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Issue 29 (December 1998)

Contents

TUPE and share transfers
TUPE and changes to contract
Time limits in discrimination cases
EU social dialogue: the court weighs in
Strike setback
To mitigate or not to mitigate?

Time limits in discrimination cases

Mills and Crown Prosecution Service v Marshall [1998] IRLR 494 EAT
Aniagwu v LB Hackney 2/9/98

In discrimination cases, claims must be lodged within three months of the act of discrimination complained of. The time limit can be extended if, in all the circumstances of the case, the Tribunal considers that it is 'just and equitable' to extend time.

The more difficult question to answer is when it will be just and equitable to extend the time limit in any particular case. The appeal courts have traditionally shied away from laying down guidelines, preferring to leave the matter to the discretion of the Tribunal.

Provided the Tribunal approaches the case with an open mind and considers the circumstances, successful appeals would be rare indeed. Using bizarre language, courts did not want 'the words of the statute to become encrusted with the barnacles of authority'.

Tribunals were to consider the prejudice which each party would suffer as a result of a decision to either extend or not extend time and to have regard to all the circumstances of the case.

Clearer guidance has now been given in the landmark case of Mills and CPS v Marshall by the President of the Employment Appeal Tribunal. The case was an out of time transsexual case which was not brought until 3 years after the alleged act of discrimination and after the European Court of Justice ruled in P v S that discrimination against transsexuals came within the definition of discrimination 'on grounds of sex' in the Equal Treatment Directive and was therefore potentially unlawful.

The EAT upheld the Employment Tribunal's decision to allow the late claim stating that 'the court's power to extend time is on the basis of what is just and equitable. These words could not be wider or more general'.

In some cases it will be fair to extend time and in others it will not - the Tribunal must balance all the factors 'including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint. Reasonable awareness of the right to sue is but one factor'.

In arguing for an extension of the time limit therefore it will always be relevant to tell the Tribunal if a fair trial is still possible. If the delay does not affect the fair hearing - eg. if memories have not faded over the passage to time, it will be a strong argument for extending time.

Already Mills may be making a difference. In the unreported case of Aniagwu v LB Hackney, the EAT overturned an employment tribunal decision not to extend time in a late application. The Tribunal had failed to consider why the claim had not been made earlier.

The EAT ruled that the claim was valid and used the EAT's powers to substitute their judgement for that of the Employment Tribunal. They extended the time using the just and equitable principle and remitted the case to a Tribunal for a full merits hearing.