DR Q NAHAR v (1) YORK HEALTHCARE TRUST (2) DR A KELLY [2002] UKEAT 1006_01_2309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1006_01_2309Case No Appeal No. EAT/1006/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR Q NAHARAPPELLANT(1) YORK HEALTHCARE TRUST (2) DR A KELLYRESPONDENTS
Before
His Honour Judge J BurkeDate 23 September 2002
[1]APPEARANCES For the Appellant MS NATASHA PETER (of Counsel) Instructed by: Messrs Hague & Dixon Solicitors Cumberland House Cumberland Street York YO1 9SR For the Respondent MR FRANK SUTCLIFFE (Solicitor) Instructed by: Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds LS1 2AX JUDGE J BURKE QC Dr Nahar was employed from 1980 by the York Healthcare Trust, and its predecessors no doubt, as a Clinical Medical Officer. The Trust provides community healthcare for the area of York. Dr Nahar's particular role in their organisation was that of a school medical officer, or school doctor. She was given notice of termination of her employment in June 2000. That notice terminated on 6 September.[2]On 22 December she sent to the Employment Tribunal an Originating Application which was received on 28 December. In it she claimed that she had been unfairly dismissed and made redundant and added, as a type of complaint, the words "unfair treatment". The application named both the Trust and Dr Kelly as Respondents, Dr Kelly being a Consultant Community Paediatrician who was Director of the school health service.[3]In a joint Notice of Appearance the solicitors acting for the Respondents set out their case as to how Dr Nahar came to be dismissed, in considerable detail. For present purposes their case can be briefly summarised. It was that Dr Nahar's employment was fairly terminated for reasons of capability, or some other substantial reason, after a series of investigations, assessments and discussions that led the Trust to believe that compulsory early retirement was in the best interests of the Service and of Dr Nahar.[4]By a decision promulgated on 24 April 2001 the Trust permitted Dr Nahar to amend her Originating Application by adding to it complaints of both race and sex discrimination and directed the hearing, on 17 May of preliminary issues as to whether Dr Nahar's three complaints, as they now were, of unfair dismissal, race discrimination and sex discrimination, should proceed, despite the presentation of those claims to the Tribunal more than 3 months after the termination of her employment and after the last act of discrimination, which had to be the date of termination.[5]Dr Nahar was ordered to provide further and better particulars of her discrimination claim by 1 May. On that date solicitors acting for her provided further and better particulars of her claim that she had been the victim of direct discrimination. The letter in two places complained also of indirect discrimination but gave no details as to how indirect discrimination was said to arise.[6]The Tribunal heard the preliminary issues as to time on 17 May 2001. Their decision was promulgated with Extended Reasons on 12 July. They decided unanimously, applying section 111 of the Employment Rights Act 1996 , that it had been reasonably practicable for Dr Nahar to present her unfair dismissal claim within the primary time limit and that she had failed to do so. Accordingly her unfair dismissal claim could not proceed. The Tribunal then decided by a majority, applying section 76 of the Sex Discrimination Act 1975 and section 68 of the Race Relation Act 1976 , that her discrimination claims had not been presented within the primary time limit and that it was not just and equitable to allow those claims to proceed despite the failure to comply with the primary time limit. Thus, all Dr Nahar's claims were effectively dismissed. She now appeals against those decisions.[7]The Tribunal found, at paragraph 9 (d) of their decision, that although Dr Nahar had been advised as early as March 1999, in the course of the assessment process, to seek the assistance of the BMA, she had refused then or thereafter to do so.[8]The Tribunal found, at paragraph 9 (f) of their decision, that Dr Nahar had consulted solicitors in March 2000 who gave her advice about her position, sought further documentation so that they could advise her more fully and asked her to contact them once she had provided them with that documentation but that Dr Nahar had neither provided the documentation nor contacted them again.[9]The Tribunal found, at paragraph 9 (g) of their decision, that Dr Nahar had told her employers in March and April 2000 that she had sought advice. Part of that advice was that she should ask for a copy of the report on her of the assessors. She obtained a copy of that report in June but did not in fact seek advice upon it.