Employment Law Advocates

The recent judgment of the European Court of Justice in Bulicke v Deutsche Buero Service reaches the unsurprising conclusion that the existence of national time limits for submitting discrimination claims does not, in itself, prevent European law from being effective. However, the reasoning applied in the case is interesting and could well have an impact on the way the power to extend time when it is just and equitable to do so is exercised in the future.

The Luxembourg court expressed its concern that an employer could act in a discriminatory manner while concealing the discriminatory nature of the decision. In response, the German government argued that this would not cause a problem because German law would then be interpreted so that time starts to run from the date on which the employee becomes aware of the discrimination, rather than the date of the discriminatory act. This was considered to be crucial by the European Court of Justice which cited the case of Levez v T. H. Jennings, an equal pay case in which it was stated that the date of knowledge is the material date.

In the United Kingdom, time usually runs from the date of the discriminatory act but, where the employee was not aware of the discrimination, this is one of the factors to be weighed in the balance when deciding whether or not to extend time. A good example is the case of London Borough of Southwark v Afolabi in which time was extended for nine years after the claimant found evidence of discrimination, having been allowed to inspect his personnel file. However, even in Afolabi, the Court of Appeal treated the extension of time as a matter of discretion rather than a hard and fast rule. By contrast, the logic of Bulicke suggests that time should be extended in all cases where discrimination is concealed from an employee.