United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Paul Gott (of Counsel) The Treasury Solicitor (Employment law team) 1 Kemble Street London WC2B 4TS
For the Respondent	Mr John McMahon (Solicitor) The Old Blue Bell 17 West Street Moulton Northampton NN3 7SB


 


Summary

Time limits – Just and equitable extension

The Tribunal Chairman correctly found that in the circumstances the 3 month time limit for presenting a disability discrimination claim had not been extended to 6 months by virtue of reg 15 of the DRR. Reg 6(5) of DRR considered

The Tribunal Chairman did not err in law in holding that it was just and equitable to consider the claim notwithstanding that it was out of time.


 


HIS HONOUR JUDGE RICHARDSON

1. By a judgment dated 22 May 2006 the Employment Tribunal, sitting by Chairman alone in Shrewsbury, determined certain preliminary issues affecting proceedings brought by Mr J G Jones against the Department of Constitutional Affairs ("DCA"), which has succeeded to the liabilities of his former employer, the North Wales Magistrates Court Committee ("the MCC"). I have to determine an appeal and cross appeal arising out of that judgment.
2. The judgment determined that Mr Jones had brought a disability discrimination claim out of time, but held that it was just and equitable to extend time. Mr Jones, by his cross appeal, seeks to argue that his claim was in time; he says that the time limit for bringing it was extended to 6 months by virtue of reg 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the DRR"). The DCA, by its appeal, challenges the reasoning of the Chairman in concluding that it was just and equitable to extend time.

The Facts

3. Mr Jones qualified as a solicitor in 1971. In 1977 he commenced employment with the MCC as a justices' clerk. In 1995 he rose to become Chief Executive. He had also taken on responsibilities outside his own locality. In 2001 he had been elected Chairman of the Justices' Chief Executives National Board. As Chief Executive of the MCC by 2004 he had responsibility for an annual budget in excess of £4 million, and for 200 staff.
4. By 2004 his career was coming to a close. He was contemplating retirement. Changes were going to take place in April 2005, involving the abolition of the MCC and its replacement by a unified courts administration. Those changes have taken place. The MCC ceased to exist on 31 March 2005.
5. However, on 28 July 2004 he was suspended from work. He was suspected of serious misconduct. I emphasise that on this appeal I am not concerned with the truth or falsity of the allegations of misconduct. I am concerned only with an appeal on questions of law from preliminary points in the proceedings. I shall therefore say little about the allegations of misconduct. It is sufficient to say that the allegations were serious, that they were detailed and would require a detailed answer, and that they were and are denied by Mr Jones, who put in his own grievance about the allegations.
6. Mr Jones was without doubt badly affected by the allegations and by suspension, some news of which reached and was reported in the media. His mental health deteriorated. He also had an accident in October, breaking his leg in a fall. He was in a wheelchair for some weeks.
7. By January 2005, and in all probability some time before that, Mr Jones was suffering from a psychiatric condition, a major depressive disorder. This is common ground between the parties, although the experts were not in agreement about its severity. The Tribunal Chairman found, in a part of his judgment which is not appealed, that by January and February 2005 Mr Jones had a disability as defined in section 1 of the Disability Discrimination Act 1995. The Tribunal Chairman found that by then he had substantial memory and concentration difficulties in certain areas, and that his impairment was likely to last for a period of at least 12 months.
8. In the meantime, the MCC had been pursuing the allegations. Its investigating officer sought to interview Mr Jones, but he was certified medically unfit to be interviewed. Grievance and disciplinary hearings were arranged to take place in November 2004, but they were postponed because of Mr Jones' health, and rescheduled for January 2005.
9. In January 2005, as I have said, Mr Jones remained seriously ill. He sought an adjournment of the grievance and disciplinary hearings. He produced evidence from those treating him.
10. Dr Carter, a psychotherapist, wrote on 8 January 2005:-

"..Mr Jones has a primary diagnosis of Severe Depression and a secondary diagnosis of Severe Anxiety. He is not malingering or deliberately exaggerating his condition. His psychological condition prevents his returning to work ... I would urge that Mr Jones refrain from doing any work in connection with his employers concerning his suspension. This is crucially important because Mr Jones has expressed suicidal ideation in his consultations with myself…Based on Mr Jones current mental state I would estimate that it would be some 4 months before he might be considered well enough to attend any hearing with his employer.."

