Tribunal milestone: first procedural decision under Guernsey’s discrimination Ordinance

After filing a constructive unfair dismissal complaint within the relevant statutory time limits, the applicant then attempted to add a discrimination complaint outside of the statutory three month window. In particular, the applicant sought an extension of time to include his complaint of disability discrimination, citing that, because he did not consider himself disabled at the time he made his initial complaint, and that by virtue of ‘his type of employment (i.e. a manual trade)’, he was not aware of his rights under the Ordinance or the corresponding time limit to bring a complaint.

The tribunal dismissed the application, relying primarily on established UK case law. The tribunal applied well-established tests which take into account what, if anything, the employee knew about their right to bring a complaint to the tribunal and the time limits for so doing. The tribunal said it needed to take into account the knowledge that the employee had and should have had, had he acted reasonably in the circumstances. In simple terms, if the employee did not know the time limits for claiming but was aware of a potential claim, this will make it more difficult for them to be allowed to bring a late claim because it will be harder to persuade the tribunal that their ignorance was reasonable.

Applying these tests, the tribunal found that the applicant had received and understood guidance materials from the Employment and Equal Opportunity Service (EEOS) which referenced both the Ordinance and the relevant time limits. His failure to act on this information meant his ignorance of the law was not deemed 'reasonable'. The tribunal determined that it was "reasonably practicable" for the applicant to have presented his complaint within the three month time limit, and that it would not be "just and equitable" to allow extra time for the applicant to bring his claim, having regard to the fact that he could have sought legal advice at any stage to avoid the delay.

Key takeaways

• Claims of discrimination must be brought within three months of the last act of discrimination, unless exceptional circumstances apply, such as an impediment prohibiting an individual to make enquiries as to their rights.

• Applicants (including those who are legally unrepresented) are expected to review key materials and EEOS resources that contain information on their legal rights.

• Ignorance of the law is rarely a valid defence and is not generally accepted as a legitimate reason to excuse an applicant’s late filing of a complaint.

• Applicants and respondents alike should seek timely advice, which will help identify potential claims and avoid missing key deadlines.

This landmark decision sets a helpful precedent for how procedural rules under the Ordinance will be interpreted and applied. The full judgment can be found here.