England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL AGAINST A DECISION OF THE EMPLOYMENT
APPEAL TRIBUNAL (THE EAT)
(Underhill J, the President, sitting alone) on 16 March 2009.
BAILII: [2009] UKEAT 0530_08_1603

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/12/2009

Lord Justice Wall :

The appeal

1. Pursuant to the grant of permission by Elias LJ on paper on 22 May 2009, the Chief Constable of Lincolnshire (the employer) appeals against a decision of the Employment Appeal Tribunal (the EAT) (Underhill J, the President, sitting alone) on 16 March 2009. Underhill J had dismissed the employer's appeal against a decision of an Employment Judge at Nottingham (Mr. Peter Britton, also sitting alone (the EJ)). The EJ, at a pre-hearing review conducted on 7 July and 8 August 2008 (at the conclusion of which, it appears he gave an extempore judgment) had held that a claim in the Nottingham Employment Tribunal (the Tribunal) made on 28 March 2008 by Natasha Caston (the claimant) for disability discrimination against the employer had been presented out of time. However, the EJ permitted the claim to proceed on the basis that it was, in all the circumstances of the case "just and equitable" within Schedule 3. Part I, paragraph 3(1) of the Disability Discrimination Act 1995 (DDA) to extend the claimant's time. The employer unsuccessfully challenged that ruling in the EAT and now renews his challenge in this court.
2. The precise wording contained in Schedule 3 to the Disability Discrimination Act 1995 (the DDA) is as follows:-

3|(1) An employment tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

3. As with every appeal from the EAT, the question for this court is whether or not the Tribunal – in this case the EJ – has made an error of law which the EAT has failed to correct. It will thus be necessary in due course to look at the EJ's reasoning and Underhill J's response to it.
4. For the purposes of this appeal, the facts fall within a very narrow compass, and are in large measure unrelated to the merits of the claimant's claim. I should, nonetheless, make it clear and that nothing in this judgment is to be taken, one way or the other, as expressing a view about the merits of the claim.

The facts

5. The claimant was employed by the employer as a police officer from 1 April 2001. On 28 March 2008, through solicitors she issued a form ET1 in the Tribunal claiming unlawful discrimination under section 3A(1) and (2) and 4A of the DDA.
6. In the grounds of complaint attached to the Form ET1 the claimant sought a variety of relief. Her principal claim, however, and the only one which is material in this appeal, was that the employer had failed to make any "reasonable adjustment" designed to accommodate her disability and to enable her to remain in employment. The only question which this court has to address is whether or not the EJ, as a matter of law, was entitled to exercise his discretion to extend the claimant's time for making her claim.
7. In her form ET1, the claimant said that she had lodged a grievance alleging bullying on 31 May 2006 and that the investigation, carried out by one Superintendent Marsden, had not been completed until 10 November 2007. Although the grievance was not upheld, the claimant was at that point offered a 12 month extension on a temporary placement. This she refused.
8. In the meantime, she had been signed off sick from 3 August 2007 and had been placed on half pay on 10 November 2007. Her position in her form ET1 was that, as at 16 January 2008, "the situation was recognised to be irretrievable" and that she was "facing early retirement". She also stated in paragraph 15 of the Particulars,

On 28 December 2007 during a short break, I reflected on my position with (the employer) and the severity of my illness. I decided that the only way I could get better was to stop working for (the employer).

9. As will be apparent, if the claimant's decision to reject the "reasonable adjustment" contained in Superintendent Marsden's rejection of her grievance on 10 November 2007 was taken by the claimant over the weekend of 29/30 December 2007 - or indeed later - then the filing of the ET1 on 28 March 2008 was in time – that is to say within three months of 29 December. However, in cross-examination before the EJ, the claimant accepted that she had make the decision much earlier, that is to say effectively very shortly after the offer of 12 months temporary employment made by Superintendent Marsden on 10 November 2007. On this basis, of course, the ET1 was out of time.
10. Given the claimant's oral evidence, it thus fell to the EJ to decide whether or not it was "just and equitable" to extend the time.

The EJ's reasoning and findings of fact

11. The reasoning of the EJ is contained in section 3 of his reasons. This is what he said: -

3.1 In proceeding to exercise my discretion, I adopt the guidance of the EAT in British Coal v Keeble [1997] IRLR 336 and set out by the learned authors at paragraph 9-030 of the Employment Court Practice 2007 (the ECP):

As a matter of good practice when considering whether or not to extend time under this provision an employment tribunal should adopt as a checklist the factors mentioned in section 33 of the Limitation Act 1980. Under s33 the court enjoys a broad discretion to extend the limitation period of three years in cases of personal injury and is required to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case including:

(a) The length of and the reasons for the delay (that is seminal to my decision making as will become clear).

(b) The extent to which the cogency of the evidence is likely to be affected by the delay. (Nobody in this case suggests that this is a factor. The evidence is still all available to be presented).

(c) The extent to which the parties sued had co-operated with any requests for information. (Not applicable as there is no suggestion of any lack of cooperation).

(d) The promptness with which the plaintiff (for which read Claimant) acted once he or she knew of the facts giving rise to the cause of action (very much engaged).