11. Dr Evans, Mr Jones' GP, wrote on 11 January 2005 that Mr Jones continued to suffer from symptoms of severe reactive depression and anxiety. He would not be fit to return to work or attend a hearing for at least one month from 17 January 2005.
12. Dr Oliver, a consultant occupational physician advising the MCC, expressed a similar view. On 21 January 2005 he stated his opinion that Mr Jones' attendance at discipline at that time would be likely to have a significant adverse impact on his health. He agreed that with continuing treatment Mr Jones might be fit to attend discipline in 4 months.
13. The MCC, however, decided to go ahead with the grievance and disciplinary hearings in January. It is plain that an important feature in its decision was the fact that the MCC would cease to exist by 31 March (with the consequence also, as I understand it, that Mr Jones' employment would come to an end and he would receive an enhanced pension). The MCC wrote that it took into account:-

"In the event of the matter remaining unresolved on 31 March, the undesirability of your leaving the employment of MCC without the disciplinary allegations being resolved both from the point of view of your being able to clear your name of the allegations and from the point of view of public confidence in the MCC as a public body administering public funds"

14. The grievance and disciplinary hearings took place in January in the absence of Mr Jones. The grievances were largely rejected. The allegations were found proved. On 28 January he was summarily dismissed for gross misconduct. He appealed. The appeal hearing took place in his absence, and his appeal was dismissed. He was informed of the result on 1 March 2005.
15. For the purposes of this appeal it is important to note three letters which were written on Mr Jones' behalf in connection with the disciplinary and appeal process. These letters all expressly make reference to the Disability Discrimination Act 1995.
16. On 14 January solicitors, Eversheds, wrote on his behalf. They said:-

"We have advised our client that ... it is likely he has a "disability" as defined by the Disability Discrimination Act 1995.."

They argued that MCC had a duty not to discriminate against him on the grounds of his disability and a further duty to make reasonable adjustments. They argued that it would be unlawful to require Mr Jones to attend a hearing. They did not in terms ask for a postponement of the hearing.

17. On 21 January Mr Jones' union, Prospect, wrote to MCC protesting at their intention to hold a disciplinary hearing. They said that if Mr Jones was dismissed he would have "clear and substantial claims for .... disability discrimination ..." This in context must be a reference to the 1995 Act.
18. On 23 January Mr Jones' wife, herself a solicitor, wrote to MCC, seeking an adjournment. She said that it was clear Mr Jones was suffering from a disability under the Disability Discrimination Act.
19. Although this flurry of letters contains references to the Disability Discrimination Act, subsequent correspondence complaining about his treatment mentioned his illness but did not refer to disability or disability discrimination. Mr Jones' grounds of appeal, submitted by his union on 27 February did not do so. A letter by Prospect dated 25 February criticising the holding of the appeal did not do so. A letter dated 27 February signed by Mr Jones did not do so.

