MR R ROBINSON v THE POST OFFICE [2000] UKEAT 1209_99_1207

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1209_99_1207

Case No Appeal No. EAT/1209/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR R ROBINSONAPPELLANT

THE POST OFFICERESPONDENT

Before

Mr Justice Lindsay

Date 12 July 2000

[1]APPEARANCES For the Appellant MR ERSKINE GRANT (Representative) Instructed By: Northern Complainant Aid Fund Checkpoint 45 Westgate Bradford BD1 2TH For the Respondent MR ANDREW BURNS (of Counsel) Instructed By: Ms N Bennison Messrs Eversheds Solicitors 11 St James Court Friar Gate Derby DE1 1BT MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of a full hearing, the appeal of Mr Richard Robinson in the matter Robinson against The Post Office. Before us today Mr Robinson has been represented by Mr Erskine Grant, a community worker, who has represented Mr Robinson with considerable skill. For the Post Office we have had Mr Andrew Burns representing that body. We need to say something of the timetable and background here. On 23 June 1999 Mr Robinson lodged an IT1 saying, in Box 1, which is headed "Please give the type of complaint you want the tribunal to decide: 'Unfair Dismissal'." The claimed date of dismissal was 2 March 1999. One has to note therefore that the dismissal was more than three months before the IT1 was presented. The Respondent, although described then as "Royal Mail" has been taken to be the Post Office. In box 11: "Please give details of your complaint" Mr Robinson began "I was sacked because I have a chronic disease, discoid lupus". That is a condition which causes skin rashes and sensitivity to light; it can cause blisters and sores and it has other truly disagreeable consequences. Mr Robinson is, in effect, allergic to the ultraviolet in ordinary daylight. Ultraviolet is present also in artificial light to a greater or lesser extent. On 13 July 1999 the Post Office signed its IT3 and it took the point as follows: "The Tribunal has no jurisdiction to hear the Applicant's claim. The claim was filed more than 3 months after the date of his dismissal. The Applicant has provided no valid grounds as to why it was not reasonably practicable for him to have filed his claim within the normal 3 month period."

[2]In other words, the Post Office was treating the claim as if it was what it had said it was in box 1, namely a claim for unfair dismissal, and the Post Office was therefore invoking section 111 (2) of the Employment Rights Act 1996 . The Post Office admitted that Mr Robinson had been diagnosed as suffering from chronic discoid lupus erythematosus, conveniently called DLE, and they said that he had been off work since 17 August 1998 with DLE. They claimed that the Post Office had sought advice from the Applicant's (that is Mr Robinson's) dermatologist and their IT3 continued:

"The dermatologist recommended that the Applicant be employed on indoor duties. In the light of this advice, the Respondent's medical adviser confirmed that the Applicant was fit to return to his normal duties. In view of the medical advice the Applicant was asked to return to work on 14 th December 1998. He failed to comply with that request. As a result of the Applicant's failure to return, the Respondent convened a hearing in accordance with its disciplinary procedure. The hearing took place on 8 th February 1999. The Applicant was accompanied by his trade union representative. The Applicant maintained that he was unfit to return to his post. He offered no medical evidence to challenge that obtained by the Respondent. In the circumstances, the Applicant was dismissed on the grounds of incapability on 15 th February. His employment ended on 2 nd March 1999."

Shortly after the disciplinary hearing on 8 February 1999 Mr Robinson had instituted a disciplinary appeal on 17 February 1999 and the Post Office's IT3 continued:

"The Applicant appealed against his dismissal by a letter dated 17 th February 1999. The Appeal hearing took place on 20 th April 1999. The Applicant was accompanied by his trade union representative. Since the hearing, the Respondent has been considering further the Applicant's medical condition. It is awaiting a report from the Applicant's consultant, Dr W.S. Mitchell of Furness General Hospital. All reports which the Respondent has currently received indicate that the Applicant is capable of undertaking the post for which he is employed, subject to wearing a hat and applying sunblock. No decision will be taken in relation to the Appeal until the further medical report is received."

So one can see how the issues were stacking up.

[3]On 17 August 1999 there was a hearing on the jurisdiction issue before the Employment Tribunal at Leicester under the chairmanship of Mr J.L. Threlfell. Mr Robinson represented himself but was assisted by his partner, Ms Parker. On 24 August 1999 the Decision was sent to the parties and the unanimous decision was that:

"The Tribunal does not have jurisdiction to consider the application which is dismissed."

