United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D SQUIRES (of Counsel) Instructed by: Russell Jones & Walker Solicitors Scottish Equitable House 43 Temple Row Birmingham B2 5JT


 


MR JUSTICE LINDSAY (PRESIDENT)

1. This is, by way of a preliminary hearing, the appeal of Mr B S Chima in the matter of Chima v Westinghouse Signals Ltd. Today Mr Squires has appeared for Mr Chima.
2. The chronology is that on 11 January 2000 Mr Chima lodged an IT1 claiming disability discrimination. He gave the date of the event or action that he was complaining about as being dated June 1998; one immediately notices the gap between June 1998 and 11 January 2000.
3. Of the events in question, he said in his IT1:

"June 1998 I again consulted my GP who prescribed further medication and referred me to a counsellor. At around this time I discussed my problems with my manager and requested assistance with the design work. No assistance was provided.

September 1998 My condition had deteriorated to the stage where I suffered a complete nervous breakdown.

October 1998 I attempted to return to work but could still only manage two days.

January 1999 I again attempted to return to work but could still only manage two days."

He did not even sign the IT1 for himself; it was signed by an officer of his union, on his behalf, and he identified a firm of solicitors as representing him, or at least the signatory, Mr David Allen, did identify a firm of solicitors as acting for him. The accompanying letter of 11 January from his union to the Employment Tribunal said:

"As will be seen from the attached application, Mr Chima has been suffering from a serious illness which effectively prevented him from taking appropriate action in time.

In his initial contacts with me as his trade union officer there was no indication of any discrimination issues arising but I considered it worth examining the prospects for an industrial injury case and put him in contact with the union's solicitors. It was only after Mr Chima's interviews/discussions with the solicitors that the story described in section 10  came to light."

Section 10 is a reference to the words that I have just been reading; section 10 give full details of the complaint.

Continuing with the union's letter:

"I received the solicitors' advice on 10 January 2000 and prepared the IT1 today. I have attempted to contact Mr Chima several times prior to sending his application but without success. Given the necessity to act swiftly in these circumstances I feel I must present the application now and obtain Mr Chima's authority in retrospect."

4. So that was January 2000. On 21 January 2000, the employer put in a brief but succinct and pointful IT3 - they said:

"1. The Respondents do not accept that the Applicant is disabled.

2 If the Tribunal finds the Applicant to be disabled within the Act, the Respondents deny any discriminatory act or omission.

3 If the Tribunal finds there was discrimination then such discrimination was justified.

4. The Respondents last had contact with the Applicant in October 1999 in an effort to establish his medical condition. Since that date he has not replied to several letters, nor have any of the several phone calls be answered.

5. The Application seems to be out of time."

And it was, no doubt, that last reference that led to a preliminary issue being dealt with, although we do not have any Order describing it as such. There was a hearing on 6 July 2000 at Birmingham, under the Chairmanship of Mr C P Rostant. Mr Chima attended and gave evidence; he was represented by Counsel, Mr Squires, who as I mentioned, appears for him today; he called a consultant psychiatrist and his union negotiator to give evidence.

5. On 25 July the Tribunal's decision was sent to the parties and it was:

"The unanimous decision of the tribunal on a preliminary matter is that the application is out of time and it would not be just and equitable to allow us to continue."

The Tribunal identified the issue before them, in their paragraph 2, they said:

"2 The issue before the tribunal was whether or not the applicant's complaint to the tribunal, pursuant to Section 1 of the Disability Discrimination Act 1995 was brought within time and if not, whether it was just and equitable to allow the complaint to continue."

6. On 5 September 2000, which I think is the last possible day, the Employment Appeal Tribunal received a Notice of Appeal from Mr Chima. Mr Squires's Notice of Appeal divides roughly into two; firstly, that the Tribunal was acting in breach of the European Convention on Human Rights - a combination of Article 6.1 and Article 14 - in denying Mr Chima access to the Court in the circumstances as they were found to be by the Tribunal. It was discriminatory not to have allowed him to present his case. An alternative way of looking at things, which Mr Squires finds less attractive but which is there in the Notice of Appeal, is that the decision was perverse.
7. The Tribunal held that the Applicant's allegation is that the last discrimination against him took place on or around 22 October 1998; that is paragraph 5 of the Tribunal's reasoning. They went on:

"The tribunal accept on the balance of probabilities, that from approximately June 1998 until some time in early October 1999 the applicant was so ill with the effects of work stress that it was not possible for him to concentrate sufficiently or to gather sufficient motivation to bring to the attention of advisors the matters referred to in the paragraph above, nor did he have sufficient concentration or motivation to pursue his employers himself in relation to those matters."

