United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J SACKER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY: We have before us as a preliminary hearing an appeal by Mr J. Mulholland in the matter Mulholland v Skeetes Pop Inn. Mr Mulholland appeals against a decision made by the Chairman, Mr C.G. Toomer alone, on 17 February 1998, a decision which was then promulgated on 18 February 1998.

Mr Mulholland lodged an IT1 with the Industrial Tribunal. It was received on 8 January 1998. It was completed, in the box indicating the nature of the complaint, so as to show that it was a complaint as to unfair dismissal, but, very fairly, looking at the fuller form later in the IT1, it was recognised to be also a complaint as to disability discrimination. The particular disability which is relevant is deafness. Mr Mulholland is profoundly deaf.

In answer to the IT1 the Respondent employer took the point that Mr Mulholland's complaint, be it for unfair dismissal or for disability discrimination, was out of time and arrangements were made for that question to be determined as a preliminary matter.

Before us Mr Muholland has had the assistance of the Royal National Institute for the Deaf who have provided a service whereby speech is typed into a laptop computer which Mr Mulholland can then read and, of course, he also has the benefit before us of Ms Sacker on behalf of ELAAS. At the hearing below before Mr Toomer, Mr Mulholland was unaided and the case proceeded by way of writings between Mr Mulholland and the Chairman, Mr Toomer.

It is necessary to say a little of the background to the matter. Mr Mulholland was dismissed from employment on 8 August 1997. He feels that his dismissal represented discrimination referable to his disability. He feels he must therefore be able to proceed against his erstwhile employers. Many people would agree with him that it should suffice that he feels discriminated against on the grounds of his disability, but the law is not so simple. One can imagine extreme cases where, years after an event of discrimination, a person might complain for the first time. One can imagine situations in which compensation is sought, even if a person had only been in employment a few days. Considerations of extreme cases such as that led Parliament to introduce limits. The courts cannot ignore those limits. They have to respect them.

The particular limits that are here relevant, speaking generally, are two-fold. Firstly, in order to complain of unfair dismissal, a person must have been continuously in the particular employment for two years by the time of the effective date of the termination of the employment. Secondly, he must complain to the Industrial Tribunal within three months of the act of which he complains.

Mr Mulholland's dismissal was, as we said, on 8 August 1997. The last date for a timely complaint was, therefore, 7 November 1997, but he did not complain to the Industrial Tribunal until 6 January 1998. He was almost two months too late. Moreover, as at 8 August 1997 he had only been in employment with this particular employer for some seven months.

The Chairman decided that Mr Mulholland's complaint, at first sight, was out of time and had, therefore, to be dismissed unless it could be brought within the exception. Parliament has given a limited ability to the courts to extend time beyond three months: see Schedule 3 Part 1, paragraph 3 (1) of the Disability Discrimination Act 1995. The court can extend time if, in all the circumstances of the case, it considers it just and equitable so to do. The Industrial Tribunal in this case is given a discretion and the Chairman considered how that discretion should be exercised. He found that as early as September 1997 the Applicant and his solicitors were aware of a potential claim and that it had to be brought to the Industrial Tribunal and were aware also that the Respondent employer had been slow in providing information. Despite that background and despite Mr Mulholland being, as it seems, in the hands of solicitors, the IT1 was not lodged until January 1998.

The Chairman looked at the correspondence that had passed between Mr Mulholland and his solicitors and held that it was not just and equitable here to extend time. We can only deal with points of law. We can detect no error of law in the Chairman's decision. We cannot say that the discretion which Parliament has given to the Industrial Tribunal was here improperly exercised.

Furthermore, so far as concerns unfair dismissal (which Ms Sacker has not pressed in any event) there is no power in the court to alter the need for two years' previous continuous employment. A claim for unfair dismissal would have failed even if time had been extended.

Before us today Ms Sacker takes the point that it would necessarily have been difficult for the solicitors acting for Mr Mulholland to have obtained instructions from him, given his profound deafness. She has also taken the point that at the hearing below the Chairman should have himself suggested an adjournment in order that Mr Mulholland should have assistance of the kind which he has had before us today.

However, there was no evidence before the Chairman of any difficulty, as between Mr Mulholland and his solicitors, in the giving or receiving of instructions and the correspondence that was before the Industrial Tribunal itself sufficed to show that both the solicitor and Mr Mulholland were aware of the need to lodge an IT1 form with the Industrial Tribunal. Moreover, there was no application below for an adjournment and no indication in the papers before us or in anything that we have been told to suggest that the difficulty which is inherent in communication only in writing led to any injustice or real inconvenience.

We cannot therefore attach weight to the points which Ms Sacker raises. We have seen correspondence that shows that Mr Mulholland is angry. Although he has not been angry before us today, he has been angry in correspondence and intemperate in his criticism of the Chairman, but he is truly attacking the wrong target. If it is wrong to have time limits - (and we do not say it is wrong) - but if it is wrong to have time limits then it is Parliament and not the Chairman who is at fault. Moreover, if there was delay in Mr Mulholland's lodging of an IT1 he may need to consider whether he has relief against the solicitors who were acting for him. That is a matter not for us, but it plainly needs to be considered. However, so far as we can see, the Chairman was without fault in terms of errors of law. We find no error of law and therefore must dismiss the appeal.