[4]On 6 September 1999 Mr Robinson applied for a review. On 9 September a review was refused by the Chairman as he considered that it had no prospect of success.

[5]On 20 September (it might be 30 September, my particular copy is not very clear, but at all events within the 42 days) Mr Robinson lodged a Notice of Appeal, both against the decision of 24 August and the refusal to review.

[6]Turning to the Employment Tribunal's decision, so far as concerned the form of Mr Robinson's IT1, the Tribunal said, in their paragraph 2:

"2. In his originating application the applicant made a claim of unfair dismissal. At the outset of this hearing, bearing in mind that he was unrepresented, we did enquire of him whether, as appeared to be the case from the narrative of his application, he was also claiming that the dismissal was in breach of the Disability Discrimination Act 1995 . The applicant confirmed that that was his intention and we have accepted that this case is one to be considered as a claim for unfair dismissal under the Employment Rights Act 1996 and a claim for dismissal by reason of a disability under the Disability Discrimination Act 1995 ."

[7]Given the opening words which I have cited from Mr Robinson's IT1, that was plainly a proper conclusion. The time bar for unfair dismissal is three months but the ability to remove it depends upon the "reasonable practicability" test of section 111 (2). By contrast, the time bar for disability discrimination is also three months but the ability to lift it depends on the much broader "justice and equity" provisions of paragraph 3, schedule 3, of the Disability Discrimination Act 1995 which mirrors the earlier and similar provisions of the Sex Discrimination Act 1975 , section 76 (1), (5) and (6) and the Race Relations Act 1976, section 68 (1), (6) and (7). The Tribunal was, of course, very alive to the difference between the two provisions. Mr Robinson's appeal rightly concentrates, as does Mr Grant, upon, indeed would seem to be exclusively directed to, the Disability Discrimination Act decision. We shall concentrate on the Disability Discrimination Act side of things and look therefore to the justice and equity test. With that test in mind we go to the Employment Tribunal's decision. They were, it has to be said, unimpressed by Mr Robinson as a witness. They said:

"We did find that the applicant's evidence was at times contradictory both as given to us and in relation to his originating application."

They held the date of dismissal to be 2 March 1999, indicated to Mr Robinson by a letter of 15 February. They held that there was an interview before the dismissal. They say this: "At the interview which preceded his dismissal the applicant was represented by Mr Hansranie, his local union official. The applicant agrees that he was told by Mr Hansranie of the possibility of bringing a claim to an Employment Tribunal and that there is a time limit for such claims. The applicant told us that Mr Hansranie said to him that he was not sure of the length of the time limit, but thought that it might be six months. For the purposes of our decision the important fact is that the applicant was aware there was a time limit, although we think that it is more likely that Mr Hansranie, being an experienced union official who has had training in Tribunal time limits, would have told the applicant the correct time limit.

[8]Mr Robinson, having received the letter of dismissal of 15 February and well before it took effect on 2 March, lodged an internal appeal with the help of his Union. At this point the Tribunal refers to the evidence of Mr Robinson's Trade Union Official, Mr Holmes, who acted for Mr Robinson in that appeal, at any rate at its commencement. Mr Holmes (and this might be thought to be unusual) was called as a witness not by Mr Robinson but by the Post Office, he having been served with a Witness Order to require his attendance. The Tribunal in terms says that "Mr Holmes' evidence was accepted in its entirety". The internal appeal took place on 20 April 1999. The Tribunal was very conscious of the unfortunate personal and other circumstances that surrounded Mr Robinson at that time. But they made three important findings in relation to that time, namely 20 April 1999 and thereabouts, that Mr Holmes told Mr Robinson that there was a three-month time limit for applications to the Employment Tribunal; that he, Mr Robinson, would have to submit the application himself as the Union would not submit one on his behalf and thirdly, that the Tribunal did not accept that Mr Robinson has been unable to understand what Mr Holmes told him. All that appears in the Tribunal's paragraph 5, which says this:

