United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms KATHERINE NEWTON (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondent	Ms LYDIA SEYMOUR (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW


 


SUMMARY

The Claimant, post-termination, asked the employers to reconsider their dismissal of him for ill-health. His ET1 was presented two days after the three month period from dismissal expired.

The Tribunal rejected his claim under the Disability Discrimination Act 1995 on the basis

(1) that the duty to make adjustments under section 6 did not in the circumstances apply post-termination (2) that there was no continuing act (3) that it was not just and equitable to extend time when the delay was caused by the Claimant's union legal officers secretary failing to send the papers in time to the union's solicitors. The Claimant appealed on all three points.

As to (1) this is the first appeal in which the effect of Relaxion v Rhys-Harper upon the duty to make adjustments has been faced directly; Employment's Tribunal's decision upheld on the basis that the request to reconsider dismissal was not within the boundaries for post-termination claims as laid down in Relaxion and discussed by Employment Appeal Tribunal in Metropolitan Police v Shoebridge

(2) appeal rejected-no error of law

(3) appeal allowed-Employment Tribunal had failed to balance factors including absence of prejudice and had failed to apply principles set out in Chohan v Derby Law Centre.

HIS HONOUR JUDGE BURKE QC

The Issues

1. This is an appeal by the employee, Mr Baynton, against the decision of the Employment Tribunal, sitting at London South and chaired by Ms Taylor, sent to the parties with Extended Reasons on 29 September 2004. It was perhaps one of the last, if not the last, Employment Tribunal decision as opposed to a judgement at a full hearing; the new rules came into force on 1 October 2004. By their decision the Employment Tribunal dismissed Mr Baynton's complaint against his employers, South West Trains Ltd, of disability discrimination on the grounds that there was no jurisdiction to consider it.
2. The facts can be briefly stated for present purposes. Mr Baynton was employed by South West Trains as a train driver from February 1995. He had, in the following year, a considerable amount of time off work for ill health; and between early 2000 and September 2003 he had 256 days sick absence, in the region of twenty five per cent or more of his working days on the basis of a 5-day week. After various warnings pursuant to South West Trains' procedures, a stage three interview was held in July 2003 and, after an adjournment for a further medical report, on 2 September 2003.The medical evidence before the manager conducting the interview was that Mr Baynton was then fit for normal duties but that he had an underlying medical condition which could cause an above-average level of sickness absence in future. It was argued for Mr Baynton that, until December 2002, his absences were caused by misdiagnosis and consequent mistreatment of his condition which now, in the light of the correct diagnosis, that he had pancreatitis, was being properly treated; but no medical evidence was put forward on Mr Baynton's behalf. The decision was that Mr Baynton should be dismissed.
3. Mr Baynton appealed against that decision; and his appeal was heard on 2 December 2003 by Sharon Smith, head of drivers. It too was adjourned for further medical evidence; a letter was received from Mr Baynton's doctor which said that Mr Baynton's pancreatitis and depressive illness were likely to cause further periods of ill health and sick leave. Miss Smith decided, on 11 December 2003, to reject the appeal and that Mr Baynton should be dismissed; the effective date of termination of his employment was 11 December 2003.
4. On 12 January 2004 Mr Baynton's trade union wrote to Miss Smith asking her to reconsider the appeal decision. They enclosed a further letter from the G.P which confirmed that there had been a misdiagnosis up to December 2002. Miss Smith sent these documents to South West Trains' occupational health department for comment (a fact which does not appear in the Tribunal's decision but was common ground before us). On 13 February 2004 Miss Smith replied to the union to the effect that she had reviewed the papers in the light of the new material but that her decision remained unchanged.
5. On 17 February 2004 the union decided to instruct solicitors to put forward an Employment Tribunal claim on Mr Baynton's behalf; however his case papers were not sent to the union's solicitors until 12 March 2004.Those solicitors issued Mr Baynton's complaint on that day, claiming disability discrimination and unfair dismissal and asserting that the effective date of termination was 5 February 2004. It was, however, accepted at the hearing before the Tribunal that Mr Baynton's employment had ended on 11 December 2003 and that, therefore, his complaint, insofar as it related to the original dismissal, was lodged two days beyond the three month period within which it ought, pursuant to paragraph 3(1) of Schedule 3 of the Disability Discrimination Act 1995, to have been presented. The unfair dismissal claim was also out of time and did not feature in the Tribunal's decision or in this appeal. However the disability discrimination claim was put expressly on the basis that South West Trains had failed to make reasonable adjustments in respect of Mr Baynton's alleged disabilities, as required by section 6 of the 1995 Act, up to the date of Miss Smith's rejection on 13 February 2004 of the union's request that she should alter her decision upon Mr Baynton's appeal against his dismissal; and it was argued before the Tribunal that there had been a continuing act of discrimination or an "act continuing over a period " up to that date and, as a result, that the complaint, not only as to Miss Smith's reconsideration but also as to the original dismissal and the events leading up to it, was not out of time. It was further argued that, by failing to revoke their decision to dismiss, South West Trains had, within three months of the presentation of the complaint and independently of what had gone before, failed to make adjustments as required by section 6 of the Act; and it was finally argued that, if the two preceding arguments failed, it was nevertheless just and equitable for the Tribunal to consider the claim despite the expiry of the prima facie three month time limit.
6. The Tribunal rejected all three of these arguments. They concluded, in paragraph 22 of their decision, that the union's post-dismissal request to South West Trains to reconsider their decision to dismiss Mr Baynton had no contractual or other status, that he was not entitled to a second appeal and that there was no evidence or assertion of any rule, practice, policy or regime not to employ or reemploy disabled persons or not to make reasonable adjustments; and there was no act extending over a period. In effect the Tribunal decided that the rejection of the
   post-dismissal request was a separate and isolated act.
7. The Tribunal next considered, at paragraph 23 and 24 of their decision, whether South West Trains' rejection of that request constituted, of itself, a discriminatory act; they concluded, having considered the decision of the House of Lords in Rhys-Harper v Relaxion [2003] IRLR 484, that Mr Baynton as a dismissed employee did not fall within the definition of disabled persons to whom the section 6 duty could apply; by that they meant not that he was not a disabled person; whether he was or was not disabled for the purposes of the Disability Discrimination Act was not canvassed at the Tribunal hearing; they meant that as a dismissed employee, the duty under section 6(1) of the Act did not apply to Mr Baynton in the circumstances of this case.
8. Lastly the Tribunal concluded, at paragraph 29, that Mr Baynton had been supported by his trade union throughout, that there was no suggestion of unawareness of the time limits on his part or on the part of the union and that the delay was solely caused by an oversight on the part of a secretary in the union's office. They said, at paragraph 29:

