SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural
irregularity
JURISDICTIONAL POINTS – Extension of time: just and equitable
In a disability discrimination failure to make reasonable
adjustments claim the Respondent contended that the ET1 was presented out of
time. Questions of continuing act and just and equitable extension were always
going to be in issue. There was no challenge to the Employment Tribunal’s (‘ET’)
finding as to when the primary limitation period started to run. The ET held
that part of the delay in presenting an ET1 after the expiry of that period was
excusable but held that a letter under the name of the Appellant but probably
written by her Trade Union representative in which she raised a complaint under
the DDA marked the end of the period of excusable delay. It was not just and
equitable to extend the period to the date of presentation of the ET1. It was
contended on behalf of the Appellant that the ET erred in law in not drawing
the parties’ attention to the fact that they were proposing to hold that the
period of excusable delay ended just prior to the date of the letter. The EAT
drew the parties’ attention to Stanley Cole (Wainfleet) Ltd v Sheridan [2003] ICR 297. In this case the parties made submissions on whether
there should be a just and equitable extension and should have been be prepared
to do so in respect of the entirety of the period of delay. The three points
which Mr MacKenzie on behalf of the Appellant would have brought to the
ET’s attention would have made no difference to the outcome. There was no
error of law in the ET failing to draw to the parties’ attention the
significance they were to attach to the letter. In any event applying Stanley Cole
a failure to do so did not cause substantial prejudice. Appeal dismissed.
THE HONOURABLE MRS JUSTICE SLADE DBE
1.
Mrs Price appeals from the decision of an Employment Tribunal
sitting at London (Central) entered in the register on
6 October 2010, which struck out her claim under the Disability
Discrimination Act 1995 of failing to make reasonable adjustments. The
Employment Tribunal held that the claim was not lodged in time and that it was
not just and equitable to extend time in order that it could be heard. The
Tribunal also dismissed a claim for unfair dismissal, but there is no appeal
against that decision.
Introduction
2.
The sole ground of appeal is the challenge to the decision of the
Employment Tribunal that it was not just and equitable to extend time in order
that the reasonable adjustments claim could be heard. The basis of that appeal
is set out in the grounds of appeal at paragraph (7)(e). Paragraph (7)(d)
is said to be related but in reality it is paragraph (7)(e) which raises the
point. This reads as follows:
“The Tribunal, having decided that the period of omission [to
make reasonable adjustments] ended immediately prior to
28 January 2009 with the ‘CD assertion’, failed to give the Claimant
the opportunity to make submissions, in the context of that decision, on
whether it would be just and equitable to permit that part of the claim to
proceed. The Tribunal had invited submissions on the just and equitable issue
at the end of the evidence. The Claimant’s submission at that time was that the
question of applying the just and equitable proviso did not arise because the
period of omission had continued to the date of the Claimant’s dismissal
2 days before proceedings had been issued. When this submission was made
the Claimant did not know, and could not have foreseen, that the Tribunal would
hold that the period of the omission had ended in January 2009,
9 months before the issue of the proceedings.”
The facts
3.
The relevant facts briefly stated are as follows. The Appellant was
employed from 12 January 2004 until her dismissal on
2 October 2009 as a Revenue Protection Inspector on buses. It was
her responsibility to check passengers’ tickets and to check for any breach of
discipline by drivers. In the course of her duties she had to generate reports
using a template. She had some difficulty writing and reading documents. On
20 September 2005 she had a dyslexia screening test and on
18 May 2006 she had a dyslexia assessment by Kim Brown, a
consultant engaged by the Respondent. In her report of 18 May 2006
Ms Brown expressed the opinion that the Appellant was dyslexic.
4.
The Employment Tribunal found that the report made recommendations for
adjustments which would assist the Appellant. One of these was that she should
have a screen reader. It was also said that voice recognition software can
benefit some dyslexic writers.
5.
An occupational health doctor cast some doubt on whether the Appellant
was in fact dyslexic. The Employment Tribunal found that because of her
absences from work for other reasons, obtaining the software had not been
central to the Appellant’s thinking. On 20 December 2007 the
Appellant saw another medical member of the Respondent’s Occupational Health
team. A Dr Burdzick pointed out in her report that the reasonable adjustments
that Kim Brown had mentioned were required. She also mentioned the
Appellant’s ongoing depression.
6.
The Appellant also applied for Government funding for the aides which
had been recommended. As a result, some funding was made available. A
Mr Docherty of Jobcentre Plus sent to the Respondent and the Appellant a
report setting out the reasonable adjustment aides for which funding would be
available.
7.
The Employment Tribunal found that “the provision of the recommended
software got stuck in a bureaucratic quagmire”. There was a delay in providing
the software. On 3 October 2008 the Appellant lodged a grievance
which the Employment Tribunal referred to by a page number in their Judgment in
which it appears that she raised the failure to provide her with equipment.
