MR R R SETCHELL v GARDEN ISLE FROZEN FOODS [2001] UKEAT 1079_00_2811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1079_00_2811Case No Appeal No. EAT/1079/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R R SETCHELLAPPELLANTGARDEN ISLE FROZEN FOODSRESPONDENT
Before
His Honour Judge D M LevyDate 28 November 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR CLIVE SHELDON (of Counsel) Instructed By: Messrs Metcalfe Copeman & Pettefar Solicitors 8 York Row Wisbech Cambridgeshire PE13 1EF JUDGE D M LEVY QC : Mr Setchell ("the Appellant") appeals from a decision of an Employment Tribunal sitting at Bury St Edmunds, promulgated on 17 July 2000. The Tribunal had before it an application by him complaining of unfair dismissal and disability discrimination.[2]The Tribunal held that the claim for disability discrimination was presented outside the statutory time limit and it was not just and equitable to extend the time limit. From that decision the Appellant appealed. At the preliminary hearing of his appeal the Chairman of the panel was Miss Recorder Slade QC (the panel included a member who sits on the hearing today). In the absence of the Appellant the panel gave leave for the appeal to go to a full hearing on three arguable points which we will set out later in this judgment, having regard to the Notice of Appeal and the decision of the Employment Tribunal. The Applicant does not appear today. He has asked us to hear this appeal in his absence, asking us to bear in mind a justified complaint which he makes, namely that the skeleton argument of the Respondent was not served within the time limits ordered by the EAT. He did, however, have it a week in advance and we do not think that his case has suffered by reason of that.[3]Mr Sheldon, who did not appear below, has appeared for the Respondent on this appeal and in the Appellant's absence has very properly put before us any matters which he thought the Appellant could properly rely on, if he had been here to present his case himself.[4]Before turning to the factual background of the matters in issue it is necessary for us to remind ourselves of the provisions of the Disability Discrimination Act 1995 which provide the period within which proceedings must be brought. They are found in Schedule 3. Paragraph 3 of the Schedule reads: "3(1) An employment tribunal shall not consider a complaint under section 8 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[5]The factual background of the application made by the Appellant to the Employment Tribunal was this. He had been employed for two or three years prior to early 1999 when the Respondent sought to change its shift patterns to continental shifts. That would have required the Appellant to have worked longer hours for less days and it would have impacted on his work arrangements. He objected and contended that it would affect his health.[6]On 4 June 1999 the Respondent issued a notice of dismissal to take effect on 2 July 1999 but undertook that this would be rescinded if a medical report, to be obtained, confirmed that the Appellant was unfit to work for longer shifts. No medical report had arrived by 2 July 1999 and the Appellant had continued in the company's employment.[7]A medical report which was produced failed to confirm that the Appellant was unfit to work the longer shifts. Accordingly, the company gave him notice of dismissal which took effect on 6 August 1999. In a letter of that date which the Appellant asked us to consider the Respondent set out the various alternatives then open to him. The Appellant presented an Originating Application complaining of unfair dismissal on 2 November 1999. On 26 November 1999, the Appellant sought leave to amend that Originating Application to include a claim for disability discrimination. He explained that he had sent off his application in a hurry and had forgotten to add that complaint to his form.[8]The Employment Tribunal found first of all that he was aware of the issues; secondly that he had sought advice initially from the Citizens Advice Bureau and that he was not unaware of the time limit.[9]On 28 January 2000 the Appellant obtained a report from a Consultant questioning his ability to perform a longer shift and placed reliance on a different condition than that which the Appellant had originally sought to be considered by his own doctor and the doctor of the Respondent. The hearing of the Appellant's complaints commenced on 24 February 2000. In paragraph 1 of the Extended Reasons the Tribunal set out what happened during the hearing. We take this from the middle of paragraph 1:
"There was a dispute between the parties as to whether the dismissal had occurred on 2 July 1999 in which case the complaint of unfair dismissal would be out of time or the 6 August in which case it would be in time. On the second day of the hearing the Respondents indicated that subject to a determination of the time point they would be prepared to concede that the Appellant had been unfairly dismissed. They indicated that they intended to call no further evidence. In the course of his evidence the Appellant confirmed that the act of discrimination that he replied upon had occurred on 4 June 1999 and that it was the Respondent's failure to obtain a medical report before taking further action."