"The Tribunal did not accept that an oversight by a secretary was sufficient ground on which to exercise our discretion to consider this complaint. We concluded that it was not just and equitable for a tribunal to consider the Applicant's complaint of disability discrimination."

9. Miss Newton on behalf of Mr Baynton challenges and Miss Seymour on behalf of South West Trains supports all three of these conclusions of the Tribunal. We should make it clear that there is an issue between the parties as to whether Mr Baynton was a disabled person at any material time; but the Tribunal addressed only jurisdictional issues; and the disability issue is not relevant to this appeal. It may have to be decided by the Tribunal hereafter should this appeal succeed.

The Request for Reconsideration

10. We will, as did counsel in their skeleton arguments and oral submissions, address first the second of these three conclusions of the Tribunal. The appeal raises, it seems for the first time, the question whether the duty to make adjustments imposed upon an employer by section 6 of the Disability Discrimination Act (which Act at the relevant time had not been amended by the Disability Discrimination Act 1995 (Amendment Regulations 2003) continued after the termination of an employee's employment and the extent to which it did so, if it did so at all. In Rhys-Harper the House of Lords held that an Employment Tribunal had jurisdiction under the Race Relations Act 1976, the Sex Discrimination Act 1975 and under the Disability Discrimination Act to consider a complaint of discrimination which related only to acts taking place after the complainant's employment in certain circumstances; the issue between the parties in this appeal is whether those circumstances are capable of including a claim where there has (allegedly) been a failure to make adjustments when rejecting an employee's request to the employer to reconsider and withdraw its earlier decision to dismiss the employee in circumstances in which the request is made after the employment had terminated and all contractual or customary rights to appeal have been exhausted.
11. In Rhys-Harper the House of Lords considered the meaning of the phrases "employed by him" in section 6(2) of Sex Discrimination Act and Section 4(2) of the Race Relations Act and "whom he employs" in section 4(2) of the Disability Discrimination Act; each of those subsections provides that is unlawful for an employer to discriminate against "a person employed by him" or, in the case of the Disability Discrimination Act , a disabled person "who he employs" in the particular respects set out in the subsections, which cover the same or similar ground in each case. It was the construction of those phrases in those subsections which was the subject of the ratio of the House of Lord's decision. In the context of the circumstances which the House of Lords was considering, only the forms of discrimination set out in those subsections were relevant.
12. The structure of the Disability Discrimination Act (as it was at the relevant time and as it now is) is different from that of the Sex Discrimination Act and Race Relations Act in various ways; in particular it is different in that, in addition to less favourable treatment on the grounds of gender or race or by way of victimisation, which constitutes discrimination under all three Acts, in

the Disability Discrimination Act alone there is a further type of discrimination which is set out in Section 5(2) as follows:-

"(2) For the purposes of this Part, an employer also discriminates against a disabled person if

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person;

and

(b)he cannot show that his failure to comply with that duty is justified."

Section 6 sets out the duty of the employer to make adjustments in these terms:-

"6 (1) Where -

(a) any arrangements made by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

2 (1)(A) applies only in relation to

(a) arrangements for determining to whom employment should be offered

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."

Section 6(3) gives twelve examples of steps which an employer may have to take in relation to a disabled person in order to comply with section 1(1). (All of the above references are to the wording of the Act before its recent amendment).

13. It is common ground that none of the four Disability Discrimination Act cases before the House of Lords in Rhys-Harper concerned the section 6 duty. Miss Newton submits, however, that the decision of the House of Lords in Rhys-Harper has the same effect in relation to the additional mode of discrimination provided for under section 5(2) and section 6 of the Disability Discrimination Act as it does in relation to less favourable treatment which was directly under consideration in those cases. She refers in particular to paragraph 34 in the speech of Lord Nicholls where he says:-

"34. Two points relevant to the interpretation of the legislation are tolerably clear. First, the decisions in Adekeye's case and Coote v Granada Hospitality Ltd (No 2) are inconsistent. Coote's case was a case of victimisation, Adekeye's case seemingly was not. But, for the purpose now in hand, it is not possible to differentiate between victimisation and other forms of discrimination. Section 6(2) of the Sex Discrimination Act, containing the phrase 'employed by him', is a single provision governing all forms of discrimination prohibited by that subsection. The proper interpretation of section 6(2), whatever it may be, applies equally to all forms of discrimination prohibited by that subsection, sex discrimination as defined in sections 1 and 2 as well as victimisation as defined in section 4. The position is the same under section 4(2) of the Race Relations Act and section 4(2) of the Disability Discrimination Act.

