As all those with experience of unfair dismissal claims will know, there is a strict time limit of three months for commencement of proceedings. The time limit will only be extended if it was not reasonably practicable for the claim to be lodged in time and what is “not reasonably practicable” has been very narrowly construed.
On the face of it there is a more relaxed approach to discrimination claims since the test for ostensibly out of time claims is not whether it was reasonably practicable for the claims to be presented but whether it is “just and equitable” to allow them to proceed.
Back in 2009 I wrote about the application of time limits in the context of an unfair dismissal claim resulting from redundancy and the unusual circumstances in which an apparently out of time claim was allowed to proceed. I have also commented previously about the apparent injustice of excluding good claims in a tribunal (supposedly less formal than a court) based on a procedural error.
In courts, where by contrast the vast majority of claims are subject to generous time limits of three years for personal injury claims and six years for other claims, there has been a recent clampdown on procedural mistakes with the result that numerous decent claims have been unable to proceed based on highly technical objections. I wrote a post earlier this year in which I made clear my disapproval of this trend.
So to the case in question. In Hall v ADP Dealer Services Limited the Employment Appeal Tribunal was asked to consider whether a tribunal was right to dismiss claims for age discrimination on the basis that they were time barred and it was not just and equitable to extend time. Ms Hall was employed by ADP from July 2011 to February 2012 as a compensation manager. On 30 November 2012 she submitted a claim against her former employer alleging age discrimination. Her complaints included that she had no probationary review, that she was subjected to age discriminatory behaviour at work including a derogatory, age-related comment, that she was dismissed because, so she was told, it was “not working out” and that she was given misleading references, the last of which was issued in July 2012. Ms Hall knew that her claim was, prima facie, out of time because she included in her application:
PLEASE NOTE: I know that a straightforward claim for age discrimination would be out of time but due to circumstances outlined in 9.1 and 10 below I feel it would be just and equitable to extend the time and I am therefore with great respect requesting this.
When she complained about the references she was told to raise a grievance. She duly did so and the grievance process continued until 19 September. At the employment tribunal the former employer contended that the dismissal, the references and the grievance process were discrete events rather than continuing acts. The distinction is important since, if they were discrete acts, each would be considered in isolation with reference to the applicable time limit for commencing proceedings. If they were continuing acts then time would be calculated as running from the last such act. The tribunal took the view that they were separate acts. It was not just and equitable to extend the time limit for the dismissal claim because Ms Hall could have brought her claim much earlier “as she had the knowledge, the expertise, and the ability to bring the claim”. Further, this claim did not have much prospect of success. Similarly, the references claim failed because they were factual references making no reference to Ms Hall’s age. The grievance claim failed because, taken in isolation, there was nothing wrong with the former employer’s actions. The replacement by the employer of someone mentioned in the grievance with some independent was the right thing to do and the suggestion that this action was age related was misconceived.
On appeal the third ground (the grievance complaint) was not pursued. While acknowledging the wide discretion available when considering whether it is just and equitable to extend time, Mrs Justice Cox promptly proceeded in her judgment to consider the difficulties facing an appellant who seeks to overturn an exercise of discretion by a tribunal. It was noted that factors that could be taken into account included whether or not the claimant was professionally advised, the balance of hardship caused to the parties, whether a fair trial of the issues was still possible, the merits of the proposed claim and the length of the extension sought. In addition in this case the judgment of the Employment Tribunal had not referred to the Claimant’s ill health and the Respondent’s suggestion that she should engage in the grievance process. It was accepted that ill health can be a relevant and sometimes significant factor. In this case, although ill health was referred to in the Claimant’s witness statement, no medical evidence was provided. In this regard the Claimant had the burden of providing evidence “in support not only of ill-health but also of a causative link between her medical condition and the delay in bringing her claim in time”.
As for the grievance process it was acknowledged that delay pending the completion of an internal procedure can sometimes be a relevant consideration. Controversially (in my view) this was discounted on appeal because, notwithstanding that Ms Hall was a litigant in person, this argument had not been advanced at the Tribunal:
However, although this was a suggestion advanced in the ET1, it was not advanced by the Claimant in her evidence. While I accept, as Ms McKinley submits, that some allowance should be made for the fact that the Claimant was a litigant in person, this Claimant was clearly able to advance articulately what her case was, including her arguments about delay. It is clear that this point was not advanced in this way by the Claimant at the hearing. To the extent that she seeks now to advance, as an explanation for delay, something that was not advanced in evidence before the Employment Judge, this is a matter which the EAT cannot have regard to on appeal.
The result was that, for these and other reasons set out in the judgment, the appeal failed. It was noted early on in the judgment that her complaints in her claim submitted to the Tribunal “were set out comprehensively and articulately”. It is often said that “ignorance of the law is no excuse” but it seems to me that, in this context of strict time limits and a tribunal process which is supposed to accommodate if not even encourage unrepresented parties, there is a real danger that exercise of the just and equitable discretion might favour those who don’t know how best to put forward their case or, indeed, the intricacies of employment tribunals and their procedural rules, or who just haven’t bothered to find out. Does that really sit comfortably with the general concept of acting in a way that is “just and equitable”. It is to be hoped that tribunals can still avoid the route to unfairness by the rigid application of technical rules that is currently consuming and rendering obviously unfair the administration of justice in the civil courts.