Article written by Simran Lalli, Solicitor, Employment department
Time limits are strictly applied in employment cases and any failure to abide by them can place even an otherwise strong claim in real jeopardy. This was certainly so in the case of a call centre worker who lodged a sexual harassment complaint a day later than she should have done.
Following a hearing, an Employment Tribunal (ET) found that the woman had, on three separate occasions, been sexually harassed by her line manager. He had, amongst other things, pulled her waist during a post-Christmas party and told her that she looked sexy. Her employer, however, contended that her claim had been lodged outside the three-month time limit which applies to such cases and should, for that reason, be dismissed.
The ET ruled that the incidents represented a course of conduct extending over a period and that the time limit should thus run from the date on which the last of them occurred. Even on that basis, it found that she had lodged her claim one day too late. Given the brevity of the delay, however, it ruled that it was just and equitable to extend the time limit. In doing so, it noted that, if no extension were granted, the woman would be denied any remedy.
Ruling on the employer’s challenge to that outcome, the Employment Appeal Tribunal (EAT) rejected arguments that, in the absence of any evidence at all as to why the woman had not presented her claim form sooner than she did, the ET was bound to refuse to extend time.
In upholding the appeal, however, the EAT found that the ET had erred in principle in its approach to the question of whether the delay had caused prejudice to the employer in defending the claim. The employer contended that it faced forensic difficulties in that the two earlier incidents were historical in nature and memories of them would have faded. It also pointed out that a potentially important witness had left its employment and was no longer available to give evidence.
The ET’s error, the EAT found, was to focus solely on the consideration of what, if any, forensic prejudice was caused by the complaint having been made one day out of time. It failed to take into account its own previous findings concerning forensic prejudice in relation to one of the earlier incidents. The EAT’s written ruling did not include any directions regarding the future progress of the woman’s claim.