35. Next, although this may be more controversial, section 6(2) of the Sex Discrimination Act, section 4(2) of the Race Relations Act and section 4(2) of the Disability Discrimination Act all bear the same meaning on the point now in issue. (In saying this I am leaving aside for the moment any special implications the Equal Treatment Directive may have on the interpretation of the Sex Discrimination Act.) The only distinction between the language of these three Acts is the distinction already mentioned: the Sex Discrimination Act and the Race Relations Act use the phrase ' employed by him', and the Disability Discrimination Act uses the expression 'whom he employs'. I consider this is a distinction without a difference. In the context of section 6(2) of the Sex Discrimination Act and section 4(2) of the Race Relations Act, the phrase 'employed by him', although ambiguous, is more naturally to be read as having the meaning adopted when the phrase was reproduced in section 4(2) of the Disability Discrimination Act a person 'whom he employs'.

14. Thus, it is submitted, the House of Lords has extended the possibility of post-termination discrimination to all forms of discrimination rendered unlawful in the employment field by all three antidiscrimination statutes, at least where the circumstances are such as to fall within the limits of that extension prescribed by their Lordships. Those limits, submits Miss Newton, are to be found in the speech of Lord Hobhouse in Rhys-Harper at paragraph 140, namely that there must be:-

…. "a substantive and proximate connection between the conduct complained of and her employment by the alleged discriminator"

Miss Newton accepts that Lord Nicholls, in paragraphs 34 and 35 of his speech, was not addressing the duty to make adjustments which is to be found in the Disability Discrimination Act alone; but she submits that there is no juridical difference for present purposes between discrimination in the form of failure to make adjustments and any other type of discrimination.

15. She supports this general submission by reliance on the speeches of their Lordships in Rhys-Harper two of whom, she submits, expressly left open the question of whether there could be a post-termination failure to make reasonable adjustments.
16. At paragraph 46 of his speech Lord Nicholls said

I add, as a footnote, that the question whether the section 6 duty imposed by the Disability Discrimination Act continues after the termination of the contract of employment is a separate question which does not call for decision on these appeals. I prefer to leave that question open."

17. At paragraph 208 Lord Rodger of Earlsferry said:-

"I gratefully adopt the detailed accounts of the facts and issues given by my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of Craighead. As they show, allowing for the distinctive features of the 1995 Act, the objectives and, to a greater or lesser degree, the structure and terms of the three Acts are similar. Precisely because of that, it has come to be accepted that an interpretation of the wording of one Act will be a guide to the interpretation of the equivalent wording in another Act. …"

However Lord Rodger was not extending that view to the section 6 duty. At the conclusion of paragraph 215 he said

" The House is not called on in these appeals to decide whether the duty in section 6 of that Act also applies in the case of former employees."

Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of Foscote made no reference to the section 6 duty at all.

18. Miss Newton further relies on the subsequent decision of the House of Lords in Archibald v Fife Council [2004] IRLR 651, a decision which, having been delivered shortly before the Tribunal hearing in the present case, was not cited to the Tribunal. Mrs Archibald claimed that her dismissal was discriminatory both on the basis of less favourable treatment under section 5(1) of the Disability Discrimination Act and, under section 5(2) of the Act, by reason of the employer's failure to comply with the duty under section 6 to make adjustments. She failed at all stages up to the House of Lords, by which stage only the second mode of discrimination was in issue. No question of post-termination discrimination arose on the facts; but Lord Rodger of Earlsferry, with whom Lord Nicholls of Birkenhead and Lord Brown of
    Eaton-under-Heywood expressly agreed, said at paragraph 25:-

"When can an employer be said to "discriminate" against a disabled person in terms of section 4(1) and (2)? The answer is to be found in section 5(1) and (2). So the reason for considering whether an employer has "discriminated against a disabled person" in terms of section 5(1) and (2) is simply to discover whether he has unlawfully "discriminated" against that disabled person in terms of either section 4(1) or (2). Only unlawful discrimination under section 4(1) or (2) entitles the disabled person to a remedy from the employment tribunal under section 8(2)"

Lord Rodger continues at paragraph 32 as follows:-

"Section 6(1) prescribes a duty that is incumbent on an employer at any relevant time, before, during or after any period of employment".

and, at paragraph 37:-

"Moreover, section 6(2)(a) and (b) have been carefully crafted by reference to section 4(1) and (2). An examination of the two sets of provisions confirms that section 6(2)(a) applies only to arrangements for prospective employees. But the wording "offers or affords" in section 6(2)(b) has been chosen so that paragraph (b) covers the terms, conditions or arrangements on which employment is offered to prospective employees, as well as those on which employment and other benefits are afforded to current employees and, where appropriate, former employees."

