United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0073/15/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

                                                                                                             At the Tribunal

                                                                                                             On 23 October 2015

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

MR P RATHAKRISHNAN                                                                                     APPELLANT

PIZZA EXPRESS (RESTAURANTS) LTD                                                        RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

JURISDICTIONAL POINTS - Extension of time: just and equitable

Proper approach to just and equitable extension of time in discrimination cases.  Habinteg (UKEAT/0274/14/BA, 20 February 2015) doubted.

Failure to consider balance of prejudice and merits of claim, following a full Employment Tribunal hearing, material omission in exercising discretion.

The Claimant’s appeal allowed and the case remitted to the same Employment Tribunal for reconsideration.

HIS HONOUR JUDGE PETER CLARK

1.                  The sole issue in the appeal now before me is whether an Employment Tribunal sitting at London (South) and chaired by Employment Judge J Pritchard erred in law in its approach to the question as to whether time should be extended in respect of the Claimant’s, Mr Rathakrishnan, claim of a failure to make reasonable adjustments by the Respondent, his former employer, Pizza Express

Background

2.                  The Claimant commenced his employment with the Respondent as a pizza chef on 24 September 1990.  He suffered from diabetes and became insulin dependent in 2005.  On 14 June 2013 he was dismissed for breaches of the Respondent’s food safety procedures.  An internal appeal against that dismissal was in turn rejected on 13 August.  On 23 July 2013 he presented a form ET1 to the Tribunal complaining of unfair dismissal, whistleblowing detrimental treatment, breach of contract, holiday pay shortfall and failure to make reasonable adjustments.

3.                  The unfair dismissal and whistleblowing claims were dismissed and the money claims upheld.  I am not now concerned with those matters.  As to the reasonable adjustment claim, the Tribunal found in a Reserved Judgment with Reasons promulgated on 21 November 2014 that that claim related to a period between 6 June 2012 and 7 April 2013.  Pausing there, that timeframe only emerged during the course of the hearing, no limitation point having been earlier taken by the Respondent in their form ET3.  However, it followed that the claim was lodged 17 days outside the primary three month limitation period.  The other claims were all in time.

4.                  Having directed themselves as to the law (see paragraphs 34 to 35), the Tribunal expressed their reasoning and conclusions on the limitation issue at paragraph 59.  They rejected the Claimant’s explanation for bringing this claim late, he having been recalled to deal with this aspect of the case.  He said the reason was fear of recrimination whilst still working for the Respondent, but the Tribunal could find no evidence to support that contention.  On the contrary, he had raised a number of lengthy grievances with his employer during the employment, thus he was not a person who was backward in coming forward.

5.                  Further, he consulted solicitors shortly after his dismissal and had ample opportunity, the Tribunal found, to ascertain information about time limits.  In a letter dated 21 July 2013 the Claimant complained of suffering from disability discrimination since 1992.  Placing the burden correctly on the Claimant to persuade the Tribunal that it was just and equitable to extend time (see Robertson v Bexley Community Centre [2003] IRLR 434 at paragraph 25 per Auld LJ), the Tribunal were not so persuaded and refused to extend time.  That claim, therefore, failed without consideration of it on its merits.

The Appeal

6.                  Mr Dutton submits that, in carrying out the exercise of their wide discretion, the Tribunal failed to take account of two interlocked relevant factors.  First, the balance of prejudice between the parties in granting or refusing an extension of time and, secondly, in failing to consider the prospective merits of the reasonable adjustment claim, the Tribunal having heard all the evidence on that issue at their substantive hearing.  In support of that submission he places reliance on the observations of the EAT, HHJ Shanks presiding, in Pathan v South London Islamic Centre (UKEAT/0312/13/DM, 14 May 2014, unreported); see paragraphs 17 to 18, and my approach in Szmidt v AC Produce Imports Limited (UKEAT/0291/14/MC, 9 January 2015, unreported) at paragraphs 4 to 6.

7.                  To the contrary, Mr Peacock submits that the Tribunal’s finding rejecting the Claimant’s explanation for the delay in bringing his reasonable adjustment claim was capable of being, and was, determinative of the just and equitable extension question.  Absent a credible explanation for the delay, the Tribunal was entitled to regard that failure to explain as determinative of the issue.  In this connection he relies particularly on the approach of Langstaff P in Habinteg Housing Association Limited v Holleran (UKEAT/0274/14/BA, 20 February 2015), particularly see paragraphs 26 and 42.

Discussion

8.                  It is difficult not to detect a possible tension between the approach in the EAT cases of Pathan and Szmidt on the one hand and that of the President in Habinteg on the other.  It is a tension which I must address.

9.                  The first point to make is that it does not appear that either Pathan or Szmidt were cited to the President in Habinteg, certainly he does not refer to either case in his Judgment.  To that extent, Habinteg, insofar as it appears to suggest (paragraph 42) that in the absence of evidence explaining the delay an extension of time cannot be permitted was decided strictly per incuriam as Mr Dutton submitted.  I note the President’s reference, paragraph 41, to the rhetorical question posed by Beatson J as he then was in Outokumpu Stainless Limited v Law (UKEAT/0199/07, 4 October 2007), paragraph 18,

“18. … Where a Claimant does not put evidence before a Tribunal in support of his application [that is, for an extension of time], explaining his delay and saying why an extension should be granted, how can the Tribunal be convinced that it is just and equitable to extend time?”