"The appeal hearing took place on 20 April 1999 and at that stage the applicant was represented by Mr Holmes, who met him for the first time at the appeal hearing in Stoke on Trent. Prior to that appeal the applicant had lost his home in Leicester and had moved back to Lancashire with his partner, Ms Parker. He was still suffering the effects of his illness, coupled with depression. He had gone to stay with a friend, who sadly died from a brain haemorrhage on the day that the applicant went to stay with him. He then had to move around amongst different friends for accommodation. The applicant was able to drive himself down to Stoke on Trent. We accept Mr Holmes' evidence that the applicant appeared to be able to understand and deal with the appeal. Following the appeal there was a discussion in which Mr Holmes pointed out that there was a three month time limit on bringing claims to an Employment Tribunal, that the applicant's claim would be for unfair dismissal and disability discrimination and that he must submit his application himself, as the union would not submit an application on his behalf. The applicant says that whilst he may have been told that he did not really take it on board, in view of his state of mind at the time. Whilst we accept that the applicant was more bothered about the question of appeal, we do not accept that he was unable to understand what Mr Holmes had told him."

[9]Mr Grant this morning makes the point that surely Mr Robinson must have been confused on receiving Mr Holmes' advice because, after all, Mr Robinson in his box 1 of the IT1 mentioned only unfair dismissal as the nature of his complaint. But the Tribunal do in terms say that they do not accept that he was unable to understand what Mr Holmes told him and, of course, the narrative part, as the Tribunal indicated, of Mr Robinson's IT1, did, in effect, make a claim for unfair dismissal.

[10]The Employment Tribunal in that paragraph 5, from which we have just read a long extract, do not record whether Mr Holmes' advice indicated in terms from what time the three months ran but there is no suggestion that he stated the three months to run from some incorrect date.

[11]Next, going through the findings of the Employment Tribunal, Mr Robinson spoke to Mr Holmes on the telephone on a number of occasions between April and early June 1999. The internal appeal of 20 April had not been concluded but rather was adjourned for further medical evidence.

[12]On 1 June on that day expired the period of three months from the dismissal. In June 1999 Mr Robinson's Ms Parker, the partner who later assisted him at the EAT hearing, obtained the form for an IT1 and the notes that go with those forms. The notes refer to the three month time bar. The Tribunal do not find in terms what day in June Ms Parker got the form and the notes but it would seem to have been on 22 June 1999 and the Tribunal says this:

"In June 1999, the applicant's partner on his behalf obtained the application form IT1 for an application to the Tribunal together with the notes that go with it. The three month time limit from the date of dismissal is referred to in the notes which accompany that form. The applicant immediately telephoned Mr Holmes and asked what he should do. Mr Holmes pointed out that he had previously told the applicant of the time limit, but advised him nevertheless to submit the claim, but to confirm that he had no authority to give the union as representing him. The application form was completed with the assistance of the applicant's partner and was faxed to the Tribunal at lunch time the following day."

And then, as we said, on 23 June the IT1 was presented.

[13]The Tribunal then set out the parties respective submissions. They returned a little later to making findings of fact. Mr Robinson had known that there was a time limit as early as the point of his dismissal. He had had that confirmed to him by Mr Holmes at the internal appeal hearing on 20 April 1999 where he was told of " the three month time limit" (and the use there of the definite article suggests its beginning was identified, it was the three month time limit).

[14]Next, it was held that Mr Robinson was capable of looking after his affairs. It was held that at and after the internal appeal on 20 April, when the three months for dismissal still had several weeks left to run, he, Mr Robinson, was able to pursue issues promptly and with vigour. It was held that he had concentrated on his internal appeal with a view to getting his job back and in doing so, the Tribunal held, had ignored advice given to him by his Union. It was held that Mr Robinson was able to act promptly and properly when he chose to do so. The Tribunal said, in paragraph 11:

"It was only much later when he obtained the Tribunal forms (at a time when the appeal was still ongoing) that he again spoke to the union and within 24 hours of obtaining the form and speaking to the union had faxed his full application to the Tribunal. That itself is an important factor in showing that, with the assistance of his partner, which was always available to him he was fully able to react promptly and properly once he decided to do so."

The Tribunal then turned to the reasonable practicability test. In their paragraph 12, they say:

"We consider that there is no reason why the applicant could not reasonably have submitted his application in time, having taken union advice and by the fact he was able to do so when the point arose. Although we accept that the applicant had medical and personal problems, none of those effectively prevented him from submitting his claim. We are satisfied, therefore, that it was practicable for the application to have been presented in time and that his claim under the Employment Rights Act 1996 must fail."

As we have said, there is really no appeal against that side of things and, moreover, the Tribunal's decision on the facts that it found as to that was plainly right.