(e) The steps taken by the Claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (again engaged).'

So, three of the factors in the checklist of Keeble, I need to address.

12. Having also cited the judgment of Auld LJ in Robertson v Bexley Community Services (as to which see below) the EJ then cited a comment from the editors of the ECP to the following effect:-

Notwithstanding the above a review of the authorities suggests that in practice employment tribunals and the appellate courts have adopted a liberal approach to the extension of time.

The EJ's findings of fact

13. The EJ made a number of findings of fact. Critical, for present purposes, is the following:-

4.21 I will, on the balance of probabilities, and particularly because of the medical evidence, conclude that I cannot rely on the evidence of the Claimant on either front so as to be sure she knew what she was doing at the material time, given her undoubted mental problems. I find that to be an exceptional circumstance making it just and equitable to permit the case to proceed."

The attack on the EJ's reasons

14. For the employer, Mr. Paul Rose QC accepted that, if paragraph 4.21 from the EJ's reasons which I have just cited stood as written, it would have been fireproof. The findings identified by the EJ were open to him, and they were capable of providing a basis for a "just and equitable" finding. What gives rise to this appeal is that the EJ began paragraph 4.21 with the sentence: "I fall back on the liberal interpretation of the authorities to which I have referred". This, Mr. Rose argues, demonstrates that the EJ committed an error of law, and applied the wrong approach. He was applying a "liberal" regime, when he should have been applying a "strict" regime, and this has led to an unlawful exercise of discretion. It has not been corrected by the EAT: the EJ should have dismissed the claim, and we should do the same.

The approach of Underhill J

15. Underhill J was in no doubt that the final sentence of the commentary in the ECP did not accurately state the law. However, he did not accept that the EJ had applied the wrong test. Having set out the EJ's reasoning at length, he comments:-

(1) The Judge regarded the essential factors which he had to consider as being those identified at (a), (d) and (e) in the judgment of this Tribunal in British Coal Corporation v Keeble [1997] IRLR 336: see paragraph 3.1 of the Reasons.

(2) Of those three elements, he did not in the end regard (d) and (e) as assisting the Claimant. He does not actually say so, but that seems to be the inference. It also seems to me the right conclusion in any event. It is true that the Claimant appears to have consulted her advisers very promptly following the receipt of Superintendent Marsden's decision on her grievance; but that was in November, which immediately raises the question why she did not manage to get her claim in in time. As to that, the Judge believed that the reason was that she had, as already noted, told her solicitors that she had made her decision not to return to work between Christmas and New Year and they accordingly proceeded on the basis that they had until the end of March to present a claim. That was in fact wrong, as had to be conceded in the light of the Claimant's evidence to the Tribunal.

(3) The real question, therefore, was why the Claimant had given her solicitors the wrong "trigger date", i.e. by telling them that she had made up her mind at the end of December 2007, whereas she had in fact done so some six weeks earlier. The Judge regarded that question as an aspect of "element (a)" in Keeble, because it was the ultimate reason for the delay. His answer was that the Claimant had given a confused and misleading chronology to her solicitors because of her mental condition at the time. It was that which he regarded as "an exceptional circumstance making it just and equitable to permit the case to proceed".

16. Having read the whole passage from the ECP and recorded Mr. Rose's submission, Underhill J concluded:-

15. However, I am not convinced that on careful examination of the Judge's actual reasoning his reference to the passage in question led him to adopt a wrong approach in law. After much discussion, his reasoning in fact came down to a single point. He found, expressly on the balance of probabilities, (a) that the Claimant had misled her solicitors as to the facts material to establishing the "trigger point" and (b) that she had done so because of her mental ill-health. Both those findings were plainly open to him on the evidence, and indeed Mr Rose does not suggest otherwise. It seems, as I read it, to have been that factual question which the Employment Judge found the most difficult, essentially because, while the evidence certainly showed that the Claimant was suffering from a form of serious mental ill-health (and indeed he had the opportunity to see her giving evidence to him) it also appeared to show that she was for some purposes perfectly capable of giving instructions to her representatives. That tension made the case unquestionably an awkward one to assess. But, having made that factual finding, the Judge then went on separately to decide that the facts as he found them constituted "an exceptional circumstance" making it just and equitable to permit the case to proceed, those being the closing words of paragraph 4.21. That is by itself an unexceptionable conclusion, and appropriately worded by reference to the statute and the case law. In particular, it reflects the fact, emphasised in Robertson, that the presumption is against extension and that it is thus for a claimant to show some exceptional reason why time should be extended.

16. There remains the difficulty about the opening sentence of paragraph 4.21. It is frankly a puzzle exactly what the Judge meant by it. Mr Rose says that he seems to have meant that he would give the Claimant the benefit of the doubt on the factual matters which were the foundation for the exercise of his discretion. I do not think that that can be right, since in the following sentence he goes on to make an explicit finding on the facts by reference to the balance of probabilities. Ultimately I read it simply as a piece of loose language (of which I have to say there are other examples in the Reasons), but one which has had no detectable effect in the actual exercise of the Judge's discretion. I think that he meant no more than that he had to return to the broad discretion which is unquestionably granted by the words of the statute, albeit subject to the guidance given in Robertson. The actual exercise of the discretion and the manner in which the Judge's conclusion was formulated are, as I have said, unimpeachable.

