United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D MASSARELLA (of Counsel) Instructed by: Messrs ASB Law Solicitors 12 Mill Street Maidstone Kent ME15 6XU
For the Respondent	MISS K SMITH (of Counsel) Instructed by: Department for Environment Food & Rural Affairs Legal Services Directorate General Room 44 55 Whitehall London SW1A 2EY


 


HIS HONOUR JUDGE J BURKE QC

The History

1. In this appeal Mr Andrew Taylor challenges the decision of the Employment Tribunal, sitting at London (South) and chaired by Ms C E Taylor, sent to the parties on 2 May 2002, that it was not just and equitable for the Tribunal to entertain his complaint of disability discrimination.
2. Mr Taylor claimed that he had been employed as an I.T. Consultant from October 1998 by a body called the Delta Partnership; he worked at the premises of DEFRA (or MAFF as they were at the relevant time) in Guildford. The Delta Partnership was a partnership of three bodies, DEFRA, Sherwood International Plc and Sema Group.
3. On 17 October 2001 Mr Taylor presented an Originating Application to the Employment Tribunal complaining that he had been unfairly and wrongfully dismissed on 5 November 2000 and that, as a sufferer from epilepsy which could be triggered by trauma, he had been subjected to bullying in the workplace which his employers had not acted reasonably to prevent for over six months prior to his dismissal and that this conduct and the dismissal constituted unlawful disability discrimination.
4. All three bodies involved in the Delta Partnership became Respondents to Mr Taylor's application; two of them asserted that Mr Taylor was not an employee but a contractor providing services to the Partnership; each of them denied that, if Mr Taylor was an employee, they were his employers. However, before any issue relating to employment came to be examined, the Tribunal had to consider the issue of the relevant time limit. Mr Taylor's Originating Application had been presented over 11 months after the dismissal. Mr Taylor withdrew his complaint of unfair dismissal (and, we assume, his complaint of wrongful dismissal) at the outset of the Tribunal hearing; and it was agreed that any issue relating to employment should be put on one side until the issue as to the effect of the late presentation of the Originating Application had been determined. The Tribunal proceeded to determine that issue; they decided it against Mr Taylor.
5. Schedule 3, paragraph 3 of the Disability Discrimination Act 1995 provides, so far as relevant for present purposes, as follows:

3 (1) "An employment tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

6. The Tribunal, no doubt with the parties' express or implicit assent, approached the issue before them on the basis that the primary time limit set out in paragraph 3 (1) of Schedule 3 began to run from the date of dismissal; they were right to do so; paragraph 3 (3) (b) provides that

(3) "For the purposes of sub-paragraph (1) –

…

(b) any act extending over a period shall be treated as done at the end of that period…"

7. It was not in dispute – nor could it have been – that the Originating Application had not been presented within three months of the dismissal; accordingly the Tribunal had to decide whether it was, in all the circumstances of the case, just and equitable to consider Mr Taylor's complaint, albeit that it was presented outside the primary time limit.
8. Mr Taylor's explanation for the delay was that he had been unable to present his complaint earlier because he was too ill to do so.
9. The Tribunal found that, from April 2000, difficulties arose between Mr Taylor and a female colleague; eventually Mr Taylor was instructed not to have any contact with her. He construed the events leading up to that instruction as bullying and did not comply with it. This led to the termination of his relationship with the Partnership. He was very upset by the events leading up to that termination and by the termination itself; he wrote thereafter to the female colleague; she contacted the police. He also made various telephone calls to his line manager which did not achieve progress.
10. Mr Taylor had consulted his general practitioner, presumably about his mental health, in June 2000 and saw a consultant psychiatrist for the first time in August 2000 and thereafter fortnightly; after the termination, the consultant psychiatrist, Dr Procopio, provided a series of sick certificates which said that Mr Taylor was unfit for work because of stress-induced illness. Mr Taylor's visits to Dr Procopio continued until April 2001 when he decided to cease treatment.
11. At about the same time, as the Tribunal found, Mr Taylor had been treated by a psychologist, Mr Davidson, who retired in April 2001; and Mr Taylor then decided not to continue treatment with a psychologist. However, the Tribunal found that Mr Taylor continued to have a stress-induced illness thereafter.
12. Whether that stress-induced illness was such that Mr Taylor was disabled from commencing Tribunal proceedings or instructing solicitors was central to the Tribunal's consideration of Mr Taylor's explanation for the delay.
13. Mr Taylor relied on evidence (described as medical evidence, although the providers thereof were, in strictness, not medically qualified) from a Ms Goodfellow, a psychological counsellor, set out in a report dated 6 March 2002 and from Dr Barden, a consultant clinical psychologist, set out in a report dated 18 March 2002. Those reports were compiled, respectively, fourteen days and two days before the Tribunal hearing. Neither Ms Goodfellow nor Dr Barden had seen any report from Dr Procopio or Mr Davidson. Dr Barden said, at paragraph 2.7 of her report: -

