Ask any employment lawyer the hardest part of their job, and they’ll probably tell you that it’s learning to tell the time.
I joke, of course, but they will almost certainly tell you that time limits in the Employment Tribunal are more trouble than they’re worth, no matter whether you’re acting for employee or employer, and if the lawyer, whose job it is to know these things, thinks it’s complicated, then chances are you will too. I have therefore set out some of the biggest lessons on timekeeping I have learned as a solicitor in the hopes that you won’t miss your chance to bring, or defend, a claim simply because you didn’t know how tricky these time limits could be.
So let’s get started. There’s no time like the present, as they say.
Lesson 1: Bringing claims at the right time
For employees, there’s the question of bringing your claim at the right time. This is within three months (less one day) of the act complained of in most cases – but not all, because employment law loves an anomaly.
Sometimes this is easy to work out. If you were dismissed on 2nd January, your claim needs to be sent to the tribunal on or before 1st April (subject to the extended limits for early conciliation – which is an article all of its own, so we’ll ignore that for now).
Lesson 1 is undoubtedly the most important. Do not miss the tribunal deadline. If you do, you had better have a really good excuse, because the tribunal tend not to care about how busy you were for those three months, the fact that you needed to find another job, the fact that Great Aunt Mabel broke her leg and you were on sponge bath duty, or even the fact that you didn’t know you had a claim until you spoke to a lawyer four months after the event.
If you take anything away from this article, it is this: if you think you might have a claim, seek advice at the earliest opportunity and Do. Not. Miss. The. Deadline. As the saying goes, time waits for no man (okay, I’ll stop with the cheesy time-based sayings now).
Lesson 2: Calculating time where there has been a series of issues
Time often presents more of an issue where there is no single act complained of (such as a dismissal), particularly in discrimination cases. There may be a single act of discrimination, and the time will run from that date, but more often than not, there are numerous acts spanning months, and sometimes years. Sometimes these ‘acts’ are not so much a definable event, but are more intangible, such as being consistently excluded or undermined, and much harder to place a date on.
So, where do you calculate the date from? Normally, (but not always – see the point about anomalies above) it is the date of the last act complained of. But only if there’s a series of acts, meaning that they were connected and that nothing broke the chain of events. And so long as you didn’t accept the breach by your conduct and lose your right to claim. See? Complicated.
If you have any doubts about the time limits, it is probably worth taking some professional advice. There’s usually an upfront cost, but bearing in mind the potential consequences of getting this wrong, it may be worth it.
Lesson 3: When to raise issues about time limits
For employers, the main issue is likely to be when to raise an argument that an employee’s claim is out of time. This is an important defence for employers. If an employee’s claim is out of time, and they haven’t sought an extension, the tribunal simply does not have the jurisdiction to hear the complaint and must dismiss it.
It is important that such arguments are raised at the earliest opportunity, usually in the ET3 (the employer’s response to the tribunal claim) as they will normally be dealt with as a preliminary issue in the claim. Raising such claims early saves significantly on time and costs.
In addition, if you fail to raise a ‘time limit defence’ at the appropriate time, you may lose your right to do so. Unfortunately, the respondent in the recent case of Wilson Barca LLP v Shirin found this out the hard way. In this case, the Claimant worked at a solicitors’ practice. She resigned after being subjected to harassment and abusive behaviour over a relatively long period. The tribunal ruled that she had been subject to age-related and sex-related harassment and listed a separate hearing for remedy (i.e. to determine the amount of compensation due to her). It was not until the remedy hearing that the respondent raised the argument that the claimant’s claims were out of time and that the tribunal had no jurisdiction to hear them. However by that time it was far too late, the claimant already had an order in her favour and the tribunal refused to hear the respondent’s argument. I would also point out here that the respondent was a firm of solicitors (albeit not employment solicitors), which hopefully goes to show how easy it is to get these things wrong if you’re not an expert.
Lesson 4: Time limits during the case
The tricky issues of time limits don’t stop once the case is issued. Once a claim is lodged with the tribunal, there are a series of deadlines each party has to meet. For example, once a claim is served on a respondent, they have 28 days to reply. Fail to do that, and you might lose the right and allow the claimant to seek judgment in default against you.
Once the respondent does reply (hopefully in time), the tribunal will issue a case management order. This is effectively a timetable for the case. It will tell you what to do and when. If you fail to abide by the timetable set by the tribunal, your opponent could apply to have your claim or defence struck out for failure to comply with an order of the tribunal. In some circumstances the tribunal can decide to strike out your case of their volition. Serious stuff.
So, if you’ve been given a case management order and you cannot comply with the time limits, for example, there isn’t enough time, or you’ve been seriously ill and unable to comply, or you’ve booked a holiday and won’t be able to attend court when you’ve been told to, what do you do? Well, the answer is probably more obvious that you’d think. Ask the tribunal for more time or to change the date.
Just remember that time is of the essence (sorry, I know I said I’d stop with these). Make sure you act quickly and don’t delay, and it’s worth speaking to your opponent first as they will often agree to change the date. This means you can make a joint application to the tribunal which can be dealt with without a hearing – saving the time and costs of attending the tribunal.
I could probably give about 50 more tidbits of advice, but this article is already very long and taking up your time. And we all know time is precious (okay, definitely the last one this time). Hopefully you will now have learned my four main lessons about time limits in the employment tribunal. Especially lesson 1. You can now go forth knowing that if you’re ever faced with a tribunal claim, you will know enough not to play fast and loose with the time limits, and to seek professional advice when things get complicated.
If you have any queries about time limits, or anything else relating to tribunal claims, please do not hesitate to contact me by email or on 01494 893529.