The case of a Jersey drainage worker who lost the ability to bring unfair dismissal and discrimination claims by just one day has revealed how some Islanders may have previously been “sold short”.
The issue emerged in the case of a former Drain It Limited employee, whose claims for unfair dismissal and discrimination were thrown out after being lodged just one day after the Employment and Discrimination Tribunal’s previously accepted deadline.
In a judgment clarifying how deadlines should now calculated, the tribunal’s Deputy Chair, Advocate Cyril Whelan MBE, who was sitting on the case, admitted that the tribunal’s long-standing practice had “tended largely to result in claimants being given only seven weeks and six days to bring claims” instead of the full eight weeks set out in law.
The effect of being a day late is the same as being a year late, save in very unusual circumstances
advocate cyril whelan, employment and discrimination tribunal deputy chair
“That single day’s difference can be crucial because the tribunal acts in strict conformity with what it believes to be the time limits set by the legislature,” the judgment explained.
“The effect of being a day late is the same as being a year late, save in very unusual circumstances.”
The issue arose after a change to Jersey’s employment and discrimination laws approved by the States Assembly came into effect in April, making clear that time periods expire “at the end of the day” completing the specified number of weeks.
The judgment said the amendment was intended to make it clear that “eight weeks means the full eight weeks, and a claimant is not to be sold short by one day”.
The Drain It worker’s employment ended on 17 February this year. He lodged his tribunal claim on 14 April.
Under the tribunal’s previous approach, the eight-week deadline expired on 13 April, making his claim one day late. However, had the amended law applied, it would have been lodged within time.
The former drainage and groundworks employee’s lawyers argued that the legislative change merely clarified what had always intended in the law, meaning his claim should be treated as having been brought in time.
However, the tribunal took a different view, finding that applying the amendment retrospectively would remove a legal defence that had already accrued to the employer.
“I find that the effect of [the law change], if applied to the present case, would be to transform a claim previously understood to be prescribed into a claim capable of proceeding,” Advocate Whelan said.
“Whatever language is used to describe the amendment, that represents a substantive alteration of the parties’ legal position.”
The judgment concluded that there was no clear indication the States intended the change to revive claims that had already become time-barred.
“In the absence of clear language requiring that consequence, I decline to interpret the amendment as reviving claims that had already become prescribed,” the tribunal ruled.
Although the employee’s claims were struck out, the decision provides important clarification for future claimants.
The tribunal accepted that the law now gives employees the full eight weeks to bring employment and discrimination claims, rather than the shorter calculation that had previously been applied.
