United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL ROSE (One of Her Majesty's Counsel) Instructed by: Lincolnshire Police Legal Services Department Police HQ PO Box 999 Lincoln LN5 7PH
For the Respondent	MS AMANDA HART (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 1st Floor St James House 7 Charlotte Street Manchester M1 4DZ


 


SUMMARY

JURISDICTION POINTS – Extension of time: just and equitable

Disability discrimination claim brought outside primary time limit Judge entitled to hold that misleading instructions given by Claimant to her solicitors as a result of mental ill-health constituted an exceptional circumstance entitling him to extend time – Robertson v Bexley Community Centre [2003] IRLR 434 discussed – passage in "Employment Law Practice 2007" disapproved.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. This is an appeal against a decision of an Employment Tribunal at Nottingham, comprising Employment Judge Britton sitting alone, to extend time pursuant to paragraph 3 of schedule 3 to the Disability Discrimination Act 1995. The decision was made following a pre-hearing review which took place over two days on 7 July and 8 August 2008 and was sent to the parties on 1 September 2008. The Appellant - the Respondent below - is represented by Mr Paul Rose QC and the Respondent - the Claimant - by Ms Amanda Hart. Both also appeared in the Tribunal. The primary issue is a narrow one relating to the terms of the Judge's self-direction on the law and accordingly I only need give a very short summary of the factual and procedural background.
2. The Claimant was at all material times an officer in the Lincolnshire police, though I am told that she has recently been retired on ill-health grounds. In the course of 2006 she suffered a breakdown in her health, of a psychological or psychiatric nature, as a result of alleged bullying at work. She was off sick for a time in 2006, and although she returned to work in October 2006 she went off sick again in August 2007 and did not return to work thereafter.
3. The claim form in the present proceedings was presented on 28 March 2008. It complained of disability discrimination, and in particular of various alleged acts of discrimination and/or failures to make reasonable adjustments in the period leading up to August 2007 (and indeed thereafter). There was also a complaint about a reduction in the Claimant's sick pay, but no issue arises as to that on this appeal. The Respondent took a time point and that came before Judge Britton at the pre-hearing review to which I have referred. He had evidence on that review from three witnesses: the Claimant herself; her Police Federation representative, DC Bagguley; and her solicitor.
4. It was initially contended before the Employment Judge that the claim was within the primary time limits, but after the Claimant had given evidence Ms Hart conceded that time began to run on 11 November 2007 and accordingly expired on 11 February 2008. The basis for that concession was that the Claimant had said in cross-examination that it was on 11 November that she made the decision that she could not return to work and so informed DC Bagguley: I give more details of this below. It was common ground before the Tribunal that it was the Claimant's decision not to return to work, whenever that occurred, that started time running, primarily because as from that date the question of reasonable adjustments was no longer live.
5. Following that concession the Claimant's sole case was that the Employment Judge should extend time under paragraph 3, which is in the conventional language familiar from the other discrimination statutes, namely:

"(1) An employment tribunal shall not consider a complaint under [the relevant sections] 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 it just and equitable to do so."

For reasons into which I need not go, the extended time limits possible under the Employment Act 2002 (Dispute Resolution) Regulations 2004 have no application in the present case.

6. Under section 3 of his Reasons the Employment Judge directed himself as to the approach which he should take on the question of extending time. He said this:

"3.1 In proceeding to exercise my discretion, I adopt the guidance of the EAT in British Coal v Keeble [1997] IRLR 336 and set out by the learned authors at paragraph 9-030 of the Employment Court Practice 2007 (the ECP):

'As a matter of good practice when considering whether or not to extend time under this provision an employment tribunal should adopt as a checklist the factors mentioned in section 33 of the Limitation Act 1980 … Under s33 … the court enjoys a broad discretion to extend the limitation period of three years in cases of personal injury and is required to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case including:

(a) The length of and the reasons for the delay (that is seminal to my decision making as will become clear).

(b) The extent to which the cogency of the evidence is likely to be affected by the delay. (Nobody in this case suggests that this is a factor. The evidence is still all available to be presented).

(c) The extent to which the parties sued had co-operated with any requests for information. (Not applicable as there is no suggestion of any lack of cooperation).

(d) The promptness with which the plaintiff (for which read Claimant) acted once he or she knew of the facts giving rise to the cause of action (very much engaged).

(e) The steps taken by the Claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (again engaged).'

So, three of the factors in the checklist of Keeble, I need to address.

3.2 I also accept that in so doing, I must be guided by their Lordships judgment in Robertson v Bexley Community Service [2003] IRLR 434 – Court of Appeal and per Auld LJ:

'It is of also importance to note that 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.'

3.3 But I then note the commentary of the learned authors of the ECP and in discussing the impact of Robertson:

'Notwithstanding the above a review of the authorities suggests that in practice employment tribunals and the appellant courts have adopted a liberal approach to the extension of time.'"

