Mark Shulman, Consultant Solicitor at Keystone Law

TIME LIMITS

**Claim in time and effective date of termination
When calculating the time limit for bringing an unfair dismissal claim arising from a summary dismissal, should the statutory minimum period of notice be added to the EDT? No said the EAT in [Duniec v Travis Perkins Trading Company Ltd]()** UKEAT/0482/13/DA.

The Claimant was dismissed summarily after it was found that he had misused his staff discount card. The effective date of termination was 15 May but he did not bring his claims of unfair dismissal and race discrimination/harassment until 16 August and so they were out of time. At a Pre-Hearing Review the ET struck out the claims, deciding in relation to the unfair dismissal time limit that his claim was made outside the primary limitation period and the Claimant had not shown that it was not reasonably practicable to present his complaint of unfair dismissal in time.

On appeal, the Claimant relied on the fact that if he had been given his 5 weeks statutory notice (so that the EDT would be some time in June), his unfair dismissal claim would be within the limitation period.

**No, said the EAT. Section 97(1)(b) of the Employment Rights Act 1996 ("ERA") provides (insofar as relevant) that:

"...in relation to an employee whose contract of employment is terminated without notice...[the EDT] means the date on which the termination takes effect."

Although section 97(2) extends the EDT as calculated under section 97(1) by adding the period of minimum statutory notice under s. 86(1), this is only in relation to:

* Section 108(1) (qualifying period of continuous employment); * Section 119 (calculation of basic award); * Section 227(3) (calculation of a maximum week's pay); and

section 111 of the ERA (which deals with time limits for unfair dismissal claims) is not included in that list of exceptions. Therefore, when calculating the three-month primary time limit under s.111, s.97(2) does not allow for the addition of statutory notice entitlement under section 86 ERA.

Did the Supreme Court Judgment in [Societe Generale v Geys]() [2013] ICR 117 change the position? The EAT thought not and agreed with the editors of Harvey on Industrial Relations and Employment Law (v.1/D1 727/729) – a summary termination by the employer does not require acceptance by the employee before the contract is terminated for the purposes of the section 111 time limit.

Insofar as the employer was not entitled to summarily dismiss, the Claimant could still bring a claim for breach of contract claim (in the ET under the Extension of Jurisdiction Order 1994, subject to any jurisdictional limit - currently £25,000).

*Delay in reading dismissal letter
*The Claimant took a separate point, relying on the Supreme Court judgment in [Gisda Cyf v Barratt]() [2010] ICR 1475. He contended that because he his wife had not opened the letter of dismissal handed to him at the disciplinary hearing (on 15 May) until 19 May, time ran from that later date.

However, the EAT pointed out that having heard the evidence, the EJ had accepted that the Claimant was told that he was summarily dismissed at the meeting on 15 May and so understood and was given a letter of dismissal at the meeting. Further, even if the Claimant was disadvantaged by his lack of English in understanding that he had been summarily dismissed on 15 May, it must have been clear to both the Claimant's wife (who spoke English) and to his representative (who had been contacted on 20 May and who had prepared an appeal letter for the Claimant) when they read the dismissal letter, that time ran from 15 May.

As to the EJ's finding that the Claimant had not established the reasonable practicability escape clause under s.111(2)(b), the EAT could see no error of law in the EJ's approach.

Therefore, the unfair dismissal claim had been properly struck out.

Extending time: relevant factors
When considering whether to extend time in discrimination claims, had an ET failed to consider the law relating to extensions of time and had it failed to take relevant factors into account? The EAT thought not in [Hall v ADP Dealer Services Ltd]() UKEAT/0390/13/SM.

*Background
*The Claimant was dismissed after 7 months in employment which ended on 10 February 2012. On 30 November 2012 she lodged an ET1 alleging age discrimination. The last act of discrimination relied on was the giving of a misleading reference in July 2012.The ET1 had included the statement that:

"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."

Those further circumstances were that when she had complained to the head of HR about the references, she also told him that she would be taking Tribunal proceedings. He said that they should go through the internal grievance process first and after obtaining legal advice from her own solicitor, she duly submitted a grievance in August, which was heard by internal counsel and dismissed on 19 September. At that point the Claimant stated that she decided to take further advice and was advised to submit an ET claim. She contended that this series of events amounted to continuing discrimination.

At a PHR, the EJ held that neither the dismissal events nor the subsequent references that had been written by the employer after the Claimant's dismissal could be seen as continuing acts (but discrete events), so the claim was out of time. The EJ concluded that it would not be just and equitable to extend time because the Claimant could have brought the claim much earlier as she had the knowledge, the expertise and the ability to bring the claim. The Claimant appealed.

*The law
*At the EAT it was common ground that as the last reference was given in July 2012, the Claimant's ET1 was therefore prima facie out of time under section 123 of the Equality Act 2010 (having been submitted in November 2012). The EAT stated that there was a wide discretion under section 123 in deciding whether it was just and equitable to extend time. The case authorities on time limits under the discrimination legislation prior to the Equality Act remained valid.

