MS P ANYIA v LONDON BOROUGH OF EALING [2002] UKEAT 1244_01_1508

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1244_01_1508Case No Appeal No. EAT/1244/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS P ANYIAAPPELLANTLONDON BOROUGH OF EALINGRESPONDENT
Before
His Honour Judge D SerotaLord Davies of CoityDate 15 August 2002
[1]APPEARANCES For the Appellant VICTORIA VON WACHTER (of Counsel) Instructed by: Bart-Williams & Co. 97a Ilford Lane Ilford Essex IG1 2RJ JUDGE D SEROTA QC This is a Preliminary Hearing of an appeal from the decision of the Employment Tribunal at Watford, chaired by Mr V J Adamson, promulgated on 31 August 2001, that it had no jurisdiction to entertain the Applicant's claim of unlawful disability discrimination because it was out of time.[2]It, of course, must be borne in mind, that section 8, paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995 only empowers an Employment Tribunal to hear a complaint if presented before the end of the period of 3 months beginning when the act complained of was done. The Tribunal does, however, have the jurisdiction to consider a complaint made out of time if:
"in all the circumstances of the case it considers that it is just and equitable to do so"
. The issue goes to jurisdiction.[3]The Applicant was employed by the London Borough of Ealing, we think in about 1988, as a Surveyor and Valuer. It is clear that she did begin to suffer ill health and in April 1999 there is a record that her trade union representative had said that, having been discussing matters with Mr Anyia, she did not wish to return to work and wanted to be retired on the grounds of ill health.[4]The last day that she actually worked was 23 April. At that time she was absent due to ill health described as a recurrent depressive illness of moderate severity, an erratic neurotic personality disorder.[5]The London Borough of Ealing began to follow its Ill Health Retirement Procedures and, in due course, received a report from Dr Smith on 16 March 1999 and the nature of the illness was described by Dr Smith in that report. The Ill Health Panel convened on 19 March and the panel advised the Applicant that she was considered permanently unfit for work.[6]On 27 May the London Borough of Ealing wrote to tell the Applicant that she would be retired on ill health grounds, something which the London Borough of Ealing had every reason to assume the Applicant wanted, having been told that by her trade union representative. They gave the 12 weeks notice of the termination and they specifically drew her attention to her rights of appeal, her right to challenge the doctor's opinion, and of her right to apply to the Employment Tribunal up to 3 months after the effective date of her dismissal.[7]The London Borough of Ealing went further. It advised her to consult her solicitor or her trade union representative and the Applicant did in fact instruct a solicitor, who was in touch with the Respondent, seeking information about her financial position. It is to be noted that at no stage was any suggestion made of any discrimination on the grounds of disability, rather it was the Applicant who was anxious to be able to retire on grounds of health.[8]On 29 May Mrs Anyia's daughter, who lived with her, and clearly together with another daughter, gave considerable assistance to her in her affairs, wrote to the London Borough of Ealing seeking information about Mrs Anyia's financial position and saying that Mrs Anyia was obtaining legal advice.[9]The Employment Tribunal, having considered the evidence, said this about her medical state at the time: 6 "As a result of the Applicant's condition she suffered from depression, an inability to cope, poor memory, confusion, anxiety panic attacks and had suicidal ruminations. Nevertheless, the Applicant was able to live at home; attend doctors to obtain medicine; collect her Invalidity Benefit and Disability Allowance to which she was entitled, her daughter having completed her Application Forms; walk in the street and travel locally. The Applicant did not have a social worker. The Applicant lived with a daughter, albeit at the time she was dismissed she had two daughters living at home."[10]So far as we can tell, although Ms Anyia was receiving psychiatric treatment, there was a hiatus in that treatment from about May 1999 until the date when she saw Dr Uzokwe, we believe in about June 2001. The Applicant and her family continued to correspond with the Respondent on issues related to her retirement and terms of the retirement until the end of August 1999.[11]Some time in August 2000, on the Applicant's own evidence, she stopped taking some of her prescribed medicine and she later took some Chinese medicine and she said this restored her awareness and memory. She suffered a heart attack in October and possibly also a minor stroke.[12]On her own evidence, which was accepted by the Employment Tribunal, by December 2000 her memory and awareness had returned. Nonetheless, despite that, and despite having the benefit of her daughter, who had previously assisted her, it was only in February 2001 that she sought advice from MIND.[13]On 19 February MIND referred her to the Disability Rights Commission, the Disability Rights Commission, unfortunately, misstated her name, as it is put in the application. Equally unfortunately thereafter, the case worker was on holiday and she only made an appointment on 26 March. The IT1 was presented on 29 March.[14]It must be borne in mind that she had been told specifically in May 1999 that she could apply to the Employment Tribunal within 3 months of the effective date of her dismissal, which was in August.[15]The Employment Tribunal considered that she had a duty to act quickly. They also needed to have regard to the wider interest, not only the Applicant but the Respondent and the public, and the relevant prejudice each party would suffer if proceedings were allowed to be heard.