The Tribunal proceedings

20. On 8 April 2006 Mr Jones presented his first Tribunal claim ("the first proceedings"). It was a claim for unfair dismissal. By this time he was represented by a solicitor, Mr McMahon, who has continued to represent him. It was said that the disciplinary hearing did not fairly consider an application for an adjournment on the grounds of mental illness, confirmed by the advisers of Mr Jones and MCC; and that the refusal to adjourn the appeal was unfair because Mr Jones was not well enough to attend the appeal hearing. But it was not alleged that the mental illness amounted to a disability under the Disability Discrimination Act 1995, nor that he had been unlawfully discriminated against under the Act. No reference was made to any intention to bring proceedings for disability discrimination.
21. On 2 June Mr Jones presented a second Tribunal claim. This was a claim for unlawful deductions, which had been mentioned in the first proceedings.
22. On 5 July Mr McMahon on Mr Jones' behalf applied to amend the grounds of claim in the first proceedings so as to assert that he was a disabled person for the purposes of the DDA 1995 and MCC had failed to make reasonable adjustments to its disciplinary and appeals processes so as to allow him properly to participate.
23. The application to amend expressly recognised that a 3-month time limit existed for the bringing of a disability discrimination claim. It maintained that time ran from the date of the appeal, given as 1 March 2005. It stated that Mr Jones was therefore 5 weeks outside the time limit. It gave reasons why it would be just and equitable to extend the time limit. The DCA served lengthy submissions in opposition to the application.
24. On 15 July Mr Jones presented a third Tribunal claim ("the third proceedings"). This was a claim for disability discrimination. It alleged that Mr Jones suffered a series of discriminatory actions. These were: the manner in which the investigation, the grievance, the disciplinary hearing and the appeals hearing were conducted.
25. The third claim therefore closely mirrored the proposed amendment to the first claim. But there was one important difference. It was not conceded that the disability discrimination claim was out of time. Rather it was submitted that the claim was in time, because Mr Jones had submitted a grievance about the manner of his treatment, and the effect of submitting a grievance was to extend the time limit by an additional 3 months.

The issues for the Tribunal

26. This sets the scene for the issues which the Tribunal Chairman had to decide. Firstly, he had to decide whether the correct time limit was 3 months, or whether there was an additional time limit. This point he decided against Mr Jones. Secondly he had to decide whether it was just and equitable to extend the time limit. This point he decided in favour of Mr Jones. The two points are different, and I will deal with them separately in this judgment.

The time limit point

Outline

27. The normal time limit for a DDA claim is found in Schedule 3, Part 1.

"3. (1) An [employment tribunal] shall not consider a complaint under [section 17A or 25(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 set out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

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

(a) where an unlawful act… is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;

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

(c) a deliberate omission shall be treated as done when the person in question decided upon it."

If the normal time limit applied, then the disability discrimination claim was late. The last act in the series alleged was the holding of the appeal, which was on 28 February.

28. In the Employment Act 2002 Parliament made provision for new statutory dispute resolution procedures. These provisions are supplemented by regulations: the DRR. I will first describe the provisions in broad outline and then come to the detail.
29. These provisions apply in different ways to employers and employees. Where an employer is contemplating dismissal or disciplinary action, there will generally be a statutory dismissal and disciplinary procedure which the employer must follow. If the employer does not to do, there may be consequences: any dismissal will be unfair and compensation may be uplifted.
30. Where an employee seeks to complain about an employer's actions there will generally be an applicable grievance procedure. The employee will generally be required to take the initial step in the statutory grievance procedure. Otherwise the employee will be forbidden by section 32(2) from presenting a complaint to the Tribunal. But, if the employee does take the initial step within the normal time limit for presenting his claim, then the time limit is extended by 3 months: see reg 15(1) and (3) of the Regulations.

The Statutory Provisions

31. It is convenient now to set out the relevant provisions of the Act and Regulations.

Section 32 provides:-

"32. Complaints about grievances

(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if-

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

Schedule 2 para 6 provides:-

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

The Employment Act 2002 (Dispute Resolution) Regulations 2004 provide:-

2. Interpretation

(2) In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2).

6. Application of grievance procedures

(1) The grievance procedures apply, in accordance with the paragraphs (2) to (7) of this regulation, in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place.

(2) Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance.

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

(6) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1).

7. Circumstances in which parties are treated as complying with the grievance procedures

(1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is-

(a) that the relevant disciplinary action amounted to or, if it took place, would amount to unlawful discrimination, or

(b) that the grounds on which the employer took the action or is contemplating taking it were or are unrelated to the grounds on which he asserted that he took the action or is asserting that he is contemplating taking it, the standard grievance procedure or, as the case may be, modified grievance procedure shall apply but the parties shall be treated as having complied with the applicable procedure if the employee complies with the requirement in paragraph (2).