19. It should be borne in mind that Lord Rodger and Lord Nicholls were parties to the decision of the House of Lords in Rhys-Harper; and it can be inferred that Lord Rodger had that decision in mind in referring to post-termination discrimination.
20. Baroness Hale of Richmond, in her speech at paragraphs 48-51, analysed the interrelationship of sections 4 and 5 of the Disability Discrimination Act in similar terms to those set out at paragraph 25 by Lord Rodger, although she made no reference to post-termination discrimination.
21. While reference to post-termination discrimination under the Disability Discrimination Act in Archibald was in strictness obiter dicta, it is important, as we see it, to accept, as a result of their Lordships decision in Archibald, that the mode of discrimination under the Disability Discrimination Act established by section 5(2) and consisting of a failure to make adjustments as required by section 6 is not a free standing mode of discrimination without connection with section 4(2), which subsection was expressly the subject of their Lordships decision in Rhys-Harper, but is an alternative mode of discrimination rendered unlawful by section 4(2). In that respect the words of Lord Rodger and Baroness Hale are not obiter.
22. Miss Newton referred us to examples of post-termination discrimination set out in paragraph 38 of Lord Nicholls speech in Rhys-Harper; she accepted that none of those examples relate to the duty to make adjustments; but she submits that that was because Lord Nicholls did not have that duty specifically in mind. Other examples, she suggested, demonstrated that to draw a hard and fast line at the termination of employment would be as inappropriate in relation to the duty to make adjustments as in relation to the duty not to treat less favourably. Such examples would include the duty, when a post-termination appeal is being considered as opposed to a
    pre-termination appeal, to provide a ramp to enable an appealing ex-employee who is wheelchair bound to access the building in which the appeal is being held or the provision of a reader for or papers prepared on tape or in Braille for a visually disabled employee in the same situation. Many of the specific examples of steps which an employer may have to take in relation to a disabled person, set out at section 6(3) of the Disability Discrimination Act, could, she submitted, apply after the termination of employment; for example the steps in mentioned at (a)(c)(j) and (k) of section 6(3) might arise not only in relation to an appeal but also to the continued use of an employer's sports club or other similar facilities to which in many cases ex-employees are entitled.
23. Miss Seymour on behalf of South West Trains submitted:-

(1) that in Rhys-Harper the House of Lords was not considering discrimination under section 5(2) and section 6 of the Disability Discrimination Act at all and, that the nature of that form of disability discrimination is very different from that of causing detriment by differential treatment.

(2) that, if as a result of Archibald the principle in Rhys-Harper in theory embraced post-termination discrimination under section 5(2) and section 6 of the Disability Discrimination Act, the tests for jurisdiction to consider such post-termination discrimination, as propounded in Rhys-Harper, could not embrace the circumstances of this case.

(3) a post-dismissal and, a fortiori, an extra-contractual request by a dismissed employee to his ex-employer to reconsider his dismissal could not constitute a failure to make a reasonable adjustment".

24. Miss Seymour further relied on the recent changes in the Disability Discrimination Act as pointing clearly against the Tribunal's having jurisdiction in a case such as this.
25. In our judgment Miss Seymour's first submission is correct. Lord Nicholls and Lord Rodger of Earlsferry expressly reserved the question as to whether post-termination discrimination could be the subject of complaint where the discrimination alleged was failure to make adjustments under the section 6 duty; and no mention of that point is made in the other three speeches; but that leaves the question open; and it is a question which has to be addressed in this appeal.
26. Rhys-Harper does make it clear that the words of section 4(2) of the Disability Discrimination Act "whom he employs" are to be construed as meaning "who he employs or has employed", subject to such restrictions on post-termination discrimination as are spelt out in the decision of the House of Lords; and Archibald establishes that the construction of the words "whom he employs" to which we have just referred may at least in theory apply to both forms of discrimination provided for by section 5 of the Act, i.e. less favourable treatment under section 5(1) and failure to make adjustments under section 5(2) and section 6.
27. It follows that the decision in Rhys-Harper and Archibald together have the effect that, without looking at the terms of section 6 of the Disability Discrimination Act , discrimination of the mode set out in section 5(2) may arise after the termination of the complaint.
28. It is, however, clear in our judgment that the House of Lords in Rhys-Harper intended to lay down boundaries to the jurisdiction to entertain complaints of post-termination discrimination so as to protect ex employers against a massive new exposure to claims which would or might arise if ex-employees had "open house" to make such claims. The nature and extent of those boundaries were considered in detail in the Employment Appeal Tribunal in Metropolitan Police Service v Shoebridge [2004] ICR 1690; in giving the judgment of the Employment Appeal Tribunal in that case, the President, Burton J, analysed the differing formulations of those boundaries to be found in the speeches of the House of Lords in Rhys-Harper (which, it must be remembered, were addressing direct discrimination by subjecting the ex-employee to detriment and not by failure to make adjustments). We gratefully accept and adopt the conclusions in the EAT's judgment, at paragraphs 25 and 34-36, that the majority of their Lordships did not set the boundaries at the point at which the employment relationship ceased to continue but the point at which the subject matter of the complaint against the ex-employer was no longer an incident of the employment relationship and a benefit which the ex-employee was entitled to expect would be provided post-employment-which is the same boundary as that set by Lord Hobhouse and Lord Rodger i.e. whether the facts alleged are sufficiently proximate to and are not too remote from the employment relationship-and that on which side of the boundaries the facts fall in any individual case is a matter for the Employment Tribunal to resolve on the evidence.
29. But how should those principles be applied in this case? Miss Newton submits that the Employment Tribunal alone can determine on the facts whether the request made on Mr Baynton's behalf by his union on 17 January 2004 was sufficiently proximate; Miss Seymour submits that the relevant facts are not in dispute and point unerringly to the correctness of the Tribunal's decision. There was no contractual right in Mr Baynton to any further reconsideration of the dismissal; he had exhausted all appeal procedures. There was no evidence or allegation of any custom or practice in South West Trains whereby such reconsideration could be expected of them by the union or by Mr Baynton. In contrast to a reference case, a post-termination appeal case or a case such as Shoebridge-in which the employee could expect a proper or accurate assessment of the issue raised-no such expectation could exist at all in this case; and therefore there could not be sufficient proximity to give the Tribunal jurisdiction.
30. In considering whether the boundaries to which we have referred were crossed in this case, the Tribunal looked at the terms of Section 6 itself. They observed that the duty to make adjustments, save in relation to offering employment, applied by the express words of section 6(2) to any term, condition or arrangements in which employment, promotion, transfer, training or any other benefit offered or afforded and concluded that protection against dismissal fell within the scope of section 4(2)(d) and section 5(1) of the Disability Discrimination Act and that

"the Applicant as a dismissed employee simply does not fall within the definition of disabled persons to whom the section 6 duty may apply".

