SUMMARY
DISABILITY DISCRIMINATION – Disability
JURISDICTIONAL POINTS – Extension of time: reasonably
practicable
In the middle of the Employment
Tribunal hearing the Employment Judge took a point against the Claimant on
time-bar. An inadequate opportunity was given to the Claimant to respond. The
Respondent had not taken the point in any of the extensive case management
stages. The Employment Tribunal misdirected itself by looking for a policy,
and should have found the disciplinary process was a continuing act or a state
of affairs. EAT held the claim was in time and remitted the full case to a
hearing before a different Employment Tribunal.
HIS HONOUR JUDGE McMULLEN
QC
1.
This case is about the time bar on Employment Tribunal proceedings,
which is three months less a day following the relevant date. This case is set
in the context of a claim of disability discrimination.
2.
This is the Judgment of the court to which all members appointed by
statute for their diverse specialist experience have contributed. We shall
refer to the parties as the Claimant and the Respondent.
Introduction
3.
It is an appeal by the Claimant in those proceedings against the
Judgment of an Employment Tribunal sitting in Liverpool sent with Reasons on
20 November 2012 signed by Employment Judge Reed. The
parties are represented by Mr David Mawdsley of counsel and
Mr Alan Johnson, in‑house solicitor, respectively. The Claimant
made claims of disability discrimination principally to do with the instigation
of disciplinary proceedings against him. The Respondent contended that there
was no act of disability discrimination in those internal proceedings.
The process
4.
The description of the issue and the facts in this case is made more
difficult for us by the extraordinary nature of the way in which the problem
arose. There had been extensive case management of the case in the hands of
Judges in the Employment Tribunal in Liverpool leading to what was to be a
three‑day hearing of the Claimant’s claims. The Claimant gave evidence
in accordance with his statement, and so did his wife. Mr Mawdsley closed
the case. Then, Mr Johnson called his first witness, Mr Hunt, who
was being cross‑examined towards the end of the day, when
Employment Judge Reed said that it occurred to him there might be a
time‑bar problem in this case, and he indicated to the advocates that he
would look at this matter the next day.
5.
The next day came, and it was put specifically by the Employment Judge that
the claim was out of time. Mr Mawdsley asked for time to reflect on this and
to consider the authorities. He was given 20 minutes and did the best he could,
but in that time he was able to research and to put before the Tribunal what we
hold are the relevant authorities, which are Owusu v London Fire &
Civil Defence Authority [1995] IRLR 575, Hendricks v Commissioner
of Police for the Metropolis [2003] IRLR 96 and Cass v Croydon
College [1998] EWCA Civ 498. The Judge entered into debate with
Mr Mawdsley and then heard from Mr Johnson, who had not taken the
time point but understandably acknowledged the point that was being made in
exchanges with the Judge, and as a result was prepared to accept the points
being made by the Judge against Mr Mawdsley’s proposition. The Tribunal
then decided that the claim was out of time, and proceedings were stopped.
6.
The appeal, therefore, is against the ruling the claim out on the basis
that there had been no presentation within three months of the relevant date.
The facts
7.
The Claimant is disabled by reason of a bipolar condition. On
10 January 2011 an event occurred that it is now common ground – in
fact, was common ground on the advice given by the Respondent’s occupational
health physician very shortly thereafter – that the event was caused by the
Claimant’s condition. On 13 January 2011 the Respondent resolved to
institute its disciplinary procedure against the Claimant for the incident. It
was and remains its case that this was a disciplinary event, all its employees
are treated the same, although consideration would be given in any particular
case to a difficulty by a disabled person, and that this case should proceed
along the lines of its disciplinary procedure. The Claimant resisted that, and
it is his case that this was a capability issue if anything and that deciding
to hold the incident, which was, on his case, caused by his disability, against
him in disciplinary proceedings is an act of disability discrimination contrary
to the Equality Act 2010 (EqA).
8.
The Tribunal recorded the state of play on what became then the central
issue – that is, whether the claim was out of time – and said this:
“7. It was not suggested on the part of Mr Richman that he
could assert that any failure on the part of the Council in that respect was an
act that could be said to have occurred within three months before
presentation, which took place on 13 December 2011.
8. The second area of complaint of Mr Richman was the fact
that, following an incident on 10 January 2011, the Council had seen
fit to institute a disciplinary process, had investigated (he said in an
unsatisfactory way) certain allegations, had used the conduct rather than
capability procedure in order to do so, had failed to address grievances he had
raised and had failed to deal with satisfactorily with requests made on his
behalf, specifically in relation to the disclosure of documents.
