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Where Claimants have waited to issue proceedings while pursuing grievances, is it just and equitable for the Employment Tribunal (“ET”) to extend the limitation period to bring discrimination claims?
Background
Ms Leishman presented claims of disability discrimination and constructive unfair dismissal on 26 April 2019. The basis of her claims were that she had been discriminated against for a number of years, which led to the submission of an internal grievance on 4 August 2018. The grievance outcome was provided to her legal representative on 30 October 2018, with an appeal outcome provided on 21 December 2018. Ms Leishman resigned on 4 January 2019.
Mr Souter presented claims of the same nature on 26 July 2019. Mr Souter’s claims were slightly more complex, namely because he stated an argument that he was discriminated against through association with his wife’s (Ms Leishman’s) disability. The basis of his claims was that he had been discriminated against through association during a similar period of time and was signed off with stress in January 2018. By July 2018, he submitted his own grievance. Due to protracted conversations between the Respondent’s and Mr Souter’s legal representatives, grievance hearings took place on 26 February 2019 and 1 March 2019. The panel due to consider the grievance withdrew from the process and therefore, Mr Souter resigned on 25 April 2019.
Were the claims out of time?
Both Claimants sought to bring claims for alleged acts of discrimination that had occurred over a two-year period, coming to a head with their respective resignations. The Claimant’s acknowledged that upon application of the limitation period of three months less one day from the date of the incident, some of their claims were out of time and, as a result, were statutory time barred from proceeding. For example, acts of harassment were alleged to have taken place on 4 October 2016 and 8 November 2017.
The Claimants requested that the ET exercised its discretion to extend the limitation period under s123(1)(b) Equality Act 2010 on the basis that it would be ‘just and equitable’ to do so. It is important to note that there is no presumption in favour of an extension, and it is for a Claimant to prove that it is just and equitable for the ET to extend time.
What reasons were given to try and persuade the ET?
From around February and March 2018, the Claimants had the benefit of legal advice, however, both made it clear in communications with the Respondents that whilst they had received such advice, (allegedly that they had strong claims), they would prefer to reach some sort of ‘understanding’ with the Respondents. Ms Leishman went one step further and explained that she was concerned that if she embarked on legal proceedings, it would not benefit her mental health and that she hoped, if possible, for legal proceedings to be avoided. Importantly for legal practitioners, the Claimants were not advised to delay issuing proceedings until the grievance was complete, or that they were not permitted to issue proceedings until the internal process had been exhausted.
Interestingly, there was no explanation for the delay given within either of the Claimants’ evidence. The substantive argument presented by the Claimants was that if the claims were dismissed, they would lose their right to have the merits determined. In summary, it was just and equitable for the ET to extend the limitation period because failing to do so would prejudice their complaint from being heard and decided upon. The Claimants did not point to any other areas of prejudice that they might have suffered in the event that the extension was not granted.
The ET found in favour of the Claimants on this point and as such, agreed it was just and equitable to extend the limitation period. Within the ET’s decision, the Judge considered the following 5 factors:
- The significant length of the delay between the matters arising and the claims being brought.
- The Claimants’ awareness of the factual matrix. They knew they had claims in 2018.
- They had received advice and decided not to issue a claim within the time limit.
- The grievances were relevant in two ways:
- there was a genuine desire to use the process to resolve differences (which is to be encouraged); and
- the grievances crystallised the allegations and put the Respondents on notice, which gave them the opportunity to investigate and preserve evidence.
- Prejudice: Point 4 heavily fed into the issue of prejudice but there was no suggestion that the cogency of the evidence had been affected.
The ET had found that points 1-3 above weighed against the Claimants and points 4 and 5 were in their favour (4 and 5). However, the ET attributed more weight to points 4 and 5.
The Respondents appealed this decision.
What was the basis of the Respondent’s appeal?
As a matter of fact, the Claimants knowingly decided to let the internal grievance process run its course before presenting their claim to the ET. The Respondents argued that this, by itself, did not justify an extension of time. Something additional was required, with the Respondents providing the example of where a delay was attributed to an individual having been wrongly advised about the limitation period. The Respondents further argued that the Claimants’ conscious decisions not to pursue the claims, while they were pursuing their grievances, should not have been used to weigh against an extension of the limitation period.
More generally, the Respondents argued that the absence of any prejudice to them from the delay was not, in any event by itself, sufficient to warrant an extension of the limitation period. The focus of the Respondents’ argument was that the ET had wrongly taken into account the fact that the Claimants’ grievances had set out, in factual detail, the complaints that they subsequently pursued. The ET had found that the Respondents had been fully warned, in detail, of the nature of the issues and, therefore, were able to gather and preserve evidence, suffering no forensic prejudice.
The Respondents’ argument was focused on removing the above two grounds listed by the ET, which left only one overarching point on which the ET relied upon; the fact that each of the Claimants had pursued an internal grievance first. To rebut this element, the Respondents presented a rather aggressive argument, which was that if the ET’s approach was right in law, then in any case where a Claimant took a deliberate decision to complete an internal process before presenting their ET claim, it would automatically lead to an extension of time, so long as there was no forensic prejudice to the Respondents caused by the delay. This would create, according to the Respondents, a self-fulfilling act, by which a Claimant could guarantee themselves an extension of time.
Outcome
The Employment Appeal Tribunal (“EAT”) upheld the decision of the ET, and the appeal was dismissed. The EAT was of the view that the ET had been correct in its approach of undertaking a balancing exercise when applying the just and equitable test.
In reaching its decision, the EAT considered Miller v MOJ [2019] UKSC 60 and stated it was imperative that the EAT only interferes if the decision is ‘Wednesbury’ unreasonable/perverse and that despite the assertions by the Respondents, any prejudice, or lack thereof, to a Respondent is “customarily” relevant.
Key points to note
It must be stressed that this decision does not give employees a blanket policy to complete an internal process, whilst their limitation period expires and then present a claim in the ET. The position remains the same, namely that there is not an automatic right to extend the limitation period if a grievance has been raised. Any such decision will be taken by the ET on a case-by-case basis and dependent on the Claimant showing that ‘it is just and equitable’ for an extension to be granted. Moreover, practitioners must continue to advise on the limitation period accurately, and the risks an employee faces by allowing it to expire.
However, the case highlights an increased scope for the ET to extend the limitation period in circumstances where there is no evidential prejudice to a Respondent caused by the delay. In order to show a lack of prejudice, the grievance will need to be sufficiently detailed, with the claims sought being on essentially the same basis. Employers and their advisors must consider this when undertaking a grievance process and may wish to reconsider any tactic based delaying the grievance process, with the aim of allowing the limitation period to expire.
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