[10]In sub-paragraph 9 (h) the Tribunal found that from 14 June, confirmed in writing on 21 June, Dr Nahar knew that her employment was to end on 6 September. The letter told her of her right to appeal; but she did not do so or even lodge a grievance because, she said in her evidence, she had decided before 14 June to take matters externally. This the Tribunal took, justifiably enough, to mean by way of Tribunal proceedings or at least by way of external proceedings in the Courts or Tribunals.[11]Thus, on these findings, both before and after the date of termination Dr Nahar plainly knew of the need to seek advice from her solicitors and/or the BMA; she knew from June of the impending termination and took no steps to fight her dismissal internally because she intended to fight it externally.[12]It is also quite clear and not in dispute that, between 6 September (the date of termination) and 21 or 22 December, when the Originating Application was sent to the Tribunal, Dr Nahar took no steps at all to seek any advice about or to put forward her claims.[13]Her explanation for that failure on her part was that she was suffering from depression and stress which removed her motivation and had the effect of preventing her from carrying out day to day activities and tasks, such as furthering her claim. It was her principal case that this illness made it not reasonably practicable for her to find out about the time limits or to lodge a claim in time and rendered it just and equitable to extend the time in the case of the discrimination claims.[14]The Tribunal rejected Dr Nahar's evidence about her illness. They found that, while she had for some time been suffering from hypertension and more recently from coronary heart disease, exacerbated when she suffered anxiety or stress, there appeared to have been no or no recent history of depression before September 2000. Between 16 May and 22 November 2000 Dr Nahar admittedly did not see her GP at all. She saw him, the Tribunal found, on 22 November, but only in relation to her heart condition; and she did not make any suggestion of depressive illness or stress-related matters until she saw her GP on 21 December, after, of course, the primary three-month time limit had elapsed, although she had visited the surgery on 11 and 16 December, the latter to see the practice nurse to obtain inoculations before a journey to Bangladesh at the end of December.[15]The GP's notes of the visit made by Dr Nahar to him on 21 December reads as follows:
"E: Stress related problem S: Been feeling down before and since 'pushed out' of job, saw Dr Woodrow whilst still employee, could not face appeal immediately but wishes to at least get to Tribunal (just missed date to apply), thinks she has been depressed."
[16]No other contemporary medical note refers to depression. Another entry in the medical notes, in a summary list – the precise purpose or meaning of which has not been described to us and may well not have been described to the Tribunal – has against the date 21 December 2000 the words "stress-related problem". That does not add to the extract from the notes which we have just read. The records do not disclose that any anti-depressant or other medication for a psychiatric or psychological illness was prescribed or that any advice was given that Dr Nahar should see a psychiatrist, a psychologist or a counsellor at any relevant time.[17]The Tribunal rejected Dr Nahar's case as to her illness for three reasons. The first was that, on their evaluation of her evidence, she was not persuasive, that is to say she was not convincing. She was of course and is herself a doctor. It might be expected, if she was so ill as to be unable even to contact the BMA or a solicitor, that she would within three months after her dismissal have sought medical advice and treatment.[18]While the Tribunal do not make that point by way of a criticism of Dr Nahar's evidence when they are dealing with the reasonable practicability side of the case, they do make it in respect of the just and equitable side of the case; and of course whether her evidence was convincing or not on the subject of her illness was directly relevant to and indeed the most important part of her case on both issues, as Ms Peter, on her behalf, has entirely properly accepted.[19]That leads into the second part of the Tribunal's reasons as to Dr Nahar's evidence. In paragraph 11 of the decision the Tribunal say that there was absolutely no corroborative evidence supporting Dr Nahar's case as to her mental illness, particularly bearing in mind the fact that she visited her doctor on 27 November and there was no reference to any such illness in the note of that visit; and the first reference to stress was on 21 December. The Tribunal said this at the end of paragraph 11: 11 "If the Applicant's evidence as to the extent of her condition was to be supported, the Tribunal would have expected her to be able to produce the appropriate supporting medical evidence. It did not exist. The Applicant was no persuasive in her evidence."