Limitation in the employment tribunal, and the two routes by which time may be extended. Palmer v Southend-on-Sea Borough Council; Robertson v Bexley Community Centre.
Time limits; just and equitable extension. Broadly speaking, the just and equitable test requires a consideration of all the circumstances of the case, including anything which the tribunal 'judges to be relevant'. A foundational case on the breadth of the just and equitable discretion.
Time limits; not reasonably practicable; unfair dismissal. The Court of Appeal held that the 'not reasonably practicable' test under s.111 ERA is a strict one: the claimant must show it was not reasonably feasible to present the claim within three months, and that once it became practicable to do so the claim was presented within a reasonable further period. Ignorance of rights or of the time limit is not sufficient unless the claimant can show he could not reasonably have known of them.
Discrimination; time limits; a 'continuing act' distinguishes a policy or regime from a one-off decision.
Limitation; s.32(1)(b) Limitation Act 1980. The House of Lords (by a majority) held that s.32(1)(b) covers concealment occurring AFTER the cause of action has accrued, not merely concealment contemporaneous with accrual: time may begin to run, be postponed by subsequent concealment, and run afresh on discovery. Decides timing only — the mental element is now governed by Canada Square v Potter (intention, not recklessness).
Leading authority on 'conduct extending over a period' for the purposes of discrimination time limits (now s.123(3)(a) EqA 2010). For there to be conduct extending over a period there must have been an ongoing situation or continuing state of affairs that was discriminatory. The concepts of policy, rule, practice, scheme or regime are illustrations, not an exhaustive list of the indicia of a continuing act.
Time limits; just and equitable extension; discrimination. The Court of Appeal held that the just and equitable discretion under s.68 RRA 1976 (now s.123 EqA 2010) is a wide one, but that there is no presumption that it will be exercised in a claimant's favour. Employment tribunals must have proper regard to the fact that Parliament has provided a limitation period; there is no principle that a discretion to extend time should routinely be exercised whenever the respondent can demonstrate no prejudice.
Time limits; preliminary issues. The Court of Session indicated that it may sometimes be necessary to hear a significant amount of evidence to determine limitation issues, and sometimes it may not be possible or sensible to deal with the matter at a preliminary hearing, with decisions possibly needing to be postponed until all evidence has been heard.
Time limits; reasonable practicability; mistaken belief as to EDT. The ET was entitled to extend time where the claimant's vulnerabilities (including dyslexia) made it reasonable to hand the claim to his brother, whose genuine and reasonable mistake as to the date of dismissal flowed from the employer's unclear dismissal letter; the claim was then presented within a reasonable further period. The EAT (HHJ Eady QC) dismissed the employer's appeal and the Court of Appeal (Underhill LJ) upheld that decision: what matters is the reasonableness of the claimant's (or his adviser's) state of mind about the EDT, assessed against the clarity of the employer's communications.
Limitation; s.32 Limitation Act 1980; deliberate concealment. The Supreme Court raised the claimant's burden: 'conceal' bears its ordinary meaning (keeping a fact secret, by active steps or by non-disclosure, with no requirement of a legal duty to disclose), but 'deliberately' requires intention — the defendant must have known the relevant fact and decided not to disclose it. Recklessness does not suffice (reversing the Court of Appeal). Under s.32(2), 'deliberate commission of a breach of duty' requires knowledge that the act was a breach (approving Cave v Robinson Jarvis & Rolf). A practice nobody revisited, or negligent error, is not deliberate concealment. Note the separate reasonable-diligence limb: time runs from when the claimant could with reasonable diligence have discovered the concealment.