2.7 "It would have helped considerably to have had the Psychiatrist's Dr Procopio, report and that of John Davidson as they saw him at the time of the events."

She had, however, had sight of the GP's notes, but they only told her something of Mr Taylor's childhood history without any reference to psychiatric problems, that Mr Taylor had complained of anxiety/eating problems which he attributed to bullying at work which began in February 2000 and that he had been referred to a psychiatrist in June 2000 due to stress with a woman at work.

14. Ms Goodfellow's report made no reference to Mr Taylor's GP notes or to Mr Taylor's having seen Dr Procopio or Mr Davidson.

The Tribunal's Decision

15. The Tribunal concluded that the reports from Ms Goodfellow and Dr Barden were based principally on Mr Taylor's own account of the chronology of his reactions at the time of the termination of his relationship with the Delta Partnership, as related to Ms Goodfellow and Dr Barden shortly before the hearing. See paragraph 19.
16. In paragraphs 14 and 15 the Tribunal briefly but accurately summarised the effect of the two reports in front of them; Dr Barden's conclusion, they said, was that, on the evidence available to her, Mr Taylor was not in a mental condition, following the termination of his relationship with the Delta Partnership, to bring a claim in the Tribunal against his employers and would not have been so able for some time afterwards. Ms Goodfellow's conclusion, they said, was that it was very unlikely that Mr Taylor would have been able to take any action before he in fact did so. The Tribunal noted, again correctly, that Ms Goodfellow appeared to believe that Mr Taylor had completely withdrawn from any contact with his previous "employer" after the "dismissal" when, on the evidence before them, Mr Taylor had been in contact with both the female colleague and his line manager.
17. The Tribunal found that it was more likely than not that Mr Taylor would have found attending to the making of an application to the Tribunal stressful but that, having regard to the evidence, they were not satisfied that he was unable to make an application to the Tribunal within the time limit or shortly thereafter.
18. Having thus found the facts, the Tribunal at paragraphs 17 and 18 of their decision summarised the rival submissions. As recorded, those submissions concentrated on the extent of Mr Taylor's illness and the evidence produced in support of it; on Mr Taylor's behalf it was submitted that the reports of Dr Barden and Ms Goodfellow should be accepted. It was further submitted that there was plenty of documentary evidence available concerning the relevant circumstances and that there would be no prejudice to the Respondents if the complaint was to proceed.
19. The Tribunal set out their conclusions at paragraphs 19-22 of their decision. They said in paragraph 19 that:

19 "The Tribunal was not satisfied that the medical reports proved that the Applicant was unable to present his complaint to the Tribunal within the applicable time limit."

In support of that conclusion they referred to the reservations as to the evidence of Dr Barden and Ms Goodfellow which we have earlier set out. They indicated that they would have expected evidence as to Mr Taylor's mental health at the date of his dismissal or shortly thereafter from Dr Procopio or Mr Davidson and that, if those gentlemen were unable or unwilling to provide a report for the Tribunal, they would have expected Mr Taylor to ensure that a report from them was before Dr Barden and Ms Goodfellow.