They could have pointed to but did not point to the twelve examples in section 6(3) of the Act of steps which an employer may have to take in order to comply with the duty to make adjustments which steps appear to arise in circumstances in which the employment itself is continuing or, at least, in which such steps could be said to be carried out as an incident of the employment relationship and in relationship to a benefit to which the employee was entitled to expect would be provided post-employment. The steps suggested by Miss Newton come within that latter category, e.g. the provision of proper facilities for the conduct of a post-termination appeal hearing. In contrast but in our judgment a request by an ex-employee to his ex-employer to reconsider a dismissal after appeal procedures have been exhausted and the employment has finally been brought to an end must be regarded as falling outside the boundaries set in Rhys-Harper, as explained in Shoebridge.

31. That is supported and indeed, in our judgment, might be said to be determined in South West Trains' favour by the decision of the Court of Appeal in Clark v Novacold [1999] IRLR 318, the first case under the Disability Discrimination Act to reach the Court of Appeal. That was a case of dismissal for ill health in which the principal issue upon the employee's appeal was whether the Employment Tribunal and Employment Appeal Tribunal had correctly concluded that the employee had not been treated less favourably for a reason which related to his disability; the Court of Appeal held that the employee had been less favourably treated for that reason, applying a comparative exercise different from that which had been applied below. Less frequently referred to, perhaps, is the point which arose on the employer's cross-appeal. The Employment Appeal Tribunal found that the Tribunal had erred in holding that the duty under section 6 of the 1995 Act, a breach of which was relied upon by the employee in addition to discrimination under section 5(1), did not arise where the complaint was of dismissal; but the Court of Appeal restored the Tribunal's decision. Mummery LJ, with whom Roach and Beldam LJJ agreed, held at paragraph 79 that dismissal was not a breach of the employer's section 6 duties. If that decision be correct – and it is of course is binding on us-it seems to us to follow that section 6 cannot apply to a request by an ex-employee whose employment has terminated to the employer that the employer should, whether on new evidence or not, reconsider the dismissal.
32. Miss Newton suggested that the essence of Mr Baynton's complaint was not the dismissal but the refusal to reconsider and, in doing so, to make adjustments which would have avoided the dismissal; but in fact there was no refusal to reconsider; there is no suggestion that Miss Smith did not reconsider; she sent the union's letter to her occupational health department; and thereafter reached a decision. The adjustments specified in the Further and Better Particulars of Mr Baynton's Originating Application either went to the original decision to dismiss or had been carried out or did not amount to adjustments at all. It is noticeable that the union, in their letter requesting the reconsideration, did not seek any adjustments; they sought a review of the dismissal decision; and Miss Newton accepted in the course of argument that, in effect, the "adjustments" which, on Mr Baynton's case ought to have been but were not made, amounted, quite simply, to the rescission of the dismissal decision.
33. For these reasons we are persuaded that the decision in the Employment Tribunal on this issue was correct and that there was no jurisdiction in the Employment Tribunal to hear a complaint by Mr Baynton based solely on the rejection of his request to South West Trains for a rescission of the dismissal.
34. The effect of this aspect of our decision on this appeal is that Mr Baynton cannot make a free-standing claim based on South West Trains' reaction to his request of January 2004. It is necessary, however, to go on the second and the third issues which arise in this appeal in order to determine whether Mr Baynton's complaint in respect of the original dismissal was rightly held by the Tribunal to be out of time.
35. We have reached the above conclusions without reliance on Miss Seymour's argument as to inferences which may be drawn from the recent amendments to the Disability Discrimination Act which, to a limited extent, permit complaints of post-termination discrimination: we do not need to and do not make any comment upon the respective submissions on that area.

The Continuing Act Issue

36. Did the Tribunal err in law in concluding, at paragraph 22 of their decision, that this was not a case in which the rejection of Mr Baynton's request for reconsideration of his dismissal was

"an act extending over a period" – which is, manifestly, shorthand for "the last episode in an act extending over a period"; the Tribunal were considering whether there was an act extending over a period which continued up to and included that rejection. If the Tribunal had decided in
Mr Baynton's favour, then the act extending over that period would be treated as done at the end of that period, pursuant to paragraph 3(3)(b) of Schedule 3 of the Disability Discrimination Act and, therefore, the complaint would not have been, even on a prima facie basis, out of time.

37. It is necessary to set out the reason given by the Tribunal for their conclusion on this issue.

They are as follows:-

"22. …We concluded that the Applicant's subsequent request did not have any contractual or other status such as would entitle him to a second appeal. The Respondent's subsequent refusal to reconsider the appeal decision was mere confirmation of its earlier decision. In arriving at our view there was no continuing act of discrimination we also had regard to the case put by the Applicant. The Applicant did not plead that there existed a discriminatory rule, practice, policy or regime from which decisions were made or could be made not to employ or re-employ disabled persons or not to make reasonable adjustments. Neither did the Applicant plead that employees that were disabled were treated unfairly. The Tribunal therefore concludes that the Respondent's decision to refuse to reconsider the Applicant's appeal was not "act extending over a period " within the meaning of Schedule 3, paragraph 3(3)(b) therefore a Tribunal did not have jurisdiction to consider the Applicant's complaint".

