Where the statutory grievance procedure is relevant, the time limit for bringing an unfair dismissal claim can be extended if the statutory grievance procedure is invoked ‘within the normal time limit’.
In HM Prison Service v Barua the EAT looked at the wording of the relevant rule, reg.15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.
The normal time limit for presenting a claim (usually three months) can be extended for a further period of three months and the claimant may file his or her claim after the expiry of the normal time limit provided that he or she has initiated the statutory grievance procedure ‘within that normal time limit’.
The Prison Service cut Dr Barua’s pay. He protested without success and then gave notice of his resignation to take effect on 31 July 2005. On 27 June, while working out his notice period, he lodged a formal grievance about the reduction in his pay. In mid-August (after his resignation had taken effect) the employer wrote to him acknowledging that the grievance was valid and offering an apology and reimbursement of the money due. Dr Barua did not acknowledge the letter and took no further steps until 27 January 2006, when he presented a claim to the employment tribunal alleging unfair constructive dismissal, unlawful deduction from wages and breach of contract.
The employment tribunal accepted his argument that his claims were in time because of the grievance lodged by him on 27 June 2005. The employer appealed arguing that, as the grievance had been filed before the start date of the ‘normal time limit’ (ie the effective date of termination of his employment – 31 July 2005) it could not be said to have been presented ‘within that normal time limit ‘ as required by reg.15. The EAT disagreed. Reg 15 was not concerned with prescribing a start date but providing a mechanism for calculating an enddate. All three claims should be allowed to proceed.
Point to note –
• Grievances can be lodged about action that an employer is proposing to take. Particularly in constructive dismissal cases this may cause a mis-match between the date of the employer’s conduct which gives rise to the grievance and the effective date of dismissal which is when time will start to run for the purposes of bringing an unfair dismissal claim. The extended time limit may apply in circumstances where (as in the case of Dr Barua) the events complained of have occurred, and the claimant has raised a grievance about them, some time before time even begins to start running.
The time limit for discrimination claims runs from the date of the discriminatory act.
In every case, an employment tribunal ‘shall not consider a complaint… unless it is presented to the tribunal before the end of… the period of three months beginning when the act complained of was done’. A court or tribunal may nevertheless ‘consider any such complaint… which is out of time if in all the circumstance of the case it considers that it is just and equitable to do so’.
In Virdi v Commissioner of Police for the Metropolis and Centrex UKEAT/0373/06, the EAT held that a claimant could proceed with his claim against the first respondent which had been filed one day out of time, but not with his claim against the second respondent, where his claim had been filed three months out of time.
The claims concerned arrangements made for the claimant to sit a promotional examination in May and the fact that he did not pass it. The employer’s decision not to allow his internal appeal against the result was made on 2 June but not communicated to him until 3 June. He filed his claim on 2 September. He later applied to amend his claim to include the second respondents, Centrex, the body which administered the examinations for the police force. The employment tribunal struck out both claims as having been made out of time.
He appealed to the EAT, which held that the relevant date for his claim against the Commissioner was the date of the decision on the internal appeal, not the date on which it was communicated to him so, strictly speaking, that claim was one day out of time.
However, it was not just and equitable to strike out his claim because he had instructed solicitors who were awaiting the result of the internal appeal and the filing of the claim had been their responsibility. For this reason, the EAT allowed his claim against the first respondent to proceed.
As against the second respondent, the claimant had not brought them into the proceedings until November. He said that he had not previously been aware that they, and not the first respondent, were responsible for the administrative arrangements in relation to the promotional exam. The tribunal had found that the information had been available from the outset and the EAT agreed. However, it considered that the tribunal had not asked itself whether it was just and equitable in this case to extend the statutory time limit. The case was remitted to the tribunal to decide this.
Points to note –
• Previously, it had been suggested in cases such as Aniagwu v London Borough of Hackney that a discriminatory act is not ‘done’ when it was done but when it is communicated to the employee (in that case, the refusal to accept a grievance). What the EAT is saying here is that it will regard time as running from the date of the act in all cases but it may think it ‘just and equitable’ to extend the time limit for claiming if the employee only finds out about the discriminatory act (e.g. an underpayment of wages) some time later.
• Usually tribunals will not extend time limits where solicitors are instructed. In Virdi the EAT is saying that this will not be so in every case. It may still be ‘just and equitable’ to extend the time limit if, as in this case, the solicitor was only one day late and the delay arose through no fault of the claimant himself.