[20]Thirdly, the Tribunal had in mind, but as they said as a factor of lower importance than the lack of appropriate supporting medical evidence, that Dr Nahar, as the Tribunal concluded, had changed her evidence and had been thus inconsistent as to when she had first learnt of the three month time limit. Indeed the Tribunal say in paragraph 11 that Dr Nahar had changed her explanation as to various matters during the course of her evidence. The particular matter to which we have just referred is specifically described by the Tribunal in paragraph 9 (m) and (n) of the decision.[21]For those reasons the Tribunal did not accept that it was not reasonably practicable for her application to be lodged within the primary time limit, so far as unfair dismissal is concerned.[22]The Tribunal then turned to the different test applying to the discrimination claims. In considering whether it was just and equitable to extend the time limit, the Tribunal accepted that there was no particular prejudice to the Respondents and that there was no other remedy open to Dr Nahar. They concluded that there was no suggestion that the employers (the Respondents) had in any way contributed to the delay. The majority concluded that her conduct in failing to seek advice was of particular relevance. In the light of the earlier history and the lack of evidence about her illness from anyone but herself they concluded against Dr Nahar on this issue. They supported that conclusion by a reference to the fact that her further and better particulars did not contain the entirety of her claims as she intended them to be made before the Tribunal.[23]In paragraph 18 the Tribunal summarised their conclusion of the majority in this way: 18 "The majority of the Tribunal (including the Chairman) were of the opinion that whilst balancing all the factors the conduct of the Applicant; the position with regard to the availability and use of professional advice; the refusal to appeal and take grievance procedures and, indeed, to not fully clarify the Applicant's claims; and the finding on the medical condition as referred to earlier in this decision, on balance made it not just and equitable that the Applicant should be allowed to proceed."[24]The first argument developed before us by Ms Peter, who has advanced Dr Nahar's case in this appeal with clarity and succinctness, is that the Tribunal failed to take into account two pieces of evidence which, it was submitted, demonstrated the Tribunal as having fallen into error in saying that there was absolutely no corroborative evidence supporting her contentions as to her medical condition between the termination of her employment and the expiry of the primary time limit.[25]To those two pieces of evidence Ms Peter sought to add a third piece of evidence consisting of a page of the medical records which, it seems, was not before the Tribunal. The Tribunal had before it, as part of the bundle of documents to consider, a number of pages of Dr Nahar's medical notes. Those pages ought to have included a page which sets out notes of her attendances at the surgery between 27 March 2000 and 11 December 2000. Somehow or other, between the solicitors for the parties, that page was omitted from the Tribunal's bundle and was not in front of them. It is not possible now to discern where the mistake took place; and it does not matter. Ms Peter, at the beginning of the hearing of this appeal, asked us to admit it, Mr Sutcliffe agreed that we should look at it; and we have done so.[26]The first piece of evidence which Ms Peter submits did provide corroborative material as to Dr Nahar's medical condition in the relevant period is a letter from Dr Nahar's GP, Dr Thompson, dated 4 April 2001; this is a letter plainly written for the purposes of the Tribunal hearing and written some three months and more after the relevant events.[27]In that letter, addressed 'to whom it may concern', Dr Thompson said this (and we shall refer only to extracts from this letter, the whole of course is part of the bundle of papers before us and we have considered it in detail):
"Her employment terminated on 31 August 2000. In the immediate aftermath of leaving her job Dr Ahmad was feeling depressed. She was very lethargic, her sleep was poor, she lacked any motivation and rarely left the house, her mood was low. She had been planning to pursue an appeal against her termination of contract but did not have the motivation to proceed. During this period she also experienced an upsurge in her angina. It had always been a clear pattern that her angina was worse during periods of anxiety and stress… In December she began to feel somewhat better…She saw our Practice Nurses and myself three times in December seeking reassurances and check-ups relating to her heart disease. She also discussed with me the way she had been feeling since leaving work. When I saw her on 21 December 2000 she said she was finally ready to take on the appeals process and I understand she contacted the Citizens Advice Bureau the next day."
