United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KASHIF ALI (Of Counsel) Instructed by: Law For All Solicitors PO Box 230 Brentford Middlesex TW8 9FL
For the Respondent	MR RUSSELL BAILEY (Of Counsel) Instructed by: Messrs Moorhead James Solicitors 3 Dorset Rise London EC4Y 8EN

SUMMARY

Employment Tribunal correct in finding that the evidence before it did not explain why the Claimant had not made an application for unfair dismissal and disability discrimination. The Claimant did not appear and did not give evidence himself. In these circumstances the Employment Tribunal decision was a permissible option and not perverse. Neither was there any evidence of breach of the Human Rights Act 1998.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Decision of an Employment Tribunal sitting at London Central on 27 August 2004. The Decision was sent to the parties and entered in the Register on 23 September 2004. The Chairman was Ms D Henderson. The members were Mr Bishop and Mr Patel.
2. The unanimous decision of the Employment Tribunal was that:

(a) the Applicant's complaint for unfair dismissal was not presented to the Tribunal within time: section 111(2) of the Employment Rights Act 1966. Accordingly, the Tribunal did not have jurisdiction to hear the Applicant's unfair dismissal claim;

(b) the Applicant's claim for disability discrimination was not submitted within time: Schedule 3, paragraphs 3(1) and (2) of the Disability Discrimination Act 1995. Accordingly, the Tribunal did not have jurisdiction to hear the Applicant's claim for disability discrimination.

The Material Facts

3. The agreed set of facts are set out in paragraphs 2.1-2.6 of the Employment Tribunal Decision and say this:

"2.1 The Applicant was employed by the Respondent Company (which has approximately 2,000 employees) as a Bus Driver. The dates of his employment were from 20 April 1998 to 21 January 2004. In October 2003 the Applicant was diagnosed with severe depression. The Tribunal was shown various sick notes which indicated that the Applicant continued to suffer this condition and was signed off work until 2 February 2004.

2.2 On 21 November 2003 the Respondent held a Long Term Sickness Review with the Applicant. At this meeting the Applicant explained that one of the reasons for his depression, he believed, was work pressure. A second Long Term Sickness Review was scheduled for 21 January 2004. Just prior to that review the Respondent's doctor, Dr Patel, had confirmed in a letter dated 14 January 2004 (Applicant's bundle A74) that, in his opinion, the Applicant was suffering from a "major psychological illness and is in need of an urgent psychiatric assessment". Dr Patel went on to say that in his opinion it was highly unlikely that the Applicant would be able to resume his duties within the next three to four months.

2.3 At the meeting on 21 January the Respondent interviewed the Applicant, who was accompanied by his trade union representative, Mr DeSouza. The Respondent's representative told the Applicant at this meeting that he was dismissed on grounds of his medical condition and this dismissal was confirmed to the Applicant in a letter dated 21 January 2004. This letter also informed the Applicant that he had 14 days to appeal that decision.

2.4 The Applicant maintains that his medical condition was exacerbated by this dismissal. This is not accepted by the Respondent.

2.5 On 30 January 2004 the Applicant was admitted to the Charing Cross Hospital and was discharged on 9 March 2004. The Applicant continued as an outpatient at Charing Cross Hospital for a further six to seven weeks. We are told (but no documentary evidence was provided) that on 18 May 2004 the Applicant sought legal advice from "Law for All" with the help of his Social Worker. On 20 May 2004 the Applicant's Originating Application was lodged with the Tribunal, which was over 3 months following the effective date of termination of the Applicant's employment. The Respondent filed the notice of Appearance on 13 June 2004 and also sent a letter to the Tribunal applying for a Preliminary Hearing to determine the issue of jurisdiction.

2.6 Both parties accept that the Applicant's Originating Application was lodged outside the three-month time limit in respect of both the unfair dismissal and the disability discrimination claim."