*Burden of proof and checklist of relevant factors
*The EAT confirmed that the burden was on the Claimant to provide an explanation as to why she did not bring her claim within time. The case authorities pointed to the wide variety of factors that may be relevant to the exercise of the discretion to extend time, depending on the particular circumstances.  Valid reasons could include such matters as:

* the reason for, and extent of, the delay; * whether the Claimant was professionally advised; * the balance of hardship caused to the parties and whether a fair trial of the issues is still possible; * the merits of the proposed claim; and * the length of the extension sought.

There was also a checklist of factors which appear in section 33 of the Limitation Act 1980 which ETs may also find helpful as a guide in some cases.

However, the Claimant submitted that the EJ had erred by failing to refer to and consider the legal test to be applied. Nor had the EJ directed herself expressly as to the wide variety of factors that could be taken into account. The EAT stated whilst it was correct that the EJ had not expressly set out the applicable statutory provisions or the case-law relating to the ET's power to extend time in relation to delay in presenting the ET1, that would not in itself amount to an error of law, given that this was an area of law which is "well known, long-established and frequently applied by Employment Tribunals throughout the land".

Thus, the real question was whether the EJ had erred in failing to take account of relevant factors, or in failed adequately to explain her reasons for refusing to extend time and dismissing the claim.

*Specific factors
*The Claimant's primary contention was that there were two specific and important factors which should have been taken into account in this case and which were not referred to in the ET's judgment:

(i) her ill-health during the period after her dismissal; and

(ii) the employer's suggestion that the Claimant should engage with the grievance process before submitting her claim to the ET.

However, the EAT did not accept those reasons valid in order to extend time. With regard to the Claimant's health, there had been limited evidence from her at the ET. There had been no medical evidence adduced before the EJ as to the Claimant's state of health indicating how this may have affected her over the relevant period, or how it was relevant to her failure to submit her ET1 in time. The burden was on the Claimant to provide evidence in support of ill-health and also of a causative link between her medical condition and the delay in bringing her ET claim in time.

In relation to the grievance process, it was correct that delay caused by a Claimant awaiting completion of an internal procedure could, in some circumstances be a relevant factor to be considered in deciding whether to grant an extension of time (e.g. Apelgun-Gabriels v London Borough of Lambeth. The Claimant suggested that there had been "a genuine mistake, or a misunderstanding" as to the viability of the handling of her grievance as an act of discrimination and, in particular, an act of victimisation. However, although this was a suggestion advanced in the ET1, it had not been advanced by the Claimant in her evidence. Therefore she was seeking to advance at the EAT appeal as an explanation for delay, something that was not advanced in evidence before the ET. Accordingly, that was a matter which the EAT could not have regard to on appeal.

Furthermore, her ET claim was not submitted until 30 November, more than two months after her grievance had been rejected in circumstances where the Claimant was plainly alive (on the basis of her own case) to the possibility of a claim and by mid-August and she had sought legal advice.

The specific factors now relied upon (i.e. the Claimant's ill-health and the grievance process), had both been raised at the hearing. The EJ had had regard to them. There was no necessity for the ET to follow a formulaic approach and set out a checklist of the variety of factors that may be relevant in any case, especially where no reliance had been placed on any of them, or where other factors have been addressed in the evidence as being of greater significance. The EAT considered that the ET had adequately explained the reasons for its decision not to extend time on the evidence.

The Claimant was unable to identify any relevant factors that were not considered by the EJ, or any irrelevant factors erroneously taken into account and so her appeal was dismissed.

Acts relied on by Claimant: differences between ET1 and evidence
Was an ET wrong not to consider whether claims included within the ET1 were in time, even if they were not actually pursued at a hearing? No said the EAT in [Fairchild v WM Morrison Supermarkets Ltd]() UKEAT/0125/13/BA.

The Claimant (who was of Chinese origin) was dismissed in September 2010 when she failed to return to work after an agreed 3 month absence. She actually returned to the UK in November 2011 when she then made an unsuccessful application for another job at Morrisons. She made a further job application to Morrisons on 9 June 2012.

She submitted an ET1 on 7 September 2012 complaining of unfair dismissal and race discrimination. At a Pre-Hearing Review her claims were struck out as being out of time, because the last act relied on by the Claimant was a letter of 26 April 2012 when the Claimant had written to the store's Chief Executive. The Claimant appealed to the EAT.

The EAT emphasised that in his PHR Judgment, the EJ had proceeded on the basis that dismissal took place when the Claimant actually read the dismissal letter on 11 November 2011 and that the last alleged act of discrimination occurred on 26 April 2012 (when the Claimant had written to the supermarket's Chief Executive following a previous complaint about her job application). On that footing the ET decided that the unfair dismissal claim was out of time and that it was not just and equitable to extend time for the discrimination claim.