38. Miss Newton submitted that in these reasons the Tribunal failed to pay heed to the decision of the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96-which was cited to but not mentioned by them. In that decision Mummery LJ, with whom May and Judge LJJ agreed, said, as to the correct approach to the continuing act question, which arose in that case in the context of allegations of race and sex discrimination, (but there is no suggestion that different principles apply to disability discrimination):-

"51 In my judgment, the approach of both the Employment Tribunal and the Appeal Tribunal to the language of the authorities on "continuing acts" was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case…

52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period." I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a "policy" could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed"

39. The Tribunal, it is argued, took into account irrelevant factors in referring to the absence of contractual or other status by which Mr Baynton was entitled to a second appeal, to the absence of an allegation of a discriminatory rule, practice, policy or regime or to any allegation that disabled employees were treated unfairly. The Tribunal should, it is submitted, have simply considered whether there was an ongoing state of affairs in which incidents of discrimination were linked with each other as distinct from a succession of isolated acts.
40. Miss Seymour submits that to focus on paragraph 22 of the decision alone is to do less than justice to the decision as a whole in which, in paragraphs 16-20, the Tribunal demonstrated that they had taken on board the parties' submissions including, importantly, South West Trains' submission that there were three separate and distinct matters, the dismissal, the appeal and the refusal of the reconsideration and, unlike the position in Hendricks, no continuing act.
41. We prefer Miss Seymour's submissions. We do not regard the Tribunal in this case as having concluded against Mr Baynton on this issue solely because of the absence of any discriminatory rule or practice or any contractual or other status in Mr Baynton when seeking reconsideration of the dismissal decision or the absence of an allegation that disabled employees were generally treated unfairly. In our judgment the Tribunal made a determination on the whole of the facts before them that the rejection of the reconsideration request was not part of an act extending over a period but was a separate episode. We do not accept that the Tribunal erred in considering any absence of the various matters to which they expressly refer; Hendricks does not decide that the absence of a policy or a wide-spread practice or matters of that type is irrelevant; it decides that such matters should not be treated as a complete and constricting statement of the indicia of an act extending over a period. In other words the absence of such factors is not necessarily on its own determinative; but a Tribunal is, in our judgment, entitled to take such matters into account in reaching their decision on the facts as to whether there was or was not an act extending over a period.
42. We also see no basis on which it could be said that the Tribunal erred in law in regarding the absence of any status on Mr Baynton in respect of his request for reconsideration as a relevant factor; what the Tribunal were seeking to express, in our judgment, was that the request was not part of the dismissal process but was an extraneous act which was unconnected with what had gone before. That approach was, in our judgment, legitimately open to them and not one with which the Employment Appeal Tribunal can interfere on the basis of an error of law.
43. We therefore do not need to address Miss Seymour's further point that if the Tribunal were to be held to be in error, any dismissed employee who had not presented a complaint to the Tribunal in time could seek a reconsideration of the decision to dismiss and then allege that the rejection of that request was the last episode of an act extending over a period. While we see the force of that point, we suggest that the answer to it might be that each case has to be decided on its own facts. We see no need to consider the point further.
44. There is, however, one further point which we must mention. If we are correct in our conclusion on the first issue in this appeal, it must follow that the act over a period argument must also be bound to fail for that reason; for the last act which was relied upon to enable Mr Baynton to avoid the consequences of the lateness of his complaint as to the dismissal would not itself be capable of constituting unlawful discrimination. If, to take an example, an employee relies on twelve alleged acts of discrimination, eleven of which took place more than three months before the presentation of his complaint but the twelfth of which was within those three months and the Tribunal finds that the twelfth act never happened or did not constitute unlawful discrimination, the complaint in relation to the first eleven acts would be bound to fail for want of jurisdiction, unless the Tribunal decides that it is just and equitable to consider the complaint. Thus the continuing act argument must fail in this case for this second reason, as Miss Newton agreed in the course of argument would follow if, as we have done, we concluded against her on the first issue in this appeal. We turn therefore to the alternative route by which Mr Baynton sought to keep his claim in relation to the original dismissal alive, i.e. the just and equitable route.

The Just and Equitable Issue

45. Miss Seymour reminded us, at the outset of her submissions on this issue, of the limited nature of our powers, as an appellate Tribunal, in considering criticisms made of the Tribunal's decision. She took us to Robertson v Bexley Community Centre [2003] IRLR 434, in which the Court of Appeal restored the decision of the Tribunal that it was not just and equitable to allow the employee's complaint of race discrimination to proceed despite its presentation outside the three month period and overturned the decision of the Employment Appeal Tribunal which had held that the Tribunal had fallen into error. The facts of Robertson are not of importance for present purposes; it is necessary only to refer to paragraph 25 in the judgment of Auld LJ, with whom Chadwick LJ and Newman J agreed. Auld LJ said:-

"25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the Tribunal below plainly wrong in this respect.

46. We respectfully regard those words as containing a succinct summary of principles which are well established and to which we will endeavour to adhere. Mr Baynton's appeal on this issue can only succeed if he can establish that the Tribunal made an error of law or principle.
47. The Tribunal concluded that the sole reason for the delay was an oversight on the part of Mr Baynton's trade union's legal officers' secretary. The evidence was limited in that the Tribunal did not hear from anybody from the trade union; but they were provided with a witness statement from Miss Dandridge of Mr Baynton's solicitors, which South West Trains did not seek to challenge, so Miss Dandridge was not called, in which she said that the reason for the papers being faxed to the solicitors no earlier than 12 March 2004 was that the legal officer had instructed his secretary to send the papers in February but that due to an oversight she had failed to do so. We respect what the Tribunal said at paragraph 29:-

"It appears that the sole reason for the delay was an oversight. The Tribunal did not accept that an oversight by a secretary was sufficient ground on which to exercise to consider this complaint. We concluded that it was not just and equitable for a Tribunal to consider the Applicant's complaint of disability discrimination".