Eventually the software was made available to the Appellant.
8.
On 8 December 2008 the Employment Tribunal record that the
Appellant felt that she needed training to operate both software applications; Dragon Dictate NaturallySpeaking
and a Texthelp Read & Write Gold. The Employment
Tribunal held at paragraph 59 of their decision:
“After delivery of the software, the Claimant raised the
question of training from time to time and in particular she raised it with
Mr Linn (who was her superior) and also with her managers at ‘check
points’.”
9.
At paragraph 60 the Employment Tribunal continues:
“The Claimant specifically referred to not having had her
training for the software in a letter of 28 January 2009”.
10.
At paragraph 61 the Tribunal held:
“We accept for those purposes that the letter of
28 January 2009 was written on about that date. […] we find from the
evidence that by that time the Respondent had made a conscious decision not to
provide her with training. […] A decision was made that the Claimant should
train herself from the CD rather than attend the training classes. […] On our
findings the decision can certainly be dated as having been taken prior to
28 January 2009.”
11.
The Appellant was taken through a disciplinary process in respect of
absences from work. On 18 November 2008 she was given a final
written warning and she appealed from that final written warning by letters of
28 November 2008 and 16 January 2009.
12.
We set out the letter of 28 January 2009 in full because it
forms a central part of Mr MacKenzie’s, the Appellant’s representative
before us, submissions to us. It is a letter under the name of the Appellant,
albeit Mr MacKenzie suggests that it is likely to have been written by
someone else, probably her Trade Union representative:
“Dear Mr Gentry
Complaint under Disability Discrimination Act 1995 Sect 4A(1)
and Discrimination under the Disability and Discrimination Act 1995
Section 4.
I wish to raise a formal complaint under the above Regulations.
Having been recognised by the company in 2005, as a disabled worker, the
company have failed to make reasonable adjustments by way of failing to provide
me with the required tools and training for my disability. As such I feel
embarrassed and ashamed and believe I am being discriminated against because of
my disability.
I require a meeting to be convened to discuss at length my
concerns and to seek an outcome that will eliminate my feelings of hurt and for
TfL to honour its obligations to me under the law.”
13.
The Employment Tribunal found at paragraph 95 of their Judgment having
referred to the case of Matuszowicz v Kingston‑upon Hull City Council [2009] IRLR 288:
“95. […] The unanimous decision of the Court of Appeal was that
where a case of this type comes within the wording in paragraph 3 as this
one seems to do, that the clock starts ticking when the Respondent ought
reasonably to have made the adjustment. And in this case, there is evidence
that this was two or three months from the date of Kim Brown’s report and
the Claimant is putting it forward as three months which the Tribunal accepts.
So regarded as a case where there was an omission to make reasonable
adjustments the clock starts on about 18 August 2006. However, we
have found that at some point prior to 28 January 2009 a conscious
decision was made not to provide the Claimant with training for her software
and we have found that this was a failure to make a reasonable adjustment. If
this is properly regarded as a fresh cause of action then the clock for a claim
in that respect would start at some point prior to 28 January 2009.
96. Either way, it is clear that this claim is out of time and
the only way that it can be brought before us is if we find that it is just and
equitable for us to hear it. […]”
14.
At paragraph 101 the Tribunal held:
“101. […] On the evidence from the Respondent that we have heard
and indeed from the Claimant’s own evidence we find that prior to 28 January 2009
Mr Little told her that she had to rely on the CD and that she was not
going to get her training. So she knew at least by that time that her software
was not going to be installed properly. […]
102. So at some time prior to 28 January 2009 the
Claimant was on notice that she needed, if wanted to press this matter, to
bring an Employment Tribunal claim. […]
103. We know that her union drafted her letters for her and we
can see from the letters that her union knew of the Dispute Regulation
Provisions, the need for a grievance, the 28‑day period and also the need
to bring in a Tribunal claim.”
15.
The Employment Tribunal set out at length the factors which they took
into account in considering whether it was just and equitable for time to be
extended in favour of the Claimant so that her claim could be heard. Amongst
the matters which the Tribunal took into account were that she was off sick for
a considerable period of time, that she had complained about not receiving
training for her software, that she had assistance from her union in drafting
letters and that although she was off work for an injury for a period, she
would, in their words, at least have had time to think about bringing a
Tribunal claim and get advice on it. Indeed, no complaint is made by Mr MacKenzie
about the matters that were taken into account. The Tribunal, having taken into
account all the matters which they have set out and which we have not listed in
extenso, came to the view that it was not just and equitable to hear the
claim.
The submissions of the parties
16.
