MR C READHEAD v HANOVER HOUSING ASSOCIATION [2003] UKEAT 0487_02_1601

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0487_02_1601

Case No Appeal No. EAT/0487/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C READHEADAPPELLANT

HANOVER HOUSING ASSOCIATIONRESPONDENT

Before

His Honour Judge J McMullen

Date 16 January 2003

[1]APPEARANCES For the Appellant MR MARK WALSH (of Counsel) Instructed By: Messrs Edwards Duthie Solicitors 292-294 Plashet Grove East Ham London E6 1EE For the Respondent MS NAOMI ELLENBOGEN (of Counsel) Instructed By: Maclay Murray Spens Solicitors 10 Foster Lane London EC2V 6HR JUDGE J McMULLEN QC : This case is about time limits under the Disability Discrimination Act 1995 . We will continue to refer to the parties as Applicant and Respondent. Introduction

[2]It is an appeal by the Applicant in those proceedings against the decision on a preliminary point of an Employment Tribunal sitting at Bury St Edmunds, Chairman Mr D.R. Crome, promulgated with Extended Reasons on 14 March 2002. The Applicant was represented by a Trainee Solicitor, the Respondent by its Employment Relations Manager.

[3]The Applicant claimed disability discrimination. The Respondent contended that the application was out of time and, in any event, it denied discrimination. The issue before the Employment Tribunal was whether the claim was out of time and, if so, whether to invoke the jurisdiction which it has to extend time. The jurisdiction is contained in Schedule 3, Part I, paragraph 3(1) and (2) of the 1995 Act, which provides as follows:

"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."

[4]The Tribunal found that the claim was presented out of time and declined to extend it. The Applicant appeals against that finding on grounds set out in a Notice of Appeal, oral submissions and a Skeleton Argument today. Essentially, the contention is that the Employment Tribunal wrongly considered factors relevant to its discretion and that the decision was perverse.

[5]Directions in this appeal were given at a preliminary hearing by Mr Justice Maurice Kay and Members on 3 July, setting this full hearing up. The Facts

[6]We are tentative in our account of the facts, since there has been no substantive hearing. The Respondent is a Housing Association providing sheltered accommodation throughout England. The Applicant applied for a publicly advertised job as Estate Manager at Bocking, Essex, but was not successful following interview. Shortly thereafter, he applied for another job, having made no complaint of his previous treatment. This job was at Ipswich and on 14 August 2001 he was interviewed for it. He was told the next day that he was unsuccessful and asked for feedback which he got that day. From what he heard he formed the view that he had been discriminated against on the grounds that he had previously suffered a mental illness. He claimed compensation. He presented an Originating Application on 19 December 2001, citing Solicitors as his representative. The Respondent denied liability and took the time point.

[7]The Tribunal found that the Originating Application should have been presented on 14 November 2001. Time ran from the date of the decision not to appoint him. It is common ground that that is an error; time runs from the date of knowledge. In this case it was 15 August 2001, but nothing turns on that error because the Tribunal's chronology is not affected.

[8]The circumstances leading to the preliminary hearing were that the Applicant had originally put his case in the hands of his Trade Union which referred him to Solicitors on 9 November 2001. Those Solicitors prepared the Originating Application and sent it to the Applicant for approval and on the same day sent it by fax to the Employment Tribunal. The machine was one which had a report which allowed for each transmission to contain a coded message. A coded message was sent indicating in two places that the transmission had not been effective.

[9]The Solicitors took no action until 19 December when they realised that there had been a problem and immediately resolved to present the Originating Application on that day. The Tribunal described this delay as "making the application manifestly out of time". It came to the conclusion that it would not be just and equitable to extend the time. It weighed the various contentions. On behalf of the Applicant: there had been no error of advice. There was a mechanical deficiency on a machine. The delay of five weeks was small and not unreasonable. The Applicant had acted promptly at all times. The Solicitors were prompt in sending the original Originating Application and then in following up when the error was found. The Tribunal considered the weight of the claim itself, which could be substantial, and that the Applicant would suffer prejudice if the claim were not allowed to go forward which would far outweigh any prejudice to the Respondent.

[10]The Tribunal considered three points against the exercise of discretion. First, it noted that Parliament had decided that there was a three-month limit, against which further extensions should be measured. The Tribunal mentioned cases under the Limitation Act 1980 where, of course, much longer periods of primary limitation apply. Secondly, the Tribunal considered whether the Applicant had a remedy and it found this:

"We also bear in mind that it is not quite so to say that the applicant has no remedy, since he plainly has against those advising him."

