All employment practitioners are well aware that there is a very narrow window of time for an employee to present an employment tribunal claim. In most cases, it needs to be in within three months of the event complained of, subject to the relatively short extension afforded by participation in Acas early conciliation and the tribunal’s discretion to extend time under the just and equitable and not reasonably practicable tests. This, of course, is in marked contrast to the many years a claimant has to decide whether to pursue a claim in the civil courts.
The three month time limit is something we are all so familiar with that it has just been accepted. But does it really do what it is intended to do and is it actually fit for purpose? There are many good reasons that employees just put up with bad treatment during their employment, the chief one of course is simply in order to keep their job. While we have victimisation legislative protection, the reality is that in many cases it is ignored and employees who complain of discrimination or blow the whistle frequently suffer detriments, including losing their jobs.
Employees who suffer discrimination and harassment at work will frequently just keep quiet about the humiliation it causes them. They keep their head down because they really need to keep their job. Unfortunately some of those employees do end up losing their jobs anyway and it is only then, when they feel they have nothing to lose, that they make their formal complaint about the discrimination they have suffered. Under the current system, they will then almost always be too late.
The recent case of Nugent v Yodel Delivery Network Ltd ET/2407363/15 illustrates the problem. Mr Nugent worked for Yodel for over four years. His employment was fraught with difficulties and what he perceived to be unfair treatment from managers. He was only allowed two days of bereavement leave for his mother’s funeral, when Yodel’s policy allowed his manager to permit him to take up to five days. He was drug-tested contrary to Yodel’s policy and refused to submit to a second drug test, ultimately culminating in his constructive dismissal. The tribunal found that Mr Nugent had indeed been constructively unfairly dismissed over the drug-testing issue.
However, the tribunal considered it had no jurisdiction to deal with Mr Nugent’s discrimination complaints. Despite finding as a fact that during his employment Mr Nugent had been called by various managers “stupid Irish twat”, “stupid Irish bastard”, “thick Irish fucker”, “potato munching bastard”, “stupid Irish git”, “thick fucking Mick”, “thick Paddy”, “thick potato munching fucker”, meeting all the requirements of the statutory test for harassment, the tribunal considered itself powerless to act. You see Mr Nugent had tried to keep his head down to keep his job and although he complained internally about this treatment, he didn’t bring a tribunal claim within the required three months. He only complained about the treatment to the tribunal after he had been constructively dismissed and therefore had nothing to lose.
How do you explain the fairness of that to someone like Mr Nugent, representing himself at the tribunal hearing without the benefit of a legal representative to explain the complexities of the rules to him? I don’t think I could. The strict tribunal time limits are often justified on an evidential basis that witnesses’ memories fade and are apparently not reliable enough after time has passed. However, when, as in this case, the tribunal feels able to decide on the evidence before it that such comments were indeed made, and did violate the employee’s dignity and/or create an intimidating, hostile, degrading, humiliating or offensive environment for them at work, it does not seem right to hold that they are out of time and the just and equitable test to extend time does not apply.