The Employment Tribunal Conclusions

4. The Employment Tribunal considered the issues of limitation in respect of unfair dismissal and disability discrimination separately. This is obviously correct because the legal test is different. So far as unfair dismissal was concerned the Employment Tribunal said this:

"3 It is therefore necessary for the Tribunal to consider in relation to the unfair dismissal claim whether the Tribunal is prepared to extend the three-month time limit for the Applicant lodging his claim on the basis that it was not reasonably practicable for him to lodge that claim within the three month time limit. If the Tribunal find that it was not reasonably practicable for him to do so they would then have to decide whether in fact the application had been lodged within a reasonable time. The question of whether it was not reasonable practicable for the Applicant to lodge the claim is a question of fact for the Tribunal to determine on the basis of the evidence before it.

4 Unfortunately, the Tribunal did not have the benefit at the hearing of any evidence from the Applicant himself. Mr Ali was unable to assist the Tribunal as to the reason why the Applicant was unable to attend. There were several factual areas on which the Applicant could have provided considerable assistance had he been present. It is clear from the agreed facts that both parties accept that the Applicant had a serious illness. In his written submissions Mr Ali also accepted that the Applicant was represented by a trade union official (Mr De Souza) who could have offered "(and probably did offer)" legal advice on the status of his claim. This would have been at the meeting on 21 January 2004. It was accepted by both parties that during the period 30 January 2004 to 9 March 2004 whilst the Applicant was in Charing Cross Hospital, it would not have been reasonably practicable for him to lodge his application with the Tribunal or to take legal advice. However, the Tribunal were presented with no factual evidence as to the Applicant's condition or state of mind following his discharge from hospital and during the period when he was an outpatient. We were pointed to a discharge letter (dated 9 March 2004) from the Charing Cross Hospital which indicated a list of several drugs which were prescribed for the Applicant. Again, the Applicant's representative was unable to present us with any evidence as to the effect of these drugs on the Applicant's medical condition or as to any side-effects of these drugs. Mr Ali referred us to a letter from the Applicant's Consultant Psychiatrist, Dr Jolley, dated 24 August 2004 (page 72 of the Applicant's bundle). In this letter Dr Jolley gives his opinion that the Applicant's condition was such that it would preclude him from appealing against the dismissal decision within 14 days and would render him unable to seek legal advice on making a claim within the time limit of three months from his dismissal on 21 January 2004. That may well be Dr Jolley's opinion, however no evidence was available from the Applicant as to his state of mind during this period, nor does Dr Jolley's letter explain why the Applicant was able on 18 May to take legal. advice when he would apparently be unable to do so on 20 April 2004.

5. The Respondent's representative referred us to two letters written by the Applicant to the Respondent dated 11 March 2004 and 7 April 2004 (these are in the Respondent's unpaginated bundle). Both these letters are in the Applicant's handwriting and are in similar terms, requesting a refund of the Applicant's pension contributions due to medical reasons. The letters also refer to the fact that the Applicant would be leaving the country in the near future. The first of these letters was written only two days after the Applicant's discharge from hospital. Mr Bailey submitted that had the Applicant been present he would have put to the Applicant the fact that both these letters indicated that the Applicant was in a fairly lucid state of mind and certainly able to consider some of the financial implications of his pension situation. We cannot place any direct weight on these letters, but unfortunately we have been unable to hear from the Applicant with any explanation for these letters. As we have mentioned before, the Applicant's presence at the hearing would have been of great assistance to the Tribunal to clarify this and other issues.

6 On this basis we find that the Applicant has not discharged the burden of proof placed on him to show the Tribunal that it was not reasonable practicable for him to bring an unfair dismissal claim within the period 9 March 2004 (his discharge from hospital) to 20 April 2004, the expiration of the three-month time limit from the date of his dismissal. There is simply not enough evidence available to us to reach such a conclusion.