Thirdly, the Tribunal considered that:

"It is not quite true to say that the respondent has not been prejudiced. It was entitled to assume it was safe and then suddenly it receives an application some four or five months after the event."

[11]The Tribunal found that an employer is entitled to know after three months that it has, as it were, a clean bill of health; that it does not have the threat of litigation hanging over it. The Tribunal considered those matters and declined to exercise its discretion. Submissions

[12]The Applicant's case is that in each of those points an error occurred and in total the facts led to only one conclusion, that is, in favour of extending limitation. Failure so to do resulted in a perverse decision.

[13]Mr Walsh contended that there was no prejudice to the Respondent. "Prejudice", he accepted, is a term which has both a lay and a legal meaning. The Tribunal in its consideration of the mind of the relevant employer was expressing a lay view about the threat of litigation hanging over it. Mr Walsh submitted that it is axiomatic that in every case there will be prejudice to an Applicant, if the jurisdiction is not extended, and to the Respondent if it is. Parliament surely had in mind something beyond simple lay prejudice and was concerned more with actual prejudice. There is some substance in that submission, as we will make clear when we review the authorities. The factors to be considered are innumerable. At least here the Tribunal is indicating that there is some sort of prejudice affecting the Respondent.

[14]The second submission was that it is wrong to consider the time scale, as against the standard set down by the primary time period. Thirdly, it was wrong to consider that the Applicant had a claim against his Solicitors. That overlooked the fact that there is weight to be attached to a finding of discrimination which would not, of course, follow from a finding against, or a settlement by, negligent Solicitors. It was submitted that we should substitute our own decision, if we were in favour of the Applicant's submission, and decide that the claim was made in time.

[15]For the Respondent, Miss Ellenbogen submitted that the Tribunal had considered the relevant factors which are wide and had reached conclusions which were open to it. The Legal principles

[16]It is necessary to look at the law to determine whether or not the Tribunal went beyond its discretionary powers. In Hutchison v Westward Television Ltd

[1977] IRLR 69

, Mr

Justice Phillips and Members, said this:

"9 ... The formula provided ... by which an application to extend time has to be judged ... very sensibly gives the Industrial Tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the Industrial Tribunal to take into account anything which it judges to be relevant. ... we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority. The Industrial Tribunal is to do what it thinks is fair in the circumstances. 11 ... 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 it took into account facts which it ought not to have done, or that it failed to take into account facts which it 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."

[17]Further guidance was given in British Coal Corporation v Keeble

[1997] IRLR 336

, Mrs Justice Smith and Members, in passages which are particularly relevant to the issue before us. She said this, at paragraph 8, referring to a previous hearing in those proceedings. "The EAT also advised that the industrial tribunal should adopt as a checklist the factors mentioned in s.33 of the Limitation Act 1980. That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the Court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to – (a) the length of and reasons for the delay." At paragraph 25, she went on to say this:

"It was right for them [that is, the Employment Tribunal] to bear in mind the need for legal certainty and finality in litigation, but that was only one factor to take into account when they had to consider what was just and equitable in all the circumstances."

[18]The reference to the Limitation Act, Section 33, is to the very broad power given to a judge to extend time. The heading is "Discretionary exclusion of time" and Section 33(1) provides, in relevant parts, as follows:

"If it appears to the Court that it would be equitable to allow an action to proceed [and various provisions follow]."

That introductory clause is slightly different from our wording, since it omits the word "just". But since the decision-making is in the hands of a Tribunal of judicial officers, and in a Court of a judge, the omission of the word "just" seems to us to be irrelevant. All legal tribunals, vested with judicial powers, will exercise their discretion not only equitably but justly too.

[19]That citation from paragraph 8 of Smith J's judgment disposes of the first of the submissions made on behalf of the Applicant, because it requires attention to be given to the length of time which has elapsed since the primary period expired. The citation from paragraph 25 that is the reference to finality of litigation, disposes of the second point which is that an employer is entitled to know that it does not have the threat of litigation hanging over it. It seems to us that the Employment Tribunal in our case was guided by those principles set out in British Coal .

[20]It will be borne in mind, of course, that the period for entering a complaint in most jurisdictions in employment law is three months. This is because the remedies are wasting. In a claim of unfair dismissal the primary remedy is reinstatement and re-engagement. These become nugatory the longer the delay in a hearing, and for that very good reason Parliament established the short time scales. Similarly, in a discrimination case, where the Tribunal has power to make a recommendation that action be taken, a short period of limitation is entirely apt. It follows that there is some relationship between the primary limitation period and the over-run.

