Employment Flash - 10th December 2009

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All that textbook writers write is not gold...

Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298

DDA complaints have to be brought within 3 months of the act complained of, but an ET can consider a complaint which is out of time if, "in all the circumstances of the case, it considers it just and equitable to do so." The guidance in British Coal v Keeble [1997] IRLR 336 applies to the approach to the exercise of discretion that the EJ should take i.e. adopt as good practice the checklist of factors in s.33 Limitation Act 1980. The EJ did so and considered Auld LJ's judgment in Robertson v Bexley Services [2003] IRLR 434 (RRA case) and the following words from the Employment Court Practice 2007:

"Notwithstanding the above, a review of the authorities suggests that in practice employment tribunals and the appellate courts have adopted a liberal approach to the extension of time."

An extention of time on just and equitable grounds was granted by the EJ; the EAT upheld the decision, and in turn so did the CA. Both the EAT (Underhill P) and the CA rejected the quoted words from the ECP: "No doubt that opinion is genuinely held and based on [the Editors] collective experience... It is...in my judgment irrelevant." (Wall LJ); "...a textbook comment of doubtful relevance or weight." (Sedley LJ).

The CA also rejected a so-called 'stricter' approach derived by the appellant from Auld LJ referring to "...a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time..."[italics added]. The position is and remains as per statute, Keeble and the facts of each case: the burden of persuading the ET to extend time is on the claimant; there is no presumption in favour of extending time; the guidelines are fact/case specific. The appellate courts will not readily interfere with an EJ's exercise of discretion. There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised, though in some fields policy has led to a sparing exercise of the discretion e.g. lodging notices of appeal in the EAT. "The discretion of the Tribunal is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong." Daniel v Homerton Hospital Trust, Unreported, Gibson LJ.

Longmore LJ chipped in "I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still." - which is a judicial observation which should be treated as an expression of confidence in EJ's and the EAT not itself a statement of practice as the number of appeals will always depend on the number of occasions that the EJ's err in principle and/or are plainly wrong and the EAT fails to reverse the EJ.

Employment Team