G F Bowden v Ministry of Justice & Anor

When deciding whether it is just and equitable to consider a complaint outside the time limit under regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a tribunal must assess all material circumstances in the individual case. Where ignorance of a legal right explains delay, it must determine whether that ignorance was reasonable. Knowledge of the underlying facts alone does not make knowledge of the right irrelevant.

The tribunal must also make a coherent balance of prejudice. A claimant who promptly sues after reasonably discovering the right may require a materially different assessment from claimants who knowingly delayed while awaiting the outcome of related litigation.

The claimant, a retired fee-paid legal chair of the former Residential Property Tribunal Service, claimed under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 that he should have received a judicial pension and improved terms. He retired in April 2006 and presented his claim in May 2016, shortly after learning that a claim might be possible.

The Employment Tribunal at London Central dismissed the claim as out of time. It relied substantially on generic conclusions reached in Miller and Others v Ministry of Justice, including the view that knowledge of less favourable pension treatment was sufficient knowledge for limitation purposes. The claimant appealed on the grounds that the tribunal had failed to assess his individual ignorance of the right and had not properly balanced prejudice.

1. Appeal allowed. The Employment Judge erred in law in refusing to consider the out-of-time claim.

2. The regulation 8(3) question is an evaluative assessment which must be made by applying the correct law, considering all essential matters and excluding irrelevant ones. The length of, and reasons for, delay are ordinarily important. The checklist in section 33 of the Limitation Act 1980 is a useful, non-exhaustive aid; an Employment Tribunal errs only by omitting something significant.

3. Where a claimant says that delay resulted from ignorance of the right to bring a claim, the tribunal must decide whether that account is truthful and whether the ignorance was reasonable. The claimant’s knowledge of facts capable of founding a claim and knowledge of the legal right are both relevant. It may rarely be reasonable to expect a person to investigate a right of which that person did not know.

4. The Employment Judge treated the claimant’s knowledge that salaried judges received pensions and he did not as determinative. That approach impermissibly applied the generic reasoning in Miller. Unlike many claimants considered there, this claimant was found not to know of the O'Brien litigation or even of the possible right to a part-time judicial pension. The tribunal had to decide whether he knew or ought reasonably to have known of that right.

5. The Employment Judge also failed to balance prejudice coherently. Deliberately awaiting the success of litigation may justify attaching real weight to a respondent’s accrued limitation defence. If the claimant was reasonably unaware of the right, acted promptly on discovering it, and caused no forensic prejudice, the balance requires a different assessment. That assessment did not compel only one answer.

6. The matter was remitted for entirely fresh consideration by a differently constituted Employment Tribunal. It must form its own view and is not bound by the generic views expressed in Miller.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the just-and-equitable issue for fresh determination by a differently constituted Employment Tribunal.
• Employment Tribunal, London Central: On 21 October 2016, dismissed the claim as presented outside the time limit and declined to consider it under regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.