Tagged: time limits

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Ticking the boxes

The ET rules require an application to the tribunal (the ET1 form) to be ‘accompanied’ by a fee or an application for remission; but the online claim mechanism doesn’t provide any method of applying for remission at the same time – you have to send the remission application by post.

We noted in the 4th edition of ET Claims that this was a bit of a puzzle, and recommended posting the remission application the same day if possible – but in any event making sure it arrives within 7 days of the online claim.

This point was considered by the EAT In Deangate Ltd v Hatley (thanks to Daniel Barnett, as ever for the alert). Three claimants presented their claims online on the 2nd last day before the time limit expired. They hadn’t sent applications for remission with their claims – because there was no way for them to do so. But they had ticked the box saying they intended to apply for remission, and their applications were received within 7 days.

The Respondent tried arguing that the claims should be rejected because they weren’t ‘accompanied’ by the fee. Sensibly, the EAT was having none of it: ticking the ‘yes’ box counted as an application in the circumstances, even if an incomplete one; and it was reasonable to allow the claimants a further 7 days to complete their application

So our advice stands: send your remission application on the same day if at all possible, but in any event make sure it arrives within 7 days of your online ET1. If you leave it 8 days, the Respondent may well try this argument again – and might win it this time.

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Don’t play chicken with the Employment Appeal Tribunal

Miller v Lambeth Primary Care Trust is the latest cautionary tale about the need to make sure that appeals to the EAT are brought in time and properly constituted.

In Miller the appeal was presented one day late and without all the necessary documents. By the time the documents were sorted out, the appeal was two days late. Mrs Miller tried to have time extended, but the EAT, highlighting again the strict time-limit, refused her application.

The interesting point is HHJ McMullen’s discussion of improperly constituted appeals. He notes that an astonishing 600-odd appeals a year to the EAT (of a total of about 2000) are invalid because they do not contain the necessary documents. Mostly the problem is sorted out, because the EAT staff contact the appellant, who then sends in the documents within the time-limit. But when appeals are lodged very close to the deadline, there isn’t time to do this. The appeal is then out of time, and as HHJ McMullen points out, very few of these are allowed back in.

A high percentage of appeals to the EAT are lodged on the final day. As Miller highlights this is a high risk strategy, particularly if you are not experienced in bringing appeals.

The moral is:

  • Make sure all the necessary documents are lodged with your appeal — check carefully against paragraph 2.1 of the Practice Direction.
  • Lodge the appeal at least a week ahead of the deadline.
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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.

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Slingsby v Griffith Smith Solicitors

The EAT has concluded that the strict time-limits on starting an appeal apply equally to cross-appeals.

This provides an excellent opportunity to reiterate that the EAT’s approach to time-limits in relation to appeals is rigourous and that anyone who wants to appeal must make sure that they meet them. Trying to get an appeal in late is extremely difficult, verging on impossible.

This advise now applies equally to cross-appeals. If you are late, you are likely to be in the frustrating position of watching the other side’s appeal proceed, while yours is knocked out before it gets off the ground.

Slingsby v Griffith Smith Solicitors

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Haritaki v South East England Development Agency

This is case about a notice to appeal that was rejected on the sift. The appellant then applied for an oral hearing, where the appeal was again rejected.

The facts and issues in this case are of limited general interest, but the judgment is significant because it sets out how the EAT Judges see the application to appeal process.

The EAT sets out the appeal process in detail, but briefly:

An appellant has a right of appeal to the EAT. Unlike the Court of Appeal, it is not necessary to apply for permission to appeal. If a properly constituted appeal is received within the 42 days time limit it is then put through “the sift”. This means that a Judge considers the papers and decides whether the appeal contains reasonable ground for bringing the appeal. If he decides it does, it will be listed for a full hearing. If not it will be notified that their appeal contains no arguable point.

At that point the litigant has three options: they may accept that decision by doing nothing; they may put in a new notice of appeal, or they may apply for an oral hearing. These oral hearings are often called 3(10) hearings, by reference to the relevant part of the EAT rules.

This judgment makes a number of points:

  • An oral hearing is a fresh consideration of the appeal. It is not an appeal from the original decision on paper. This means in practice, it is fruitless to criticise the approach take by the first judge. The point is to show that the appeal has merit in and of itself.
  • The choice between serving a new notice of appeal and requesting an oral hearing is not mutually exclusive. You may put in a new notice and have that considered. If it is rejected, you may then apply for an oral hearing.
  • You cannot, however, submit a third notice of appeal if the second is rejected.
  • Where a new notice of appeal is lodged it will normally be considered by the same judge who ruled on the initial appeal.
  • Where there is an oral hearing it will normally be heard by a different judge.
  • The 42 days time limit is a long and generous one. This is something that seems self-evident to Judges, but not necessarily to litigants. This is because Judges are aware of other similar time limits, which are much shorter.

Judge McMullen also indulges in a brief rant against the use of latin. He notes that:

Lord Woolf directed lawyers and judges to avoid Latin. … Latin should not be used in court unless English is deficient, because it creates distance and mystery to non-lawyers.

This is sound advice (especially if you are appearing before Judge McMullen). This case is a good example of the potential pitfalls, since the EAT found that the appellant had a. chosen the wrong Latin maxim to express his complaint and b. spelt it wrong. These problems are much easier to avoid if you stick to English.

Haritaki v South England Development Agency

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Late claim for unfair dismissal

In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

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Mushett v London Borough of Hounslow

Mushett v London Borough of Hounslow gives valuable guidance on when the EAT will extend the deadline for lodging an appeal.

The EAT laid out a series of principles that it would apply. In summary these are:

  • It is in the parties and the publics interest that the result of litigation should final and certain. This means that the approach to time limits should be stricter on appeal that at first instance.
  • An extension of time will only be granted if the EAT is satisfied that there is a full honest and acceptable explanation for the delay
  • The 42 day time limit will only be relaxed in rare and exceptional cases. There is no excuse, even for an unrepresented party, for ignorance of the time limit
  • The EAT will consider the length of the delay and be aware of the possibility of procedural abuse or intentional default
  • The EAT will look at the whole period during which the appeal could have been lodged. This means that time will not be automatically extended if the appellant can show that it was impossible to present the appeal during the last week. The EAT might conclude that the appeal should have been presented during the first five weeks of the period. The decision will depend on the facts of each case.
  • The judgment also sets out the facts of the joined cases. It is worth noting that three of the four appeals were rejected. This underlines the key point to take from this case: make absolutely certain that any appeal is lodged well within time. The EAT’s approach to the deadline to appeal is strict and it will normally be impossible to persuade them to allow a late appeal.

    Even if you are encountering problems, for example, in formulating the legal argument or obtaining legal advice, it is much better to put in a mediocre appeal, than to risk missing the deadline. It will be easier to improve a rushed appeal – even to the extent of putting in new grounds – than it would be to get permission for a late appeal.

    One final note, always remember that an appeal has only been validly lodged if it contains all the documents required by s3 Employment Appeal Rules. The easiest way to make sure of this is to use the appeal form provided by the EAT, which contains a checklist of the required documents. An appeal without the correct documents attached will not be valid and, unless the mistake can be corrected within the normal time limit, will be considered late.

    Mushett v London Borough of Hounslow