Bath Hill Court (Bournemouth) Management Company Ltd v Coletta

A statutory time limit preventing an employment tribunal from considering a complaint after a specified period is a period of limitation, even where it is framed as a bar on the tribunal’s jurisdiction rather than on the substantive right.

The time limit in Part II of the Employment Rights Act 1996 therefore disapplies the ordinary six-year periods in the Limitation Act 1980 by virtue of section 39. Different legal routes may carry different limitation rules. An application to appeal almost two years late remains exceptional; a later clarification of confused law and continuing quantum proceedings did not justify an extension where the relevant decisions were self-contained.

The respondent had been employed as a live-in porter by the appellant management company. He claimed in the employment tribunal that deductions from his wages resulted in payment below the national minimum wage, including because night-time on-call periods had been excluded.

The employment tribunal upheld liability. The Employment Appeal Tribunal upheld that decision on 2 June 2016. After a remedy hearing, the tribunal awarded £44,603 using a six-year limitation period. On 29 March 2018, the Employment Appeal Tribunal allowed the respondent’s appeal on quantum and substituted judgment for £100,252.42.

The Court of Appeal heard the appellant’s substantive appeal on limitation and its application, almost two years out of time, for permission to appeal the liability decision. The central issue was whether the time provisions in section 23 of the Employment Rights Act 1996 were a period of limitation for the purposes of section 39 of the Limitation Act 1980.

1. Out-of-time liability appeal. The application for an extension of nearly two years was refused. The principles in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 showed that an extension of this length would be exceptional. The clarification of the law in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 1641 did not justify the delay. The appellant could have appealed earlier, and the law had not been uniformly favourable to workers. The continuing quantum proceedings made no material difference because liability and quantum were self-contained.
2. Applicable statutory framework. Section 1(1) of the National Minimum Wage Act 1998 conferred the minimum-wage right, while section 17(1) gave the worker a contractual entitlement to additional remuneration. That contractual entitlement could ordinarily be pursued in the civil courts. The statutory right under Part II of the Employment Rights Act 1996, however, could be pursued only by complaint under section 23.
3. Meaning of a period of limitation. A period of limitation is a period after whose expiry a person cannot assert a legal right in legal proceedings. The concept applies whether the provision bars the substantive right or prevents the relevant tribunal from considering the claim. The distinction between barring the right and barring jurisdiction was immaterial in this context. Leivers v Barber, Walker and Co Ltd [1943] 1 KB 385 and Airey v Airey [1958] 2 QB 300 supported a focus on substance rather than the precise statutory wording.
4. Section 23 and section 39. Sections 23(2)–(4) prescribed a limitation period for Part II complaints. The period was three months from the relevant deduction, or from the last deduction in a series, subject to the statutory extension where presentation was not reasonably practicable. Section 39 of the Limitation Act 1980 consequently disapplied sections 5 and 9, even if those provisions would otherwise have applied. It was unnecessary to decide whether an employment tribunal complaint was an action, whether the time bar concerned jurisdiction or remedy, or whether section 5 or section 9 was the better alternative.
5. Other arguments and disposal. A limitation period need not be defined solely by hard-edged dates; factual assessment, such as identifying a series, does not make it conceptually uncertain. Different procedural routes may carry different time limits. The later two-year backstop introduced by section 23(4A) did not determine the pre-amendment position. The appeal was dismissed. Underhill LJ’s judgment was agreed by Irwin LJ and Nicola Davies LJ.

1. Court of Appeal (Civil Division): On 17 October 2019, refused the application to extend time for appealing the liability decision and dismissed the appeal concerning quantum.
2. Employment Appeal Tribunal: On 2 June 2016, upheld the employment tribunal’s liability decision. On 29 March 2018, allowed the respondent’s remedy appeal and substituted judgment for £100,252.42.
3. Employment Tribunal: On 9 September 2015, upheld liability. On 23 December 2016, awarded £44,603, applying a six-year limitation period.