[15]The Tribunal then turned to the justice and equity test of the Disability Discrimination Act and they say this, in their paragraph 13, which we will cite in full:

"The test under the Disability Discrimination Act 1995 of whether it is just and equitable to extend the time is a different situation, which we have considered carefully and at length. We accept that, bearing in mind the applicant is still proceeding with his internal appeal and in the circumstances generally of the evidence to be put forward that there is no prejudice that the respondent would suffer by the delay in the application, other than the fact that the respondent has to face a claim which would otherwise be out of time. Equally whatever the applicant says, the respondent is not responsible in any way for the applicant's delay in submitting his application. However, the applicant was concentrating on the appeal and was able to do so despite advice he had received on two occasions from his union about an application to the Tribunal and the time limits and did not do so. We take into account that the time limit has to have some meaning and just because there is no prejudice to the respondent does not mean that the [time] limit can be avoided. We consider that the applicant should have submitted his claim in time and that with the advice he could have had and did have, both from his union and his partner, should have submitted it in time. On balance we do not consider that it would be just and equitable to extend the time in order to allow this application to proceed when it was presented some three weeks late. It follows, therefore, that as the application under both Acts is out of time this application shall be dismissed as being beyond the jurisdiction of the Tribunal."

[16]The Tribunal had, of course, heard oral evidence both from Mr Robinson and from Mr Holmes. The application for review was made by the Citizens Advice Bureau on Mr Robinson's behalf on 6 September (I think it was) 1999. Mr Robinson was then claiming that he had been suffering from stress at the Employment Tribunal; that he had not been in a fit state and that he could not focus on issues. He said that new medical evidence would be presented to that effect and that he had since learned (that is to say, since the hearing at the Employment Tribunal) that his internal appeal had failed and that, he said, represented fresh discrimination. On 9 September, as we indicated, the application for a review was declined. The Chairman directed:

"… he considers it has no reasonable prospect of success. The issues put forward in the letter of 6 September 1999 were all canvassed at the hearing."

The Notice of Appeal says:

"The Tribunal failed to consider how my condition – Lupus Erythematosus (Discoid Lupus) affects my ability to retain information, act upon instructions and generally deal with day to day affairs. Although the Tribunal note that following the decision to dismiss me, I had to deal with the death of a close friend and had a period of homelessness, they do not consider that this would have exacerbated my condition."

But the Tribunal had considered Mr Robinson's medical condition. Obviously they had to judge it in the light of whatever evidence on the point was put in front of them. They did consider also his surrounding and unfortunate circumstances but they held in terms that they did not effectively prevent him from submitting his claim. That was a finding of fact.

[17]Mr Robinson's Notice of Appeal next asserts:

"I was unable to deal with my day to day affairs throughout the whole period from my dismissal to the present day."

But that is directly contrary to the finding of fact that the Tribunal arrived at after hearing and seeing both the Applicant and Mr Holmes, the latter of whose evidence they accepted. It cannot be said that there was no evidence at all available to the Tribunal to support their conclusions. Mr Holmes, Mr Robinson's own Union Officer, who had met him at the internal appeal hearing and had several phone calls with him thereafter, said that Mr Robinson had appeared to be able to understand and deal with the internal appeal. The Notice of Appeal says also:

"I also consider that I was medically unfit to put my case adequately to the tribunal on 17/08/99."

[18]We are bound to say that the words "I consider" are not a very useful start when what is being alleged is one's own medical state of unfitness. There is no suggestion that Mr Robinson said to the Tribunal that he was unwell or needed an adjournment or needed shade, nor is it the case that the Tribunal seem to have detected any such weaknesses in his state at the time or his manner of the conduct of the appeal. Moreover, he was assisted by his partner who presumably would have been well placed to detect that he was "not himself", as the expression is, but no such application seems to have been made. Mr Robinson adds that he will produce medical evidence and, indeed, that he did. He said:

"I should be allowed the opportunity of representation as I am clearly not well enough to represent my own interests in the matter."

[19]However, the medical report that was submitted (and we must emphasis, it was not in front of the Tribunal) is that of the Consultant Physician, Dr W.S. Mitchell, based on an examination in May 1999 but it says nothing to suggest that Mr Robinson would have been unable properly to present his case before the Tribunal or to have been likely to have failed to understand the Union's advice that had been given to him earlier.

