Luton Borough Council v Haque (Jurisdictional Points)

Under the early-conciliation extension provisions, the calculation of time limits was a point requiring appellate clarification. At the Rule 3(10) stage, an appeal may proceed where it discloses a reasonably arguable error of law or where there is another compelling reason for a full hearing.

Although the Appeal Tribunal expressed a provisional view that the proposed construction of section 207B was wrong, it did not determine that issue finally. The point was reportedly arising before employment tribunals and affecting advice to claimants. That wider uncertainty was a compelling reason to permit an expedited Full Hearing, preferably with any other appeals raising the same issue.

The Claimant was dismissed by the Respondent on 20 June 2016. He notified ACAS on 22 July 2016, received an early-conciliation certificate on 22 August 2016, and presented claims for unfair dismissal, discrimination and wrongful dismissal on 18 October 2016.

The Watford Employment Tribunal held that the claims were in time. It treated the 31-day conciliation period as excluded from the ordinary limitation period, extending the date from 19 September to 20 October 2016.

The Respondent sought to appeal, contending that section 207B(4) of the Employment Rights Act 1996 instead imposed a deadline one month after the certificate. The appeal had been rejected on the papers. The Respondent exercised its right to an oral Rule 3(10) hearing. The issue was whether the proposed appeal should proceed because it was arguable or because there was another compelling reason for appellate clarification.

1. The Rule 3(10) application was granted. The proposed appeal was directed to proceed to a Full Hearing on grounds 3.1 and 3.3. The court was not persuaded that ground 3.2 disclosed a reasonably arguable point or another compelling reason. Ground 3.4 was only comment.

2. The applicable Rule 3(10) inquiry was whether the grounds identified a reasonably arguable error of law or whether another compelling reason justified allowing the appeal to continue. The court did not finally determine the statutory limitation issue at this permission stage.

3. The court provisionally shared the paper-sift view that section 207B(3) excludes the conciliation period when calculating the ordinary time limit, and that section 207B(4) applies only where the time limit, after the operation of subsection (3), would expire in the specified period. It nevertheless accepted that the point had apparently become recurrent before employment tribunals and in advice to potential claimants. That uncertainty supplied a compelling reason for a full appellate hearing.

4. An employment tribunal is not bound by another employment tribunal decision under the doctrine of precedent. It may, however, adopt the other tribunal's reasoning because it finds that reasoning persuasive. The Watford Tribunal therefore made no error of law merely by adopting the reasoning in Booth v Pasta King UK Ltd.

5. The court requested expedition and, if possible, a combined hearing with any other appeals raising the same issue. It warned that, if the Respondent's construction ultimately proved plainly wrong, a costs application might follow.

• Employment Appeal Tribunal: On a Rule 3(10) application, permitted the Respondent's appeal to proceed to a Full Hearing on limited grounds.
• Watford Employment Tribunal: Employment Judge Bedeau held that the claims were presented in time and should proceed to a Full Hearing; judgment sent on 15 April 2017.