20. The Tribunal further relied on the fact that Mr Taylor had given evidence that he had not presented a claim to the Employment Tribunal because he wanted to put the entire incident behind him, which conflicted with his evidence that he had been in contact both with his line manager and with the female colleague after the dismissal.
21. In paragraphs 21 and 22 the Tribunal said:

21 "Although we are prepared to accept that it would in all probability have been stressful for him, we consider that nine months is a considerable delay in presenting a complaint. Having considered all of the evidence before us it is our view that the Applicant's stress induced illness provides insufficient grounds on which to exercise our discretion to consider the Applicant's complaint.

22 Therefore the Tribunal finds that it is not just and equitable for a Tribunal to consider the Applicant's complaint that the Respondent discriminated against him contrary to the Disability Discrimination Act 1995."

The Submissions

22. Both parties took us to the well-known decision of the Employment Appeal Tribunal, presided over by Phillips J, in Hutchison v Westward Television Ltd [1977] ICR 279, in which the Appellant sought to overturn the Tribunal's decision that her complaint of sex discrimination was out of time and that it was not just and equitable in the circumstances to allow the claim to proceed. The material terms of sections 76 (1) and (5) of the Sex Discrimination Act 1975 are, for present purposes, identical to the relevant terms of paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995; and, therefore, the guidance given by the Employment Appeal Tribunal in Hutchison is applicable to a disability discrimination case, as it is to a sex discrimination case or, indeed, a race discrimination case. At page 282B the Employment Appeal Tribunal said:

"The formula provided by section 76 (5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the Industrial Tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the Industrial Tribunal to take into account anything which it judges to be relevant. We doubt whether Industrial Tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. We do not go so far as to say that they are always and in all the circumstances irrelevant, but we would deprecate these very simply, wide words becoming encrusted by the barnacles of authority. The Industrial Tribunal is to do what it thinks fair in the circumstances."

and, at page 282E, the Employment Appeal Tribunal said:

"The third thing which we have to say about section 76 (5) is this. Because it is such a wide discretion conferred upon an Industrial Tribunal, the task which an Appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."

23. Both Mr Massarella on behalf of Mr Taylor and Miss Smith on behalf of the Respondents accepted that these principles apply to the present appeal.
24. We were further reminded by Miss Smith of the recent guidance given by the Court of Appeal as to the manner in which the Employment Appeal Tribunal should approach any perversity ground relied upon in support of an appeal, in Yeboah v Crofton [2002] IRLR 634. However, for reasons which will appear later, it is not necessary to refer any further to that decision.
25. Mr Massarella put Mr Taylor's appeal forward on four broad grounds; they are that:

(1) the Tribunal in considering whether to allow Mr Taylor's complaint to proceed applied the reasonable practicability test which arises in an unfair dismissal claim under section 111 (2) of the Employment Rights Act 1996 and not the just and equitable test which applies to discrimination claims including disability discrimination claims.

(2) the Tribunal failed to consider all the circumstances of the case and looked only at Mr Taylor's explanation for the delay; in particular, the Tribunal failed to consider, as they were required to do as a result of the decision of the Employment Appeal Tribunal in British Coal Corporation v Keeble [1977] IRLR 336, all of the factors set out in section 33 of the Limitation Act 1980 as relevant to it, the exercise of a discretion to extend time including whether the parties were prejudiced by delay and whether it was possible to achieve a fair trial despite the delay.

(3) the decision contained insufficient reasons to comply with the principles set out by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250, as explained by the Court of Appeal in Tran v Greenwich Vietnam Community [2002] IRLR 735.

(4) The Tribunal's refusal to accept the uncontested medical evidence was perverse.

26. Miss Smith on behalf of the Respondent submitted that:

(1) the Tribunal correctly identified the issue which they had to decide and the nature of the discretion which they had to exercise.