Mr MacKenzie challenges the decision of the Tribunal that it would
not extend time on a just and equitable basis. He relies on the sole ground of
appeal that the Employment Tribunal erred in failing to draw attention to the
reliance which they proposed to make on the letter of 28 January 2009
in determining that it was at some point before that date that the Claimant
would have been aware that the training, which was the subject of her
reasonable adjustment claim, was not going to be provided to her.
17.
There were originally other grounds of appeal and they are not pursued.
The only other one which is referred to is that at (7)(d), but in reality it is
subsumed in (e) as it does not challenge the primary limitation period point.
18.
Mr MacKenzie contends that in failing to draw the parties’
attention to the reliance which the Tribunal would place on 28 January
2009, the Appellant has been prejudiced. He contends that if the significance
that was to be placed on that letter had been brought to the parties’ attention
he would have made additional submissions on whether it was just and equitable
to extend time. He contends that those submissions would have, or would have
been likely, to have affected the outcome of the Tribunal’s decision as to
whether it was just and equitable to extend time.
19.
Mr MacKenzie contends that reliance on the 28 January 2009
letter was a material difference in the way that the case had been approached.
It had not been approached in that way by either party; neither party had said
it there was a continuing act that came to an end at some time determined by
reference to the 28 January 2009 letter.
20.
He submitted that if the significance of the 28 January 2009 letter
had been drawn to the parties’ attention he would have raised the following
matters. First, because of her dyslexia the Appellant did not understand the
need to put in a claim within the time limit. In this respect, he relies on a
report on the Claimant’s dyslexia, which was prepared by a Mr Greaves on
23 July 2010. In that regard, when invited to point out the passages
on which reliance was placed to support this contention, he referred to poor
phonological awareness and poor decoding and sequencing, and other matters
which are set out in paragraphs 8.28, 8.29 and 8.30 of the report. He
also relied upon the report of Ms Brown of 18 May 2006.
21.
Second, he contends that he had drawn to the attention of the Tribunal
the fact that the Appellant continued to protest about the lack of provision of
training. In this regard he drew attention to the notes of a meeting which
took place on 15 June 2009, attended by the Appellant, by
Mark Little and by the Appellant’s Trade Union representative. The Trade
Union representative’s note of that meeting includes a note:
“Ways to take this forward (ML)
1) Software training & Dictaphone
→ Speak to SL & DA. […]”
22.
Also Mr MacKenzie drew attention to a letter of October 2009 appealing
against her dismissal in which one of the matters she raises is:
“The chair has been unhappy with my continual and repetitive
requests to fully comply with the reasonable adjustments under The DDA”.
23.
Further, in a note of an appeal hearing against dismissal on
26 October 2009, Mr MacKenzie draws attention to the note that
the Appellant had said:
“I got given Read & Write, Dragon Software and a Thesaurus,
what was left off was a Dictaphone, strategic training and training for
software was not provided”.
24.
Third, Mr MacKenzie says that if he had been alerted to the
significance to be placed by the Tribunal on the letter of
28 January 2009, he would have drawn attention to the reaction after
that date of the Respondent to the Appellant’s complaints about failure to
provide her with the training on software. Notes of the meeting of
15 June 2009 taken by the Trade Union representative indicated that
the Respondents were going to do something about the Appellant’s complaint.
Accordingly, it is said by Mr MacKenzie that if this argument had been
placed before the Employment Tribunal in the context of whether it was just and
equitable to grant an extension of time for presenting the claim, it would have
made a material difference. An extension would have been granted, or it would
have been likely to have been granted.
25.
Mr Grant, for the Respondent, contends that the Employment Tribunal
did not err in law or act unfairly in not drawing their intention or their view
of the letter of 28 January 2009 to the parties’ attention. There
was an issue between the parties regarding the just and equitable extension.
The Appellant’s representative had to deal with the entire period of delay up
to the date of the presentation of the ET1. The question of time limits and of
just and equitable extension was not a new issue. Further, it is said that if
the matter has specifically been drawn to the parties’ attention the matters
advanced now on behalf of the Appellant by Mr MacKenzie would not have
made any difference to the outcome.
26.
The Employment Appeal Tribunal drew to the parties’ attention the case
of Stanley Cole (Wainfleet) Ltd v Sheridan [2003] EWCA Civ 1048. They invited submissions from the parties on that
case. That was a case in the Court of Appeal which considered the scope of the
test to be applied to determine whether a failure by a court or Tribunal to
alert advocates to a material significant and relevant authority is such that
an appeal on that ground should succeed.
27.
In the course of giving Judgment in that case, Ward LJ at paragraph 34
said:
“[…] The hearing will not have been unfair if it has caused no
substantial prejudice to the party claiming to be aggrieved.”
28.
