Time limit points can’t be raised for first time at remedy hearing

The Employment Appeal Tribunal has confirmed a tribunal cannot overturn a judgment on liability at a remedy hearing by considering a time limit point raised for the first time (Wilson Barca LLP v Shirin).

Background

Ms Shirin worked at a solicitors’ firm. She resigned after eight months’ employment and claimed she had been subjected to harassment and abusive behaviour.

The tribunal found she had been discriminated against. It upheld four age-related harassment allegations and two sex-related allegations. However, it ruled her resignation was not related to a discriminatory act.

At a separate remedy hearing ten months later, Wilson Barca argued, for the first time, that her claim relating to the six upheld allegations was out of time and could not be considered at the remedy hearing. They also argued Ms Shirin should have asked for an extension of time.

Employment tribunal refuses to hear time limit argument

The tribunal ruled that Wilson Barca could not raise the time limit points for the first time at the remedy hearing. In any event, it ruled it was just and equitable to extend time. It therefore considered remedy and awarded Ms Shirin £46,908.38 damages (including £20,000 for injury to feelings, £5,000 aggravated damages and interest).

Wilson Barca appealed the remedy ruling to the Employment Appeal Tribunal (EAT).

EAT rejects time limit appeal but agrees damages award too high

The EAT rejected the appeal. It noted Wilson Barca had not appealed the liability judgment, nor applied for reconsideration. Therefore, the liability judgment stood and was res judicata (already determined).

If the tribunal had refused a remedy hearing, this would have been incompatible with the liability judgment. The EAT said it was “misguided” to argue the onus should be on a claimant to apply for an extension of time when a respondent raises a time limit issue on the first day of a remedy hearing.

However, the EAT upheld the appeal about the amount of damages as the tribunal’s reasoning was internally inconsistent and insufficient to explain the amounts awarded. This issue was sent back to the tribunal to be decided again.

Comment

Time limit issues must be raised early on in proceedings by respondents. Where claim forms raise numerous allegations, if any allegations could be out of time, this issue should be raised at the outset in the response. In any event, time limit issues cannot be raised after the liability hearing.  Failure to raise a time limit issue could mean the tribunal upholds claims which could otherwise have been rejected for being out of time.