5. The Employment Tribunal reached the following conclusions in respect of disability discrimination:

"7 Turning on the Applicant's claim for disability discrimination – here the Tribunal's discretion is to extend the time where it considers it "just and equitable" to do so. Mr Ali has submitted that this allows the Tribunal to extend the time limit in circumstances which would not fall within the test of what is regarded as reasonably practicable on the unfair dismissal test.

8 The Applicant's written submissions referred us to page L/175 of "Harvey" which set out a non-exhaustive (but nevertheless considerable) list of factors which may prove of assistance to the Tribunal in assessing individual cases.

9 The Tribunal considered these listed factors in turn:

(a) "The presence or absence of any prejudice to the Respondent if the claim is allowed to proceed". Having heard submissions from the Respondent on this, the Tribunal conclude that there would be no prejudice to the Respondent if the claim was allowed to proceed.

(b) "The presence or absence of any other remedy for the Applicant if the claim is not allowed to proceed". The Tribunal did not believe that this issue was relevant to the proceedings.

(c) "The conduct of the Respondent subsequent to the act of which complaint is made up to the date of the application." Despite the Applicant's submission that the dismissal exacerbated his medical condition, there does not appear to be any subsequent conduct of the Respondent which would be relevant to the proceedings.

(d) "The length of time by which the application is out of time". The Tribunal felt that the length of time, one month, was not an unduly lengthy period.

(e) and (f) "The conduct of the Applicant over the period from which the complaint is made up to the date of the application and the medical condition of the Applicant, taking into account in particular any reason why this may have prevented or inhibited the making of a claim". It is on these two factors that the Tribunal has considerable problems. The list of factors in "Harvey's" is prefaced by a statement that the test is primarily a question of fact for the Tribunal to interpret in the exercise of its discretion. The Tribunal therefore finds itself in the same position as applying the factual test in reasonable practicability, namely that there is insufficient evidence before the Tribunal today to determine the conduct of the Applicant or to ascertain the medical condition of the Applicant over that period.

(g) "The extent to which professional advice in making a claim was sought and if it was sought the content of any advice given". It appears that the Applicant took legal advice on 18 May 2004 (although no formal documentary evidence of this was presented) but it is clear that within two days of that the Originating Application was lodged in the Employment Tribunal.

10 In conclusion, in considering the discretion of the Tribunal on the "just and equitable test" the Tribunal still has to find on certain questions of fact. As the Tribunal has been unable – due to the absence of evidence before it – to reach a conclusion on those questions of fact, it is with some regret that we are unable to find that it would be just and equitable to extend the time in relation to the disability discrimination claim."

The Law

6. The relevant parts of Section 111 of the Employment Rights Act 1996 provide as follows:

(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3),an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

7. Section 8(8) and Schedule 3 Part 1 paragraphs 3(1) – 3(2) of the Disability Discrimination Act 1995 provide 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."

The Notice of Appeal

8. The Notice of Appeal sets out five grounds of appeal and we will take them in the order in which they appear in the Notice of Appeal.

Ground 1

9. Ground 1 is that the Tribunal took into account an irrelevant consideration in that its decision was to a large extent influenced by the fact that the Appellant did not appear in person to give evidence about the state of his mental health. This was an irrelevant consideration because the evidence of the Appellant in relation to the state of his mental health would have been of minimal or no use. Alternatively, the Tribunal gave too much weight to this consideration.
10. Mr Ali submitted that in the light of the medical evidence before the Tribunal the Appellant's evidence would have been of no (or very limited) additional value at the hearing. He said that the medical evidence was sufficient; the Appellant was not a medical expert and that his evidence could not be authoritative; and at the time of the illness the Appellant suffered from a mental illness such that his recollection would have been unreliable and therefore of limited use. Mr Ali referred to the fact that the Tribunal had before it a letter from Dr A G Jolley who was a consultant psychiatrist responsible for the Appellant at the Charing Cross Hospital. The Appellant was under his care as an in-patient from 30 January 2004 to 9 March 2004. Dr Jolley's letter said this:

" ..At the time he was suffering from a severe Depressive Disorder with some psychotic features. Thereafter he has been followed up regularly in the outpatient clinic.