[10]The Tribunal held that the Appellant's dismissal took effect on 6 August 1999 and so his Originating Application alleging unfair dismissal was presented in time. The Respondent conceded that the dismissal was unfair and an award of £9,559.52 was made to him including £945 for the basic award. The Tribunal held that the complaint of disability discrimination was presented out of time and that it would not be just and equitable to extend time. The Appellant's Notice of Appeal dated 22 August 2000 complained that the Tribunal erred in law in not considering it just and equitable to permit this claim. A panel of this Tribunal at the preliminary hearing identified three arguable errors of law and permitted the appeal to go forward only on those grounds to a full Tribunal. Those ground were these.[11]First, that the Tribunal erred in taking as the date of the amendment the date on which it was sought, namely 29 November 1999 and not the date on which it was originally presented, namely 2 November 1999.[12]Secondly, that the Tribunal erred in taking as the date of the discriminatory act the date identified by the Appellant at the hearing, 4 June 1999, rather than the date referred to by the Appellant in the notes attached to the Notice of Appeal, 6 August 1999.[13]Thirdly, that the Tribunal erred in its approach to the issue of whether it was just and equitable to extend time because it focussed more on the issue of reasonable practicability and it misunderstood the well known case of Hutchison v Westward Television [1977] IRLR 69 to which it referred.[14]Mr Sheldon's submitted that the Tribunal made no errors of law in dismissing the claim for disability discrimination in respect of these grounds. He submitted it was important to bear in mind the general principle that the Tribunal had a broad discretion in making its decision and he pointed out, by reference to paragraph 11 of Hutchison, that its decision should only be interfered with if it demonstrably took a wrong approach to the matter, or it failed to take into account facts which it should have done, or that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it. The burden on the Appellant in disturbing an exercise of such discretion is a heavy one.[15]As to the correct date of amendment, Mr Sheldon submitted the Tribunal did not err in determining that the relevant date for it to consider when assessing the timeliness of the Appellant's application was the date on which the amendment was sought, as opposed to the date of the Originating Application. In that connection he referred us to a recent decision of this Tribunal, Harvey v Port of Tilbury London Ltd [1999] IRLR 693 when a panel headed by Lindsay J held that a complaint be treated as having been presented only when any material amendment has been included in the Originating Application. In our judgment that is a decision which falls fairly and squarely into the facts which we have to consider and therefore the correct date for the complaint of disability was that as found by the Employment Tribunal.[16]As for the correct date of the act of discrimination Mr Sheldon pointed out that it was for the Appellant and not for the Tribunal to make his case, both as to the act of discrimination complained about and the date on which it took place. In that connection he referred us to the decision of Chapman v Simon [1994] IRLR 124 . He referred us to the statement made by the Chairman in paragraph 1 of the Extended Reasons where the Appellant confirmed that the act of discrimination on which he relied had occurred on 4 June 1999. He submitted that that having been said by the Appellant could not be said to be other than the correct date. However, even if the Tribunal had taken the later date of 6 August, the application was still out of time and given the way the Tribunal approached the just and equitable considerations, it would have come to the same conclusion. In our judgment that submission was correct.[17]As to the third of the grounds of appeal, Mr Sheldon submitted that the Tribunal did not err in its approach to the exercise of its discretion. The Tribunal did not focus solely on the reasons for the delay in seeking the amendment, as the EAT had suggested in its observations at the preliminary hearing, although this was certainly a matter of which it was entitled to take account. The Tribunal clearly weighed up the prejudice that would be caused to the parties if the amendment was to be permitted in the contents of the decision awarding Mr Setchell the £9,559.52 for unfair dismissal and where the compensatory award reflected the Tribunal's own decision that the Appellant's future loss was limited to 20 weeks. The only financial benefit of allowing the Appellant's amendment would have been to give him the opportunity to claim for injury to feelings on account of the alleged discrimination under the direct discrimination act, the rest of his alleged losses were compensated for by the decision on unfair dismissal. He submitted that in making the judgment, the Tribunal had made a broad assessment of the merits of the Appellant's amended claim. It was open to the Tribunal to do that as was provided in the well established case of Hutchison at paragraph 10 where the court said:
"It is for the Tribunal to say how it thinks it is necessary to look at the circumstances of the matter complained of. No doubt it will want to know what it is all about; it may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint."
[18]In the present case the Tribunal looked at the way in which the Appellant wished to put an amended claim. It concluded that taking the matter as a whole it appeared that the Appellant was not dismissed because he had a disability, but rather because he had not. If the evidence available to the Respondent had indicated there was a medical reason why he could not work to the same shift pattern as had been agreed by the remainder of the relevant part of the workforce, he would not have been dismissed. He submitted that the Tribunal proceeded correctly to consider questions of prejudice to the parties if the amendment was to be admitted. It observed that if the matter were to proceed to an adjournment, it would be necessary to enable the Respondent to re-address the medical aspect of the case, in other words the company would suffer prejudice and this had to be taken into account in the exercise of discretion. The conclusion that it would not be just and equitable to extend the time in this case was one which the Tribunal was entitled to reach and he submitted that this Tribunal should not interfere with that conclusion. We think that that submission was a good one.[19]We have considered the 14 page typed skeleton argument provided by the claimant. We found nothing in those 14 pages which did anything to dent the points which had been made by Mr Sheldon. Often they strayed into areas of alleged facts which were well beyond anything which could properly be considered by this Tribunal on an appeal. We are satisfied that the appeal does not succeed on any of the grounds on which it was permitted to come to a full hearing.[20]We thank Mr Sheldon for his assistance he has properly given in the absence of the Respondent. We dismiss this appeal.