Time Limits in Employment Law

Please note that Time Limits for bringing a claim under Employment Legislation may change. You should take professional and specific advice in relation to any claim you intend making. 

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.

The Workplace Relations Act 2015 (the “WRA 2015”) provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. There are equivalent time limits under the Unfair Dismissals Act, the Employment Equality Act (the “EEA”) and the ESA. 

A claim under the Redundancy Payment Act must be brought within 12 months of the relevant date. This can be extended to 24 months if the claimant can show reasonable cause/exceptional circumstances..

The date when a complaint or dispute is referred is the date when it is received by the WRC. If a complaint is not referred within the time limit, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the complainant has demonstrated ‘reasonable cause’ for the delay. 

The test for ‘reasonable cause’ was set out in the case of Cementation Skanska v Carroll, (‘Skanska’) DWT 0338,as follows.

1. “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

Test for Reasonable Cause

The Skanska case set out a five element test for reasonable cause:

(i) The Complainant must explain the delay.

(ii) The explanation must be reasonable.

(iii) There must be an objective standard, applied in the circumstances of the case.

(iv) There must be a causal link between the circumstances and the delay.

(v) The Complainant must show that, if the circumstances were not present, he would have submitted his claim.

In this case the employee failed to show reasonable cause for failing to lodge the complaint on time.

An Adjudication Officer has no power to extend the time limit beyond 12 months after the last alleged contravention (24 months in a Redundancy Payments complaint).

The decision to extend time is solely a matter for the Adjudication Officer. If a complainant is seeking an extension of time, they will need to provide detailed reasoning and any supporting documents in support of the application. A complainant must set out relevant details on which they are relying.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.

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.

In U-Casadh v Michael McGath (in 2024) the Labour Court considered an appeal from Adjudicator which was lodged outside the 42 day time limit for bringing an appeal. 

The reasons advanced by the Appellant for the delay in presenting his appeal were that his legal representative underwent surgery during the period of 42 days and the same legal representative erred in his belief that weekends were excluded from any calculation of time limits.

“Exceptional Circumstances”

The Court held that it is for the Appellant to both explain and justify the delay in lodging his appeal and to set out the exceptional circumstances which would support a decision of the Court to extend the time available for the making of the within appeal.

The Court did not accept that the fact that the necessary surgery (for a moderately serious complaint) and recovery of the Appellant’s legal representative prevented the Appellant from making of the within appeal in time. The Appellant was represented by a Solicitor’s practice with the capacity, as subsequently proven by the fact that the appeal was eventually made by a secretary, to make the appeal at any time during the absence of the individual representative of the Appellant. Indeed, no case has been made that the Appellant’s legal representative was inhibited by illness prior to his admission to hospital on 18th March in making the appeal himself.

Having regard to the submission advanced on behalf of the Appellant, the Court ruled that the Appellant had not offered a justifiable excuse for the delay in making his appeal within the statutory period allowed for the making of an appeal. The appeal therefore fails, and the decision of the Adjudication Officer is affirmed.

An employer could give one of the following reasons to justify the dismissal:

the capability, competence or qualifications of the employee for performing work of the kind which he/she was employed by the employer to do; the conduct of the employee;

the redundancy of the employee;

the employee being unable to work or continue to work in the position which they held. 

In relation to the grounds for the dismissal, case law shows that the employee does not have to be shown to have actually been incompetent or incapable, for example. It is sufficient that the employer show that, after a proper procedure, the employer honestly believed that they were incompetent or incapable.