MR A H SADIQ v LEEDS CITY COUNCIL MR M TOLLADAY MRS L DUFFY MR A MCLLROY [2002] UKEAT 0011_01_2305

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0011_01_2305

Case No Appeal No. EAT/0011/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A H SADIQAPPELLANT

LEEDS CITY COUNCIL MR M TOLLADAY MRS L DUFFY MR A MCLLROYRESPONDENTS

Before

Ms Recorder Slade

Date 23 May 2002

[1]APPEARANCES For the Appellant MR T HUSSAIN (Representative) Instructed By: Northern Complainant Aid Fund Checkpoint 45 Westgate Bradford BD1 2TH For the Respondent MISS A PROOPS (of Counsel) Instructed by Leeds City Council Legal Services Leeds LS1 1UR MS RECORDER SLADE QC This is an appeal from the decision of an Employment Tribunal entered in the Registrar on 26 October 2000 that an application presented by Mr Sadiq under the Disability Discrimination Act was out of time and that it was not just and equitable for the Tribunal to exercise its discretion to extend time so as to allow it to be heard.

[2]Mr Sadiq is an employee of Leeds City Council. He contends that he suffers from a disability within the meaning of the Disability Discrimination Act 1995 . That is not conceded by Leeds City Council. He applied for a position as an Information Technology Trainee. In April 2000 he was informed that he had been unsuccessful in being short listed for interview for the post and on 18 July 2000 he presented an Originating Application complaining of his not being short listed for interview. There was an issue before the Employment Tribunal as to the date upon which he was informed that he had not been short listed. The Applicant contended that he had been so informed on 19 April and the Respondent contended that he had been so informed on 11 April. If 19 April was the correct date then the Originating Application was presented in time. If 11 April was the correct date then the Employment Tribunal could only hear the Originating Application if it exercised its discretion under schedule 3 at paragraph 3(2) of the Disability Discrimination Act which provides:

"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]Mr Sadiq subsequently spoke on 26 April to a member of the Respondents in which Mr Tolladay gave him an explanation as to why he had not been short listed for interview. Mr Sadiq subsequently on 4 May raised an internal grievance in the course of which he stated that it was on 19 April that he found out that he had not been short listed. The Employment Tribunal made the following material findings of fact. In paragraph 5 the Tribunal said:

"In resolving the direct conflict of evidence that there was between whether Mr Sadiq was informed of his lack of success on the 11 th or 19 th of April, the Tribunal prefers the evidence of the Respondents. The Tribunal held that the conversation with a Mrs Denton took place on 11 April 2000 not 19 April 2000 which the Applicant maintains."

In paragraph 6 of its reasons the Tribunal held:

"The Applicant knew on 11 April 2000 that he was not receiving an interview and had not been placed on the interview short list. He knew that day and prior to that day the advice he had been receiving from Leodis who were advising people in his circumstances. He knew that he was not being listed and that he could have expected, as the advice he had been given indicated, an interview given his personal circumstances. He was, therefore, fully aware on 11 April 200 when he was informed that he had not been short listed of the reasons why he might wish to make a complaint, and if he wished to make a complaint that that complaint would be available to him and that the time limits therefore must run from that date."

[4]As to whether it was just and equitable to extend time to hear the complaint notwithstanding that the application was held to have been presented outside the three month time limit prescribed by paragraph 3 of schedule 3 to the Disability Discrimination Act 1995 the Tribunal made the following findings.

[5]Having referred to differences between aversions in the Originating Application and the arguments Mr Sadiq developed before them, the Tribunal said "That does not assist his credibility and that carries forth to the consideration by the Tribunal of whether it is just and equitable in the circumstances to allow the Applicant to proceed to bring his complaint in any event, notwithstanding that it is outside the relevant time limits." At paragraph 9 it held:

"It has also been argued before this Tribunal in support of the just and equitable argument that in lodging his internal grievance the Respondents did not point out to the Applicant that the dates differed from that which they would contend before this Tribunal. Clearly the grievance matters were not concerned with dates but with actual events that happened. In any event it is not for the Respondents to advise the Applicant about his time limits and keep him on the straight and narrow as he would contend should have been the case."

And at paragraph 10 the Tribunal said:

"In reality the Applicant has put all his eggs in one basket before this Tribunal in the way he has presented his evidence and the case before us and that argument has just not been credible and is not accepted."

[6]Mr Hussain, who has appeared on behalf of the Appellant, has urged upon us the argument that this Employment Tribunal failed properly to consider the exercise of its just and equitable jurisdiction to extend time so as to hear the Applicants complaint. He points to paragraph 4 in the Tribunal's decision in which the Tribunal said:

"…the discretion in the Tribunal to extend the relevant period of three months where it considers it just and equitable to do so and that is a matter that also in this case may well have had to have been considered by the Tribunal if it found that the three month time limit had not been complied with."

[7]Further he refers to paragraph 10 and the reference by the Employment Tribunal to the Applicant, "putting all his eggs in one basket," and he contends that that indicates too that the Tribunal did not properly consider the alternative argument once it felt that the application was presented outside the three month time limit, that time should be extended under the just and equitable jurisdiction.

[8]Further he draws our attention to the case of British Coal Corporation v. Keeble

(1997) IRLR 336

and in particular to paragraph 8 of that judgment in which various factors to be taken into account in the exercise of the just and equitable extension are set out. Miss Proops, for Leeds City Council, contends that the Employment Tribunal did properly consider the exercise of its just and equitable jurisdiction to extend time and that the Tribunal made relevant findings including in particular the finding that the Applicant had all the relevant information required to make a claim on 11 April. She says that the factors set out in Keeble are for guidance only and it is for a Tribunal in the particular circumstances of the case before it to consider what should be taken into account in the exercise of its discretion. She says that there is no error of law in the conclusion reached by the Employment Tribunal and that we are not entitled to interfere with it.

[9]We cannot say that this Employment Tribunal failed to consider whether time should be extended under its just and equitable jurisdiction. The Employment Tribunal referred to the exercise of that discretion at various points in its decision and referred to matters which were relevant to that exercise. In the light of its finding of fact, which is unchallenged before us, that the Appellant had all the information necessary to present the claim under the Disability Discrimination Act 1995 to a Tribunal on 11 April, we cannot find that the Employment Tribunal erred in law in the exercise of its discretion. Accordingly this appeal must be dismissed.