Extending time with grievances: can it be done, and if so, when?

There are a few key cases regarding the extension of time when an internal grievance is underway. In short, it is a fact-specific exercise as on principle, awaiting the outcome of an internal procedure may be a valid reason to extend time.

Delay caused by a claimant invoking an internal grievance or disciplinary appeal procedure before commencing proceedings may justify granting an extension of time, but this is only one factor that needs to be weighed against others that may be present (Robinson v Post Office [2000] IRLR 804, EAT, approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116).

• The Claimant in Robinson delayed making a disability discrimination claim whilst he pursued an internal disciplinary appeal. He was refused an extension of time as he knew of the time limit for bringing a race discrimination claim and did not take his union’s advice to lodge the application in time.

• The Court of Appeal in Apelogun-Gabriels expressly rejected the suggestion (from Aniagwu v London Borough of Hackney [1999] IRLR 303, EAT) that there is a general principle that an extension should always be granted where a delay is caused by a claimant invoking an internal grievance or appeal procedure, unless the employers could show some particular prejudice.

Apelogun-Gabriels held that delay caused by the pursuit of internal procedures may be a valid reason to extend time, but each case depends on its facts. The Court of Appeal held that what was said in Aniagwu was intended to be limited to the particular circumstances of that case, and on those facts the EAT was expressing the opinion that every tribunal would take the view that to await the outcome of the grievance procedure was an appropriate course to take (unless there was some particular feature about the case or some particular prejudice which the employers could show). To the extent that Aniagwu goes any further than that and lays down some general principle that one should always await the outcome of internal grievance procedures before embarking on litigation, it was plainly wrong.

• To summarise Aniagwu: the Claimant applied for a top-up car loan under the council’s policy. When he was turned down, he brought a grievance under the council’s internal procedure, claiming that this was on racial grounds. This was rejected by the grievance committee on 20 March 1997, but Mr Aniagwu did not receive notification of the decision until 26 March. The Claimant then brought an internal appeal against the decision to dismiss his grievance. This was not dealt with in a timely manner and, on 26 June 1997, the Claimant presented a complaint to the Employment Tribunal alleging that the decision to dismiss his grievance was tainted by race.

Aniagwu was also received negatively by the EAT in Virdi v Met Police and Centrex [2007] IRLR 24. The EAT’s observations included the following:

• There may be cases where an act is not done until it is communicated (such as where the conduct complained of is a reprimand or a warning)m when there is a powerful argument that the purpose and nature of the sanction requires that it should be communicated since it is intended as a guide to future conduct.

• It might be much more desirable if time did not begin to run until an employee is made aware of the decision which confers the cause of action, but that is not how the legislation is drafted. The question is when the act is done, in the sense of completed. This cannot be equated with the date of communication.

• It was difficult to see why, at least in a case (such as Aniagwu) where the grievance relates to a refusal to grant a benefit, the detriment is not suffered with the rejection of the grievance, whenever that is communicated and whether the employee knows of it or not.

• It cannot always be the case that a detriment is only suffered when known. For example, if an employee is paid less than another because of a protected characteristic, there is a detriment every time the employee is underpaid, whether or not they are aware of it, or even if they never become aware of it.

The aforementioned authorities have been referenced by the following cases within the last 5 years:

Apelogun-Gabriels

• Vodafone Ltd v Winfield [2016] 4 WLUK 531 (The ET had been entitled to take into account an employer’s poor approach to an employee’s grievance when considering whether it was just and equitable to extend time to bring a disability discrimination claim.)

Robinson v Post Office

• No cases have referenced Robinson within the last 5 years (the most recent mention of Robinson being in Chikwe v Mouchel Group Plc [2012] 9 WLUK 359 (EAT)).

Aniagwu v London Borough of Hackney

• No cases have referenced Aniagwu within the last 5 years. The most recent mention of it is in Virdi (see below), which doubts it.

Virdi v Met Police and Centrex

• Dowokpor v Ministry of Justice [2018] 3 WLUK 596

• Wanjau v Canary Wharf Management Ltd [2016] 4 WLUK 53

  • Interestingly, one of the reasons that the ET gave for extending time limits was “The Claimant, rather than applying immediately to the Tribunal, sought to resolve his complaint directly with the Respondents through initiating their grievance procedures. This is a point in favour of granting an extension of time, as the intention of the current and previous governments has been for Employment Tribunal litigation to be used as a last resort, rather than a first resort.” [para 72.2]

• Adebowale v Isban UK Ltd [2015] 8 WLUK 34

Recent cases appear thin on the ground. However, an extension of the 3-month time limit is currently one of a number of proposals relating to sexual harassment in the workplace put forward by the Government Equalities Office in a consultation (one which Farore Law responded to late last year). It is perhaps worth raising this point in support of any case requesting an extension of time in the present climate, particularly if sexual harassment is involved.

Sources: LexisPSL; Harvey on Industrial Relations and Employment Law; Westlaw