In the last paragraph of the letter Dr Thompson, in effect, invited the readers of the letter to treat it as an explanation of why she was late in making her claim.[28]Ms Peter submits that that letter written by a professional man who knew Dr Nahar well and over a substantial period of time, and who had seen her at the relevant time, did constitute some and potentially important corroboration of Dr Nahar's evidence. The first paragraph, she submits, indicated that Dr Nahar was suffering from serious symptoms in the post-dismissal period. The second paragraph indicated that her heart condition was worse during periods of stress and anxiety; and the third paragraph indicated that she had discussed with Dr Thompson the way she had been feeling since leaving work.[29]Mr Sutcliffe, on behalf of the Respondents, submits that this letter was no more than an account of what Dr Nahar had said to Dr Thompson. It did not constitute a medical opinion of Dr Thompson's. There was no diagnosis; it was not a medical report; and no weight should be attached to it; indeed Mr Sutcliffe tells us that he submitted to the Tribunal that it was a document which should attract no weight.[30]It is correct that the Tribunal did not in their decision refer to this letter at all but we do not regard that as a serious omission on the Tribunal's part. The Tribunal were not obliged to refer to every piece of material – medical or otherwise – especially if they gave any such piece of material no weight. The letter is certainly not contemporary corroborative material because it was of course written several months after the relevant period of time.[31]Plainly, in our judgment, the Tribunal were looking for and expecting to see, if Dr Nahar's account was accurate, contemporary corroborative evidence of the seriousness of her condition. Even if, it can be said with force that the Tribunal did not say expressly that it was looking for contemporary corroborative material, nevertheless this is not a letter, as would seem clear on its face, based on any clinical examination of Dr Nahar's medical state over the relevant period or at all. Indeed, so far as we are aware, no examination of her mental state was ever made over that period. The letter is not a medical report. It does not contain any diagnosis. In our judgment, it is clear that it is a letter which does no more than set out, sometime after the relevant period, an account, or explanation, of delay given to Dr Thompson by Dr Nahar.[32]In the letter Dr Thompson mentions Dr Nahar's visits to the surgery during the relevant period. He says that he discussed with her the way she had been feeling since leaving work; but he does not say anything about her being unable, through illness, to seek advice or to process her claim, either by way of medical conclusion or indeed by way of anything which she said to him. Nor does he at any stage explain why he provided her with no treatment or advice to seek treatment she might obtain at other hands, if the issue of depression was put before him as being one of such severity as was described by Dr Nahar to the Tribunal.[33]Ms Peter suggested to us that he may have prescribed no drugs or treatment for her mental condition because it might have conflicted with her treatment for her physical conditions but that is sheer speculation; Dr Thompson was not called as a witness before the Tribunal and therefore was not asked about such matters.[34]Ms Peter further submitted that if the Tribunal was looking for, or if we were suggesting that the Tribunal would have wanted to find, evidence of clinical depression as opposed to depression in a looser sense, the Tribunal, and for that matter we, would have been demanding too much. We do not accept that submission. Whatever we might expect is irrelevant in any event. The Tribunal were entitled to look for something from the medical evidence which supported Dr Nahar's claim that she was unable, during the relevant period, either to seek advice or to process her claim on her own. There is nothing in the letter which supports that essential element of Dr Nahar's claim.[35]We see no basis for the view that the Tribunal erred in the light of this letter in coming to the conclusion that they did about the absence of corroboration. While in the perfect world the Tribunal might have referred expressly to this letter and explain why they gave it no weight, we do not regard it as in any sense an error of law that they failed to do so. They plainly did not regard it as having any weight; it was specifically the matter of argument before them, both from Mr Sutcliffe and from the solicitor then representing Dr Nahar. The contents of the letter demonstrate why the Tribunal were entitled to take the view that it was not of any weight; and indeed it is difficult to see what other view could have been taken.