Discussion

17. In my judgment, the simple point raised by this appeal is whether or not, on the facts found by the EJ, he was entitled, as a matter of law, to exercise his discretion as he did. It is common ground that the discretion under the Statute is at large. It falls to be exercised "in all the circumstances of the case" and the only qualification is that the EJ has to consider that it is "just and equitable to exercise it in the claimant's favour.
18. Stated in this way, the answer, I have to say, seem to me to be obvious. Was there material upon which the EJ could properly exercise the discretion? Plainly, there was. As Underhill J pointed out, the findings of fact made by the EJ were clearly open to him. Once the exercise of discretion is so regarded, the difficulties – if such they be - fall away. It is of the essence of a judicial discretion that two judges may exercise it differently without either being wrong. It therefore seems to me whether or not the EJ thought he was being "liberal" or not in his exercise of discretion is irrelevant.
19. Speaking for myself and with all possible respect to Mr. Rose, it seems to me that this appeal is another attempt to hi-jack a very simple issue by means of editorial comment, supposed judicial gloss and lawyers' sophistication. The editors of the Employment Law Practice (the ELP) have expressed an opinion. No doubt that opinion is genuinely held and based on their collective experience (although their use of the phrase "a review of the authorities" would suggest a more scientific analysis). It is, however, in my judgment irrelevant. What is "liberal" to A may seem authoritarian to B. What passed for "liberal" in 1950 may well seem reactionary today. At best, therefore, the use of such a term is a distraction: at worst, it is misleading.
20. In Robertson v. Bexley Community Centre [2003] IRLR 434 (Robertson), the essential facts were that prior to April 1999, the complainant had been racially abused by one Pankhurst, a fellow employee. There was a meeting in April 1999 at which Pankhurst apologised and was given a formal warning. The claimant made it clear at this point that he did not want Pankhurst dismissed; he only want the abuse to stop.
21. Pankhurst was then absent on sick leave until October 1999. On 4 October 1999, the claimant instituted proceedings in the Employment Tribunal (ET), and on 5 October there was another meeting, at which Pankhurst was again offensive, as a result of which he would have been dismissed had he not resigned.
22. The ET in Robertson made three critical findings. Firstly, it held that the claimant was not entitled to rely on events after he had instituted his complaint in the ET on 4 October 1999. Secondly, it held that there had been no "course of conduct" by Pankhurst which would have rendered Mr. Robertson's complaint in time. Thirdly, it held that it would not be just and equitable to extend the claimant's time from April to October.
23. The EAT overruled the ET, and this court, on the employer's appeal, restored the decision of the ET. Auld LJ, who gave the leading judgment, held that the was not open to the EAT on the facts to find a continuing course of conduct, and that the EAT had no legitimate basis upon which to quarrel with the ET's decision not to extend the claimant's time for instituting proceedings. Auld LJ cited, with approval the well established principle, articulated by Gibson LJ in Daniel v. Homerton Hospital Trust (unreported 9 July 2009) in the words "The discretion of the Tribunal is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong".
24. Mr. Rose placed much reliance on paragraph 25 of Auld LJ's judgment which reads as follows: -

'It is of also importance to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against the tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.

25. This paragraph has, in turn, been latched onto by commentators as offering "guidance" as to how the judgment under the "just and equitable" provisions of the Race Relations Act and DDA fall to be exercised. In my judgment, however, it is, in essence, an elegant repetition of well established principles relating to the exercise of a judicial discretion. What the case does, in my judgment, is to emphasise the wide discretion which the ET has - see the dictum of Gibson LJ cited above – and articulate the limited basis upon which the EAT and the court can interfere. Similarly, DCA v Jones [2008] IRLR 128 approves the Keeble guidelines, but emphasises that they are fact / case specific – see per Pill LJ at paragraph 50.
26. Plainly, the burden of persuading the ET to exercise its discretion to extend time is on the claimant (she, after all, is seeking the exercise of the discretion in her favour). Plainly, Schedule 3 of DDA does not give rise to a presumption in favour of extending time. In my judgment, Auld LJ's use of the word "convince" in paragraph 25 of his judgment adds little.
27. It was, I think, unfortunate that the EJ should have chosen, in an extempore judgment, to cite the opinion of the editors of a textbook in the same paragraph in which he was announcing his findings of fact. However, I do not think that it in any way vitiates the exercise of his discretion. I agree with Underhill J that on a full reading of the EJ's judgment it is clear that it was properly open to him to find that it was "just and equitable to extend the claimant's time.
28. I would, accordingly, dismiss this appeal.

Lord Justice Longmore

29. I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still.

Lord Justice Sedley

30. I agree with Mr Justice Underhill and Lord Justice Wall that the EJ's decision, while it could have been (and, had it been reserved, no doubt would have been) a great deal better expressed, was not vitiated by any error of law.
31. In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them.
32. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it. That, albeit discursively, is what the EJ did here, notwithstanding his passing distraction by a textbook comment of doubtful relevance or weight.