(2) the Tribunal had taken all relevant factors into account; although they laid emphasis on the issue as to the effect of Mr Taylor's illness, they did so because that was put forward as the explanation for the delay and the primary reason why the discretion should be exercised in Mr Taylor's favour.

(3) the reasoning was clear, careful and sufficient.

(4) the Tribunal was entitled to reach the views of the evidence of Dr Barden and Miss Goodfellow which they set out in their decision.

The Test Applied by the Tribunal

27. In paragraph 4 of their decision, the Tribunal referred to the specific statutory provision in which the discretion which they were to exercise is set out, i.e. paragraph 3 of Schedule 3 of the 1995 Act. Although the terms of that provision were not expressly set out in the decision, the Tribunal recorded their decision in these terms:

"The unanimous decision of the Tribunal is that

…

2 It is not just and equitable for a Tribunal to consider the Applicant's complaint of disability discrimination."

28. We have earlier, at paragraph 4 above, set out the last paragraph of the Tribunal's Extended Reasons in which the Tribunal again recorded their conclusion that it was not just and equitable to consider Mr Taylor's complaint. Although the Tribunal in their decision concentrated on Mr Taylor's explanation for the delay, there is nothing in the decision which indicates that they did so because they believed themselves to be deciding the preliminary issue before them on the basis of reasonable practicability, as if Mr Taylor's claim was not a discrimination claim at all but an unfair dismissal claim; they specifically recorded, both in the decision itself and in paragraph 4 of their Extended Reasons, that the complaint of unfair dismissal had been withdrawn. In our judgment it is plain from the term of the decision that the Tribunal were fully aware that and did not forget that they were dealing with a discrimination claim and that the relevant test was the just and equitable test.
29. For these reasons, in our judgment, the first ground of appeal fails.

Failure to Consider Relevant Factors

30. In British Coal Corporation v Keeble (reference above) the employees volunteered for redundancy and, having done so, were dismissed on that basis. Under the employer's voluntary redundancy scheme the payment due to women over the age of 55 was to be abated according to their age; but in the case of men the abatements applied only to those over the age of 60. The employees were advised by their union that nothing could be done about this inequality; but, after the decision of the European Court of Justice in Barber v Guardian Royal Exchange Assurance Group [1990] IRLR 240, it was appreciated that the employees might have a sex discrimination claim; the employees presented such claims - in the one case 22 months and in the other case two and a half years after dismissal.
31. The original Tribunal decided, without hearing evidence, that it was just and equitable to allow the employees' claims to proceed despite the passing of time. The employers appealed to the Employment Appeal Tribunal which remitted the case for rehearing. The Tribunal which reheard the preliminary issue as to time, having made detailed findings of fact, resolved the issue in favour of the employees. The employer's further appeal to the Employment Appeal Tribunal failed.
32. In the course of its judgment upon the second appeal, the Employment Appeal Tribunal, presided over by Smith J, said this about the decision of the Employment Appeal Tribunal on the first appeal:

8 "The EAT remitted the case for rehearing, directing that the issue of whether it was just and equitable to extend time should be decided on the basis of the circumstances of each individual case after hearing evidence. The EAT also advise that the Industrial Tribunal should adopt as a check list the factors mentioned in section 33 of the Limitation Act 1980. That section provides a broad discretion for the court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –

(a) the length of and the reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay

(c) the extent to which the parties sued had co-operated with any requests for information;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."

33. The judgment went on to point out that the decision of the Employment Appeal Tribunal at the first appeal had not been appealed and that it had not been suggested at the second appeal that the guidance given in respect of a consideration of the factors mentioned in section 33 of the Limitation Act 1980 was erroneous. At paragraph 22 of the judgment the EAT said:

22 "Mr Napier [Counsel for the employers] acknowledged that the discretion conferred by section 76 (5) of the Sex Discrimination Act 1975 is very wide, much wider than that conferred by section 67 (2) of the 1978 Act. He accepted that it is as wide as the discretion conferred by section 33 of the Limitation Act 1980."