[20]Mr Robinson has also produced a note of his internal appeal hearing on 20 April 1999. It shows him being asked whether he understood the case (and agreeing that he did) and it shows him answering questions with full intelligence. He has also produced a report from Mr Searle, the Post Office's own Area Medical Adviser, but there is nothing in that that helps him, indeed, were it to be relied upon, it would be a factor against him. It certainly does not suggest any medical unfitness or likelihood of it in relation to Mr Robinson's ability adequately to conduct the hearing of the Employment Tribunal or even at the earlier internal appeal.

[21]Mr Robinson's skeleton is in part directed to what he believes the merits of his case for disability discrimination would have been. But the skeleton then, rightly, concentrates on a number of findings and says, "Significant findings from the Employment Tribunal were that" and then there are a series of bullet points:

"The Appellant was concentrating on the outcome of the appeal in order to get his job back and wanted to resolve that first; The Appellant's appeal against dismissal was still in progress at the time of the application to the Employment Tribunal; The Respondent was awaiting medical evidence in connection with the appeal; The Respondent suffered no prejudice from the late application apart from the requirement to defend the claim; The union advisers did not submit the claim on the Appellant's behalf."

[22]All those were, indeed, findings of the Employment Tribunal and matters that they therefore had in mind and it cannot be said that any was overlooked. Then the skeleton turns to the closest it gets to raising a true point of law and it refers to the case Aniagwu v London Borough of Hackney

[1999] IRLR 303

. The dates in the Aniagwu case need to be borne in mind. Mr Aniagwu lodged an internal grievance claiming racial discrimination. The Grievance Committee rejected his grievance on 20 March 1997. Mr Aniagwu did not learn of the rejection until 26 March 1997. He appealed against the dismissal of his grievance. The appeal was delayed through no fault of his. On 26 June he lodged an IT1 as to the dismissal of his grievance having been an instance of racial discrimination. The Employment Tribunal had held that time ran from 20 March on which basis Mr Aniagwu's case was six days late. If the time had run from when Mr Aniagwu learned of the dismissal of his grievance it would have been only one day late. The Tribunal held on the facts that it was not just and equitable to lift the time bar. The Employment Tribunal had held:

"It found that one of the reasons the complaint was not in time was that the applicant 'was hoping that the internal appeal would be dealt with first and resolve matters in his favour, and therefore only commenced industrial tribunal proceedings when frustrated by the employer's delay'."

[23]The matter went to the EAT and the EAT dealt with the point about the starting time. It said this:

"On this issue we have to say that we are unanimously of the view that the industrial tribunal were wrong to have concluded that time started to run from 20 March. On analysis, what the applicant was complaining of falls within s. 4 (2) (c) of the Race Relations Act 1976 , namely that his employers had subjected him to a detriment; namely unlawfully dismissing his grievance brought against his manager: unlawfully in the sense that the decision was tainted by race. It seems to us that an applicant must be able to identify the detriment to which he has been subjected before he can present a complaint and that where, as here, the act consists of a refusal to accept his grievance, then he was only subjected to a detriment when he was notified that his grievance had been rejected."

And a little later, they say:

"In those circumstances, we are satisfied that the industrial tribunal was looking at the question of the time provision on the wrong basis."

[24]Once the EAT had found that the Employment Tribunal had approached their task on the wrong basis, one can see that there was a strong case for the matter being remitted to the Tribunal to hear it on the right basis. However, the Employment Appeal Tribunal continued with its reasoning as follows:

"For those reasons, it seems to us that the true date was 26 March and not 20 March, as the tribunal had said in paragraph 6 of their decision. However, we agree with Mr Soor [the Respondent's Counsel] that the fact that a complaint was one day out of time rather than six days out of time has little, if any, effect on the validity of their decision. It is a dangerous argument to present to an industrial tribunal, that because the application was only one day out of time, time should be extended. The logical outcome of that submission would be that time limits were to be extended day after day after day. Therefore, despite the fact that the industrial tribunal has erred in the date from which time ran, we would not have been prepared to allow the appeal on that basis."

[25]The Employment Appeal Tribunal then quoted from the findings of the Employment Tribunal's paragraph 3 (e). They do that as follows. They say:

"… in sub-paragraph (e) of paragraph 3, the industrial tribunal said this: 'As to why the originating application was not filed any earlier than it was, the tribunal accepted the applicant's evidence that he was hoping that the internal appeal would be dealt with first, and resolve the matter in his favour, but that he eventually became frustrated by the delay'. It seems to us that there is merit in the argument, on behalf of the appellant, that the industrial tribunal effectively had not considered the case which was being advanced on the applicant's behalf."

