United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D GRIFFITHS-JONES (of Counsel) Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB
For the Respondent	MR M GRANT (of Counsel) Instructed by: Mr M Shrives Messrs Hammond Suddards Solicitors 2 Park Lane Leeds LS3 1ES


 


MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal against a decision of an Industrial Tribunal which was held at Leeds on 3rd February 1998. By their decision, the Industrial Tribunal unanimously concluded that it would be just and equitable in all the circumstances of the case for the tribunal to consider the applicant's complaint brought under the provisions of the Disability Discrimination Act 1995, even though it had been presented to the Industrial Tribunal outside the three month time period.

The underlying facts can be briefly stated. Mr Goodall was Managing Director of the respondent company, Sidhil Care Ltd. He commenced employment on 5th September 1995 and that employment came to an end in April 1997. Coincidentally in time with the dismissal, Mr Goodall had been diagnosed as suffering from oesophageal cancer. The tribunal outlined the circumstances in which that diagnosis came to be reviewed and dealt with medically, and took that matter into account when applying their discretion to extend time.

In addition, they were interested in his state of knowledge of his rights in relation to presenting a complaint under the Disability Discrimination Act 1995. The Industrial Tribunal correctly directed themselves to the guidance given to Industrial Tribunals when dealing with discrimination time limits, in British Coal Corporation v Keeble and others [1997] IRLR 836, and in all the circumstances, decided that they could exercise their discretion.

Their weighing of the relevant factors is set out in paragraph 20 of their decision:

"20. The tribunal was impressed by the submission made by Shrives. It seemed to us that there were two very important factors that pointed strongly in favour of exercising our discretion in favour of the applicant:-

1. We looked at the guidance contained in Keeble and at the various factors listed in Section 33. We have considered the respective prejudice that might be suffered by each of the parties in the light of any decision that we take. It is quite clear that there will be very substantial prejudice to the applicant if we do not extend the time limit, but very little, if any, prejudice to the respondent if we do not so extend the limit. These matters are not so old or ancient that memories are likely to be dramatically affected by the delay of 4 months to which we have referred. The delay in this matter is not extortionate although it is relatively long by the standards of this Tribunal. It is the duty of the Tribunal to ensure that, at least from now on, this matter comes for trial as quickly as is possible. Appropriate arrangements can and will be made to that effect. However, there are here, unusually, very good and sound reasons for that delay. We do not consider that the cogency of the evidence is likely to be affected in any material degree by the delay. It is quite clear that the applicant acted with very great promptness, as soon as he obtained informal advice from Mr Harper, in seeking professional advice; clearly, the application was filed as soon as was possible thereafter.

2. Our second general point relates to the very novelty of applications under this Act. The members of the Tribunal well know that it is only in the last three months of 1997 that any substantial number of applications under the 1995 Act have been received by the Industrial Tribunals. During the first nine months of 1997, notwithstanding forecasts to the contrary, there were relatively few applications. There were even fewer cases proceeding to a hearing and very few cases, if any, being reported in the general, as opposed to the legal press. In those circumstances, we entirely accept Mr Shrives' submission that it is entirely understandable that the applicant would not know of the matters on which he claimed ignorance. We also accept that that is the correct test to be applied in these circumstances."

Essentially, the Industrial Tribunal was not persuaded that the prejudice to the employers would be significant if discretion was exercised in favour of the applicant, but obviously prejudice to the applicant might be considerable depending on the prospects of success of his claim if he was denied the opportunity of having his day in court.

Mr Griffiths-Jones on behalf of the appellant company, in a succinct argument, set out in writing, invites us to the view that the Industrial Tribunal's exercise of their discretion was erroneous in law. He points to a number of factors in paragraph 4 of the written skeleton argument which he would wish to emphasise in support of the appeal.

We can deal with the matter shortly in this way.

We are quite satisfied, having looked at the terms of the judgment of the Industrial Tribunal, that this was a well thought out and carefully reasoned decision. The Industrial Tribunal, in our judgment, have correctly looked at all the relevant circumstances, and not only are we satisfied that there is no error of law, we have to say that it is a decision which, had we been called upon to make, we would have agreed with. It is quite clear, as it seems to us, that although there might be some criticism of the speed with which Mr Goodall in the end reacted, he was deeply troubled and concerned, as we can well imagine, by the medical diagnosis, and it was just a decision which the Industrial Tribunal arrived at. Of course if the employers have merit in their defence, then there will be no liability in this case. That is not a matter on which we can make any comment at all at this time.

For those reasons, we would dismiss this appeal.

[Application for costs on behalf of the respondent.]

MR JUSTICE MORISON (PRESIDENT): On balance, we are not prepared to make an order for costs. But I think I can say as President of the Employment Appeal Tribunal, in charge of this Court, that on the whole we shall look on applications for costs favourably where the appeal is against the exercise by an Industrial Tribunal of a discretion such as this. It seems to me that it is better that the Industrial Tribunal be left to exercise their judgment on these difficult questions, and that unless they have gone manifestly wrong, it is best that their judgment is not made the subject of an interlocutory appeal.