9. It was suggested on the part of Mr Richman that although
none of those matters had occurred within three months before presentation, the
claims were ‘in time’ because the actions of the Council in those respects
could be said to be the manifestation of an underlying policy, since the avowed
intention of the Council from the very beginning was to be rid of
Mr Richman.
10. We did not consider that, even if Mr Richman were able
to establish the existence of such an intention, the acts of the Council could
sensibly be described ‘… some policy, rule or practice, in accordance with
which decisions are taken from time to time’ (see [Owusu]). It followed
that the claim document had been presented more than three months after the
relevant events. […]
12. It was pointed out that Mr Richman was in the course of
internal proceedings at the time. Furthermore, the balance of prejudice clearly
favoured him, since it was not suggested on the part of the Council that the
delay had occasioned them any particular problem. Nor was this a case in which
the claims could sensibly be described as ‘ancient’. In broad terms, the
relevant acts occurred in the spring and summer of 2011, the claim document
being presented in December 2011.”
9.
The Tribunal then went on to consider whether to extend time in
accordance with the jurisdiction under section 123 of the EqA, which
provides for a period of three months or such extra time as is just and
equitable in all the circumstances, and the Tribunal made the following
holding:
“13. However, Mr Richman was represented by a trade union
representative in the early part of his dealings with the Council and, from May
2011, by Counsel, Mr Mawdsley. It was clear from a very early stage that
Mr Richman was alleging mistreatment on the ground of his disability and yet we
were given no explanation as to why, in relation to the specific acts or
omissions referred to by Mr Richman, neither he nor his representative took any
action to being the matters before the Tribunal within three months of their
occurrences.
14. We remind ourselves of the judgment in Robertson v Bexley Community Centre
[[2003] EWCA Civ 567]: the exercise of the power to extend time should be the
exception rather than the rule. As a very minimum there must be some sort of
explanation for the delay. Here, in reality, there was none.”
10.
We have, effectively, provided all of the Judgment in this short case.
The Claimant’s submissions
11.
On behalf of the Claimant it is contended that there was a continuous
act extending over a period of time pursuant to section 123(3) the EqA. The
decision to implement disciplinary proceedings taken on
13 January 2011 was maintained right up to the date the claim form
was presented on 13 December 2011. There was an error of law by the
Employment Tribunal in applying Owusu without more, and the
evidence before the Tribunal was that there were continued steps being taken by
the Claimant and the Respondent in accordance with the disciplinary process. There
were a number of occasions when there was a review of the decision so that
there was not a one‑off decision but a continuing one.
12.
In any event, the Tribunal had failed to consider the relevant factors
in exercising discretion, which are pursuant to British Coal Corporation v Keeble
[1997] IRLR 336, more or less those contained within the Limitation Act 1980,
section 33. As Mr Mawdsley says, the findings made by the Tribunal
on this point were all in his client’s favour, and the only thing that swayed
it was that the Claimant was found to have been in receipt of advice from his
union and from Mr Mawdsley, providing his services under the Bar direct‑access
scheme.
The Respondent’s case
13.
Mr Johnson, in an elegant and scholarly essay, has presented the
arguments of the Council in the best way they could be. The proposition that
he advances is that the Council did not discriminate in its decision. He
accepts that the disciplinary process was ongoing as at the date of
presentation and for that he is of course aware that he wrote the letter on
5 December 2011 that said the following:
“Secondly, we have been able to take instructions from senior
management concerning your without prejudice proposal intended to settle Mr
Richman’s claim against the Council. It is the position of the Council that we
see no reason to make any offer in respect of this claim. This decision has
been taken following further investigation of the circumstances behind the
issues surrounding this case. We believe that the Council has at all times
acted properly towards Mr Richman and therefore any proceedings brought against
the Council would fail.
Finally, we appreciate that the matter of the internal disciplinary
proceedings has still not been resolved notwithstanding Mr Richman’s imminent
retirement. We are prepared to continue with this process and proceed to a
disciplinary hearing in order that this matter can be resolved. However, in
the event that Mr Richman decides that he does not wish to participate with the
process after his retirement, we would be willing to discontinue these
proceedings once his employment ceases.”
The legislation
14.
The relevant legislation is as we have described above, and the issue is
to decide whether there was a continuing act; or whether the case should be
allowed to proceed on the grounds that it was just and equitable to do so if
there were no continuing act.
Conclusion and discussion of the legal principles
15.
