Hi all.

A friend has been to see an employment solicitor (he is nearing the end of a 12 month 'career break') and was told that events prior to 3 months ago will not be relevant when it comes to an employment tribunal.

Is this correct? I don't want to doubt the solicitor but it just sounds so surprising.

Thank you all.

Yes. An act or the last of a series of acts which you wish to complain of to a tribunal must have been within the last three months. Anything older than that cannot be used.

Why would someone wish to go to a tribunal when they haven't been in work for 12 months? There are some ways in which the time can be stretched, for example if there is an ongoing grievance. But 12 months would seem like a stretch too far. If there was an issue they considered so serious, why wait until now to see a solicitor?

Hi and thank you.

I believe the issues were just before he took his (agreed by employer) 12 month career break. The issue now is that the vacancies that they are now offering him in his managerial role are either the other side of the country or are vastly inferior roles.

Hi and thank you.

I believe the issues were just before he took his (agreed by employer) 12 month career break. The issue now is that the vacancies that they are now offering him in his managerial role are either the other side of the country or are vastly inferior roles.

But how would the two things be related?

And what are the terms of his career break? Many such schemes do not guarantee a job to return to - did he have any assurances about his job being available?

I believe that the 'career break' was due to the incidents at work.

The terms were that he was to return as usual in a similar position.

During the 12 months off, I advised my friend to make a time line of all the incidents that happened at his work in the months before he took his career break.

It now seems that this was a waste of time but I believed it to be a wise move.

Please can I ask under what circumstances these recordings of events would have been beneficial?

A timeline is, I'm afraid, of very little purpose except to clarify one's own thinking.

It isn't even a contemporaneous record,

and a diary of events is fraught with enough problems given that it is really a record of your version of a story unless it is supported by evidence.

But the law of employment has a very clear process which needs to be followed.

If something happens at work

(I know it's not a dismissal, so my working assumption is alleged discrimination)

a person must submit a grievance.

You cannot simply just go to a tribunal.

The requirement in almost all cases is that you follow your employers grievance procedure.

In simple terms, the grievance procedure extends the three months ( it's actually three months less a day, to be pedantic about it!) because the outcome of the grievance can be considered "the last in a series of acts". Does that make sense?

Now,

if this person is complaining of a series of acts of discrimination,

the clock starts at that "last in the series",

so prior events can be included.

Within reason,

but that's just muddying the water for now,

so I'll assume a series of connected acts.

A timeline serves to explain the sequence of events,

but in itself it proves nothing.

It is the evidence of those acts that is the proof,

and that is where timelines and diaries often fall down

- no evidence,

or insufficient evidence.

If that is the case

, then within time or not,

you are on a hiding to nothing.

In allegations of discrimination it is up to the individual to evidence that discrimination may have taken place

- the burden of proof is initially on the employee,

not the employer.

So the timeline or diary is a "clothes hanger" to display your evidence on.

In relation to his current situation,

the exact terms of the career break are critical.

From what you have said,

it would appear that the terms were too loosely drawn.

Which isn't uncommon,

and,

to be fair,

isn't really unreasonable.

A career break isn't a right,

and even where there is a contractual entitlement,

these rarely guarantee someone the right to return to the job they left.

Employers aren't expected to put things on hold for the convenience of employees.

Where there are a lot of people doing exactly the same job,

it may not be a difficulty to retain or cover the exact job for someone,

but employers aren't expected to promise to do that.

So, and again,

I make a few assumptions here,

he has the contractual right to return to a same job

(but with no geographical limitations)

or to the same geography

(but with no guarantee of the same position).

This would be a classic case of the fact that one should always examine the teeth of an employers gift horse!

Because if those are the terms that he agreed to,

it is going to be hard to evidence this as the "last in a series of acts".

Although, if the employer or their manager is that sneaky,

I would lay bets it is!

Obviously,

I am working on very few facts and a lot of assumptions here,

which makes it hard to offer advice,

but I think your friend has been seriously outmanoeuvred.

Or however you spell it since my iPad doesn't seem to like that spelling

but won't provide a better one!

I'm guessing that he was flailing with a bullying manager

(who was discriminating in some way?)

and this led to a worsening of their health

(to a point where even if there was no original disability,

the situation may have tipped the balance?).

Perhaps some grievance had actually been lodged?

But the friend is unable to follow through our cope with it?

Then someone

(the manager or HR?)

casually suggests that a career break to get their head together or relax would be a good idea.

And wham,

you are screwed.

It wouldn't be the first time I've been invited to that party,

and you have to be cautious about the terms.