I should say that neither counsel had referred to the textbook relied on by the Employment Judge at paragraph 3.3 - the Employment Court Practice 2007 - and the Judge gave no indication that he intended to rely on it. That was not good practice on his part. I shall return in due course to the question whether that failure had any effect on the substance of his decision.

7. Section 4 of the Reasons is headed "Findings of Fact", but in fact it goes further than that and contains the Judge's reasoning and decision on the issue whether time should be extended. It is, if I may say so, incomplete and somewhat discursive and there are some details of the reasoning which I find it difficult to understand; but the substance can, I think, be summarised as follows.
8. Paragraphs 4.1 to 4.15 set out the factual narrative (though for some points it is necessary to refer to other parts of the Reasons - in particular to paragraph 2 where the Judge records how Ms Hart's concession came to be made). The essential points to note for present purposes are as follows:

(a) There was evidence that by autumn 2007 the Claimant was quite seriously unwell. On 1 October her GP referred her to a consultant psychiatrist, Dr Kumar. On 4 December he diagnosed a mixed anxiety and depressive reaction and gave a very guarded prognosis. In January 2008 an occupational health doctor described the Claimant's health as "progressively deteriorating".

(b) From June 2007 the Claimant had had the assistance of DC Bagguley, of whose services the Judge expressed a high opinion.

(c) From September 2007 the Claimant was contemplating legal proceedings, and solicitors had been engaged through the Police Federation. (I should record, though it is not ultimately material for present purposes, that she appears also to have had legal advice in the course of 2006).

(d) A crucial point in the Claimant's thinking was the receipt on 10 November 2007 of the outcome of a grievance which had been being considered by Superintendent Marsden. Superintendent Marsden in his report rejected her grievance, although he did in fact seek to accommodate the difficulties of which she complained by offering her a twelve-month attachment at headquarters, which was a different location from where she had been working when the problems of which she complained originally arose. It was on receipt of Superintendent Marsden's report that the Claimant made the definitive decision to which I have already referred that there was no possibility of her returning to work, and she communicated that to DC Bagguley accordingly.

(e) Notwithstanding that decision having been taken in mid-November, and legal advice having been available to her as from that date, if not earlier, the Claimant did not give instructions that she wanted to bring proceedings until a conference with her solicitors on 1 February 2008, those instructions being confirmed by an email on 3 February. She told her solicitors at that point that she had made up her mind over the Christmas/New Year break that she could not return to work. That was of course contrary to her subsequent evidence to the Tribunal, which was, as I have said, that the decision had been taken in mid-November.

9. At paragraphs 4.16 and 4.17 the Judge considered whether the sick pay claim, with which I am not concerned, was in time and confirmed the effect of Ms Hart's concession that the remaining aspects of the claim were prima facie out of time. He then proceeded as follows:

"4.18 So is it just and equitable to extend time? I repeat, I cannot fault the solicitors, although there was some dragging of feet due to holiday commitments, delays from the Police Federation and lack of cover for Ms Ainscough. But that would not have been fatal to the Claimant's claim given that the Solicitors were clearly informed at the meeting that took place on 1 February with the Claimant and Ms Bagguley, that she made her decision to reject the redeployment offer over the Christmas holiday. Incidentally I do note the clear confirmatory e-mail of the Claimant to M/s Ainscough of 3^rd February 2008. If, of course, that decision had been made circa 30^th December 2007, then the claim is not out of time as of 28 March 2008. So Mr Rose relies upon the Claimant's admission to him that she had actually made that decision well before, and on 11^th November 2007.

4.19 I have to look at this, more than anything else, in terms of the state of mind of the Claimant. It has been very difficult decision for me and, in some ways not unlike the dilemma the Employment Judge faced in Jones v DCA [2008] IRLR 128 EAT. Yes, on the one hand I have clear evidence of a competency by the Claimant to give instructions. On the other hand I have this clear evidence that her medical state was not good. Yes there is some reference in the GP notes, particularly that of 22/11/07 (Bp41) 'Anxiety states – Improved.' But the sentence ends: 'apart from when has to deal with work.' And it is those latter words that I think have the significance, and because all the medical evidence, and which is supported by Ms Bagguley in terms of the Claimant's rationale for not taking up the Marsden offer, is that when it came to discussion about issues relating to work, the Claimant by and large lost the ability to be controlled and broke down. In itself the e-mail of 3^rd February suggests a person functioning in a rational and detached way. But this conflicts with the overall picture. I note that Ms Bagguley had to 'hold the Claimant's hand', so to speak, at all material meetings.