Mr MacKenzie submitted that in this case there is substantial
prejudice because the three submissions which he outlined would have made a
material difference and he had been deprived of making those points because the
Tribunal failed to draw attention to the significance which they attached to
the letter of 28 January 2009. Mr Grant says that the letter
does not affect matters; all three points raised by Mr MacKenzie could
have been made. Also, in any event, they would not have affected the result.
On this single point of appeal it is contended that the Tribunal did not err in
law, nor did they act perversely in acting as they did.
Discussion and Conclusion
29.
The relevant statutory provisions. Disability Discrimination Act
1995 section 4A(1)(a) provides:
“Where -
(a) a provision, criterion or practice applied by or on behalf
of an employer,
[…]
places the disabled person concerned at a substantial
disadvantage in comparison with persons who are not disabled, it is the duty of
the employer to take such steps as it is reasonable, in all the circumstances
of the case, for him to have to take in order to prevent the provision,
criterion or practice, or feature, having that effect.”
30.
Schedule 3, Part 1:
“3(1) An Employment Tribunal shall not consider a complaint
under section 17A 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.
(3) For the purposes of sub‑paragraph (1) -
[…]
(b) any act extending over a period
shall be treated as done at the end of that period, and
(c) a deliberate omission shall be
treated as done when the person in question decided upon it.”
31.
The issue of whether the complaint under the Disability Discrimination
Act was presented in time was always going to be in issue. The primary
contention on behalf of the Appellant was that there was a continuing act until
the date of dismissal. The parties were well aware that if that contention were
to fail then the only way in which the Tribunal would have jurisdiction to
entertain the appeal would be if they determined that it was just and equitable
to extend time.
32.
The Appellant lodged her ET1 on 4 October 2009, two days after
her dismissal. Before us there was no challenge to the findings of the
Employment Tribunal or their approach, save in the respects that we have
outlined and those which are set out in the Notice of Appeal at (7)(e).
33.
Since the question of whether it was just and equitable to extend time
was going to be an important issue between the parties, they were well aware of
it and had proper opportunity to address all relevant issues. Mr Grant
rightly says that the three points made by Mr MacKenzie, which he says now
would have been drawn to the Tribunal’s attention if they had made clear the
weight they were going to attach to the 28 January 2009 letter, could
have been made in any event.
34.
In our judgment the question of whether there should be a just and
equitable extension of time had to address the justice of doing that for the
entirety of the period of delay in presentation of a complaint. The letter of
28 January 2009 was placed in evidence before the Employment
Tribunal; it was there to be dealt with. In our judgment it was not incumbent
on the Employment Tribunal to alert parties to the weight that they attributed
to each piece of evidence, since the issue of whether there should be a just
and equitable extension was plainly for them to consider. The parties were well
aware of it.
35.
In any event, applying Stanley Cole (Wainfleet) Ltd,
we hold that there was no substantial prejudice caused to the Appellant by the
failure of the Tribunal to alert the parties to the weight that they were going
to be attaching to the letter of 28 January 2009. In our judgment
none of the three matters advanced before us by Mr MacKenzie, which he
says would have been advanced by him before the Employment Tribunal, would have
made any difference to the outcome.
36.
As for the first matter, the contention that the Claimant’s dyslexia was
a matter which precluded or inhibited her from formulating and presenting a
claim, we note that she had available to her, as recorded by the Employment
Tribunal, the assistance of a Trade Union representative. However, more
importantly, it must be observed that her dyslexia was not an inhibitor on her
presenting a properly reasoned complaint to an Employment Tribunal complaining
after her dismissal which was lodged two days after her dismissal.
37.
In our judgment the first factor relied upon would make no difference to
the outcome. As for the second and third factors relied on, they are two sides
of the same coin. The second is that the Claimant continued to protest against
failure to provide her with training and software, and third is the reaction of
the Respondent to those complaints - an indication that those complaints would
be looked into.
38.
In our judgment those matters would not reasonably have affected the
Judgment of a Tribunal as to whether it was just and equitable to extend time.
This was a case in which there had unfortunately been a prolonged period of
time in which recommended steps had not been taken by the Respondents, to
provide recommended software. There had been continued complaints about this. The
reaction of the Respondent did not result, unfortunately, in any satisfactory
outcome until 8 December 2008.
39.
Having regard to all the facts and circumstances of the case, the fact
the Claimant had protested after the 28 January 2009 letter and that
the Respondent had not reacted to those protests, in our judgment is immaterial
to the question of whether a just and equitable extension of time to present a
complaint should be granted. There were no inhibitors on presenting that
complaint nor was there any firm assurance given that the matter complained
would be redressed shortly.
40.
There being no further challenge to any other aspect of this Tribunal’s
Judgment, we dismiss this appeal.