(2) The requirement is that the employee must set out the grievance in a written statement and send the statement or a copy of it to the employer-

(a) where either of the dismissal or disciplinary procedures is being followed, before the meeting referred to in paragraph 3 or 5 (appeals under the dismissal and disciplinary procedures) of Schedule 2, or

(b) where neither of those procedures is being followed, before presenting any complaint arising out of the grievance to an employment tribunal.

15. Extension of time limits

(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and-

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal-

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit.

The Issues

32. The argument for Mr Jones ran as follows.

(1) Mr Jones' claim for disability discrimination concerned the manner in which MCC conducted the investigation, grievance hearing, disciplinary hearing and appeal hearing. This was a grievance about action by his employer which could form the basis of a complaint to the Tribunal under a jurisdiction listed in Schedule 4.

(2) Hence there was an applicable grievance procedure by virtue of reg 6(1). Reg 6(5) did not operate to disapply the grievance procedures because the grievance was not that MCC had dismissed or was contemplating dismissal of Mr Jones. Rather, the grievance related to the manner in which the various steps concerning dismissal was carried out.

(3) Mr Jones set out his grievance in writing and sent it to his employer within the normal time limit. Hence the normal time limit was extended for 3 months.

33. The first proposition was not controversial. The second provision, however, was controversial. The Tribunal Chairman held that the grievance was that MCC was contemplating dismissing him, so there was no applicable grievance procedure. The third proposition was also controversial. It was argued for DAC that none of the letters relied on amounted to the setting out of a grievance concerning disability discrimination. Indeed it is submitted today that the Tribunal Chairman found this issue in favour of DAC, and there is no appeal from his judgment. Both these points are in issue on this appeal. It will be convenient to take them in turn.

Was the grievance that the employer "has dismissed or is contemplating dismissing the employee"?

34. On behalf of Mr Jones, Mr McMahon argues the case in the following way.
35. Firstly, he submits that Mr Jones grievance was not about the fact of disciplinary proceedings, but about the manner in which the proceedings were being conducted. The objection was, in short, that MCC was failing to make reasonable adjustments to the disciplinary proceedings to reflect the fact of Mr Jones' disability. There is, he submits, a logical distinction between such a complaint, and a complaint about the dismissal or about the fact that the employer is contemplating dismissal.
36. Secondly, he submits that if the complaint is about the subsequent appeal, it plainly does not come within the regulation. His complaint is not about a contemplated dismissal, for dismissal has already occurred. It is not about dismissal but about the appeal.
37. In support of these submissions he argues that an extension to time limits is of considerable advantage to Claimants, particularly to a Claimant suffering from long standing mental illness. Since reg 6(5) is removing that advantage it should be construed narrowly.
38. On behalf of the DCA Mr Gott submits that on the true construction of the Regulations, a complaint is about the manner in which a hearing prior to dismissal or an appeal against dismissal is conducted is in reality a complaint about the dismissal or about the employer's contemplation of dismissal. He submits that this must have been the intention of Parliament — any other interpretation would be unworkable. He supports the reasoning of the Tribunal Chairman. He submits that the effect of reg 6(5) is not to remove an advantage from a Claimant, but to remove a disadvantage, for if reg 6(5) applies the Claimant will be relieved from the statutory bar in section 32(2) if he commences proceedings without first starting the grievance procedure.
39. The Tribunal Chairman said:-

"It seems clear from the scheme of the Dispute Regulations 2004 that the statutory grievance procedure and the statutory dismissal and disciplinary procedures cannot both apply at the same time to the same acts. They are mutually exclusive otherwise the complications would be enormous, particularly in assessing compensation. As I shall explain below I consider that the statutory DDP's applied to the present case because of Regulation 6 because, under Regulation 6(5), the employer was "contemplating dismissing the employee". After 28 January 2005 they applied even more when the employer "had dismissed" the employee.

As stated above it is my clear view that the grievance procedures and the dismissal and disciplinary procedure cannot both apply at the same time in the same circumstances. In this case there is no doubt to my mind that only the DDP's applied and that therefore there can be no extension of the three month time limit by virtue of Regulation 15."

