Sometimes Employment Tribunals bring difficulties upon themselves and the case of Hargreaves v Evolve Housing (2022) is a good example of this. I have a hunch that with the delegation of judicial functions to HMCTS Legal Officers it is a phenomena that will continue.
The Claimant, a Reverend J Hargreaves, was successful in his claim of direct religious belief discrimination and harassment related to religious belief. That, at least, is what the judgment said although the text made clear that the direct discrimination in fact failed because, under section 212 of the Equality Act 2010, cannot an act cannot simultaneously be an instance of harassment and direct discrimination. That was mistake one. When that decision was made (on 19 May 2020) the parties were notified of the appeal timescales.
At a later case management discussion on 11 June 2020 (to discuss steps to determine the remedy) the Employment Judge evidently noticed the error about the direct discrimination finding and later that day issued a “Certificate of Correction” decision under Rule 69 of the Rules. That certificate made clear the correction did nothing to change the appeal deadlines and that the time still ran from 19 May 2020. So far, so good.
However, in addition to the Certificate of Correction the Tribunal also sent a new corrected version of the Judgment itself (now dated 11 June 2020). The corrected judgement was not strictly necessary it this in itself was not a key factor. However, together with the judgment the Employment Tribunal sent a letter to the claimant on 11 June attaching anew the judgement dated 11 June 2020, guidance on ET judgments and a statement saying “an application to appeal must generally within 42 days of the date when the decision was sent to you and no later than 4pm on the final day.” That was mistake two.
The employer then went on to submit an appeal to the EAT challenging the Registrar’s decision. Based on the date of the first judgement the appeal was late but, based on the second date (11 June 2020) it was still in time. In the event the Registrar found the appeal was late but exercised discretion to allow the appeal out of time. The respondent in the claim appealed that decision to the EAT.
What was the EAT’s decision?
Although the claimant argued that the 42 day period should start at the time of the second appeal this was rejected. As a general matter of law the fact that a judgment contains mistakes remedied by a certificate of correction does not have the effect of stopping the appeal clock running. The Certificate of Correction rectified ‘mistake one’ and did nothing to change the time limits for an appeal. The EAT confirmed that it is only where a second decision is issued that is substantially different that a time will run from the new decision (for example, if the reasons for the decision are changed).
However, the Employment Appeal Tribunal agreed with the Registrar’s decision that it should exercise discretion and extend the time limit for an appeal and to treat it as in time. A key reason for this is that the confusion in the case was entirely of the employment tribunal’s own making and, in mistake 2, it had sent confusing messages about how long the claimant had to appeal the judgment. The EAT endorsed the decision in United Arab Emirates v Abdelghafar (1994) that it is only in exceptional circumstances (which the appeal accepted this was) that justifies an exercise of discretion to allow late appeals to proceed.
Relevance
In terms of direct applicability the decision is unlikely to be on point unless a case has gone to an employment tribunal and the tribunal then provides ambiguous deadlines by which to submit an appeal to the Employment Appeal Tribunal. The case is only authoritative for cases concerning time limits in appeals to the Employment Appeal Tribunal.
However, the case may be indirectly useful in situations where an employment tribunal claim is is out of time, the tribunal has a discretion to allow out of time claims, and a claimant has been misadvised as to time limits. In the main there are two provisions governing time limits for employment tribunal claims (there are some exceptions such as in equal pay claims).
Reasonably Practicable
Most claims under the Employment Rights Act 1996 (claims like unfair dismissal) have a time limit of within three months or, within such time as it was “reasonably practicable”. This means that that unless a claim is made in time or within such time as is reasonably practicable the employment tribunal does not have jurisdiction to hear the claim. Establishing it was not reasonably practicable to is a high hurdle to meet and it is conceivable that if an employee is misadvised about the time limits this will be a justification for finding it was not reasonably practicable. However, the likelihood of succeeding is very debatable (I would not be optimistic). It is important (although not helpful!) to remember that the employment tribunal does not have discretion (choice) to allow a claim to proceed if it was not made within three months or or as soon as reasonably practicable.
Just and Equitable
Unlike claims under the Employment Rights Act , claims for breaches of the Equality Act generally must be made within three months. However, if it is not within three month’s the employment tribunal does have the discretion (choice) whether to allow a claim to proceed so long as it finds it is “just and equitable” to do so. In making this decision is exercising a discretionary power in the same way the EAT were doing in Hargreaves. Case law on just and equitable tests are wide ranging but where a claimant has been prejudiced by a failure to adequately communicate to a prospective claimant by an advisor the time limits for a claim this mistake on the part of a person other than the claimant is a useful circumstance to highlight to the Tribunal. At paragraph 80 of Hargreaves the EAT concluded: ” I do consider that, if [the mixed messages are] not a reasonable excuse, these circumstances do amount to unusual and exceptional circumstances given, I repeat, that the problem originated with an error on the part of the tribunal. I have therefore decided that time should be extended.” Similarly, where a claimant has been late making a claim having been either misadvised by, or otherwise ambiguous advice that is likely to be a relevant factor that should be highlighted as justifying a decision that the employment tribunal should exercise its discretion and allow claim to proceed.
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