34. Mr Massarella submitted that the Tribunal in this case had failed to follow the guidance given in British Coal Corporation v Keeble in that they had focussed only on the length of and reasons for the delay and had not considered the other factors set out in that guidance and in particular the questions as to whether and the extent to which either side would be prejudiced as a result of the decision to be made and whether a fair trial of Mr Taylor's claim could be achieved.
35. In DPP v Marshall [1998] ICR 518 the Employment Appeal Tribunal, presided over by Morison P, in an appeal by the employers against a Tribunal's decision that it would be just and equitable to proceed with a sex discrimination claim despite the expiry of the prima facie time limit, said:

"In this legislation, the Sex Discrimination Act 1975, the court's power to extend time is on the basis of what is just and equitable. These words could not be wider or more general…in some cases it will be fair to extend time and in others it will not. The Industrial Tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint. Reasonable awareness of the right to sue is but one factor…If a fair trial is possible despite the delay, on what basis can it be said that it would be unjust or inequitable to extend time to permit such a trial?"

36. In Barlow v London Borough of Southwark (Unreported, EAT/536/00) the EAT, presided over by Miss Recorder Slade QC, having referred to the guidance given in British Coal Corporation v Keeble as useful guidance, said, at paragraphs 24 and 25 as follows:

24 "Plainly a Tribunal, in exercising its discretion as to whether it should hear complaints of race discrimination presented out of time should take into account those matters which are relevant in the circumstances of the case. Those circumstances will vary according to the particular factual situation, but the matters referred to in British Coal Corporation v Keeble will, no doubt, need to be considered in such cases. These include questions of prejudice and the length of and reasons for the delay.

25 So far as the question of prejudice to the Appellant is concerned, we cannot accept that the Tribunal, notwithstanding that it does not expressly refer to that consideration in its Decision, must be taken as having had prejudice to the Appellant in not being able to pursue her complaints in mind, when it reached its Decision."

37. Mr Massarella submits that this latest authority in this area – and we need hardly say that although of these authorities are concerned with either sex discrimination or race discrimination, they apply equally to disability discrimination – confirms the importance of the Tribunal's considering, in particular, factors such as prejudice and the ability to achieve a fair trial despite the delay in cases of this type; and that it should not be assumed that a Tribunal which has not referred to a relevant factor in their decision nonetheless had that factor in mind in reaching that decision.
38. Mr Massarella further submitted that, in his witness statement, Mr Taylor had claimed only to have learned about the possibility of a claim under the Disability Discrimination Act 1995 in October 2001; see paragraph 71 of his witness statement; unawareness of the right to claim, he pointed out, was another relevant factor, as is illustrated by the decision in Marshall. Yet the Tribunal did not appear to have taken that factor into account either.
39. Miss Smith took us to the decision of the Court of Appeal in London Borough of Southwark v Afolabi [2003] IRLR 220. In that appeal the employers appealed against the Employment Appeal Tribunal's rejection of their appeal against the Tribunal's decision that the employee's race discrimination claim could proceed, notwithstanding that it was presented nine years after the expiry of the prima facie time limit, and that there had been race discrimination. On the issue as to time, the employers submitted that the Tribunal was required to consider but had not considered issues of prejudice and other factors set out in the passage in British Coal Corporation v Keeble, which we have quoted above. Peter Gibson LJ said, at paragraph 33 of his judgment:

"Nor do I accept that the Tribunal erred in not going through the matters listed in section 33 (3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a checklist (or that in CPR3.9 (1)) in many cases, I do not think that it can be elevated into a requirement on the Tribunal to go through such a list in every case, providing of course that no significant factor has been left out of account by the Tribunal in exercising its discretion."