4.20 I now revert first of all to points (d) and (e) of the Keeble checklist. The Claimant was entitled, on my findings, to not act until she had the outcome of the Marsden grievance, and because whilst he was still investigating it is conceivable that there was a continuing act. She knew the facts giving rise, so to speak, to the conclusion of her cause of action when she got his report. Thereafter she is clearly taking, if indeed not before, appropriate professional advice. She clearly knows about the possibility of taking legal action on the chronology prepared by Mr Rose and not challenged by his opponent, for some considerable time before she received the Marsden report. So, I have to come back to (a) on the Keeble checklist, namely the length of and the reason for the delay. The reason for the delay would have to be that the Claimant's instructions when given, as at 1 February, were believed to be genuine by her Solicitors. I have no doubt that their belief was genuine. But the belief was based on the Claimant's mistaken belief. Was her mind then so clouded or confused because of the disability and/or the stress of events, that she simply got wrong the triggering date.

4.21 I fall back on the liberal interpretation of the authorities to which I have referred. I will, on the balance of probabilities, and particularly because of the medical evidence, conclude that I cannot rely on the evidence of the Claimant on either front so as to be sure she knew what she was doing at the material time, given her undoubted mental problems. I find that to be an exceptional circumstance making it just and equitable to permit the case to proceed."

10. The analysis of those paragraphs is not entirely straightforward, but I think they can be summarised as follows:

(1) The Judge regarded the essential factors which he had to consider as being those identified at (a), (d) and (e) in the judgment of this Tribunal in British Coal Corporation v Keeble [1997] IRLR 336: see paragraph 3.1 of the Reasons.

(2) Of those three elements, he did not in the end regard (d) and (e) as assisting the Claimant. He does not actually say so, but that seems to be the inference from the structure of paragraph 4.20. It also seems to me the right conclusion in any event. It is true that the Claimant appears to have consulted her advisers very promptly following the receipt of Superintendent Marsden's decision on her grievance; but that was in November, which immediately raises the question why she did not manage to get her claim in in time. As to that, the Judge believed that the reason was that she had, as already noted, told her solicitors that she had made her decision not to return to work between Christmas and New Year and they accordingly proceeded on the basis that they had until the end of March to present a claim. That was in fact wrong, as had to be conceded in the light of the Claimant's evidence to the Tribunal.

(3) The real question, therefore, was why the Claimant had given her solicitors the wrong "trigger date", i.e. by telling them that she had made up her mind at the end of December 2007, whereas she had in fact done so some six weeks earlier. The Judge regarded that question as an aspect of "element (a)" in Keeble, because it was the ultimate reason for the delay. His answer, as appears from paragraphs 4.20 and 4.21, was that the Claimant had given a confused and misleading chronology to her solicitors because of her mental condition at the time. It was that which he regarded as "an exceptional circumstance making it just and equitable to permit the case to proceed".

11. On this appeal Mr Rose advances a single ground of challenge to the Judge's decision. What he submits is that the Judge was wrong in principle to take into account, as he apparently did, the passage from the Employment Court Practice quoted at paragraph 3.3 of the Reasons, which he says is the source of the reference at the beginning of paragraph 4.21 to "the liberal interpretation of the authorities". He referred me to the entirety of the passage in the Employment Law Practice, which is considerably more extensive than the short passage quoted by the Judge:

"Consideration of a complaint out of time where it is 'just and equitable to do so'

It has long since been established that these words given an employment tribunal a wide discretion to do what it thinks is just and equitable in all the circumstances (see Hutchison v Westward Television Ltd [1977] IRLR 69 EAT).

As a matter of good practice when considering whether or not to extend time under this provision, an employment tribunal should adopt as a checklist the factors mentioned in s.33 of the Limitation Act 1980 (British Coal v Keeble [1977] IRLR 336, EAT). Under s.33 of the Limitation Act the court enjoys a broad discretion to extend the limitation period of three years in cases of personal injury and is required 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 including: (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 cooperated 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.

It should be noted that it will not be an error of law if any employment tribunal fails to go through the matters listed in s.33(3) of the 1980 Act provided that no significant factor has been left out of account by the employment tribunal in exercising its discretion (London Borough of Southwark v Afolabi [2003] IRLR 220,CA).

In Robertson v Bexley Community Centre [2003] IRLR 434, the Court of Appeal held (per Auld LJ) that

'It is also 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 is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule'.

Notwithstanding the above, a review of the authorities suggested that in practice employment tribunals and the appellate courts have adopted a liberal approach to the extension of time Robertson is perhaps best explained as an example of the reluctance on the part of the appellate courts to interfere with exercise of the wide discretion the statute affords an employment tribunal. Thus in Afolabi (above) the Court of Appeal, whilst noting the brevity of the time limits in employment cases, declined to interfere with the decision of an employment tribunal that it was just and equitable to extend time for nine years. The Court of Appeal considered that whilst such a case was 'wholly exceptional' it was a decision which was open to the employment tribunal on the basis of its findings of fact."