48. Miss Newton attacks this conclusion on a number of fronts which we propose to address in a different order from that which she adopted; we will consider first her submission that the Tribunal erred in saying, in paragraph 27 of their decision, that they had heard no direct evidence concerning the late presentation of the Originating Application. This, submits Miss Newton, was an error and an unfair error on the part of the Tribunal who (1) had heard direct evidence from Mr Baynton as to how he had put his claim in the hands of his union and (2) had the witness statement from Miss Dandridge, which was unchallenged, which set out what had happened to the papers in the manner which we have described above.
49. We do not accept that the Tribunal in paragraph 27 made an error such as that on which Miss Newton relies. The Tribunal were not, in that paragraph, indicating that they had not received or were not taking into account Mr Baynton's evidence or Miss Dandridge's evidence. They must be taken, in the context, to have been referring, in saying that they had no direct evidence concerning the late presentation of the Originating Application, to the absence of any direct evidence from the union as opposed to indirect evidence from Miss Dandridge as to what she had learnt from the union. It was clear from the evidence which the Tribunal did have that the reason for the delay did not lie with Mr Baynton or Miss Dandridge; it occurred while the claim was in the hands of the union; and the Tribunal had no direct evidence from the union which explained that delay. That is why, in the second sentence of paragraph 27, the Tribunal said:-

"The best information made available to us was that Applicant's trade union representative had instructed his secretary to send papers to the solicitors in February 2004 but due to an oversight they were not sent for a further few weeks".

In our judgment the Tribunal's summary of the evidential position in paragraph 27 was entirely correct.

50. However, even if they made some error in their description of the evidence, such error would not be of relevance to Mr Baynton's appeal; for the Tribunal went on to find, in paragraph 29, whatever their comments on the quality of the evidence, that the reason for the delay was precisely the reason which Miss Dandridge put forward. The Tribunal did not criticise Mr Baynton or find delay on his part; nor did they criticise Miss Dandridge or the unions' legal officer. Mr Baynton established, as the reason for the delay, precisely that which he had sought to establish.
51. We turn next to the question of prejudice. Miss Newton submits that the Tribunal, despite having been referred to the "checklist" of factors which are relevant to a Tribunal's consideration of whether it is just and equitable to hear a complaint despite its late presentation, as set out in the decision of the Employment Appeal Tribunal in British Coal Corporation v Keeble [1997] IRLR 336, failed in reaching their decision on this issue to have regard in particular to the factor of prejudice to the employers or, rather, the absence of such prejudice in this case.
52. In Keeble the Employment Appeal Tribunal, presided over by Smith J, considered an appeal by the employers against the conclusion of a Tribunal that it was just and equitable to proceed to hear claims under the Sex Discrimination Act by female employees which were made in one case twenty-two months and in the other case two and half years after the dismissals on which the claims were based. The appeal failed. In its judgment the Employment Appeal Tribunal incorporated its judgment in an earlier hearing between the same parties as a result of which the just and equitable issue was remitted for rehearing; at paragraph 8, the Employment Appeal Tribunal, referring to its earlier judgment, said:-

"The EAT also advised 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 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 party 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".

The Tribunal in this case referred, at paragraph 17, to Miss Newton's argument that they should consider prejudice and the extent to which the cogency of the evidence had been affected by delay; it was Miss Newton's submission then as it has to been to us that the relevant documents were minuted, the cogency of the evidence had not been affected and there was a mere two days of delay. In paragraph 18 the Tribunal noted Miss Seymour's submission (which must, we suspect, may have been made with a metaphorical tongue in cheek), that any delay (including by implication two days of delay) affects witnesses and their memory. However, when the Tribunal came to set out their reasons for deciding this issue against Mr Baynton, they made no reference to the factor of prejudice or adverse affect upon the cogency of the evidence at all; and there is nothing which indicates the Tribunal carried out the necessary exercise of balancing the absence of any prejudice, which was obviously minimal if not non-existent, against factors pointing in the other direction. It is true that, in the first sentence of paragraph 29, they said that they had considered "all of the facts and matters" put before them; but the following sentences of that paragraph, which we have set out in full earlier, indicate to us that the Tribunal made their decision on this issue on the basis that an oversight by a secretary was not sufficiently persuasive, apparently irrespective of any other factors. There appears to have been no balancing of factors, in particular the factor of prejudice or the absence of it and whether or not the evidence might be rendered less cogent by two days of delay. For these reasons we have concluded that the Tribunal erred in law.

