Bath Hill Court (Bournemouth) Management Company Limited v Coletta

The Court of Appeal dismissed the appellant's challenges. It held that the time-limits in section 23(2)-(4) of the Employment Rights Act 1996 operate as a statutory limitation period for the purposes of section 39 of the Limitation Act 1980 and therefore displace the ordinary six-year limitation periods in the 1980 Act. Consequently a complaint under Part II of the 1996 Act that falls within the "series of deductions" provision in section 23(3) may be brought in respect of the whole series dating back to the start of employment. The court also refused an extension of time to bring a further appeal against the earlier liability decision because the circumstances were not sufficiently exceptional to justify an almost two-year extension.

Background and procedural history:

• The respondent was employed as a live-in porter and brought Employment Tribunal proceedings alleging unpaid national minimum wage (NMW) pay, contending that on-call night periods should be counted for NMW purposes. The Employment Tribunal found for the claimant (liability) and a remedy hearing awarded arrears limited to six years. The EAT upheld liability and later allowed the claimant's appeal on quantum, substituting judgment of £100,252.42. The employer appealed to this Court and sought permission, out of time, to appeal the earlier liability decision.

Nature of the claim / relief sought: (i) the employer sought permission (by extension) to appeal the EAT liability decision and pursued a substantive appeal against the EAT's quantum decision.

Issues framed: (ii) whether an Employment Tribunal complaint under Part II of the Employment Rights Act 1996 is subject to the Limitation Act 1980 six-year periods (in particular whether it is an "action" under ss.5 or 9 of the 1980 Act), and if so whether s.39 of the 1980 Act disapplies those periods where another statute prescribes a limitation period; whether the time limits in s.23(2)-(4) of the 1996 Act amount to a "period of limitation" for the purposes of s.39; and whether an almost two-year extension of time to appeal the liability decision should be granted.

Court's reasoning and conclusion: (iii) the court reasoned that the phrase "period of limitation" is concerned with the substance of whether a statute prescribes a time-limit within which proceedings to enforce a right must be brought. Section 23(2)-(4) of the Employment Rights Act 1996 plainly specifies such a period (three months from the relevant deduction or, for a series, from the last deduction) and therefore constitutes a period of limitation within the meaning of s.39 of the Limitation Act 1980. That disapplies the general six-year limitation in the 1980 Act for claims pursued under Part II of the 1996 Act and allows the tribunal to consider the whole series of deductions. The court also applied established principles on extension of time and concluded the employer's application for an almost two-year extension was not justified: the change in the legal landscape (Royal Mencap) and the ongoing nature of the proceedings did not make this an exceptional case warranting the extension.

The court therefore dismissed the employer's appeals and refused the extension application.

Appeal dismissed. The Court held that the time limits in sections 23(2)-(4) of the Employment Rights Act 1996 amount to a statutory "period of limitation" within the meaning of section 39 of the Limitation Act 1980 and thereby displace the ordinary six-year limitation periods; accordingly the Employment Tribunal may consider a claim covering a series of deductions reaching back to the start of the employment. An application for a lengthy extension of time to appeal the liability decision was refused as the circumstances were not sufficiently exceptional.

Employment Tribunal judgment on liability promulgated 9 September 2015 (ET found for claimant); EAT upheld liability 2 June 2016 (Judge Eady QC); ET remedy hearing 23 December 2016 awarded £44,603 (six-year cut-off applied); EAT allowed claimant's quantum appeal 29 March 2018 and substituted judgment of £100,252.42; appellant sought out-of-time permission to appeal liability and appealed quantum to the Court of Appeal; Court of Appeal delivered judgment 17 October 2019 dismissing the appeals.