[21]The third authority to which reference has been made is DPP v Marshall

[1998] ICR 518

. Giving the judgment of the EAT, Mr

Justice Morison (President) said at 527H:

"In this legislation, the Sex Discrimination Act 1975, the court's power to extend time is on the basis of what is just and equitable. These words could not be wider or more general. The question is whether it would be just or equitable to deny a person the right to bring proceedings when they were reasonably unaware of the fact that they had the right to bring them until shortly before the complaint was filed. ... The answer is that in some cases it will be fair to extend time and in others it will not. The industrial tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint."

[22]That theme was taken up by Mr Justice Lindsay and Members in Newnham & Others v Transco Plc

EAT/125/00

, where a Tribunal had refused to extend time for the presentation of certain Originating Applications. The President observed, at paragraph 11:

"One could hardly frame a wider and less fettered discretion than one relating to justice and equity in all the circumstances of the case."

At paragraph 28, he said this:

"In DPP -v- Marshall [1998] ICR 518 at 528 Morison J, giving the judgment of the EAT, said:- 'The [Employment] Tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues'. We respectfully agree although, had we needed to, we might have doubted whether, as that case goes on to suggest, it would never be right to deny an extension of time wherever a fair trial was still possible. There are, for example, forms of prejudice that a party might suffer unrelated to the availability of a fair trial such as might make it unjust or inequitable to grant an extension. As it seems to us, a fair trial's unavailability can be conclusive against an extension but that its availability may not, on its own, be sufficient in favour of one."

[23]Newnham , of course, involved a period of substantial delay following the primary period and both it and Marshall involved a discussion of whether or not time should be extended where there had been a change in the approach of the courts to an issue of law. Since the periods were long, ranging up to 17 years, it is not surprising that the EAT in both those cases considered the availability of a fair trial. It is common ground in our case that a fair trial was not an issue, as Ms Ellenbogen submitted to us in an argument which we found engaging, and which Mr Walsh acknowledged was forceful. The concept of a primary and an extended limitation period involves a presumption that a fair trial is available of a claim made in the primary limitation period, but it does not involve a presumption that a fair trial is not available of a claim made in the extended period. She took an example: A claim deemed by statute to be justiciable would still in reality be justiciable if submitted 24 hours after the deadline. In such a case an application for an extension of time if predominantly founded upon the fair trial test would always succeed. If that were the only test, it would, as she says, emasculate the primary limitation deadline.

[24]We can put aside issues of fair trial, because that was not an issue before the Employment Tribunal and, it seems to us, an approach based solely on a fair trial is not critical. Once a limitation period is prescribed, it is axiomatically arbitrary: people would fall within and without the circle. Parliament has determined what those limits are and yet has given a very wide discretion for judicial officers to allow claims in appropriate circumstances. It seems to us that, for those reasons, the two reasons thus far selected by the Tribunal as affecting its discretion, were properly within its sight.

[25]We turn now to the third viz the Applicant would plainly have a remedy against his Solicitor. That appears to have been accepted by Mr Walsh today. We pointed out to him that, in fact, the Applicant was referred to these Solicitors by his Union, who no doubt instructed the Solicitors regularly. From this Appeal Tribunal's experience of the way in which Unions take and provide legal advice, we consider it more likely that the claim would have been taken over from the Applicant and handled by the Union internally in its relations with its Solicitors, so that he probably would not have had to resort to legal proceedings himself. In any event, the possibility of a remedy against his Solicitors cannot be excluded from any consideration, given that the factors are so wide in the Tribunal's discretion.

[26]We however, do not place emphasis upon what the Tribunal decided. As we pointed out in debate with Mr Walsh, it is the experience of the members of this Tribunal that in a case like this, it is often of some comfort to an Applicant who has been defeated on a limitation point, for him or her to be told by the Chairman, that he or she may have a remedy elsewhere and thus may not be sent away entirely disappointed. We think that was what the Tribunal was intending when it indicated that he plainly had a remedy against those advising him, which is wide enough to include his Trade Union. It seems, therefore, that the Tribunal cannot be faulted when it mentioned that matter, even if elevated to the level which Mr Walsh invites us to accept, which we do not.

[27]Whilst saying nothing about the merits of the Applicant's case, its strength or its cogency, and nothing of the Respondent's approach to his interview and its decision, we dismiss the appeal.