Clarified extended deadline for ET claims  

Joshi v Manchester City Council [2008] All ER (D) 246 (Jan); UKEAT 0235_07_3001 (Time limits under the Statutory Grievance Procedure)

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Regulation 15 (1) of the Employment Act (Dispute Resolution) Regulations 2004 provides for a three month extension to the normal time limit for presenting a complaint to an employment tribunal in cases where either the dismissal and disciplinary procedures or the grievance procedures apply and where the required letter has been sent.

Since Hammond v Haig Castle [1973] IRLR 91 it has been well established that the initial three months period for presenting a claim expires three months less a day after the day on which the incident complained of occurs. So, for example, an employee unfairly dismissed on the 20th June 2007, has until the 19th September 2007 to present her claim to the employment tribunal.

In Singh T/A Rainbow International v Taylor UKEAT/0183/06/MMA the Employment Appeal Tribunal considered whether the three months referred to in regulation 15 (1) meant three months, or three months less a day. On that occasion the EAT held that regulation 15 (1) extends time by three months. Since regulation 15 (1) specifies that the three months extension begins “with the day after the day on which it would otherwise have expired”, the effect of the EAT’s decision was that an employee had six months from the date of the incident complained of to present her claim (assuming of course that the extension applied). So, for example, an employee unfairly dismissed on the 20th June 2007, had until the 20th December 2007 to present her claim to the employment tribunal (the initial time limit expired on the 19th September 2007, but was then extended on the 20th September 2007 by three whole months to the 20th December 2007).

The decision in Singh has been subjected to criticism by some of the leading commentators as it is argued that it fails to follow the principal set out in Hammond and more recently in Pacitti Jones v O’Brien [2005] IRLR 888 (although these decisions were distinguished in Singh, it is said that the reasoning is unclear). For example, Harvey, at CI [7.02], states that “as a matter of logic and mathematics, the decision [Singh] is simply wrong”.

On the 26th November 2007, in the case of Joshi v Manchester City Council the EAT (HHJ McMullen QC) considered again whether or not the three months referred to in regulation 15 (1) means three months, or three months less a day. On this occasion the EAT found that the regulation means three months less a day. Therefore, an employee has six months less a day from the date of the incident complained of to present her claim (assuming of course that the extension applied). So, for example, an employee unfairly dismissed on the 20th June 2007, has until the 19th December 2007 to present her claim to the employment tribunal.

Given the criticisms made of Singh and the binding Court of Appeal authorities cited in Joshi, it is apparent that Singh was wrongly decided and that Joshi should be preferred in the future. Therefore, employees have six months less a day to present their complaints, not six whole months

Andrew Byles appeared for Ms Joshi, instructed by North Manchester Law Centre