United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J VERNON (Representative) Wiltshire Law Centre 115-118 Commercial Road Swindon SW5 5PL
For the Respondent	MS H GOWER (of Counsel) Instructed By: Sylvester Mackett Solicitors Castle House Castle Street Trowbridge Wiltshire BA 14 8AX


 


JUDGE A WAKEFIELD:

1. This is an appeal by Ms Sally Parnell against a decision on a preliminary issue of an Employment Tribunal sitting at Bristol on 8 March 2000 by which her complaints of constructive unfair dismissal and disability discrimination were dismissed as having been presented out of time.
2. The Appellant had resigned from her employment with the Respondent on 8 January 1999. Her Originating Application was presented to the Employment Tribunal on 13 December 1999. The issues before the Employment Tribunal were, therefore, whether it had been reasonably practicable for the complaint of unfair dismissal to have been presented within three months of 8 January 1999 and whether it would be just and equitable to extend the time limited by the Disability Discrimination Act 1995 for presentation of the complaint of disability discrimination.
3. The Employment Tribunal heard evidence from the Appellant at the hearing, considered the documents including a number of medical reports and had submissions from representatives for both parties. They found the facts as follows (and there is only one criticism in this appeal of these findings):

"5 Having heard the evidence we make the following findings of fact. The applicant was diagnosed at the age of 25 as suffering from manic depression. She has been able to largely manage her depression by a combination of management techniques, counselling and some medication. She makes a number of generalized assertions as to the activities of the respondent during the course of her employment. Her complaint does not particularize a number of the relevant events. She was aware of her statutory rights in respect of a complaint to this tribunal prior to her resignation and she was also aware of the temporal limitations upon any such complaint. At the time of and immediately following her resignation, she felt unable to cope with life in Bristol and, accordingly, returned 'home' to the north of England where she was able to be looked after by her fiancé from whom she has since obtained consistent support.

6 During the three months following her resignation she attempted to complete the necessary application form for her complaints to this tribunal and discussed that process with those around her who supported her. However, she took the view that it was not possible for anyone else to complete the form as there was too much detail that she required to consider and fully explain before such an application could be made. Notwithstanding the support and encouragement that she had, it was not until October 1999 that she obtained the necessary application forms. She was in reasonably good health up to March 1999, but took a turn for the worse thereafter."

They then concluded as follows:

"8 So far as the constructive unfair dismissal complaint is concerned, we were satisfied that it was reasonably practicable, bearing in mind the support and encouragement that the applicant had and her knowledge of her rights, for the applicant to have submitted her complaint to this tribunal within the temporal limitation imposed by Section 111 of Employment Rights Act 1996.

9 So far as her disability discrimination complaint is concerned, in view of the general nature of the assertions made against the respondent, the fact that the respondent is comparatively small organisation with limited administrative resources and the fact that a named witness had died, we do not find it just and equitable to extend the time limited by schedule III paragraph 3 of the Disability Discrimination Act 1995 so as to validate the applicant's complaint."

4. The grounds of this appeal, as set out in the Notice of Appeal, assert that in so finding the Employment Tribunal erred in law and was perverse in that, firstly, it was contrary to the medical evidence before the Employment Tribunal to hold that the Appellant could have made the application within the time limit; secondly, that it was contrary to the medical opinions to hold that the Appellant was in good health up to March 1999; thirdly, that the Employment Tribunal "found as a fact that a named witness had died", when this was incorrect. It was in fact the witness's replacement who had died.
5. In deciding this appeal, which has been argued before us today principally on the basis of perversity rather than misdirection, we bear in mind that, as was emphasised by the Court of Appeal in the case of Palmer v Southend-on-Sea Borough Council [1984] IRLR 119, the question "whether or not it was reasonably practicable to present a complaint in time within the meaning of section 111(2) of the Employment Rights Act 1996, is essentially a question of fact for the Employment Tribunal". However, in order to know whether the test was properly applied by the Employment Tribunal, whether it be termed "reasonable practicability" or "reasonable feasibility" as per the Palmer case, it is necessary to know how the Employment Tribunal viewed the extent and relevance of the Appellant's ill-health from March 1999 when, as they found, she "took a turn for the worse" up to 7 April 1999 when the primary time period expired. In the case of Schultz v Esso Petroleum Company Ltd [1999] IRLR 488, the importance of the focus of an Employment Tribunal on a particular relevant part of the period was emphasised. In his judgment in that case, Potter LJ in the Court of Appeal said this at paragraph 30:

"… in all cases where illness is relied on, the tribunal must bear in mind and assess its effects in relation to the overall limitation period of three months, I do not accept the thrust of his third submission, [he refers to a submission of counsel] that a period of disabling illness should be given similar weight in whatever part of the period of limitation it falls. Plainly, the approach should vary according to whether it falls in the earlier weeks or the far more critical later weeks leading up to the expiry of the period of limitation. Put in terms of the test to be applied, it may make all the difference between practicability and reasonable practicability in relation to the period as a whole."

6. In this case these last crucial five weeks of the primary time period are not specifically dealt with in the Decision, although there was medical evidence before the Employment Tribunal, albeit tentative, as to a possible causal link between the Appellant's ill-health in that period and the failure to present the complaint in time. In our view the Employment Tribunal has erred in law in failing to give adequate reasons as to the relevance or otherwise of the Appellant's health in that period.
7. The other aspect of this Decision which causes us concern is the apparent importance attached by the Employment Tribunal, in their findings on the just and equitable test under Schedule III paragraph 3 of the Disability Discrimination Act 1995, as to the death in November 1999 of "one of the persons named in the complaint". We have explored this with Counsel today and it appears that the person who has died is a Mrs Quinn, a former member of the Respondent's Management Committee but not its Chairman at any relevant time. The Originating Application does not name Mrs Quinn. There are numerous references in it to the Management Committee and one reference to the Chair of the Management Committee. It appears to us that the death of Mrs Quinn may not have resulted in the potential prejudice to the Respondent in the preparation or presentation of their defence that the Employment Tribunal, in their apparent misunderstanding of this point, seemed to have envisaged. This may have an effect on the balancing exercise which the Employment Tribunal had to undertake in reaching their conclusion on the just and equitable test.
8. In all these circumstances we consider that the appeal must be allowed and the matter remitted to the same Tribunal for them to reconsider their findings, on the preliminary issue, with this judgment in mind. In the event that, for any reason, it is impossible for the same Tribunal to be reconvened, the preliminary issue must be re-heard before a differently constituted Tribunal.