40. My conclusions on this part of the appeal are as follows.
41. The provisions of the 2002 Act, and more particularly the 2004 Regulations, are full of difficulty. They are not easy to construe, and are at times counter-intuitive. They have the potential to introduce undue technicality and over-sophistication, resulting in problems for employer and employee alike: see Shergold v Fieldway Medical Centre (2006) IRLR 76 at para 27 per Burton P. They have the potential to operate harshly: see Canary Wharf Management v Edebi (2006) IRLR 416 at para 41 per Elias P.
42. How are they to be construed if there is doubt as to their effect? In my judgment the first principle is that they should be construed to meet the purpose or objective of the statute, as in Canary Wharf Management (see para 25). But since they have the potential to limit access to remedies for important rights, not least across a whole range of discrimination law, they should not construed any more widely than is necessary strictly to give effect to the intention of the statute.
43. In this case, if the meaning for which Mr McMahon contends were correct, the Regulations would or might require employees to state a grievance before they could begin proceedings whenever their claim for discrimination, or another schedule 4 claim, involved a criticism of the manner in which an investigation, dismissal or appeal process operated. It would (since employers would then be obliged to respond) be likely to result in much duplication of procedure. There is no indication that duplication of procedure was the objective of the statute, and no reason why it should have been. It would be a surprising outcome, a trap for the unwary, likely to produce injustice. There are many cases in which a complaint is likely to be about both manner and outcome of dismissal. Often such complaints are inextricably intertwined.
44. In my judgment regulation 6(5) was intended to avoid duplication between dismissal procedures on the one hand and grievance procedures on the other. It should be construed broadly, since this will achieve the result desired by Parliament and avoid undue restrictions on the right of employees to begin proceedings. I consider that for the purposes of regulation 6(5) a grievance that the employer has dismissed or is contemplating dismissal includes a complaint about the manner in which the employer is contemplating dismissal. For the purposes of regulation 6(5) a grievance that an employer has dismissed an employee includes a grievance about the manner in which he has dealt with an appeal against dismissal.
45. I therefore reject Mr McMahon's argument, for reasons similar to those given by the Chairman.
46. I should mention one further consideration, discussed in the course of argument before me.
47. There is, within the DRR, yet a further layer of complexity if the employee's complaint is not about dismissal but about disciplinary action (which means action short of dismissal, other than suspension on full pay or warning). Here the Regulations are yet more convoluted. If the employee's grievance is that an employer has taken or is contemplating taking disciplinary action, the grievance procedure is generally disapplied: see regulation 6(6). But in certain circumstances, including a complaint that the disciplinary action is discriminatory or taken for some ulterior purpose, the grievance procedure is applied, but is treated as complied with if the employee sets out the grievance in a written statement and sends it to the employer by a certain time: see regulations 7(1) and (2).
48. Here too, as with regulation 6(5), the statutory objective appears to be to avoid duplication of procedure where the employer is already taking or contemplating disciplinary action. Generally speaking there will be no need for an employee to state a separate grievance about such a matter. Where the employee's complaint is that the disciplinary action is discriminatory or taken for some ulterior purpose, the practical effect of regulations 7(1) and 7(2) is that the employer must be alerted to the employee's complaint, but no duplication of procedure will be required if this is done.

Was step one complied with?

49. Since, like the Tribunal Chairman, I have rejected Mr McMahon's argument on regulation 6(5), it follows that time was not extended under regulation 15. I can therefore deal briefly with this further matter. The Tribunal Chairman said-

"It seems to me that these latter three letters i.e. 21 January, 23 January and 14 January could constitute grievances if they were removed from the context of ongoing disciplinary process in which they were written. There the artificiality of the argument becomes plain."

