|
FL Memo Ltd © 2007 |
|
Employment Memo 2007 Newsletter Issue 1 |
|
PDF printer friendly version |
|
RECENT CASES |
|
Employment claims Tribunal claims 1. Time limits See EM: ¶¶9460, 5722 Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 The time limit for presentation of discrimination and harassment complaints is 3 months from the time that the act or omission complained of was done. One difficulty occurs where an employee claims to have suffered a series of detriments over a lengthy period. In such circumstances, it is likely that at least some of the detriments claimed will be out of time. In order to be able to complain of events prior to the three month limit, the employee will have to show that the detriment constituted one ongoing act. The Court of Appeal has ruled that where such a claim is made, the tribunal should look at the substance of the complaint in order to decide whether the acts were in fact continuous. In this case, an employee L was accused of bullying, but following an investigation by her employer, all charges against her were dismissed. L subsequently brought a grievance regarding the handling of the investigation, and later still, also brought a tribunal claim. On the facts of the case, the Court held that the dismissal of the charges against L, following the conclusion of the employer’s investigation, represented a break. From this point onwards, L had suffered no ongoing detriment. 2. Time limits (completion of statutory dispute resolution procedures) See EM: ¶9482 H M Prison Service v Barua [2007] IRLR 4, EAT Under the automatic extension to the normal time limits for bringing tribunal claims to enable parties to complete statutory dispute resolution procedures, the normal time limit will be extended by 3 months where an employee presents a tribunal claim out of time (i.e. outside the normal time limit) if, within this time limit, the employee has sent a Step 1 letter to his employer to start the statutory grievance procedure. The EAT has held that “within” in this context simply means that the grievance must be lodged before the normal time limit ends. Consequently, the grievance can be lodged before the normal time limit begins to run. In this case, B had brought a claim for unfair constructive dismissal, breach of contract and unlawful deduction of wages just short of six months from the date of his constructive dismissal, which was the date the normal time limit had begun to run. The EAT held that B was in time with his claim as the normal 3-month limit was automatically extended by a further 3 months as he had raised a formal grievance of the fundamental breach. It did not matter that the normal time limit period had not begun to run at the time the grievance was raised (B raised his grievance during his notice period), in fact the EAT pointed out that this order of events is likely to be common in constructive dismissal claims. |