Richard Grogan on employment law: Time limits for bringing claims
Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on applicable time limits for bringing claims to the Workplace Relations Commission (WRC).
In Case ADJ7212 the Adjudication Officer had to deal with a claim under the Payment of Wages Act. The case was dismissed because it was well outside the six-month period. But it is useful that the AO in this case went through the legislation and dealt with section 6 (4) of the Payment of Wages Act, which provides that a claim must be made within six months beginning on the date of contravention.
The AO referred to the High Court cases of Moran –v- The Employment Appeals Tribunal IEHC 154 and Health Service Executive –v- McDermot IEHC 331, where the court was asked to consider the meaning of “within the period of six months beginning on the date of the contravention to which the complaint relates”.
These judgements confirmed, as the AO pointed out, regard to how the complaint was described, which is the period that is well beyond the six month statutory period provided and therefore the claim was out of time. The AO pointed out that Mr Justice Hogan in the Moran decision, relying on the Moran decision in the McDermot decision, held:
“This was because the complaint as formulated by the claimant in that case related to a time period of alleged contraventions which was plainly time-barred.”
This issue often arises.
If a claim is put in on, say, 1 January 2018 to make matters easy, and the employee is looking to go back 12 months, then it should be two claims. The first claim should be for the period for six months back from 1 January 2018. The second claim should be made for the period preceding the six months period and claiming “reasonable cause” to go back the additional six months.
If the claim is simply put in for the full twelve months, then in those circumstances the complaint did not occur within six months and the claim is statute-barred, unless the “reasonable cause” submission is accepted.
It is important to ensure when bringing claims that a portion of any claim is not going to become barred because of the fact that an additional period of time is claimed.
When it is not covered in that decision, there are other time periods which are slightly different.
In a claim under the Organisation of Working Time Act in respect of holiday pay or not receiving the annual entitlements, despite what might be put in any company policy, the leave year runs from the 1st April to the following 31st March.
Therefore to put a claim in within six months, the claim must issue by the 30th September, preferably the day beforehand being the 29th. In such circumstances, the six months goes back beyond the 1st April, therefore that entire annual leave year is taken into account as regards claims for holiday pay or not receiving the appropriate 20 days holidays.
In an equality claim, provided an incident occurred within the last six months, any other incidents of a similar nature which occurred going back maybe many years of the employment can be taken into account in the equality claim.
In a National Minimum Wage Act claim, the employee must issue a request under section 23 within 12 months. They have a further six months to bring a claim and the claim goes back for six years from the date that the claim is lodged.
However, in most cases it is limited to a six month period from the date that a claim is lodged back. It is therefore vitally important in lodging claims that they are lodged as early as possible. Delaying matters for the purposes of having negotiations or otherwise is not best practice. The best practice is to issue the proceedings first and then to get into discussions. There is no difficulty in issuing a protective claim. You can always, when lodging the claim, say that you wish to go to mediation.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.