50. Mr McMahon submitted that this was a finding that the letters did set out the grievance for the purpose of compliance with step one of the statutory procedure. Mr Gott submitted the opposite, and further submits that since Mr Jones has not appealed this finding, his appeal is bound to fail.
51. There is, I fear, something for both sides in paragraph 15 of the Reasons. On the one hand, the Chairman says that, shorn of context, the letters would amount to grievances, by which he means that they would comply with step one of the grievance procedure. He does not expressly say whether they do or do not satisfy step one of the grievance procedure. On the other hand he says that this is so "if they were removed from the context of ongoing disciplinary procedure". This sentence is plainly linked to his conclusion that the statutory intention is to keep grievance and disciplinary procedures separate.
52. On the whole, not without hesitation, I consider that paragraph 15 contains a finding that the letters suffice to comply with step one of the grievance procedure. The letters without doubt complain that the MCC is going ahead with the dismissal procedure, contrary to Mr Jones' rights under the Disability Discrimination Act 1995. It is true that the context for the complaint is the ongoing disciplinary procedure; but it must be remembered that to comply with step one a letter does not have to invoke the grievance procedure. It needs only to set out the grievance. See Shergold v Fieldway Medical Centre (2006) IRLR 76 at para 32, Canary Wharf Management Ltd v Edebi (2006) IRLR 416 at para 22. Context is therefore not everything. The question is simply whether the essential grievance, the complaint, was set out. The Chairman found that it was.
53. However, by reason of my conclusion on Mr McMahon's principal submission, the cross appeal will be dismissed.

Just and Equitable Extension

54. As a general rule, whether it is just and equitable to consider a claim which is out of time is a matter pre-eminently for the Tribunal.
55. The Appeal Tribunal has jurisdiction only on questions of law. Where an issue before the Tribunal is one of evaluation or discretion, the Appeal Tribunal must not intervene unless and to the extent that there is an error of law. There will be an error of law only if the Tribunal has acted on a wrong legal principle, or taken into account a factor which the law does not permit, or left out of account a factor which the law requires, or has reached a conclusion outside the ambit within which reasonable people may disagree.
56. I need to say a word about the form of the Chairman's reasons for this part of his judgment. The reasons are quite lengthy, running for 8 pages. They are discursive in nature. They do not follow the general practice, which is in my experience to structure the reasons so as to set out conclusions of fact, a summary of the law applied, and then reasoning as to how the law has been applied. Rather they range across the relevant territory, setting out conclusions in more than one place. Thus, for example, there is an apparent conclusion in paragraph 38, to which I shall return, and another in paragraphs 44 and 45, followed thereafter by some further discussion of relevant factors.
57. Reasons set out in this fashion do not necessarily contain an error of law, but are difficult to read, and may require careful examination. The Chairman's reasoning would, I think, have been easier to follow if he had structured it more carefully.
58. It is important first of all to set out the reason Mr Jones gave for seeking to add discrimination claims in July. It was set out in his statement:-

"35. I know that one issue for the Tribunal is whether it is just and equitable to extend the time limit for my disability claim application. At the outset I simply claimed unfair dismissal. That was in the middle of April 2005 not long before the end of the 3 month period following my dismissal. At that time it was difficult for me to give instructions to my solicitor. Arrangements were made for him to receive all the paperwork from Malcolm Marsh. He went through the papers and drew up the unfair dismissal claim. But no claim for disability discrimination was put in because, at that time, I did not want to accept that status in the sense of it being long term. In January 2005 Dr Carter had put the opinion that my continuing treatment would provide a remedy and get me back to good health. I was 59 years of age. I had worked for over 30 years in the local magistrates' courts in the most senior position. I was well known in the local community. I was reluctant to have the label of disability particularly on the basis of mental illness.

36. But some 3 months after submitting my unfair dismissal claim my doctors could see that my condition was getting no better. By then I had been ill with mental illness for almost a year. I then accepted that I was probably a person disabled for the purposes of the Act and so the disability discrimination claim was submitted."

59. This reason was not accepted by DAC. Consideration of it was central to the case before the Chairman. He heard Mr Jones and his wife give evidence. In his reasons he gave careful consideration to one particular alternative — namely, that Mr McMahon had simply omitted to plead a disability discrimination claim. The Chairman described himself as wondering during the hearing whether the reason given was genuine.
60. In the end, however, the Chairman's conclusions on this central question were in Mr Jones' favour. They appear from the following passages.