We, of course, accept and respectfully agree with the proposition that it is not necessary for the Tribunal to go through all the factors listed in British Coal Corporation v Keeble in every case in which they are called upon to exercise their discretion to allow or refuse to allow a discrimination claim to proceed despite the expiry of the prima facie time limit, irrespective of the relevance or otherwise of such factors in the individual case. Miss Smith submitted that it was natural and reasonable that the Tribunal focused on the question of Mr Taylor's illness because that was put forward as the principal explanation of the delay; and she submitted that the Tribunal demonstrated that it had considered questions of the balance of prejudice and whether a fair trial could be had despite the delay in paragraph 18 of their decision, that it was not necessary expressly to refer to the absence or presence of any alternative remedy open to Mr Taylor, which was a factor which was relevant to prejudice and which was put before the Tribunal (although with no emphasis) and that the Tribunal demonstrated that it had considered Mr Taylor's case that he was unaware of the availability of a remedy under the Disability Discrimination Act 1995 by referring in paragraph 6 to the fact that he had given evidence.

40. In our judgment, paragraph 18 of the Tribunal's decision does not demonstrate that the Tribunal in reaching their conclusions took into account matters of prejudice and whether a fair trial of the claim could be achieved despite the delay. Paragraph 18 records the submissions put forward on Mr Taylor's behalf; it shows that questions of prejudice and whether a fair trial could still be had were expressly raised on his behalf. Those questions had to be the subject of express consideration by the Tribunal. However, in their conclusions, paragraphs 19 to 21, the Tribunal appears to have considered only the evidence as to Mr Taylor's health which, they concluded, did not provide an explanation for the delay. There is no reference in those paragraphs to any other factor as forming part of the Tribunal's consideration or of the Tribunal's having undertaken a balancing exercise between the various relevant factors, including prejudice and whether a fair trial could be achieved despite the delay.
41. Similarly, the reference to Mr Taylor's giving evidence in paragraph 6 is no indication that the Tribunal, in reaching their conclusions, had taken into account his case that he had, until October 2001, been unaware of the availability of a remedy under the 1995 Act.
42. Miss Smith submitted – and we of course accept – that the Tribunal are not required in their reasoned decision to set out and respond to each and every point which has been canvassed; she argued that it was clear from the decision, read as a whole, that all relevant matters had been taken into account. In our judgment, however, the decision, when read as a whole, can be seen to contain no consideration of the points as to prejudice, whether a fair trial of the claim could be had despite the delay or Mr Taylor's unawareness of the remedy. It is conceded that all those matters were raised, and the Tribunal in reaching their conclusion as to the exercise of their discretion should have taken all those matters into account. It does not, from their decision, appear that they did so.
43. For these reasons, the decision of the Tribunal cannot stand; and the preliminary issue must be remitted for rehearing; having regard to the nature of this case and what we have set out in this section of this judgment, we take the view that, in justice, the remission must be to a fresh Tribunal.

Reasons and Perversity

44. Because we have decided that the preliminary issue must be remitted to a fresh Tribunal for re-hearing on the basis of the second of the four grounds of appeal put forward by Mr Massarella, it would serve no purpose for us to express a view as to whether the reasons given by the Tribunal for their decision are or are not, to adopt an expression used by Sedley LJ in Anya v University of Oxford [2001] ICR 847, "Meek compliant". It would, as we see it, be positively unhelpful for us to express any view about the strength of the medical evidence adduced in support of Mr Taylor's case and whether the Tribunal's conclusion as to that evidence was perverse. Unfortunately the evidence for both parties will have to be given again at the rehearing; and the Tribunal which rehears the issue will, of course, produce their own reasons for their decision, taking into account such medical and other evidence as is put before them.
45. Accordingly, we do not propose to say any more about the third and fourth grounds upon which this appeal was put.

Conclusion

46. For the reasons we have set out above, the appeal is allowed to the extent that the preliminary issue as to whether it is just and equitable for the Tribunal to consider Mr Taylor's complaint under the Disability Discrimination Act 1995, pursuant to Schedule 3, paragraph 3 (2) of that Act, is remitted for rehearing by a fresh Tribunal.