Time passes

Arthur v London Eastern Railway Ltd t/a One Stansted Express

The law says that if a worker wants to claim they have suffered a "detriment" (or disadvantage), they must do so within three months of the act (or failure to act) that they are complaining about.  If there has been more than one, then within three months of the last act in the "series".

In Arthur v London Eastern Railway Ltd t/a One Stansted Express (2007, IRLR 58; IDS 819), the Court of Appeal said that to form part of a "series", the acts just had to have some relevant connection between them. 

Basic facts

Mr Arthur had been working as an on-train cabin crew member since January 2000. After being assaulted a number of times in 2001, he complained to his employer about low staffing levels, problems with reporting and the risk of violence to staff on late night and early morning trains.

After making these disclosures, Mr Arthur said he was then seen as a "trouble maker" and was subjected to a series of detriments by his employer, involving about 12 different people.

He complained to a tribunal on 13July 2004 that he had "suffered continuous detriment" as a result of having "blown the whistle" to the police and to his employer.

His employer argued that just about everything he was complaining about had happened more than three months prior to the date of his claim, and that he was therefore out of time.

Tribunal decision

At a pre-hearing review to decide which acts or failures were out of time, the tribunal chair, who only heard legal submissions and no evidence, considered what was meant by "a series of similar acts or failures" in section 48(3) of the Employment Rights Act 1996. He ruled that they had to involve “a significant degree of linkage between events”.

He therefore dismissed Mr Arthur’s argument that the phrase could include acts which "share a common motive", saying this was too wide an interpretation of the legislation.

However, he did not agree with the employer that everything alleged to have taken place before 14 April 2004 was necessarily excluded, and that some of the events were therefore in time.

EAT decision

The EAT said that the whole point of section 48(3) was to enable employees to bring proceedings within three months of the last of the series, provided there were similar acts or failures. That necessarily involved a "temporal element to it; one event following on another".

But the word "similar" in the phrase was also significant. It was not enough, therefore, to show that there had been a series of acts or failures. Claimants also had to show "a significant degree of linkage between the events".

As Mr Arthur could not show any such linkage, his claim failed.

Court of Appeal decision

The Court of Appeal said that the words in the legislation should be given their ordinary meaning.  That meant that tribunals should look for some relevant connection between the acts in the three-month period and those outside it.

It did not think it was "enlightening" to look at "the motive" for the acts nor "to ask in the abstract what makes acts part of a series or what makes one act similar to another act."  Instead, tribunals should establish the facts before trying to apply the law.

In all but the most exceptional cases, therefore, tribunals should look at the evidence before deciding (a) whether they are part of a series at all and (b) whether they are sufficiently linked factually to be 'similar' acts.

The tribunal chair had been wrong, therefore, to decide the time limit point solely on the basis of legal argument. Instead, he should have looked at all the circumstances surrounding the acts.

The Court allowed the appeal, and remitted the case to the employment tribunal to determine whether, as a fact, the acts (and failures) set out by Mr Arthur were part of a series of similar acts (or failures), the last of which had occurred within the three-month time period.