In my opinion his mental disorder, Depressive Disorder, was of such degree and longevity as to preclude him from appealing against the dismissal decision within 14 days and, further, to render him unable to seek legal advice on making a claim within the time limit of 3 months less a day from his dismissal on 21^st January 2004 "

That letter was dated 24 August 2004.

11. There was also a letter before the Tribunal from Mr Damian Cullen, who was a Locum Social Worker employed by the North Hammersmith Community Mental Health Team. He said this:

"Mr Chouafi was admitted to Psychiatric Inpatient Unit at Charing Cross Hospital on 30/01/04 and discharged on 09/03/04. He was admitted with Depression and Adjustment Disorder and it is reported that he had some psychiatric symptoms of auditory hallucinations.

His loss of employment was considered to be a major stressor at the time. Given the nature and severity of his problem and the need for him to be admitted to hospital, I think it can be assured that Mr Chouafi was not in a fit state to make an appeal against his dismissal or to seek legal advice at that time."

That letter is dated 26 May 2004.

12. Mr Bailey submits that the issue before the Tribunal was why the Appellant did not lodge his application within the three month's time limit. In such a situation the evidence of the Claimant is inevitably a material consideration because it is the Claimant who can provide an explanation to flesh out any other evidence which has been given on his/her behalf. In this particular case Mr Bailey submitted that after the Appellant was discharged from the Charing Cross Hospital on 9 March 2004 there was limited evidence before the Tribunal as to why it was that he did not consult a solicitor between 9 March 2004 and 18 May 2004. There was evidence that the Appellant was receiving medication but no evidence as to the effect of that medication. Dr Jolley's letter of 24 August was simply an assertion and no more.
13. We agree with Mr Bailey. It will be a most extreme and unusual case where a Claimant does not need to give evidence where a claim has been lodged out of time. The provisions of Section 111(2) of the Employment Rights Act 1996 and Schedule 3, paragraph 3(1) – (2) require that the Claimant put evidence in front of the Tribunal from which it can make a finding on the balance of probabilities about the issues of fact it has to decide. In this case both Dr Jolley and Mr Cullen make assertions as to the period from 9 March 2004 – 18 May 2004 but provide no factual material which supports the opinions in those two letters. No point turns on the period of time between 18 May 2004 when the Appellant consulted solicitors and 28 May 2004 when the Originating Application was lodged. In our view the Employment Tribunal was entitled to find that the Appellant had failed to provide an adequate explanation as to his state of mind and/or why he was unable to file a claim between 9 March 2004 and 18 May 2004 and that the Appellant had therefore failed to prove his case on the balance of probabilities. The Tribunal did not take into account any irrelevant consideration. Alternatively it did not give undue weight to what was clearly a relevant consideration.

Ground 2

14. Ground 2 is that the decision of the Tribunal was based on a material error of fact. The Tribunal held that there was no evidence to explain why the application had not been made after the discharge from hospital but within the time limits. To do so ignored the various medical and other evidence to the tribunal. As such, the Tribunal had no regard to that evidence, and their decision was based on a material error of fact.
15. In support of this Ground of Appeal Mr Ali referred us to Robinson v The Home Office (EAT/0533/01, unreported, 3 May 2002) and Kapadia v London Borough of Lambeth [2000] IRLR 14. Both of those cases concerned the issue of the quality of the evidence put before a Tribunal in an application to extend time for either unfair dismissal or disability discrimination. In reply Mr Bailey sought to distinguish those authorities. Our answer to this ground of appeal is the same as to Ground 1. There was some medical evidence before the Tribunal but it was not compelling to the extent that the Tribunal had to accept it. There was a real lacuna in the chronology of the Appellant's ability to take legal advice and/or file an Originating Application i.e. in the time period between 9 March 2004 and 18 May 2004. There was simply no factual information about the Appellant's condition during that period as to why he was not able to take legal advice and/or file an Originating Application. There was therefore no material error of fact.