It is accepted by Mr Johnson on behalf of the Respondent that the
ruling in paragraph 10 represents an error of law. He accepts that the
approach set out in Owusu requiring some policy, rule or practice
is modified now by the Judgment in Hendricks and the correct approach
is as follows:
“The Owusu principle was further extended in [Hendricks]
where Mummery LJ, at paragraph 48, set out the test to be applied:
‘… the burden is on her (the Appellant) to prove, either by
direct evidence or by inference from the primary facts, that the numerous
alleged incidents of discrimination are linked to one another and that they are
evidence of a continuing discriminatory state of affairs covered by the concept
of “an act extending over a period”.’
15. In a direct reference to Owusu, Mummery LJ
further stated at paragraph 52:
‘The concepts of policy, rule, practice, scheme or regime
in the authorities were given as examples of which an act extends over a
period. They should not be treated as a complete and constricting statement of
the indicia of “an act extending over a period” … Instead, the focus should be
on the substance of the complaints that the Commissioner was responsible for an
ongoing situation or a continuing state of affairs in which female ethnic
minority officers in the Services were treated less favourably. The question
is whether that is “an act extending over a period” as distinct from a
succession of unconnected or isolated specific acts, for which time would begin
to run from the date when each specific act was committed.’”
16.
Mr Mawdsley also relies on the Judgment of the Court of Appeal in Lyfar v Brighton
& Hove Hospitals Trust [2006] EWCA Civ 1548
upholding a Judgment of mine in this court where Hooper LJ says that the
approach therefore was to expand the cases where discrimination might be found
beyond those where a policy could be identified. It follows from that very
realistic concession by Mr Johnson, which is properly made, that to apply
the unvarnished Owusu principle of looking for a policy, rule or
practice is an error; something wider is required, and here it is said that
there was a continuing state of affairs. It was that the disciplinary process
was started, a number of steps had to be taken within it and that that process
was ongoing or continuing, and indeed the words “continue these proceedings” is
used as late as 5 December 2011.
Discussion
17.
The decision we reach is that the Employment Tribunal misdirected itself
by that too‑narrow approach. The question for us is whether or not in
the light of that error the decision can stand; is it unarguably right? We
consider that the issue is open to us to decide. We heard debate from the
advocates. It was Mr Mawdsley’s case that this was a simple matter and
could be decided by us since the answer was clear, but Mr Johnson invited
us, if this were to be our view, to send it back to an Employment Tribunal for
it to consider the time point.
18.
We have looked carefully at the correspondence in this case and have no
doubt that this was a continuing act. First, there are many instances of steps
being taken pursuant to preparing for the upcoming disciplinary hearings, which
were postponed on a number of occasions. There are four themes, all ongoing
throughout 2011: the first is the investigation by Mr Hunt and an
application for him to disclose the DVD of the incident, which was not
disclosed at that time and indeed not until the eve of the Employment Tribunal
proceedings; secondly, there were requests for references to occupational
health, and there was no disclosure of Dr Orton’s report, given as early
as 19 January 2011, pointing away from disability and towards
capability; thirdly, there was a number of applications for the Claimant’s
grievances to be investigated, which went unanswered; and fourthly, there were
attempts to try to resolve this matter. The clear purpose of an informal
resolution negotiated between the representatives was that the Council would
reconsider its decision to invoke disciplinary proceedings and to allow the
Claimant to retire without the threat of a disciplinary hearing over him. As
Mr Mawdsley said, the last thing his client wanted in his particular
condition, which was deteriorating by the day, was to go through a formal
process.
19.
Therefore, there are significant events during the agreed chronology
placed before us that indicate steps being taken in accordance with the
disciplinary procedure in order to prepare for it. True it is that at one
stage Mr Mawdsley on 9 August 2011, probably in exasperation, says
that his client will not co-operate with the procedures until proper disclosure
has been effected, and so while the disciplinary procedures were ongoing
without proper disclosure that was his position.
20.
The second point Mr Mawdsley makes is that in any event there were
on the papers examples of reviews being taken of the decision. This brings
into play the Judgment in Cast v Croydon, where the following was
decided in the Judgment of Otton LJ:
“Accordingly, it seems to me that the Industrial Tribunal,
having found that the College reconsidered and looked at the matter again in
1993, erred in law in failing to consider the implications of that finding for
the purpose of the running of time. It is true that the best that Mrs Cast
could have achieved on this approach was a determination that the final refusal
occurred on 10th May 1993. That was still outside the three months time limit,
but only by three days, a trivial over-run when compared with that of thirteen
and a half months if the refusal on 26th March 1992 were the only potential act
of discrimination […].”