[36]The second piece of supporting or corroborative evidence as to Dr Nahar's medical condition, which, Ms Peter submits, the Tribunal failed to take into account, is said to be this. The medical records show that, on 15 December, the surgery received the result of a barrage of blood tests upon Dr Nahar which had obviously been ordered at some stage by a doctor; we are asked to draw the inference and the Tribunal were probably asked to draw the inference, and it would seem to be right, that they had been ordered after Dr Nahar's visit to Dr Thompson on 27 November. Those blood tests include a test or tests to see whether there was glandular fever, which might explain, said Dr Nahar, her lethargy and depression. There is, however, no medical evidence at all, beyond what appears in the notes, as to the reasons why Dr Thompson ordered the tests, save for what Dr Nahar herself says. Nothing in the records of her visit on 27 November indicates any complaint about stress or about depression, or about symptoms which were preventing or might prevent her from seeking advice or pursuing her claim herself. The complaints are entirely about her heart condition and about a continuing feeling that she had a cold, which she thought was sinus related, an attribution with which Dr Thompson records his agreement.[37]There is in our judgment no evidence at all from this part of the case, which corroborates Dr Nahar's account that she was suffering from serious stress and/or depression at this stage, of the degree which she needed to establish in order satisfactorily to explain why she had not proceeded earlier with seeking advice and/or making an Originating Application. There is no reference in the Tribunal's decision to the seeking of blood tests. That is not at all surprising; it added nothing of substance to the case.[38]We turn to the third point which is made under this general head; that is the evidence which comes from what we will call the 'new page' of medical records which the Tribunal did not have in front of them. That page does show that, when Dr Nahar went to see Dr Thompson on 27 November, she was complaining, as we have already indicated, both of her heart symptoms and of nasal symptoms. To that extent the Tribunal was unwittingly in error in saying that her visit on 27 November related only to her heart condition. They were unwittingly in error because the page which showed that that was not in fact so was not in front of them. However, that error is not in any way material.[39]What is conspicuously lacking is any entry for 27 November, at which date the three month period had not yet fully expired, of any complaint to Dr Thompson that Dr Nahar was suffering from Stress or depression or suffering from symptoms of whatever cause so severe that she could not seek advice or process her own claim.[40]The rest of the page does not take Dr Nahar's case any further forward. On 1 December she visited the surgery and saw the Practice Nurse. The note is "very anxious, wanting to purchase equipment to monitor own blood pressure. Also interested in being referred to cardiac rehab to discuss with RT." RT, we take it, is Dr Thompson.[41]We cannot say whether "very anxious, wanting to purchase equipment" means that she was saying two things, i.e. a) that she was very anxious and b) she wanted to purchase equipment, or one thing, that she was very anxious to purchase equipment and it is impossible now to explore that any further. But taking the meaning most favourable to Dr Nahar, this entry still does not constitute, in our judgment, and the Tribunal would not have regarded it as constituting, had they had it before them, any corroboration of Dr Nahar's evidence as to the condition of which she complained and which had, she said, caused her to fail to meet the primary time limits.[42]There was another visit on 11 December, also to the Practice Nurse, which is disclosed by that page; but nothing in that entry provides support for Dr Nahar's essential case either.[43]If Dr Nahar was as ill as her evidence sought to suggest, the Tribunal were entitled to wonder why there was nothing in the notes before them (and there is now nothing in the additional notes before us) supporting a complaint of such a degree of illness.[44]Therefore for these reasons, in our judgment, the Tribunal were wholly entitled, on the evidence, to conclude as they did that Dr Nahar did not mention serious depressive illness or stress-related matters before 21 December and that there was no corroboration of her case as to the degree of her symptoms during the relevant period.[45]We turn then to the next head of Ms Peter's submissions. She submits that in a number of areas the Tribunal made findings of fact for which they had no evidence. The first of these areas to which we will refer is the Tribunal's finding that Dr Nahar had changed her account as to how and when she had first discovered the time limit.[46]The Tribunal, at paragraph 9 (m) of their reasons, said that Dr Nahar's evidence was, initially, that she did not know of any time limits until she went to see some solicitors on 22 December 2000, having visited the CAB that morning, but that she subsequently attempted to explain to the Tribunal that the reference in the medical notes for 21 December to her fear that the time limit had expired arose because she had learned of the possibility that she was indeed outside the time limit when she went to the York Library on 21 December. Ms Peter submits that the Tribunal have gone wrong because in Dr Nahar's witness statement of 11 May 2001 she gave (in paragraph 10) the account which the Tribunal put forward as her second account. Thus, says Ms Peter that was the account which she gave initially.