Ground 3

16. Ground 3 is that the Tribunal failed to have regard to the Appellant's legal submissions. These were that (1) time should be extended under the relevant employment legislation; (2) time should be extended having regard to the Appellant's human rights; (3) time should be extended because the Respondent could not rely on its own wrongdoing to claim the benefit of a limitation period. The Tribunal had no regard to the second and third points in their Decision. As such they failed to take into account relevant considerations or give reasons. This ground of appeal is elaborated in Mr Ali's very full and helpful skeleton argument. The Employment Tribunal had before it Mr Ali's written submissions and listened to his oral submissions. The fact that a particular submission is not referred to in the judgment of an Employment Tribunal is not evidence that the Employment Tribunal did not carefully consider it. Neither does a failure to specifically refer to Counsel's submissions amount to a failure by an Employment Tribunal to take into account a relevant consideration. This is to fundamentally misunderstand the doctrine of relevant considerations.

Ground 4

17. Ground 4 is that the decision of the Tribunal was one which no reasonable tribunal could have arrived at and was thus perverse.
18. First, we note that this ground of appeal is not particularised despite what Mummery LJ said in Yeboah v Crofton [2002] IRLR 634 at paragraph 92. Second, it is sufficient to refer to Piggott Brothers and Co Ltd v Jackson [1991] IRLR 309 and Yeboah, supra at paragraph 93. There is no substance in this Ground of Appeal.

Ground 5

19. Ground 5 is the Tribunal breached sections 2, 3 and 6 of the Human Rights Act 1998. In the Appellant's Skeleton Argument and in oral submissions arguments based on Articles 6 and 14 of the European Convention of Human Rights were advanced for extending time. Mr Ali submits that the Tribunal had no regard to these submissions in their decision. As such it acted in breach of the Human Rights Act 1998. Again, this submission is further elaborated in Mr Ali's skeleton argument.
20. In particular, Mr Ali refers us to the decision of the Court of Appeal in X v.Y [2004] IRLR 625 where Mummery LJ gave guidance to how Employment Tribunals should approach the question of the application of the Human Rights Act to the determination of an unfair dismissal claim brought against a private sector employer under Part 10 of the Employment Rights Act 1996. Mr Ali submits that was the failure by the Tribunal to have regard to his Human Rights Act submissions to it so as to amount to a breach of the Human Rights Act 1998. In particular Mr Ali relies upon paragraph 64 of the X v.Y, supra. Mummery LJ there gives some guidance to Tribunals on how to deal with points raised under the Human Rights Act in unfair dismissal cases between private litigants. However, a careful reading of that paragraph makes it quite clear that it is dealing with a situation where there has been a dismissal and a valid application has been lodged in time. It is addressed to the situation whether Human Rights Act arguments in such a case bear on the substantive merits of the application. It has no application to the present case which is concerned with whether or not the claim has been received in time and whether or not time should be extended. Again, a careful reading of Mr Ali's skeleton argument and his oral submissions do not in any way persuade us that the Employment Tribunal was in error in not referring to those submissions in its judgment. Clearly it did have Mr Ali's submissions in front of it and it listened to his oral submissions. It clearly rejected them. There was no error of law.

Conclusion

21. Decisions on whether or not a claim should be admitted out of time, whether for unfair dismissal or disability discrimination are essentially questions of fact for the Employment Tribunal to decide on the evidence placed before it by the parties. The onus of proof is on the Claimant and if the Claimant fails to discharge that burden of proof he/she will inevitably fail. That is what has happened in this case. We see no error of law on the part of the Employment Tribunal and this appeal is therefore dismissed.