12. It is the final paragraph in that passage which is at the basis of this appeal. Its meaning is frankly obscure, but parts at least of it are in my view plainly wrong. To the extent that it is simply a statement that in the experience of the authors (who include a number of members of the bar practising in employment law and three Employment Judges) Employment Tribunals extend time rather more often than the terms of the Robertson guidance might lead one to expect, then they are entitled to that opinion. But it must be recognised that strictly speaking it is a statement with very little objective content, since it is impossible save on a case-by-case basis to establish whether a particular decision was or was not "liberal" in that sense, and even then the question must inevitably be largely a matter of subjective opinion. But to the extent that the authors are to be taken as suggesting that the guidance in Robertson does not mean what it says, or has been qualified in later decisions of this Tribunal or the Court of Appeal, or that it can be "explained" - or explained away - in any fashion, then it is in my judgment wrong. Robertson was indeed recently endorsed by the Court of Appeal in Department of Constitutional Affairs v Jones [2008] IRLR 128: see the judgment of Pill LJ at paragraphs 14-15. I would add that in my own experience it is very routinely and conscientiously applied by Employment Tribunals; and while there is, as there will inevitably be with such a broad discretion having to be exercised in a variety of different circumstances, a wide range of outcomes, I do not myself recognise the description of the general approach being taken as "liberal". The suggestion that the Court of Appeal in Robertson was doing no more than acknowledging the reluctance of appellate tribunals to interfere with the exercise of a wide discretion is plainly wrong: the authors refer to the decision in Afolabi, but that is, as they point out, a wholly exceptional case, and it does not support any general proposition of the kind advanced.
13. Mr Rose submits that the Employment Judge was misled by the confusions and errors inherent in that passage. He submits that the Judge was evidently applying a "liberal" approach, contrary to the plain observation of Auld LJ in Robertson that time limits in the employment tribunals are applied "strictly" and that the burden is on a claimant to show a reason why, exceptionally, time should be extended in his or her case. He points out in particular what he describes as the pivotal reference to the "liberal" approach at the beginning of paragraph 21, being the paragraph of the Reasons in which the Judge expresses his conclusion. He also points out that the Judge had made it clear that he found the case difficult and thus - it is reasonably to be inferred – that his decision was finely balanced: that makes it all the more likely that the misdirection in relation to the "liberal" approach influenced the outcome.
14. I have made it clear that I agree that the passage in the Employment Court Practice 2007 to which the Judge referred is confused and potentially misleading. It was unwise of him to refer to it, quite apart from his failure to seek the submissions of the parties: employment tribunals should take their guidance from the actual decisions of this Tribunal and the appellate courts rather than from the opinions of commentators seeking to water down or "explain" what the authorities plainly say.
15. However, I am not convinced that on careful examination of the Judge's actual reasoning his reference to the passage in question led him to adopt a wrong approach in law. After much discussion, his reasoning in fact came down to a single point. He found, expressly on the balance of probabilities, (a) that the Claimant had misled her solicitors as to the facts material to establishing the "trigger point" and (b) that she had done so because of her mental ill-health. Both those findings were plainly open to him on the evidence, and indeed Mr Rose does not suggest otherwise. It seems, as I read it, to have been that factual question which the Employment Judge found the most difficult, essentially because, while the evidence certainly showed that the Claimant was suffering from a form of serious mental ill-health (and indeed he had the opportunity to see her giving evidence to him) it also appeared to show that she was for some purposes perfectly capable of giving instructions to her representatives. That tension made the case unquestionably an awkward one to assess. But, having made that factual finding, the Judge then went on separately to decide that the facts as he found them constituted "an exceptional circumstance" making it just and equitable to permit the case to proceed, those being the closing words of paragraph 4.21. That is by itself an unexceptionable conclusion, and appropriately worded by reference to the statute and the case law. In particular, it reflects the fact, emphasised in Robertson, that the presumption is against extension and that it is thus for a claimant to show some exceptional reason why time should be extended.
16. There remains the difficulty about the opening sentence of paragraph 4.21. It is frankly a puzzle exactly what the Judge meant by it. Mr Rose says that he seems to have meant that he would give the Claimant the benefit of the doubt on the factual matters which were the foundation for the exercise of his discretion. I do not think that that can be right, since in the following sentence he goes on to make an explicit finding on the facts by reference to the balance of probabilities. Ultimately I read it simply as a piece of loose language (of which I have to say there are other examples in the Reasons), but one which has had no detectable effect in the actual exercise of the Judge's discretion. I think that he meant no more than that he had to return to the broad discretion which is unquestionably granted by the words of the statute, albeit subject to the guidance given in Robertson. The actual exercise of the discretion, and the manner in which the Judge's conclusion was formulated are, as I have said, unimpeachable.
17. I can therefore see no error of law here and the appeal must be dismissed.