Employment tribunal applications - out of time

Discrimination - just and equitable arguments where application is out of time. Case ref: 2.3a/May '04

Summary of case

The member has applied to an Employment Tribunal on the following grounds - discrimination under the DDA; suffering detriment because of disability; failure to make reasonable adjustments to accommodate a disability; failure to provide a written pay statement or an adequate pay statement.

Further she alleged that EDS had contravened the Health and Safety Act 1974 and had failed in their duty of care by breaching her contract of employment. She alleged the offences dated from May 2003. Her application was dated February 2004. 

The respondents denied all allegations. They contended that the Tribunal could not hear the allegations on the DDA as they occurred more than three months before the application. They denied any detriment and pointed out that the member received all payments she was entitled to. They denied failure to provide a written pay statement.

Advice requested

Included in the referral was a request for Thompsons for advice on what grounds a Tribunal consider just and equitable for hearing the case beyond the timescales.

Key advice provided by Thompsons

Thompsons provided advice, which included the following comments on the factors Tribunals will take into account when considering if it is just and equitable for any hearing of the case beyond the recognised timescales: 

"As you will be aware an individual must normally present her complaint to the Tribunal within 3 months, beginning with the act of discrimination (DDA Sch 3 para 3 (3)). On that basis a one off omission on 28 May 2003 is clearly out of time, by almost 6 months. Incidentally the omission to send Ms X to Occupational Health is neither an instance of less favourable treatment or a failure to make reasonable adjustment. 

"It should be noted that if there is an instance of less favourable treatment or a failure to make a reasonable adjustment identified which can properly be construed as a 'continuing act' of discrimination, the 3 month clock will not start until the end of the continuing act or omission. 

"In the event that there were not a 'one off act' or 'continuing acts' of discrimination in the 3 months prior to the IT1 being submitted then it would be necessary to consider the grounds which the tribunal might consider just and equitable to hear beyond the time scales. 

"The test is primarily a question of fact for the tribunal to interpret, in the exercise of its discretion. It has been held that the tribunal has a wide discretion to do what it considers just and equitable in all the circumstances and they are entitled to consider anything which they consider relevant.

"Please note however that the onus is on Ms X to convince the tribunal that it is just and equitable to extend time and 'the exercise of discretion is the exception rather than the rule' (Robertson v Bexley Community Centre [2003] EWCA Civ 567). 

"The following is a non-exhaustive list of factors which may prove helpful in assessing individual cases 

i) The presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings); 

ii) The presence or absence of any other remedy for the applicant if the claim is not allowed to proceed; 

iii) The conduct of the respondent subsequent to the act of which the complaint I made up to the date of the application; 

iv) The conduct of the applicant over the same period; 

v) The length of time by which the application is out of time; 

vi) The medical condition of the applicant, taking into account, in particular, any reason why this should have prevented or inhibited the making of a claim; 

vii) The extent to which professional advice on making a claim was sought and, if it was sought the content of any advice given; 

viii) The presence or absence of ongoing internal grievance procedures."

Legal department comment

The key point to note here is that Tribunals do have discretion to hear cases beyond the normal timescales. The case in question was concerned with a claim under the DDA.

However, the solicitor who provided the advice has confirmed that the factors identified also apply in other discrimination cases, e.g. sex, race, etc.

This is a useful starting point in terms of arguing for relevant cases to be heard. However officials are advised to seek further advice from Thompsons if respondents challenge jurisdiction on the grounds that the ET application has not been served in time.

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