21.
The law is that where there has been a reconsideration of a decision
already made it ceases to be a one‑off and time begins to run again. Mr Mawdsley
points to a number of times where this occurs. For example, on 25 July 2007
there is expressly a reference by Mr Ennis to the following:
“First, in terms of my review, I am satisfied that this matter
should be dealt with under the Council’s Disciplinary Procedure. That said, I
accept the point that Mr Hunt as Investigating Officer should have sought
advice from Occupational Health in respect of Mr Richman’s medical condition.
There I will arrange that.
I will also seek advice from Occupational Health in respect of
Mr Richman’s attendance at a hearing and any support he may require.
Secondly, I do not accept your view that the grievances raised
by Mr Richman have ‘nothing to so [sic] with his alleged behaviour on 10
January 2011’. It is my view that they are related and therefore it would be
appropriate to deal with both issues concurrently.”
22.
On 12 August there is a reference by Mr Ennis to an ongoing useful
discussion. On 25 November 2011 there is him offering his apology
for the delay and indicating, “We will be in a position to respond fully next
week”, and the conclusion of that further consideration is, as we have cited
from the email of Mr Johnson, on 5 December 2011. So, in our
judgment, the record discloses a number of reviews and reconsiderations of the
initial decision to go through the disciplinary process so as to correspond to
the kind of situation envisaged in Cast. Thus if there were no
continuing act in place, contrary to our primary holding, there was a
reconsideration, the latest of which was 5 December 2011, and the claim
was presented a bit later and was in time.
23.
That is sufficient to dispose of the case. We have no doubt as to how a
Tribunal would approach this matter, and so this is a case where we can
confidently say that there is only one answer, which is the one we have given.
24.
We turn then to the issue of whether, if we are wrong, there should have
been a just and equitable extension. There are problems in this Judgment. The
first is that the Tribunal does not identify at all what date it takes as the
beginning of time, the second is that the Tribunal does not analyse the factors
in Keeble, and the third is that those factors that might be said
to emanate from Keeble are all decided by the Tribunal in favour
of the Claimant. Therefore one has to wonder how it can be that he would lose
the just and equitable discretion. The answer is that it was because he was
alleging what the Tribunal described as mistreatment on the ground of
disability and he gave no reason why they took no action within three months.
25.
In our judgment, the material does disclose why that occurred, but it
seems to be based upon the fact that the Claimant had access to legal advice,
and that is not one of the factors in Keeble. It is not
necessarily incorrect to invoke it, but it has to be done in the context of
other relevant factors. However, we need not explore this further, because
Mr Johnson has helpfully conceded that the Tribunal erred in its approach
to what is just and equitable. It would be required to look at the factors and
any others to make decisions on what were the relevant dates and to decide
within the context of the ongoing relationship, for example the attempts to
resolve this matter, quite properly, between the parties within troubling a
Tribunal, to decide whether it was just and equitable. Of course, someone in
that situation must keep an eye on the clock, as Mr Johnson in his written
argument points out, but it is a factor to note that the parties are together
engaging in talks when exercising the just and equitable jurisdiction. Since
we have already decided this matter on the basis of the first point, it was not
necessary for us to call upon the parties to address us further in the light of
the approach taken by Mr Johnson. This would be a matter that we could
not ourselves decide, because there is not enough material here, and if this
were the only matter, then we would have sent it to an Employment Tribunal to
look at it, but it is not necessary so to do. This claim is in time.
Disposal
26.
Having canvassed the disposal of this case with both of the advocates,
it is their joint position that this matter should be sent to a fresh
Tribunal. We of course consider this for ourselves; we look at the utility in
sending it back to the same Tribunal. The Tribunal only heard the evidence for
one day, and it may be difficult to reconstitute precisely the same Tribunal
effectively more than a year later. The Claimant understandably as a lay
person has reservations about the way in which the time‑bar point emerged
at the instance of Employment Judge Reed and would not feel confident
in going back in front of him, and a number of submissions were made to
Employment Judge Reed by Mr Mawdsley. It seems to us that now
that we have resolved the time‑bar issue this case could start again
before a fresh Tribunal, and that is where the interests of justice lie. So,
this will go to a freshly constituted Employment Tribunal. The advocates now
in the light of the way in which they have heard the evidence develop consider
four days is the appropriate time for which the case should be listed, but that
is a matter for the region.
27.
It remains for us to say thank you very much to both of the advocates
today. I had indicated that we had all considered these were very careful skeleton
arguments that have saved us a good deal of court time.