53. Miss Newton further submitted that the Tribunal had erred in deciding to exercise their discretion against Mr Baynton on the sole basis that an oversight by a secretary was not sufficient to persuade them to the opposite result when they might, had there been erroneous legal advice or had the union been unaware of the time limits, have thought otherwise; see the second sentence of paragraph 29 of the decision. In Hawkins v Ball and Barclays Bank [1996] IRLR 258, the Employment Appeal Tribunal, presided over by Keene J, held that the Tribunal, in considering the just and equitable issue in the context of a sexual harassment case, were entitled to take into account in the employee's favour the fact she had been given incorrect legal advice, in contrast to the position arising from the reasonable practicability test which applies when an unfair dismissal complaint is presented late. Hawkins was cited to the Tribunal; and it is likely that it was that citation which caused the reference to erroneous legal advice in paragraph 29 of the Tribunal's decision. However it is, in our view, clear that a Tribunal is not limited to considering in the employee's favour erroneous legal advice or erroneous views as to time limits as opposed to any other error which may have caused the failure to present the claim within the prima facie time limit. The Tribunal, as this Tribunal correctly directed themselves, has a wide discretion which it must exercise by taking into account all the circumstances; no particular type of error is excluded.
54. The effect of errors on the part of a Claimant's legal adviser was further considered by the Employment Appeal Tribunal, presided over by His Honour Judge McMullen QC in Chohan v Derby Law Centre [2004] IRLR 685; that decision was handed down on 2 April 2004 but not reported until September 2004, after the Tribunal's decision in this case (although we suspect that the decision would have been available on the Employment Appeal Tribunal's website at an earlier stage); it was not cited to the Tribunal; but it does not involve a new point of law and Miss Newton was fully entitled to rely on it before us. The facts in brief were that the employee's victimisation claim under the Sex Discrimination Act was presented eighteen days late as a result of an error on the part of her solicitor who did not appreciate that time ran from the date of the act complained of (the sending of a letter to the employee by the employer) rather than from the date of the receipt by the employee of that letter. The Tribunal decided that her complaint should not be permitted to proceed, principally because the delay was caused by the solicitors' error. The Employment Appeal Tribunal allowed the employee's appeal, holding the Tribunal had failed to consider the factors set out in Keeble and had erred in its approach to errors on the part of legal advisers.
55. The Employment Appeal Tribunal set out the relevant principles of law in succinct terms in paragraph s 12-16 of the judgment in that case as follows:-

"12. A Tribunal demonstrably taking the wrong approach or not taking account of a fact which it should have done errs in law - see Hutchison v Westward Television [1997] IRLR 69 EAT

13. The availability of legal advice is a relevant question - see British Coal Corporation v Keeble [1999] IRLR 337 EAT at para 8 per Smith J.

14. The use of a check list under the Limitation Act is often useful: British Coal Corporation v Keeble EAT/413/94 unreported 6 July 1995 EAT Holland J at paragraph 10, upon which Mrs Justice Smith based her judgment above.

15. Although it is not a requirement that a tribunal go through the check list, failure to consider a significant factor will amount to an error of law: London Borough of Southwark v Afolabi [2003] IRLR 220 CA paragraph 33 per Peter Gibson LJ.

16. The failure by a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of windfall: Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419 p 38-40".

56. We respectfully agree with and adopt those statements of principle. We should further refer to paragraph 19 of the judgment in Chohan in which the EAT said:-

"It appears to us that the Tribunal ought to consider the check list under the Limitation Act, suitably modified as Mrs Justice Smith did in Keeble for the purposes of an Employment Tribunal claim, but will not fall into error unless it omits a significant factor. Where the issue turns upon the steps taken by the Applicant to obtain and act upon legal advice, Steeds v Peverel indicates that wrong advice, or the existence of an implied case against negligent solicitors, ought not defeat an applicant's contention that the claim ought to be heard".

57. We can see no difference in principle between an error by a secretary of a Claimant's trade union and an error by a Claimant's lawyer; nor can we see any difference in principle between an error consisting of a misapprehension of the law as in Chohan or as to the time limits prescribed by the law and an error consisting of a failure to put the relevant documents in the post or send them by fax. Of course the nature of an error (e.g. losing important documents) or the duration of an error (e.g. leaving the relevant documents in a drawer without acting on them for a long period) may create prejudice and may affect the cogency of the evidence; but it is an important principle, in our judgment, that a Tribunal should start its consideration having in mind the principle that, at least on a prima facie basis, the failure of a Claimant's adviser or other agent to whom he has entrusted the progress of his claim to act so that proceedings are commenced in time should not be visited upon the Claimant.
58. Despite Miss Seymour's valiant submission that the Tribunal, although Chohan was not cited to them, nevertheless took into account the principles set out in Chohan, it appears plain to us from the terms of paragraph 26-29 and in particular paragraph 29 of their decision that the Tribunal did not take into account or have in mind the approach to an adviser's failure set out in Chohan and, indeed, erroneously sought to distinguish the facts of this case from the circumstances of Hawkins.
59. For these reasons the Tribunal erred in law, firstly, in failing to consider the significant factor of prejudice or, more properly, the absence of any real prejudice and the absence of any adverse effect upon the cogency of the evidence and, secondly, in regarding the oversight of the union's secretary in failing to forward Mr Baynton's papers to the union's solicitors in time as an error which was to be visited on Mr Baynton and which could not amount to a sufficient ground on which they could exercise their discretion in Mr Baynton's favour.

Conclusions

60. For the reasons we have set out above this appeal, in so far as it is brought against the Tribunal's decision that there was no jurisdiction to entertain a claim under the Disability Discrimination Act for failure to make reasonable adjustments in response to the request to South West Trains to reconsider their dismissal of Mr Baynton and in so far as it is brought against the Tribunal's decision that there was no continuing act of discrimination which included those post-termination events, fails and is dismissed. However the appeal against the Tribunal's decision that it was not just and equitable to permit Mr Baynton's claim to proceed, in so far as it related to matters arising before the termination of his employment, is allowed. We have considered substituting our own view as to the just and equitable discretion but have decided that we cannot be sufficiently firmly convinced of the outcome on a remitted hearing as to the exercise of that discretion as to enable us to take that course. We therefore remit this case to the Employment Appeal Tribunal for reconsideration of the issue as to whether, pursuant to paragraph 3(2) of Schedule 3 to the 1995 Act, it is just and equitable for the Tribunal to consider Mr Baynton's complaints. In the circumstances of this case we believe that that remission should be to a differently constituted Tribunal.