Limitation of Actions Consultation - Law Commission

expiry of the time limit; whether negotiations between the parties started before
the expiry of the time limit; whether the estate has been distributed; and whether a
refusal to extend the time would leave the plaintiff without redress against
anybody.
(iv) Discrimination Acts 61
7.31 The Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability
Discrimination Act 1995 contain a framework of time limits, within which the
various available types of enforcement action must be taken. For example, a
complaint relating to employment discrimination must be made to an industrial
tribunal within three months after the act complained of was done. 62
Civil
proceedings must be brought in the courts in relation to discrimination in areas
other than employment within six months of the act complained of. 63
7.32 These Acts provide that the court or tribunal may consider a complaint, claim or
application made to it out of time if “in all the circumstances of the case, it
considers that it is just and equitable to do so”. 64
In Foster v South Glamorgan
Health Authority 65
Popplewell J, giving the judgment of the Employment Appeal
Tribunal, noted that it is the practice of the industrial tribunals and the
Employment Appeal Tribunal to apply the limitation periods with great strictness
and to limit the circumstances in which an extension will be granted. In that case,
the applicant brought a claim under the Sex Discrimination Act 1975 that there
had been an act of sex discrimination because she had been obliged to retire at the
age of 60, where a man could have worked until 65. As the law appeared when
she retired, she had no claim. After the case of Marshall v Southampton and South
61 Different time limits apply under the Equal Pay Act 1970. A reference may only be made to
an industrial tribunal under the 1970 Act (other than a reference by a court under s 2(3)) if
the employee concerned has been employed under the relevant contract during the six
months prior to the reference, (s 2(4)) and awards are limited to arrears of remuneration or
damages in respect of the two years up to the institution of proceedings (s 2(5)). There is
no discretion to disapply the time limit or accept references out of time. Where, by virtue of
European Community law, employees have rights under the 1970 Act but the existence of
the rights is only discovered later, Community law will not override the time limits in
sections 2(4) and (5) to allow them to be enforced: Preston v Wolverhampton Healthcare NHS
Trust [1997] IRLR 233 (CA), which concerned equality of pension rights.
62 Sex Discrimination Act 1975, s 76(1); Race Relations Act 1976, s 68(1); Disability
Discrimination Act 1995, s 8(8) and Sch 3, Part I, para 3(1). See General Medical Council v
Rovenska, The Times, 31 December 1996 (CA).
63 Sex Discrimination Act 1975, s 76(2)(a); Race Relations Act 1976, s 68(2)(a); Disability
Discrimination Act 1995, s 25(6) and Sch 3, Part II, para 6. In race and sex discrimination
cases relating to public sector education, the time period is eight months: Sex
Discrimination Act 1975, s 76(2)(b); Race Relations Act 1976, s 68(2)(b). In Cannon v
Barnsley MBC [1992] IRLR 474 (EAT), it was held that a directly effective European
Community law right arising under the (incorrectly implemented) Equal Treatment
Directive, 76/207/EEC, did not come under s 76(1).
64 Sex Discrimination Act 1975, s 76(5); Race Relations Act 1976, s 68(6); Disability
Discrimination Act 1995 s 8(8) and Sch 3, Part I, para 3(2) and s 25(6) and Sch 3, Part II,
para 6(3).
65 [1988] ICR 526, 528 (EAT).
121