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Counting days

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.

3 comments

  1. David

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

    So does this mean that if the worker presented the case on 23 December, would this be too late?

    Thanks

    • Naomi

      No – it means that in cases where the rule is expressed in this way, the worker has until midnight on 23 December to present his complaint. But do note that this is different from the rule for unfair dismissal, discrimination etc, where if the dismissal or act of discrimination happened on 23 September, he would only have until midnight on 22 December to present his claim.

  2. Ronald Grant

    Hello,

    I failed to file an ET1 within the 3 month deadline. Nevertheless, the ET accepted my claim and served it on my former employer.

    The 28 day response time-frame has now passed and the clerk has now referred my file to the judge for consideration.

    Given their own delay, could the other side still realistically get my ET1 struck out for it being filed late.

    I’ll find out sure enough but wondered if you had a hunch?
    (Your website is very useful. Thanks)

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