[47]The difficulty with this submission from Ms Peter is that we do not know how the evidence that Dr Nahar gave at the Tribunal actually went, because nobody has sought the notes of evidence; and it is too late to seek them now. All sorts of possibilities might have occurred. Dr Nahar might have gone "off proof" in her evidence in chief, or she might in cross examination have given an account which she then went back on in re-examination. These are speculations on our part. We do not know what she said. What we do know, from Mr Sutcliffe, who was present, is that in the course of her evidence the inconsistency which the Tribunal describe did in fact emerge. Ms Peter wisely and fairly has not sought to challenge what Mr Sutcliffe tells us because she was not there and there are no notes. We accept what Mr Sutcliffe says, as indeed we must.[48]It is possible that the Tribunal, if they used the word 'initially' to mean in her first account, may have wrongly used the word 'initially' because if, as we are told occurred, Dr Nahar's evidence in chief consisted of reading her witness statement and then giving supplementary answers, what is in that witness statement would have gone first. It is equally possible that the Tribunal in using the word 'initially' were simply meaning that the version that they described as having been given first went before the version which they describe as having been given second.[49]Even if the Tribunal were wrong to use the word "initially" that does not undermine, in our judgment, the process of reasoning by which they reached the conclusion that they did not rely on Dr Nahar's evidence because of inconsistency. If there was the inconsistency, and it seems clear that there was, then the Tribunal were entitled to rely on it and make what they thought right of it. It needs to be pointed out that the witness statement to which Ms Peter refers is not Dr Nahar's only witness statement. There is another witness statement, which is undated but would appear to be earlier than the one to which we have referred, which, at paragraph 7, appears to give a version of these particular parts of the story which is inconsistent with that given in the second witness statement. So, even on the witness statements there was an inconsistency.[50]Looking at the matter overall we do not see that any error has been established as to the Tribunal's approach to this part of the case.[51]Secondly, in this area of her submissions, Ms Peter points out that there is a contradiction in the Tribunal's findings as to the date on which the claimant found out about the time limit or sent her Originating Application to the Tribunal in paragraphs 9 (m) and 9 (n) of the decision.[52]Dr Nahar may not know that it is an important aspect of the principles which this Employment Appeal Tribunal applies that we should not go through every decision, or any decision, of a Tribunal with a magnifying glass and seek to pick out small mistakes which have no substantive effect on the Tribunal's overall decision. The fact is that Dr Nahar did not know, so she said, about the time limit until either 21 or 22 December; and she sought to get her Originating Application to the Tribunal on either 21 or 22 December. Which it was, in either case, does not really matter, looking at this case overall.[53]The next point relates to paragraph 9 (o) of the Tribunal's Reasons in which the Tribunal refer to the fact that, during December Dr Nahar had made arrangements to travel to see her relatives in Bangladesh, which she did on 26 December. This, say the Tribunal, included the making of arrangements for appropriate inoculations. Ms Peter submits that this finding of the Tribunal is irrelevant unless it is intended to imply that, because Dr Nahar was capable of making travel arrangements, she was not incapable of dealing with her claim. But, says Ms Peter, that is an unfair approach because Dr Nahar's evidence was that she did not herself buy the tickets, her sister did.[54]We do not find this argument at all persuasive. The findings set out in paragraph 9 (o) are not actually used thereafter as part of the reasoning of the Tribunal in their conclusions as to either reasonable practicability or whether it was just and equitable to extend the time limit. So it is possible that they did not in fact regard those findings of any importance. But we will assume, in Ms Peter's favour, that they did. The Tribunal would, as a matter of course, have been perfectly well aware that there is much more to travelling to a distant country than simply buying a ticket. They themselves referred to the ability of Dr Nahar to make arrangements for inoculations. The fact, if it be the fact, that Dr Nahar did not herself buy the tickets would not, in our judgment, render this particular finding open to any real criticism.[55]We have further to point out that, in her first witness statement, Dr Nahar actually says "I booked the tickets to go on 26 December 2000" although in the second witness statement she says that her sister booked the ticket. When the Tribunal earlier had referred to more than one inconsistency it is at least possible that they had that in mind.