Lots of things in litigation have to be done by a specific date, calculated by reference to some defined starting point. Often you don’t have to worry about exactly how the time is calculated: you just make sure you do whatever it is you have to do in good time before the deadline can possibly expire. But sometimes – if you have left things to the last minute, or if time is short anyway – every day matters. In those cases, you have to work out exactly how the time limit works: when it starts, whether weekends and bank holidays count, even what time of day the limit expires.

Unfortunately, time limits can work in different ways depending on how they are expressed. It is often surprisingly difficult to track down the precise rules on the particular time limit you are concerned with. That’s what this short guide is for.

Limitation periods

“beginning with”

Most employment limitation periods are expressed in a number of months ‘beginning with’ the date on which something – usually the thing that is the subject-matter of complaint, so the deduction from pay, the dismissal, the act of discrimination etc – happened. These are calculated by taking the day before the triggering event, and then counting forward to the corresponding date 3 months later. So if you were dismissed on 23 September 2009, you take the day before – 22 September – and then count forward 3 months to 22 December. Your complaint of unfair dismissal must be presented by midnight on that day.

This works for most days of the year. If the trigger event is on the 31st of the month, and there is no 31st of the third month following that month, the method gives you the 30th anyway, and doesn’t need adjusting. It does – 3 years out of 4 – need adjusting for trigger events that take place on 30 November, because of course there is only a 29th of February in leap years. So for claims triggered on 30 November, the limitation date is the last day of February – the 28th, or in a leap year the 29th. (A similar problem arises in non-leap years for 6 month periods triggered on 30 August.) All this was considered by the EAT in Pruden v Cunard Ellerman Ltd [1993] IRLR 317.

“from,” “after,’ “following” or “of”

Where something is to be done within a period ‘from,’ ‘after’ or ‘of’ a particular event, the date of the event itself does not count, with the result that – compared to the ‘beginning with’ periods – you have an extra day. So for example, a complaint of an employer’s failure to permit a worker to take time off under the The Health and Safety (Consultation with Employees) Regulations 1996 must be presented

within three months of the date when the failure occurred

That means if the failure occurred on 23 September, the worker has until 23 December to present a complaint.

Similarly a complaint of failure to allow a worker access to records under the National Minimum Wage Act 1998 must be presented

before the expiry of the period of three months following… [a defined date].

Here, too, a difficulty can arise if the trigger event is the last day of the month. It must presumably be solved in the same way, by taking the last day of the month 3 (or 6) months later. (But this conclusion must be treated with more caution, because it creates a slight anomaly that although “from,” “of” etc. normally give you an extra day compared to “beginning with,” in these cases the wording would seem to make no difference; and because we have not been able to find any authority that deals directly with the point. If you know of a case that answers the question, please tell us by way of a comment on this post.)

Steps in proceedings

Deadlines for steps in proceedings are mostly expressed in days. If something must be done within a certain number of days ‘of’, from’ or ‘before’ an event, the date of the event does not count in calculating the period. So for example, a respondent must serve his response within 28 days of the day on which he was sent the ET1. If the ET1 was sent to him on 2 November, his response must be served by 30 November. Written representations for consideration at a hearing must be provided to the tribunal at least 7 days before the hearing; that means that if the hearing is on 10 November, written representations must be submitted by 3 November. An application for review of a decision must be submitted within 14 days of the date on which the decision was sent to the parties; that means that if the decision was sent to the parties on Wednesday 23 September 2009, any application for review must be submitted by Wednesday 7 October 2009. Days in the employment tribunal run until midnight.

It’s easy to calculate periods expressed as 7,14, 21, 28 days ‘from,’ ‘after,’ ‘of’ or ‘before’ because whatever it is that needs to be done must be done on the same day of the week as the triggering event. So something required 7 days before a hearing on a Thursday must be submitted on or before the previous Thursday. If it is required to be done 14 days before the same hearing, it must be done on or before the Thursday two weeks before the hearing.

Appeals

An appeal to the EAT must be instituted within 42 days from the date on which the decision was sent to the parties; so an appeal against the same decision must be instituted by 4 November 2009. Anything relating to EAT proceedings to be done on a particular day must be done by 4pm on that day. If the last day for doing something falls on a day on which the EAT is not normally open, it must be done by 4pm on the next day on which the EAT is open.