"36. I accept that Mr Jones has been genuinely reluctant to acknowledge the existence of a disability based on mental impairment.

43. I do, however, accept as true that the Claimant was reluctant to acknowledge that he was so mentally ill as to be "disabled". This was neither uncommon nor surprising.

44. What has finally persuaded me to exercise my discretion in the Claimant's favour is that it would seem to be a double disadvantage for him to have been dismissed before he was ready to attend the proceedings. This set a time limit running which expired before he was ready to admit to himself and others that he was a person with a disability. This is what I consider makes the case an exception to the general rule (Robertson). Even if I were right in my uneasy suspicion that Mr McMahon had simply missed the point in April, the Claimant's reluctance to admit to disability was a strong factor in this."

61. In his skeleton argument and oral submissions Mr Gott submitted that there was a tension within the Chairman's reasons, arising from his suspicion that there might be a reason which was different to the one advanced by Mr Jones. Speaking for myself, I regard the Chairman's reasoning as dealing openly with what he regarded as a difficult issue of fact for him to determine. In any event Mr Gott accepted that it was for him to bring home his submission that there was an error of law in the Chairman's reasoning, which he sought to do under six headings.
62. Because the Chairman's reasoning on the question whether it would be just and equitable to extend time occupies 8 pages, and is somewhat discursive in nature, it would overburden the judgment to set it out in full. The better course is to take Mr Gott's criticisms one by one, and consider them by reference to the Chairman's reasoning. I shall group his submissions in a way which, I hope, will do justice to them.
63. Conscious decision. Mr Gott's submits that the Chairman was perverse in his evaluation of the question whether it was just and equitable to extend time because he extended time notwithstanding what he found to be a deliberate decision by Mr Jones not to plead disability discrimination. This, he submits, is irrational and perverse, especially since Mr Jones had received legal advice as to his position. He points to the correspondence in January making specific reference to the Disability Discrimination Act.
64. As part of this submission, Mr Gott argues that if Mr Jones was capable of managing his own affairs at all, then he must take full responsibility for the fact that his unfair dismissal claim did not include a disability discrimination claim, and it was perverse to regard the factor as supportive of his claim.
65. In my judgment the Chairman's evaluation of this question cannot be characterised as perverse. The Chairman's evaluation proceeds from the undoubted fact that Mr Jones was very ill while the limitation period for commencing disability discrimination proceedings was running. The Chairman's reasoning is that Mr Jones, suffering as he was from a psychiatric illness and subject to a disability, was not ready to admit to himself and to others that he was suffering from a disability. There is in my judgment nothing perverse in regarding this conclusion as a factor in favour of extending time.
66. Parliament has entrusted the Tribunal with a wide discretion to extend time, based on what is just and equitable. The impact of a person's psychiatric illness is a factor which the Tribunal is entitled to take into account, whether or not it amounts to an overall inability to manage his affairs.
67. More time to decide. Mr Gott criticised paragraph 44 of the Reasons as being, on analysis, no more than a finding that Mr Jones needed more time in which to decide that he was disabled. That, he says, is always true of a person who seeks, out of time, to bring an allegation of disability discrimination.
68. I reject this submission. Paragraph 44 of the Reasons is specific to Mr Jones' own circumstances. He was suffering from a major depressive disorder. He found it difficult to admit to himself or others that he was a person with a disability. This is a proper and permissible matter for a Tribunal to take into account in reaching a determination as to whether it is just and equitable to extend time.
69. Mr Jones' condition. Mr Gott submitted that, since Mr Jones' case was predicated on the basis that in April 2005 he hoped to recover from his illness, it was illogical and perverse for the Chairman to place any weight upon the history of his depression and any deterioration in it. In my judgment it was not perverse for the Chairman to take into account Mr Jones' true condition, even if Mr Jones hoped he would improve.
70. DAC's pleading. Mr Gott's submitted that the Chairman placed undue reliance on the quality of DAC's pleading to the issue. He refers to paragraphs 38 and 45 of the Reasons. His point is at its strongest concerning paragraph 38, which reads:-

"38. Claim number (3) the disability discrimination claim has been defended very fully by the Respondent, in their Response, not only on these procedural grounds and on the grounds that the Claimant's disability, if it was such, was not long term in order to qualify. On that basis I consider it would be just and equitable to extend time for claim number (3), the Disability Discrimination Act claim."

