Clydesdale_BankOnly last month I commented on the strict application of time limits in tribunal claims and how they can prevent otherwise strong claims from proceeding. One month on and the issue is to the fore once again in the Employment Appeal Tribunal case of Beale & others v Clydesdale Bank plc and another. The case also provides yet another reminder that reliance on a representative will rarely provide a way out of procedural default.

As all those involved in employment claims know, the time limit for unfair dismissal claims is three months (or, to be strictly accurate three months less one day) and will not be extended unless it was not reasonably practicable for the claim to have been presented in time. The time limit for discrimination claims is also three months or, in the case of connected discriminatory acts, three months from the date of the last discriminatory act. Time will only be extended if it is just and equitable to do so (a much lower threshold).

Mr Beale and his three colleagues were members of Unite the Union. They consulted the union about age discrimination claims and entrusted the union to deal with them. It was accepted that none of them knew that there was a three months time limit for commencement of proceedings. Therefore they were entitled to conclude that they had entrusted the matter to the union and were unaware of any need to take any action themselves.

Claims were not lodged within three months. In order to decide whether it was just and equitable to extend the time limit the Employment Judge had to weigh up all the evidence placed before her and exercise her discretion. She found that no blame attached to the Claimants since it was “entirely reasonable” for them to have entrusted the matter to their trade union to progress their claims, including taking any necessary action.

The judge also took into account that a potential claim against the union for professional negligence was a relevant consideration. As an aside, any potential claim against the union might be problematic since, in order to establish negligence, there has to be a breach of a duty of care and it has been held on many occasions that the standard expected of a union in this regard is generally much lower than might be expected of a solicitor. In the appeal judgment Lady Stacey picked up on this, commenting that “the Employment Judge plainly equiparated the union with a solicitor in that she had found that it was reasonable for the Claimants to entrust not only the provision of advice but also the taking of action to the union, and it is not in dispute before me that the union, for whatever reason, failed to take action in time”. Incidentally “equiparate” is a word and quite simply means to compare but why use the latter when there is an obscure alternative!

The tribunal summarised its decision as follows:

The Tribunal considered whether in all the circumstances of each of these claims it was just and equitable to extend the time for each claim to be lodged.  In the circumstances of these cases, it cannot be concluded that the only factor weighing against the extension of time is the availability of a legal action against the Trade Union.  The claimants’ representative’s clear position, on which she was questioned by the Tribunal, was that if these claims were not permitted to proceed before the Employment Tribunal, the claimants could pursue the matter in the Sheriff Court or County Court against these same respondents.  The claimants’ representative was clear that such claims would be against these same respondents in respect of this same age discrimination matter.  The Tribunal does not agree with the claimants’ representative’s position that such action would be ‘satellite litigation’.  The availability of remedy on this issue against the same parties in an alternative jurisdiction is a factor against there being prejudice to the claimants should the claims not be allowed to proceed, and is also a factor against the respondents enjoying a windfall should the discretion not be applied.  In all the circumstances the Tribunal considers that it is not just and equitable for these claims to be allowed to proceed, having been lodged outwith the three month time limit.  All four claims are dismissed and may not be pursued through the jurisdiction of the Employment Tribunal.

 

The appeal judge concluded that there was no error of law in the decision. The exercise of a discretion is precisely that, and unless it is based on incomplete analysis of relevant factors or is perverse, it should not be overturned. It was clear from the tribunal judgment that all relevant factors had been considered and the judge did all that could be expected of her.

Significantly, the appeal judgment makes it clear that extensions of time limits should not be granted as a matter of routine. Specifically, discretion to extend time should only be exercised when there are grounds which show that it is just and equitable to do so.

The result was that, although all accepted that the claimants were not at all at fault, their claims could not proceed.