A little later, in paragraph 20, they say:

"But it seems to us that the industrial tribunal have signally failed to deal with the true nature of the reason why he did not present his complaint earlier, when dealing with the just and equitable provision."

And later still, they say:

"… we think it significant that the industrial tribunal was able to deal with the grievance procedure and the internal delays involved in that, when considering the complaint under s.146 of the 1992 Act, but failed to address that issue expressly when dealing with the just and equitable provision at paragraphs 7 and 8 of their decision."

[26]The Appeal Tribunal was thus persuaded that there was there error of law, presumably consisting of a signal failure of the Tribunal below to deal with the true nature of Mr Aniagwu's reason for not having presented his complaint earlier. The Employment Appeal Tribunal's view that there had been such a failure is not altogether easy to square with the Employment Tribunal's paragraphs 7 and 8 which are also quoted by the Appeal Tribunal in its paragraph 14. This is the quotation from the Employment Tribunal below in that case:

"The tribunal concludes that the originating application was not completed or submitted any earlier than it was for a combination of reasons: the applicant was ignorant of the statutory time limit (and the date from which time would start to run) and, as has already been said, was hoping that the internal appeal would be dealt with first and resolve matters in his favour, and therefore only commenced industrial tribunal proceedings when frustrated by the employer's delay."

That was in the Employment Tribunal's paragraph 7. In the Employment Tribunal's paragraph 8, it said:

"For essentially the same reasons, the tribunal considers that in all the circumstances of the case it would not be just and equitable to consider the complaint that Mr M. Owens had racially discriminated against the applicant, especially having regard to the much greater extent of the delay since the date of the act of which complaint was made."

[27]However, the error of law identified by the Employment Appeal Tribunal in Aniagwu was a failure to deal with the true nature of the reason why the complaint had not been presented earlier and, so regarded, the case does not help Mr Robinson in our case. The Tribunal in our case was well aware, firstly, that Mr Robinson was pursuing his internal appeal; secondly, that it was not concluded; thirdly, that the internal appeal awaited further medical evidence (which they found was medical evidence awaited from him) and fourthly, that he was concentrating on the outcome of the appeal in order to get his job back and wanted to resolve it first.

[28]As we have seen, there was advice of the Union which he ignored in that respect. Plainly, those matters were in the Tribunal's mind because they were all express findings of fact by the Tribunal itself. It cannot be said in the case at hand that the Tribunal did not deal with those issues. It was plainly put into the scales by the Tribunal and to that extent, as we have said, Aniagwu does not assist Mr Robinson. But in Aniagwu the Employment Appeal Tribunal also said this:

"It seems to us that that is entirely compatible with the reason given by the applicant, as to why he had delayed, and if the tribunal had asked themselves whether, in those circumstances, the applicant had acted reasonably, it seems to us that every tribunal would have concluded that he was well entitled to take the view that it would be sensible to seek to redress his grievance through the internal grievance procedure before embarking on legal proceedings. That was the position he had made plain to Hackney in the internal documents and it seems to us that every industrial tribunal, unless there was some particular feature about the case, or some particular piece of prejudice which the employers could show, would inevitably take the view that that was a responsible and proper attitude for someone to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than to go to law."

[29]That is not, and does not purport to be, a proposition of broad applicability such that wherever and so long as there is an unexhausted internal procedure, then delay to await its outcome necessarily furnishes an acceptable reason for delaying the presentation of an IT1 such as would, of itself and without more, lead to relief under section 68 (6) of the Race Relations Act or by analogy, section 76 (5) of the Sex Discrimination Act or, as we are concerned with, paragraph 3 of schedule 3 of the Disability Discrimination Act . Parliament could so easily have so provided in any one of those three Acts. It would also have been able to qualify the reasonable practicability test of section 111 (2) of the Employment Rights Act , to take account of the possibility there, but that has not been done in any of those Acts. It has done no such thing. It is not as if delay by reason of the incomplete nature of an internal appeal is a novel point. The point had come up in Singh v The Post Office

[1973] ICR 437

and MacDonald v The South Cambridgeshire Rural District Council

[1973] ICR 611

. Sir Hugh Griffiths even suggested that the then Act of 1971 should be amended, so that time did not run until after domestic process had been exhausted, and the same idea was repeated, the same recommendation to the legislature was repeated, in Bodha v The Hampshire Area Authority

[1982] ICR 200

, 205 F – G per Browne-Wilkinson J, sitting with lay members of the Employment Appeal Tribunal.