To take this factor into account is, he submits, irrational. To hold otherwise would be an encouragement to Respondents to respond with sub-standard instructions or refuse to address the substantive claim, contrary to the overriding objective and to common standards of fairness.

71. If I read paragraph 38 in the sense for which Mr Gott contends, I would uphold his submission. But I do not. Although the precise wording of para 38 might suggest that the point there made was a decisive consideration, looking at the reasoning as a whole, including paragraph 44 which I have quoted, it is plain that it was not on its own a decisive consideration. I am inclined to think that the concluding words of paragraph 38 were intended to govern a number of preceding paragraphs.
72. Moreover paragraph 38 needs to be read in the procedural context of this case. Although there was no reference to disability discrimination the complaint that the dismissal procedure should have been postponed due to Mr Jones' ill health had been made in the first proceedings. As paragraph 45 makes clear, the Chairman had in mind the ability of the DCA to defend itself. The pleading is extensive because, notwithstanding the delay in bringing proceedings, the DCA can defend itself. Thus paragraph 45 reads:-

45. I appreciate that the Respondent may be exposed to far larger liability but I also see from the extensive responses to these claims that the Respondent has a considerable amount to say in its defence of the claim. The Respondent has been on notice of possibility of a disability discrimination claim by these formal indications in January and indeed the appeal panel specifically addressed the question of the Disability Discrimination Act ("if this Act applies") in its final determination."

73. I do not think the Chairman fell into the error of treating the fact that DCA pleaded its case well as in itself an important consideration. Rather, it was right for the Chairman to consider the extent to which the DCA was prejudiced by any delay. In reaching his conclusion on this aspect of the case, the Tribunal Chairman was entitled to look at the pleadings to see whether and to what extent the DCA could meet the case. This, in context, is what he was doing.
74. Keeble Factors. Mr Gott submitted that the Chairman erred in leaving out of account the fourth and fifth of the well known factors set out in British Coal Corporation v Keeble (1997) IRLR 336. at paragraph 8. This submission is based on a reference by the Chairman in paragraph 45 of the Reasons to the fourth and fifth factors not being "pertinent" on the facts of this case.
75. I reject this submission, for the following reasons.
76. Although the Chairman said that the fourth and fifth factors were not pertinent on the facts, he also said in his reasons quite clearly that he had regard to all five factors in Keeble: see paragraphs 23 and more particularly 40 of the Reasons.
77. The factors set out in British Coal Corporation v Keeble were derived from section 33 of the Limitation Act 1980, which is concerned with claims resulting from personal injury or death. The fourth factor is "the promptness with which the [Claimant] acted once he or she knew the facts giving rise to the cause of action". Here Mr Jones always knew the facts of his treatment and was from the outset alerted to the fact that he might be disabled, although he did not wish to accept it. The fifth factor is "the steps taken by the [Claimant] to obtain professional advice once he or she knew of the possibility of taking action". Here Mr Jones always knew of the possibility of taking action, and had professional advice. The fourth and fifth factors come into play in personal injury actions where, as sometimes happens, the Claimant learns that his illness or injury may be attributable to negligence some time after it occurs. The context is different. That, in my view, is what the Chairman had in mind when he said the factors were inapposite.
78. It does not, in my judgment, follow that the Chairman was leaving out of consideration any matter which he should have considered. He evaluated them under other Keeble headings, having in particular in mind the length of and reasons for delay, and the extent to which the cogency of the evidence was likely to be affected by delay, and prejudice to the DCA.
79. For these reasons the appeal will be dismissed.