Later, in their paragraph 13, they said:

"We have concluded, on the evidence before us, that for much of the period with which we are concerned, the applicant was clearly too unwell to make an application to the tribunal or to take sensible advice about the matter, and certainly up until September or early October 1999, there can be no real doubt that the applicant was not in a position to proceed with any such action. However, the evidence before us changes when one starts to consider the period from late September or early October 1999 onwards. The medical evidence is that by that time Mr Chima's recovery was well under way, although by no means complete."

8. If Mr Chima had throughout been a person of ordinary mental capacity, he would, under the Disability Discrimination Act have had, in effect, three months from the moment at which he had first been able to assess the events complained of, in which to lodge an IT1, and during those three months, minor delays on the part of himself or his advisers would not have counted against him, so long as the IT1 had been lodged within the three month period. So the question arises, ought not Mr Chima, correspondingly, to have three months from when he was first able to assess events, without that three months being scrutinised for minor delays? If he were, on that account, to be given three months from early October 1999, when even then, his recovery was "by no means complete", then in consequence, could it not arguably have been wrong, perhaps even perverse, not to have regarded it as just and equitable to extend time, so as to validate his IT1 which was lodged within three months of early October, namely on 11 January 2000? That is a point which is one of perversity; we recognise that perversity is, in any area, a difficult argument; where such a broad discretion is given to the Tribunal as is given in relation to extension of time, it is, perhaps, even more difficult to mount successfully an argument as to perversity, see in particular Hutchinson v Westward Television.
9. So there are great difficulties in Mr Chima's way there, but we do not feel able to characterise the argument as completely unreasonable or unarguable, and there is a point of some importance that emerges, in relation to a general argument, and that is that in their paragraph 13 the Tribunal say this:

"The Tribunal take the view that there can be little doubt that there is considerable prejudice to the respondents if we allow this case to proceed. Mr Chima is relying on facts which began in 1997 and ended at the very latest in October 1998. By the time this case reaches a full hearing, if it were allowed to proceed, it would be approaching 2 years or more since that date and there can be little doubt that in our minds that such a delay is inevitably going to make life difficult for the respondents in establishing the evidence that they would need to rebut the applicant's complaint. Therefore, this is a matter we have borne in mind when reaching our decision on this point."

10. Well, the employer has known of Mr Chima's IT1 since January 2000. It could have equipped itself by taking witness statements, and indeed, perhaps it has. If it has not, well then, it surely has no one to blame but itself. Moreover, as a company of some size, and with a human resources department, it is not improbable that that department will have had notes of the relevant interviews, and that certainly would be the accepted best practice. But there is no hint in the Employment Tribunal's reasoning of evidence having been given as to, for example, significant witnesses who have been lost touch with, or who have died, or evidence of relevant documents which have been destroyed or lost. When one reflects on the number of cases where a fair trial proves possible where there is, for example, a six year limitation period and where proceedings start only towards the end of that period, the Tribunal's description of "considerable prejudice if we allow this case to proceed" may, perhaps, be something of an overstatement, and certainly something that ought not to have been assumed without evidence, if indeed, that is the case.
11. And then there is a further difficulty in relation to prejudice. If, on the facts found by the Employment Tribunal, an IT1 issued in October 1999 would have had to be allowed to go forward (by reason of Mr Chima, until then, not being mentally capable of composing one, either alone or with the help of others) it may be that the relevant prejudice needed to be shown by the employer would be prejudice suffered from the actual IT1 issued in January 2000 that would not have been suffered had the IT1 been issued in October 1999. One sees, of course, that it is improbable that prejudice relating to such a short period could be proved. Whether, in fact, evidence was given on the subject, we do not know. And so that is a factor that we think should be borne in mind as the case goes forward.
12. We have not required Mr Squires to develop the technical arguments that he has, that not to give an extension would be discriminatory on disability grounds; but we see that there is a case to be made, and we do not feel able to describe it as unarguable. The sort of case that could be mounted in perversity is less technical, but the technical "European" argument and the more basic argument overlap to a great extent, and we allow both aspects to forward. The Notice of Appeal is to go forward in full.
13. Given our comments on the weight that the Tribunal attached to the view they took of the prejudice to the Respondents if the case were allowed to proceed, we think it right that there should be a request for Chairman's Notes on the limited subject, namely evidence relating to the presence or absence of prejudice to the employers should the Tribunal have ruled it just and equitable to extend time so as to have validated the IT1 of 11 January 2000, being either prejudiced generally or prejudice not likely to have been suffered if the IT1 had been presented in October 1999 but which would in the Tribunal's view, be suffered in relation to the IT1 presented in January 2000.
14. That is the nature of the request for the Chairman's Notes; there may be such evidence, there may not, but the point cannot be understood without reference to what was said and done below, so we add that request. We see it appropriate to mark the matter as Category B, and as taking an hour and a half.