Employment Tribunal Claim Out Of Time
| Case Ref: | 2200196/2019 and 2200243/2019 Appeal: UKEAT/0238/20/OO |
| Case Name: | Mr P Parr v Moore Stephens LLP and others Appeal: Parr v MSR Partners LLP & Ors [2022] EWCA Civ 24 (14 January 2022) |
| Relates to: | Age Discrimination & Time Limit |
| Decision: | Second appeal was upheld by court of appeal |
| Award: | £TBC |
In this case, after tribunal and appeal, the Court of Appeal finally reiterated the distinction between one off acts with continuing consequences and ongoing acts.
Mr Parr was a very long standing equity partner at the Respondents firm. He was due to retire in 2018, having reached the age of 60, but instead requested to remain employed, and he was offered a further two years, but as an ordinary partner and not an equity partner.
Although Mr Parr was unhappy about this, and aware that his employers had previously allowed others to remain as full equity partners past their retirement age, he elected to accept this, because of the considerable legal costs in challenging it would not have brought him any real benefits even if he had succeeded.
Some four and a half months after ceasing to be an equity partner, the firm was merged with another. Had Mr Parr remained an equity partner he would have received a pay-out in the region of £3 million. A few months later he brought a claim before an employment tribunal, alleging age discrimination.
It is generally necessary to bring claims before an employment tribunal within three months less one day of the action taking place (plus further time for ACAS conciliation, although this must have been started within that period of time).
Any claim brought outside of this, relies upon asking the Judge to extend time. This is virtually impossible in an unfair dismissal claim, but for discrimination cases where the legal test is whether it would be “fair, just and equitable” to extend time, will often be possible providing the delay is short, and particular if the employee has a sympathetic reason for not having submitted the claim form on time.
Mr Parr’s claim however did not depend on a request to extend time, but an argument that he was in fact in time all along. He argued that the age discrimination – not allowing him to remain as a full equity partner – was a continuing act, and that rather than being dated in April 2018 when he lost that status (or when he was told he would be losing it, but some time prior to then), it in fact continued because he continued to no longer be an equity partner.
Although Mr Parr won in the Employment Tribunal, on appeal first before the Employment Appeal Tribunal and later the Court of Appeal, his former employer succeeded:
- 1
Lord Justice Bean reasoned that had Mr Parr not had his employment extended at all and been dismissed then there could be no argument that his termination date was not his last day of work, even though he would continue to not work after this case.
- 2
It would make no sense for the date of a demotion to work any differently. This was a one off act with a continuing consequence, rather than a continuing act. The latter is more suited to situations where an employee is, for example, bullied over a sustained period.
- 3
In that situation a tribunal might readily infer that the actions – bullying – were a continuing and therefore in law a continuing act, so that even if some had taken place months or years before usual limitation expired, they would still be considered to be in time.
- 4
Here the act had to viewed as a one off; although if Mr Parr had put in a claim within months of being demoted, as a matter of principle, his argument could result in a claim being considered in time even though it was years since he had been an equity partner.
The Court of Appeal was also concerned that if Mr Parr succeeded, it would mean other firms would likely be less willing to allow partners approaching a mandatory retirement age to stay on in any capacity at all, because the limitation periods for bringing a claim would be unending.
To minimise future liabilities firms would simply be stricter about retiring partners upon reaching their retirement age.
It is important to stress that there was no finding made about whether the actual complaint – preventing Mr Parr from continuing as an equity partner - amounted to age discrimination. Because the claim before the employment tribunal was considered out of time, this issue will not be considered.
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