I generally advise members to complete the grievance first,

and then,

if they want,

take a career break as a term of the outcome

- so,

for example,

the agreed result might be that XX person agrees to move to another team on the same terms,

with a career break to regain their health

and a guarantee that the exact job is available to them when they return.

Sorry,

none of that was probably helpful!

And most of it is hindsight.

Which doesn't deal with the situation your friend is in.

But I'm afraid it's the best I can do on the information provided.

Hi and thank you.

I believe the issues were just before he took his (agreed by employer) 12 month career break. The issue now is that the vacancies that they are now offering him in his managerial role are either the other side of the country or are vastly inferior roles.

Unfortunately, there is little information.

There is the rule of discovery which simply means if you discover relevant information after the 3 months then you can still bring in a claim (see Marley (UK) ltd v Anderson and Machine Tool v Simpson)

I think what you are saying is that when he (your friend) returned from his career break he was offered inferior roles, then as long as it is within 3 months then he can bring a claim.

If this is accepted then he can bring the old incidents ie those before the career break though the Tribunal doesn't like such very old incidents.

Finally, when you follow the grievance route make sure you don't miss the 3 months time limit as the Tribunal does not accept that as Reasonable Practicable.

That isn't the case.

As I said, you can date the deadline from a grievance outcome.

That is the case so that employers gain no advantage from delaying tactics.

I think it needs to be clear - career breaks often do not guarantee a return to the same job, and stating that this is an actionable issue cannot be verified until we know the exact terms of the career break.

On the information available here, there is no way in which anyone can state that there would be an actionable claim. And the OPs friend had already been told by a solicitor that they can't use these incidents. And nor have they discovered anything new.

We need to understand far more about this situation than we do to offer advice.

That isn't the case. As I said, you can date the deadline from a grievance outcome. That is the case so that employers gain no advantage from delaying tactics.

 

I think it needs to be clear - career breaks often do not guarantee a return to the same job, and stating that this is an actionable issue cannot be verified until we know the exact terms of the career break.

 

On the information available here, there is no way in which anyone can state that there would be an actionable claim. And the OPs friend had already been told by a solicitor that they can't use these incidents. And nor have they discovered anything new.

 

We need to understand far more about this situation than we do to offer advice.

It is a big risk to try and date the deadline from a grievance outcome

See Ashcroft v Haberdashers Aske’s School [2007]

The point is; play it safe and put your complaint in time.

Finally, I admit there is little info but I'm a firm believer in the legal principle of Ubi Jus Ibi Remedium

That is every wrong has a remedy.

It is his responsibility to state his case clearly but just to tell him he has no claim is just lazy.

Let him state his case clearly then we would see.

He knows we are NOT giving legal advice as we are not lawyers

Ashcroft is not the same situation.

It did not involve a grievance.

It was an appeal against dismissal.

There is never a continuing series of acts in a dismissal,

because you can only get dismissed once!

However,

I would also suggest you read the outcome more carefully

- the judge actually supports my argument!

He clearly states that the purpose of the legislation in this matter is to avoid the submission of claims before the outcome of a appeal, and he remitted the case back to the tribunal to hear argument on this specific matter.

He couldn't be clearer in saying that the although this point was not before him,

it was actually the point that should have been,

and that he doesn't see that it was reasonably practicable to submit a claim until the outcome of the hearing was received!

And I did point this out,

but perhaps you missed it

- the OP certainly does know we are not lawyers.

But a lawyer has already been consulted,

and it was their view that there was no case.

Perhaps you were calling the lawyer lazy and not me?

Because in the absence of any information to base an opinion on,

and with a lawyers opinion already extant,

I do not consider it lazy to say that I cannot see a viable argument to put.

I have given the OP as much information as I can based on what little they have said.

I am not going to commit to telling someone their lawyer is wrong and they should fight, based on no evidence that is true!

The only thing that would make a case possible would be the exact terms of the career break

- and those are not known.

If the OPs friend agreed terms that didn't guarantee them their job,

or a commensurate role,

in the same or similar location,

there is no case.

Finally, I admit there is little info but I'm a firm believer in the legal principle of Ubi Jus Ibi Remedium

The difficulty you face is that most employment rights are statutory.

The Employment Rights Act 1996 is very clear that you have to issue most types of employment tribunal claim within 3 months. If you don't, the claim is gone (bar some pretty exceptional circumstances).There isn't really a way around that I'm afraid.

Have a read of http://www.legislation.gov.uk/ukpga/1996/18/section/111 - sub-section (2).

If the employee has a claim which can be brought in court - the deadline for that is 6 years, so he is within time. But most types of employment claim can only be brought in a tribunal, not in court. I think the Op would have to tell us what this is all about to get an opinion on that.