United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS V von WACHTER (of Counsel) Free Representation Unit
For the Respondents	MR R BUTLER (of Counsel) Messrs Gregory Rowcliff & Milners Solicitors 1 Bedford Row London WC1R 4BZ


 


JUDGE PETER CLARK: The appellant was employed by the second respondent company from about 1990 or 1991. The first respondent was her manager and her husband. The appellant and the first respondent separated; she obtained a Decree Nisi in Autumn 1996; that Decree became absolute in July 1997.

In late April 1997 her employment terminated. She presented an Originating Application to the Employment Tribunal on 31st July 1997, alleging, so far as is material to this appeal, unfair dismissal and unlawful sex discrimination. That complaint was out of time. In a covering letter sent with the Originating Application the appellant explained that she had been ill since 12th July, starting with bronchitis, which developed into extreme mental confusion and incapacity made worse by multiple domestic and personal problems. Her brother came to make sure that she was all right and on 30th July she was sufficiently recovered to take advice about her Employment Tribunal application from the Citizens Advice Bureau.

On 4th November 1997 a hearing was held before a Chairman sitting alone at the Bedford Employment Tribunal to decide a preliminary issue as to whether either or both of her complaints were time-barred. It was common ground at that hearing that both complaints were made outside the primary three month limitation period.

The Chairman directed himself as to the relevant provisions of s. 76(1) and (5) of the Sex Discrimination Act 1975 and s. 111(2) of the Employment Rights Act 1996. The test as to whether time may be extended depends on whether it is just and equitable to do so under the former Act and whether it was reasonably practicable to present the claim within time under the latter Act, and if not, whether the claim was presented within such further time after expiry of the primary limitation period as was reasonable.

The Chairman decided, on the facts as he found them, that it was not just and equitable to extend time for the sex discrimination claim, and that it was reasonably practicable for the appellant to bring her complaint of unfair dismissal within time. Accordingly he dismissed both claims. Against that decision she now appeals.

We remind ourselves that although the test in respect of each claim is different, it will be largely a question of fact for the Employment Tribunal to decide the question of reasonable practicability, see Palmer v Southend-on-Sea Borough Council [1984] IRLR 119 and whether it is just and equitable to extend time in a claim of sex discrimination. Hutchison v Westward Television Ltd [1977] ICR 279.

In support of the appeal Mrs von Wachter submits, and Mr Butler agrees, that the relevant findings of the Chairman are to be found at paragraphs 4(2) and 12 of his reasons. We set them out as they stand:

"4. (2) The Applicant had been under considerable pressure during the latter part of her employment and after its termination and from early July 1997 was ill with bronchitis,

...

12. The Applicant has not satisfied me that it was not reasonably practicable for her to bring her complaint of unfair dismissal within three months of that date. She was in receipt of advice and was well aware of her rights and not so ill, certainly during the early part of that period, that she was unable to deal with her notice of application. Turning to the claim under the Sex Discrimination Act the Applicant has not persuaded me that this a case in which it is just and equitable for the Tribunal to consider a complaint which is out of time."

Mrs von Wachter submits, so far as the reasonable practicability test is concerned, that the Chairman was finding that during the latter part of three month period the appellant was suffering from mental and physical impediments which prevented her from lodging her application during that latter period. We do not read the reasons in that way. We think that the Chairman looked at the period overall and was not persuaded, on the evidence, that it was not reasonably practicable for the appellant to put in her application in time. Put the other way and formulating the question in the way which Mr Butler invites us to do by reference to the judgment in Palmer, it was reasonably feasible to present the complaint within three months, so the Chairman found. That was a finding of fact which, in our view, he was entitled to make. It follows that there are no grounds in law for interfering with that part of the decision.

As to the finding that it was not just and equitable to allow the sex discrimination claim to proceed, we are not persuaded that the Chairman's reasons were so inadequate, taking the decision and reasons as a whole, as to be defective. In particular, we are satisfied that he considered the prejudice to both parties but was not persuaded that overall it would be just and equitable to allow the matter to proceed. Again that was a finding which, in our view, he was entitled to make.

It therefore follows, in our judgment, that there are no grounds in law for interfering with this decision. Consequently, the appeal must be dismissed.