[16]They considered, and in our view this may well have been a very generous concession on the part of the Employment Tribunal, that Ms Anyia was in a position to deal with matters at the latest by December 2001.[17]Her family knew of the issues (she had taken advice prior to dismissal) and the Employment Tribunal considered that it was quite wrong for her to leave matters as she had done, until February, before instructing MIND or consulting MIND and wrong to leave it until the end of March to present her application.[18]It seems to us that much of what is said in the grounds of appeal go really to the weight of the evidence. It seems that the Employment Tribunal did not accept the Applicant's case at face value. The Applicant's case, being set out as Lord Davies has pointed out at page 14 of the bundle, in the extended paragraph 11 of the IT3, where she maintains that she was retired against her will. That appears to be quite contrary to the other evidence, where it looks as if she was the person who was anxious to secure early retirement.[19]She said that she is:
"…aware of the 3 month deadline for submitting Employment Tribunal applications and request that the Tribunal exercise its discretion to allow my application to proceed because it is just and equitable to do so in the circumstances. At the time when I was retired I was very ill with my depression to the extent that I could not look after myself at all. I was totally confused and could not remember who my own daughter was. I was in bed constantly and unable to go out of the house because I would start hallucinating about being somewhere different. I was not in a fit state to understand that I had 3 months to submit an application to the Employment Tribunal. It is only recently that I have made enough of a recovery to think about pursuing this matter."
[20]We feel bound to say that the medical evidence, although on one view favourable to the Applicant, is very far from satisfactory. The Tribunal had before it the report of the Consultant Psychiatrist, Dr Smith, who had reported for the benefit of the London Borough of Ealing. He, also had referred to her long-standing depression, but had not suggested that she was unable to cope with taking decisions whether or not to commence proceedings.[21]However, a report was put before the Tribunal, the precise date of the report is not clear as the report is not dated, but we are told it is 3 August, and Dr Uzokwe, who prepared the report, had seen the Applicant on one occasion only. He noted that she had not, so far as one can tell, received any psychiatric treatment after 27 May 1999, until she saw him on 25 June 2001.[22]Dr Uzokwe considered that Ms Anyia was still suffering from moderate depression and a referral for psychotherapy was made. He then said this, and we read the last paragraph of his report:
"I note that your client lodged her application to the Tribunal 16 months out of time. Her mental disorder and poor response including the aforementioned symptoms could result in a chaotic lifestyle. This symptom of lack of energy, lack of interest, reduced concentration and poor memory could impinge on judgement and insight. The seriousness is illustrated by a period of forgetfulness when Mrs Anyia was unable to recognise her two daughters. There was no time within the history of Mrs Anyia's illness that remission was noted for her to be able to make a balanced judgement. It is therefore a matter for the Tribunal to reach a decision based on the above factual clinical features, although I dare surmise that these clinical pictures are strongly persuasive and in my view rendered her mentally incapable."
[23]Dr Uzokwe does not say between what dates she was mentally incapable, particularly bearing in mind that she was not seen by a psychiatrist between May 1999 and June 2001. If he was suggesting that she was mentally incapable in June 2001 that would have had the most serious implications for her proceedings as she would have lacked the capacity to take them without the benefit of a litigation friend.[24]However, the evidence to the Tribunal, which we have recorded, that was given by the Applicant, was that her memory began to improve in August and was certainly better by December. That was found as fact by the Employment Tribunal.[25]It seems to us that it is impossible to argue, in those circumstances, having regard to her own evidence, that the Tribunal should have found that her mental incapability, if that is what it was, lasted beyond December.[26]It was submitted, by Ms Von Wachter, on her behalf, that on the assumption that she did recover mental capacity in December she should have been allowed the same period of time from December as someone of sound mind would have had and, therefore, she should at least have been allowed a further three months.[27]We cannot accept that this is the case. Applications for disability are required to be made within 3 months; that is the general rule. If you miss the 3 months and it is just and equitable to do so then time is extended but, nonetheless, as the Tribunal correctly pointed out, it behoves someone who is out of time to get on with things.[28]It was entirely within the weighing-up process of the Tribunal, taking all matters into account, to consider whether in fact, even on the assumption that it was in December that the Applicant was in a position to commence proceedings, to consider why she did not do so until the end of March. They took all relevant matters into account, including the medical evidence. They correctly directed themselves as to the law and, it seems to us, that, in those circumstances, their decision cannot be criticised in any way.[29]Accordingly, there is no arguable point of law raised by this appeal. It should not be allowed to go further. It should be dismissed. We are extremely grateful to Ms Von Wachter for the assistance that she has given to us and for the persuasive and thorough way in which she addressed us on behalf of the Applicant.