A claim in time
Labour & European Law Review Weekly Issue 499 07 December 2016
The law states that claims have to be lodged within three months of the act complained of (including a continuing act) unless it was “just and equitable” to extend time. In Fairlead Maritime Ltd v Parsoya, the Employment Appeal Tribunal (EAT) held that an indirectly discriminatory policy had continued to discriminate until the termination of the claimant’s employment which meant that his claim was in time.
Fairlead Maritime Ltd, a naval architecture consultancy, employed Mr Parsoya (an Indian national) in 2011 as a naval architect. Although the job advert indicated a salary of between £30,000 to £40,000, he was paid £25,000 until June 2013.
His contract, however, stated that his salary would be reviewed regularly to reflect his “employability status”, this being a reference effectively to his immigration/visa status. In January 2012 he was told that once he had a long term visa, his salary would be increased to reflect the length of time he had had to wait for it. Although his employer increased his pay to £30,000 in June 2013 it did not reflect the amount that he would have earned had he been paid from the start of his employment.. He was later told that his salary would be increased to £40,000 with effect from May 2014, but the increase was not paid in either June or July.
Mr Parsoya left Fairlead at the end of July and lodged proceedings for indirect race discrimination and breach of contract. The company argued that the indirect race discrimination claim was out of time as it only related to the period when he was paid less than £30,000 which ended in June 2013.
The tribunal held that payment as a naval architect at £30,000 depended on the employee having no visa restrictions, or a visa period longer than two years. This amounted to a provision criterion or practice (PCP) which put people of Indian nationality at a particular disadvantage compared with others who did not share that protected characteristic.
As Mr Parsoya had received less than the advertised wage up to June 2014 because of his visa status, this amounted to unjustified indirect race discrimination. The tribunal found that the employer had carried out various reviews at which separate decisions were taken not to pay him what he was owed.Time did not start to run until his employment came to an end and his claim was therefore in time.
In any event, the tribunal held that it would be just and equitable to extend time as Mr Parsoya had done everything he could to resolve the matter before resorting to litigation. The tribunal considered the delay in Mr Parsoya seeking legal advice was understandable given the small world of naval architecture.
Although the tribunal’s reasoning was not straightforward, the EAT was satisfied that it had made a finding that the company had continued to discriminate against Mr Parsoya by not paying him full salary which continued beyond the time when his visa status was resolved (February 2013) and after the company had put him onto the correct rate (June 2013).
The company’s failure to make good the shortfall in Mr Paroya’s pay was a continuation of a discriminatory policy of not paying full salary to those for whom “employability” was in issue.
As for its alternative conclusion on the “just and equitable” point, the EAT found that the tribunal had effectively found that the company had been stringing Mr Parsoya along with continuous promises to make good the shortfall in his pay and each promise amounted to separate decisions extending time. These were matters which the tribunal was entitled to take into account when exercising its judicial discretion and extend time.
The EAT therefore dismissed the appeal.