Just and equitable – what does it actually mean?
There are time limits for making a Service complaint and also for making an application to my office. These time limits are set in law. Complaints that are made outside of those time limits can still be accepted if it considered “just and equitable”. But what does that actually mean?
Complaints processes are usually governed by time limits and the Service complaint process is no different. The purpose of time limits is not to deprive people of their right to make a complaint, but to ensure that complaints can be dealt with effectively and to give certainty to the process for all parties to the complaint.
The period of time allowed to make a complaint will be one that is considered reasonable for an individual to make their complaint.
When making a complaint the time limit starts from either the date:
- The incident occurred
- The individual became aware they had been wronged
- Of the last incident, if it is a series of connected events.
For a Service complaint, the time limit is usually 3 months. If the complaint is about an issue that could potentially go to an Employment Tribunal, the time limit is extended. This ensures that the individual has the same amount of time to make a Service complaint that they do to lodge their claim with the Tribunal.
For my office, the time limits run from the date a decision was posted or emailed to the individual complainant. For a review of an admissibility decision, the time limit to make an application is 4 weeks and 2 days. It is increased to 6 weeks and 2 days for investigations of substance (merits) or maladministration.
The time limits are important because the more time that passes after an event occurs, the more difficult it is to investigate properly and come to a clear and correct decision about what did and did not happen. Documents or other essential evidence might only be kept for a certain period of time. People’s memories of events fade and are no longer reliable. Witnesses may be difficult to locate, unable to engage in the process for health reasons or have even passed away.
However, there are times when not accepting a complaint outside these time limits would be unfair. That is why there is some flexibility built into the process.
The law allows Service complaints and applications to my office to be accepted out of time if it is considered “just and equitable in all the circumstances.”
What does that mean in plain English? It means that the time limit can be extended in individual cases where it is considered to be right and fair to do so.
That might seem confusing. After all, how could it not be right and fair to investigate a complaint? The answer to that question depends on the circumstances of each individual case.
The “just and equitable” discretion is quite wide. In terms of the work my office does, it allows us to consider any relevant factors. This can include, but is not limited to:
- How far outside the time limit it is
- The reason for the delay
- If it is still possible to conduct a fair and reliable investigation given the delay
- Whether the individual had information about the time limits, or is reasonably expected to have known about them
- Whether the individual has acted unreasonably in delaying making their application
Although we have this discretion, accepting applications outside of the time limit is the exception and not the rule.
If you are making an application to our office outside of the time limit, you will be asked to include on the form reasons why it is late. There is no set response that will ensure a late application is accepted. You simply need to provide an honest explanation of why you were unable to make the application in time. If further information or clarification is needed, my investigators will ask you for this. They will also seek information from other sources if required. They will then make a decision, under my delegation, taking into account all of the relevant factors.
Whatever decision is reached, the letter you receive from our office will always clearly set out what factors were considered in coming to that conclusion and why they were or were not considered sufficient to accept an application outside of the time limits.