Against Warburtons
The Employment Appeal Tribunal has upheld a decision to dismiss a disability claim against Warburtons after finding that the delay caused forensic prejudice.
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The Employment Appeal Tribunal (EAT) has dismissed an appeal by Mr J Kofkin against Warburtons Limited, confirming that a tribunal was correct to refuse an extension of time for an out-of-time disability discrimination claim.
Background to the Case
Mr Kofkin, a secondary driver for Warburtons, alleged a failure to comply with the duty to make reasonable adjustments regarding changes to his driving routes. Following route rationalisation, the claimant argued that the loss of consistency in his daily route negatively impacted his generalised anxiety disorder.
The employment tribunal previously found that the complaint had been presented out of time. Although the claimant had brought an earlier claim, the specific complaint concerning reasonable adjustments was not included until an application to amend was made on 22 July 2022. The tribunal concluded it was not just and equitable to extend time, leading to the dismissal of this specific complaint.
Tribunal's Reasoning on Forensic Prejudice
In his judgment, His Honour Judge Auerbach noted that the tribunal had correctly identified "forensic prejudice" to the respondent. The tribunal found that by the time of the hearing, witness memories had significantly faded regarding events from 2021. Key managers were unable to recall precise details of route discussions, and contemporaneous documents failed to bridge these evidentiary gaps.
The EAT rejected the argument that the tribunal failed to account for the potential prejudice to the claimant. Judge Auerbach explained that while losing the chance to have a claim heard on its merits is a disadvantage, the tribunal was within its rights to prioritise the unfairness caused to the respondent by the degradation of evidence over time.
Key Legal Findings
The EAT emphasised that tribunals are not required to limit their assessment of prejudice to the length of the delay alone. Instead, they must consider the broader impact of that delay on the ability to conduct a fair trial. In this instance, the tribunal's conclusion that the respondent would be unfairly hampered by the lack of clear evidence was robust and free from legal error.
Consequently, the appeal was dismissed, and the original tribunal's decision to refuse an extension of time stands.
Read the entire judgment here: Kofkin v Warburtons Limited [2026] EAT 140