[56]Next, under this general heading, Ms Peter submits that the Tribunal should not have concluded that Dr Nahar had visited her general practitioner on 11 December and 16 December, occasions when, as the Tribunal found, there was no suggestion of depressive illness or stress-related matters.[57]The notes reveal that on 11 December and 16 December Dr Nahar's visits were not to Dr Thompson but to the Practice Nurse. So far as 16 December is concerned, the Tribunal expressly found that that visit was to see the Practice Nurse. They did not expressly say that in relation to 11 December, whether they knew that or not is not clear; it may have emerged only from the new page of medical notes which we have in front of us or may not; we do not know. But in any event, if the Tribunal were in error in appearing to describe that visit of 11 December as one to Dr Thompson as opposed to the Practice Nurse, we do not regard that as a material error which undermines their general findings or any of their specific findings relevant to their ultimate conclusion. If it be right, as it appears to have been, that on 11 December Dr Nahar did not see the doctor as opposed to the Practice Nurse, the Tribunal were wholly entitled to take the view that the history overall of these visits was one in which they might have expected to see complaints of these serious matters, if these serious matters put forward by Dr Nahar were really what was going on and what had been going on since 6 September. Thus, if there was an error we do not see it as an error of any substance.[58]It is important, because Dr Nahar will no doubt be disappointed by our decision in this case, to say a word about the jurisdiction which this Tribunal has. In the case of Hutchison v Westward Television Ltd [1977] ICR 279, to which Ms Peter drew our attention, the Employment Appeal Tribunal, presided over by Phillips J, said that the discretion given to the Tribunal to decide whether it was just and equitable to enlarge the time limits and to allow a discrimination claim to proceed, despite the expiry of the primary time limit, was couched in very wide words.[59]The Employment Appeal Tribunal has to be very careful not to interfere with a decision of a Tribunal, both on an issue of whether it is just and equitable to extend the time limit, or on reasonable practicability, where the Tribunal cannot be shown to have misdirected themselves on the law and where the decision is essentially a factual one.[60]Mr Sutcliffe has submitted that the decision below can only attract our intervention if the decision is obviously one which no reasonable Tribunal could reach; but he accepted in argument that Ms Peter could sustain an attack on the Tribunal's decision, albeit in the exercise of their wide discretion, if the Tribunal could be shown to have omitted to consider an important piece of evidence or had made an important finding which was based on no evidence at all. Short of that we cannot interfere with a decision, however unfavourable it may have been to the Appellant.[61]That brings us to the last of the grounds of appeal which was put before us, namely that the Tribunal took into consideration irrelevant material, only on the just and equitable issue, when it took into account, as it did in paragraph 14, that the further and better particulars provided did not contain the entirety of Dr Nahar's claims as she intended them to be made.[62]We are told that what happened at the hearing was that, in the course of her evidence, Dr Nahar indicated that she had discrimination complaints which she wished to make which went beyond what was set out in her further and better particulars and her Originating Application and involved discrimination not only by Dr Kelly but also by others who had not previously been named.[63]Ms Peter submits that the Tribunal was not entitled in law to take those matters into account because the failure to particularise properly occurred after the expiry of the period at which the Tribunal was primarily looking.[64]We do not accept that proposition of law, unsupported as it is by any authority. In contrast, what was said in Hutchison , to which we have already referred, was not only that the Tribunal have a very wide discretion to do what they regard as just and equitable in the circumstances, but also this, from page 282 at B:
"Those are very wide words. They entitle the Industrial Tribunal to take into account anything which it judges to be relevant"
And then further at 282 D:
"…it is for the Tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of. No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on…"
[65]Those words indicate that it is permissible for a Tribunal, when looking at the discretion, to enlarge the time limits on just and equitable grounds or not to do so, to have regard to the merits of the claim, to whatever extent they think it right to do so. If the Tribunal can look at the merits, it must be right that they can also look at the fact that the Applicant before them has not properly particularised his or her claim.[66]We see no basis in law for Ms Peter's submission in this aspect of her appeal and are not persuaded that the Tribunal erred in taking those` matters into account. In our judgment they were entitled to take them into account as they did.[67]For those reasons this appeal is dismissed.