A notice of appeal from the EAT to the Court of Appeal must be filed within 21 days after the date of the decision of the EAT; so if the EAT gives judgment on 23 September 2009, any notice of appeal must be filed by 4 pm on 14 October 2009.

This blog is really about handling employment tribunal proceedings. But it’s much preferable not to get into a position in which you feel you have to sue your employer in the first place. Mostly that means not getting dismissed.

Disciplinary hearings are stressful and unpleasant. But a disciplinary hearing – even on a charge of gross misconduct – does not necessarily mean dismissal. A lot can depend on how you handle it.

A disciplinary meeting is a situation in which you are bound to feel threatened, defensive and powerless. If you let those feelings take charge of how you behave, you are likely to make a bad situation worse. Employees often react to accusations of wrongdoing by angrily – even aggressively – denying everything, and accusing their accusers of lying or conspiracy. Obviously if the charges against you are unfounded, you have to deny them. But think about why it might look as if they are true. Do your best to understand where your employer is coming from, and deal with their concerns calmly and rationally. If you are at fault to some extent, but not as much as is being alleged, admit what you know is justified – your denials of what is not will carry more weight that way.

If the charges against you are true, in a way your task is easier. If what you have done is very bad, or your employer was already looking for an excuse to sack you, you’ll probably be dismissed anyway. But if the situation is at all marginal, your best hope is to admit what you’ve done wrong, admit that it is as serious as it is, apologise, and give your employer cogent reasons why they should believe you won’t do the same again. The worst thing you can do is try to duck responsibility, transfer the blame to someone else, or claim that even though you did it, it didn’t matter much. That will almost certainly get you sacked.

This week’s Lawyer of the Week in The Times is Phillippa Kaufman.

One of the questions The Times always asks is ‘What was your worst day as a lawyer?’ Ms Kaufman’s answer caught my eye, because it involved her first FRU case, but almost all of the people profiled by The Times have a funny story of an occasion when they wished the ground would swallow them up.

The story is worth a chuckle, but there is a serious point to be made. Anyone who spends a lot of time representing clients in litigation will, at some stage, make a fool of themselves. It’s just that sort of job.

So, while being in a constant state of mortification is probably a bad sign, the occasional embarrassing disaster should be shrugged off as best you can. It happens to us all, because it happens to anyone who regularly has to do something difficult in public.

Imagine an enemy posse rushing towards you. They are dressed in bizarre and elaborate costumes, including papier mache horns, cardboard armour and joke-shop Dracula fangs. Some are brandishing pillows in a threatening manner; others are armed to the teeth with a variety of soft fruit. One has a pointed stick. All are yelling abuse.

Faced with this threat, what do you do? Wrestle them for their cushions? Rugby tackle them, pin them down and try to de-fang them? Yell abuse back, but louder? Ambush them for their fruit and make a summer pudding? Or do you focus all your attention on the threat posed by the pointed stick?

The answer may be obvious – but it is surprising how willing parties to litigation are to be distracted into squabbles that have no chance of determining the outcome of the case.

Finding what you want in a hurry is a large part of conducting a hearing in an orderly way. Having to keep pausing in the middle of your cross-examination or submissions to hunt for a document wastes time time and interrupts your train of thought at best – and if you can’t find what you’re after, may deprive you of good points you could otherwise have made.

A lot of the answer is just to know the bundle well. But you can also develop certain habits that will help you navigate smoothly. What the habits are will depend on your own way of thinking and doing things. You may find colours helpful – for instance flagging certain sorts of documents in particular colours, highlighting one corner of respondents’ witness statements in one colour, claimants’ in another, using coloured paper for a particular document (e.g. your chronology) that you may want to refer to a lot. Or it may be about where you put things: if you always tuck your list of issues inside the front flap of your bundle, then you will always know where to look for it. If you always write a list of the witnesses and key players on the first page of your notebook, you will know where to find that too. If you’re lucky enough to be able to commit key page numbers to memory without breaking sweat, do that. If your bundle runs to several volumes, make sure there is a clear label on the inside cover of each volume as well as on the spine – that way if you have 2 or 3 volumes open, you will still be able to tell at a glance which is which.

These are all just examples. The real point is to notice what’s tripping you up, and then apply a bit of thought to how you can prevent it.