[30]Given that background it cannot be that Parliament was unalive to the point. Particularly notable is the consideration that the recommendations in those cases was not adopted even in relation to a brand new jurisdiction such as Disability Discrimination where Parliament had, so to speak, a clean slate. However, it is not as if there are not reasons running to the contrary to the recommendations which those eminent judges made to the legislature. So long as it is tolerable that some employers have no formal appeals processes then it does provide a complication which might act unfairly if, in cases where there is a formal appeals procedure, the time bar can effectively be extended by the use of the appeal and possibly by delays in the appeal. Were it to be a rule that a complaint could invariably safely be delayed until the final conclusion of an internal appeal, that might encourage time-wasting and a legalistic approach to time and delays in internal appeals procedures which are generally best directed to being expeditious and inexpensive and able to be well conducted without lawyers but by laymen.

[31]We can only conclude that Parliament has quite deliberately not provided that invariably the running of time against an employer should be delayed until the end of domestic processes. According, when delay on account of an incomplete internal appeal is relied upon as a reason for delaying an IT1 or failing to lodge it in time, and where that is not merely alleged but upheld as a matter of fact, if that allegation and that fact is fairly considered by the Employment Tribunal and put into the balance when the justice and equity of the matter is considered, that ordinarily will suffice for the Employment Tribunal to escape error of law as to that issue. We find some comfort in arriving at that conclusion from the earlier cases, unreported but at the EAT, London Borough of Islington v Mrs S. Dean , a judgment delivered on 1 December 1999 and London Borough of Waltham Forest & Others v Mr F Omilaju of which we have been given a transcript which appears to date it as 17 January 2000.

[32]The Tribunal here plainly had in mind the consideration that Mr Robinson was minded to pursue his appeal rather than launching IT 1 proceedings but it is not as if there were not matters to be put into the balance on the other side of things. As Mr Burns points out, the Tribunal held that Mr Robinson knew about the time limit, was advised by his Union about it at least twice during the three-month period but he chose to concentrate on the internal appeal; that in doing so he ignored Union advice; that he was not incapable of looking after his own affairs; that he was in fact able to deal with them, so far as concerned the internal appeal promptly and vigorously. It is to be borne in mind also that time limits in employment cases are, in general, strictly enforced - see London Underground v Noel

[1999] IRLR 621

, 624 para 21 CA and see also, Aziz v Bethnal Green

[2000] IRLR 111

, in the Court of Appeal, which again illustrates a strict approach to time limits, albeit different time limits, in the employment law field.

[33]Mr Burns has referred us to Hutchison v Westward Television Ltd

[1977] ICR 279

, a judgment at the EAT delivered by Phillips J, dealing with the similar wording of the provision in the Sex Discrimination Act , section 76 (5). The EAT then said, at page 282:

"Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

[34]In our view that remains good law. Applying it to this decision of the Tribunal, we can see no such failing on the Tribunal's part and it is especially a matter for the Tribunal to decide what weight to attribute to the various matters, the various competing considerations that are laid before it in the exercise of such a jurisdiction. We therefore dismiss the appeal as to the substantive decision. The appeal as to the review gives rise to no separate questions of law which we have not dealt with and we dismiss that appeal also.

[35]We are bound to say that we have considerable sympathy for the position of Mr Robinson. We bear in mind the recommendations in the two cases in 1973 that suggested that the legislature should provide that time should run only from the conclusion of domestic procedures. It might be proper that Parliament should look again at that issue. We have concluded as we have indicated on the point but it is obviously not inappropriate that it be looked at afresh. However, at the moment, as the law stands an employee who awaits the outcome of an internal appeal and delays the launching of an IT1 must realise that he is running a real danger. Far better, therefore, if any delays are encountered and if the three months is beginning to threaten to be ended, that the IT1 should be launched and the sort of sad conclusion that has overtaken Mr Robinson should be avoided in other cases. As we have said, we have sympathy for his position but we are unable to find any error of law in the Tribunal's reasoning and accordingly, for the reasons we have given, we must dismiss the appeal.