Pausing there again, if the Claimant advances no case to support an extension of time, plainly, he is not entitled to one.  However, that is not the present case where an application was made, an explanation, albeit rejected, was given for the delay and, I see from Mr Dutton’s written submissions below, reference was made to the personal injury case of Dale in the Court of Appeal to which I shall return.

10.              The position as to precedent in the EAT, as I have always understood it, is that this EAT is not strictly bound by its earlier decisions, although in the interests of comity, wherever possible, they will be followed.  However, where an earlier case is considered and not followed in a reasoned later Judgment, the practice generally is to follow the most recent decision and ultimately leave it to the Court of Appeal to decide the correct approach if necessary.  That is not the position in this case since, as I have observed, the President did not considered either Pathan or Szmidt in deciding Habinteg.  I pause to note that Pathan was cited to me by Mr Dutton, then appearing for the Claimant/Appellant in Szmidt (see paragraph 4).  In these circumstances I prefer to return to first principles and to consider the correct approach in a wide context.

11.              A useful starting point is the Judgment of Smith J, as she then was, in British Coal Corporation v Keeble [1997] IRLR 336 EAT.  That was a case concerned with the just and equitable extension of time question in the context of a sex discrimination claim.  Smith J, sitting with members, in allowing the employer’s appeal and remitting the just and equitable extension question to the Employment Tribunal, suggested that in exercising its discretion the Tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980, the provision for extension of time in personal injury cases.  The first of those factors, as Mr Peacock emphasised in the present appeal, is the length of and reasons for the delay in bringing that claim.

12.              However, as the Court of Appeal made clear in London Borough of Southwark v Afolabi [2003] IRLR 220, in deciding the just and equitable extension question, a Tribunal is not required to go through the matters listed in section 33(3) of the Limitation Act, provided that no significant factor is omitted.  That principle was more recently reinforced in a different context by the Court of Appeal in Neary v St Albans School [2010] IRLR 124, where the leading Judgment was given by Smith LJ.  There, it was held that a line of EAT authority requiring a Tribunal to consider the factors in the Civil Procedure Rules Rule 3.9(1), as it then was, when deciding whether or not to grant relief from sanction following non-compliance with an unless order, was incorrect.  Following Afolabi it is sufficient that all relevant factors are considered.

13.              Section 33(3) of the 1980 Act does not in terms refer to the balance of prejudice between the parties in granting or refusing an extension of time.  However, Smith J referred to the balance of prejudice in Keeble at paragraph 8, to which Mr Peacock has referred me.  That, it seems to me, is consistent with the approach of the Court of Appeal in the section 33 personal injury case of Dale v British Coal Corporation [1992] WL 12678386, where Stuart-Smith LJ opined that, although not mentioned in section 33(3), it is relevant to consider the plaintiff’s (Claimant’s) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship.  That passage neatly brings together the two factors which, Mr Dutton submits, were not but ought to have been considered by this Tribunal in the proper exercise of its discretion, prejudice and merits.  I shall return to those factors in due course.

14.              What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] IRLR 69) involves a multi-factoral approach.  No single factor is determinative.

15.              Returning to the balance of prejudice, this concept arises elsewhere in our jurisdiction.  For example, in deciding applications to amend the form ET1, the Selkent principle (see [1996] ICR 836).

16.              Taking account of the overall picture presented by the authorities, I am respectfully unable to accept the proposition, if it was intended to be so starkly put by the President in Habinteg, that a failure to provide a good excuse for the delay in bringing the relevant claim will inevitably result in an extension of time being refused.  In short, I reject Mr Peacock’s principle submission that where an unsatisfactory explanation is given for the delay, how can it ever be just and equitable to extend time?

The Present Case

17.              Turning to the particular facts of this case, it seems to be that the question of balance of prejudice and potential merit of the reasonable adjustment claim was a relevant consideration for the Tribunal and they were wrong not to weigh those factors in the balance but instead to terminate the exercise having rejected the Claimant’s explanation for the delay. 

18.              This claim was just 17 days out of time.  The Respondent faced various timeous claims in any event.  They led evidence on the reasonable adjustment claim and there is no suggestion that the delay prejudiced their ability to defend the claim.  The Tribunal heard all the evidence and were, therefore, in a good position to assess the merits or otherwise of that claim.

19.              It is not for me on appeal to carry out that assessment.  Mr Dutton has sought to persuade me that it is a blindingly obvious case in which to extend time.  I do not accept that submission.  It must be a matter for the Employment Tribunal.  In these circumstances I shall allow this appeal and it is common ground before me the proper course is to remit the limitation question to the same Tribunal, chaired by Employment Judge Pritchard, if at all practicable, for reconsideration taking account of the balance of prejudice and potential merits or demerits of the reasonable adjustment claim.  It seems to me that they are particularly well-placed to carry out this further consideration having heard the evidence.

20.              Accordingly, the matter will be determined on submissions only.  No further evidence is necessary in relation to the first question which is whether or not time should be extended, nor indeed, if they were to conclude that time should be extended, to determine the reasonable adjustments claim on its merit.  Finally, if they were to reach that position the Tribunal would then be in a position to assess compensation for the statutory tort.