Luton Borough Council v Haque (JURISDICTIONAL POINTS - Claim in time and effect date of termination), Court of Appeal - United Kingdom Employment Appeal Tribunal, April 12, 2018, [2018] UKEAT 0180_17_1204

Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Luton Borough Council v Haque (JURISDICTIONAL POINTS - Claim in time and effect date of termination)
Resolution Date:April 12, 2018
 
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Copyright 2018

Appeal No. UKEAT/0180/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 13 October 2017

Judgment handed down on 12 April 2018

Before

NAOMI ELLENBOGEN QC

(DEPUTY JUDGE OF THE HIGH COURT)

(SITTING ALONE)

LUTON BOROUGH COUNCIL APPELLANT

MR M HAQUE RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0180/17/JOJ

APPEARANCES

UKEAT/0180/17/JOJ

SUMMARY

JURISDICTIONAL POINTS - Claim in time and effect date of termination

PRACTICE AND PROCEDURE - Application/claim

PRACTICE AND PROCEDURE - Preliminary issues

The statutory provisions in the Employment Rights Act 1996, the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the Equality Act 2010, which operate to extend time limits to facilitate conciliation before the institution of proceedings, are to be applied sequentially and do not provide for alternative limitation periods.

UKEAT/0180/17/JOJ

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NAOMI ELLENBOGEN QC (DEPUTY JUDGE OF THE HIGH COURT)

Introduction

  1. This appeal concerns a point of statutory construction. I refer to the parties as they appeared before Watford Employment Tribunal.

  2. In circumstances which are not material for present purposes, the Claimant was summarily dismissed on 20 June 2016, his effective date of termination. He contacted ACAS on 22 July 2016, which issued an early conciliation certificate on 22 August 2016. On 18 October 2016, he presented his claim form, by which he brought claims for unfair and wrongful dismissal, and for direct and indirect race and religion or belief discrimination. In its response form, the Respondent contended that all such claims had been presented out of time (and were, in any event, denied).

  3. On 12 January 2017, a Preliminary Hearing took place to determine the following issue:

    ``Having regard to the extension of time limits, as a result of the parties being engaged in ACAS conciliation, were the claims presented in time and if not should time be extended to allow the claims to proceed to a final hearing on the basis that either it was not reasonably practicable to have [sic] in time or it is just and equitable to do so?''

  4. The Tribunal did not receive evidence. In its Judgment and Reasons, sent to the parties on 15 April 2017, it concluded that all claims had been presented in time and could proceed to a final hearing. The Respondent appeals from that finding, contending that it derived from an erroneous construction and, hence, application of the applicable statutory provisions. Before me, as below, the Respondent was represented by Mr Nathaniel Caiden and the Claimant was represented by Mr Attiq Malik.

    The Relevant Statutory Provisions

  5. The Claimant's claims variously arise under the Employment Rights Act 1996 (``ERA''), the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (``the 1994 Order'') and the Equality Act 2010 (``EqA''). It is common ground that, in each case, provisions entitled ``Extension of time limits to facilitate conciliation before institution of proceedings'' are engaged and that they are materially identical in their terms. For ease of reference, therefore, I shall refer to the relevant provisions of the ERA, but my reasoning should be taken to apply equally to the corresponding provisions in the 1994 Order and the EqA.

  6. The limitation period applicable to a complaint of unfair dismissal is set out in section 111 of the ERA, which provides (so far as material):

    ``111. Complaints to employment tribunal

    (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

    (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -

    (a) before the end of the period of three months beginning with the effective date of termination, or

    (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

    (2A) Section ... 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2)(a).''

  7. Section 207B of the ERA provides:

    ``207B. Extension of time limits to facilitate conciliation before institution of proceedings

    (1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a ``relevant provision'').

    But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.

    (2) In this section -

    (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

    (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

    (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.

    (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

    (5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.''

  8. The parties agree that an extension of the limitation period in sub-section 111(2)(a) of the ERA is conferred by section 207B, but they disagree as to the effect of the latter section, in particular of sub-sections 207B(3) and (4). In short, the Respondent contends that those sub-sections respectively provide for different limitation periods, that sub-section 207B(4) takes precedence and is the applicable limitation period in this case and that, on the facts of this case, all claims were presented out of time. The Claimant contends that sub-sections 207B(3) and (4) are to be applied sequentially and that, so applied, his claims were presented in time. Before summarising the parties' arguments, I explain how their respective positions are said to come about.

    Sub-section 207B(3) of the ERA

  9. The primary limitation period for a claim of unfair dismissal under sub-section 111(2)(a) of the ERA is three months, beginning with the effective date of termination. Thus, in this case, subject to section 207B, the primary limitation period would have expired on 19 September 2016. Under sub-section 207B(3) of the ERA, the period beginning with the day after Day A and ending with Day B (in each case as defined by sub-section 207B(2)) is not to be counted. Here, that period, running from 23 July to 22 August 2016, was...

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