Joe Glavina, of Addleshaw Goddard outlines the latest legal rulings and explains what you need to do to avoid tribunals
Statutory grievance procedure – time limits in discrimination claims
Bupa Care Homes v Cann and Spillett v Tesco
Employment Appeal Tribunal
In this important decision in the joined cases of Bupa Care Homes v Cann and Spillett v Tesco, the Employment Appeal Tribunal (EAT) has decided that a tribunal has discretion to allow a discrimination claim to proceed where the grievance was submitted more than four months after the act of discrimination.
Under the statutory grievance procedure, an employee must raise a grievance and wait 28 days before bringing a tribunal claim. A grievance must, generally, be submitted within the “normal time limit” for submitting a tribunal claim – in most cases, this will be three months from the act complained of. Where a grievance has been submitted within the normal time limit, this will automatically be extended by three months.
Where a grievance is submitted less than one month after the normal time limit has expired, there is no automatic extension of time to submit the claim, so the claim will be out of time. However, in these circumstances, the tribunal has discretion to extend time for presenting the claim.
The employee must still wait 28 days after submitting the grievance to submit the claim.
However, where a grievance is submitted more than one month after the normal time limit, the grievance is out of time. The claim cannot be heard since the tribunal has no jurisdiction to extend time for the employee to submit a grievance. In a discrimination claim, this brings the provisions of the Employment Act 2002 into direct conflict with the discrimination statutes, which allow for an extension of time beyond the normal three-month limit, on a “just and equitable” basis.
Both Mrs Cann, a care worker, and Mrs Spillett, a general assistant in a petrol filling station, brought claims of disability discrimination against their respective employers. The central issue was whether the expression “original time limit” in section 32(4) of the Employment Act 2002 referred to the primary three-month limitation period, or to the primary period as extended by the tribunal where it was “just and equitable” to extend time in a claim under the Disability Discrimination Act 1995.
- The EAT resolved the conflict between the statutes by finding that the “normal time limit” in a discrimination claim includes any extension of the time limit on a just and equitable basis.
- The limitation imposed by the EA 2002 is trumped by a tribunal’s discretion under the discrimination legislation to extend the time limit for presenting a complaint where it is “just and equitable” to do so.
What you should do
- Be aware that these decisions open the way for employees to bring discrimination grievances (and subsequently tribunal claims) more than four months from the act of discrimination complained of.
- Don’t assume that claims submitted after the normal time limit will necessarily be rejected by the tribunal. It is still entitled to exercise its general discretion to consider a discrimination complaint outside of the original time limit where it considers it is just and equitable to do so.