In Department of Constitutional Affairs v Jones [2007] EWCA Civ 894 the Court of Appeal upheld a tribunal's decision that it was just and equitable to permit a disability discrimination claim, submitted after the expiry of the three-month time limit, to proceed.

The claimant had been genuinely reluctant to acknowledge that he was disabled by reason of a mental impairment, notwithstanding medical advice and correspondence from his solicitor and union which referred to him as such. The tribunal also noted that, despite evidence that the claimant was unfit to attend, the respondent had pressed ahead with its internal proceedings. The claimant's dismissal, which started time to run for submitting a claim, had taken place far earlier than it would have done in normal circumstances. This reduced the time that he would otherwise have had to consider his position.

The Court of Appeal held that each case would turn on its own facts. If there was an obvious and substantial physical injury, the point would not arise. If there was a physical injury which was on the margin of being perceived to be disabling, or in the case of a mental condition, the point might arise.