*Which acts of discrimination were alleged?
*At the EAT, the Claimant contended that she had advanced claims of victimisation and protected disclosure detriment in relation to her unsuccessful job application on 9 June 2012, rendering those claims in time (the ET1 having been lodged on 7 September 2012). Counsel for the Claimant challenged the ET's PHR judgment on the basis that there was a clear complaint in the ET1 alleging victimisation by reason of the supermarket's failure to respond to her job application of 9 June 2012. Accordingly, had the EJ appreciated that the Claimant was not clearly and unequivocally abandoning her pleaded allegation in relation to the 9 June job application, he would have found that her discrimination claim relied on a series of continuing acts culminating in an event falling within the primary three-month limitation period. In support, the Claimant relied on the observations of Langstaff P in [Segor v Goodrich Actuation Systems]() EAT 0145/11/DM, 10 February 2012, at paragraph 11:

"…Though it is always for the parties to shape their cases and for a Tribunal to rule upon the cases as put before it, and not as the Tribunal might think it would have been better expressed by either party, it must take the greatest of care to ensure that if a party during the course of a hearing seeks to abandon a central and important point that that is precisely what the individual wishes to do, that they understand the significance of what is being said, that there is clarity about it, and if they are unrepresented, that they understand some of the consequences that may flow. As a matter of principle we consider that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous."

Morrisons contended that although the 9 June job application was discussed at the PHR, it was not relied on by the Claimant as the final act of discrimination (as confirmed by the EJ's Notes of Evidence). Therefore, it was not now open to the Claimant, through her new representative, to raise a point which was not pursued at the ET.

The EAT itself referred the parties to the decision in Mensah v East Herts NHS Trust [1998] IRLR 531. In that case, the Claimant had raised allegations in her ET1 of race discrimination in relation to her application for vacancies in the neo-natal unit at one of the Trust's hospitals, but she did not pursue that part of the complaint at the ET hearing. Instead she pursued only complaints relating to maternity unit job applications. Those complaints were dismissed by the ET. The Court of Appeal took the view that, whilst strongly encouraging ETs to be as helpful as possible to litigants in formulating and presenting their claims, it is a matter for the judgment of the particular ET whether it should investigate any particular pleaded complaint with the litigant.

Applying the Court of Appeal's approach in Mensah, the EAT was satisfied that in the present case, the EJ had taken great care to establish from the Claimant, what was the last act of discrimination relied on. As the EJ's Notes of Evidence had made clear, it was her letter to Morrisons of 26 April 2012.

Therefore, the EAT was unable to find any procedural unfairness which vitiated the conclusion that the claims fell outside the primary limitation period. The EJ was entitled to hold that the claims were out of time. Further, there were no grounds in law for interfering with the EJ's findings on reasonable practicability and the just and equitable extension of time.

**Extensions of time: correct questions
How should an ET approach the question of whether claims were in time? In [University of Huddersfield v Halim]()** UKEAT/0446/13/SM, the EAT stated that "There was procedural irregularity all round" when an ET, instead of considering first whether the claims were in time as part of a continuing state of affairs, had jumped straight to the "just and equitable" escape clause applicable to considering whether to extend an age discrimination claim, without hearing full submissions from the parties' representatives.

On the fifth day of a substantive hearing, it was submitted by Counsel for the University that the Claimant's claims were all out of time. The ET said that they would accept the University's limitation application; that there was insufficient time to deal with it properly that day, but indicated that, even if the complaints were out of time, they would extend time under the just and equitable escape clause for all claims. The Tribunal ultimately found in the Claimant's favour that in four respects, the University had failed to make reasonable disability adjustments.

The University appealed three out of the four findings against the University on the limitation ruling which extended time under the just and equitable provisions. In summary, the University contended that:

* the ET had failed to decide first, whether any and, if so which, claims were out of time; * it was not given a proper opportunity to argue against the ultimate finding based on a just and equitable extension of time; and * the conclusion that time should be extended, was perverse.

The EAT allowed the appeal and said that "time constraints below led to the Tribunal putting the cart before the horse". Instead of considering first whether the claims were in time as part of a continuing state of affairs they jumped straight to the just and equitable escape clause without hearing full submissions from the parties' representatives.

Therefore the appeal was allowed and the case remitted on the time limitation issues for determination of:

* whether any or all of the three breaches of duty ultimately found, were out of time; and * whether, if so, it was just and equitable to extend time, and if so, why.

Summary

section 97(2) of the ERA 1996 extends the EDT in unfair dismissal claims by adding the period of minimum statutory notice under s. 86(1), only in very limited circumstances;* a variance between the case pleaded in the ET1 and the actual case presented at a hearing could lead an ET to decide that some ET1 points have been abandoned, thereby potentially affecting the time limit in terms of the latest act(s) relied upon as constituting the claim;* there is a wide discretion to extend time under section 123 of the Equality Act 2010 (previous case law and section 33 of the Limitation Act 1980 provide useful guidance);* when considering extensions of time in discrimination claims, the burden is on the Claimant to provide an explanation as to why the claim was not brought within time. ETs should decide:*

(i) if  there is conduct extending over a period thereby bringing the claim in time;

(ii) if not, whether any or all of the claims are outside the primary limitation period; and

(iii) if so, whether it is just and equitable to extend time (and if so, why).**

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.