MRS T HUMPHRIES v CHEVLER PACKAGING LTD [2006] UKEAT 0224_06_2407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0224_06_2407Case No Appeal No. UKEAT/0224/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS T HUMPHRIESAPPELLANTCHEVLER PACKAGING LTDRESPONDENT
Before
His Honour Judge J R ReidDate 24 July 2006
[1]APPEARANCES For the Appellant MS BELLA MORRIS (Of Counsel) Instructed by: Messrs Thompsons Solicitors Cromwell House 1 Fitzalan Place Cardiff CF24 OUS For the Respondent MR JAMES WYNNE (Of Counsel) Instructed by: Messrs Geldards LLP Solicitors The Arc Enterprise Way Nottingham NG2 1EN SUMMARY The Appellant left her employment and claimed(a) unfair constructive dismissal and(b) disability discrimination. On a preliminary point the ET held the disability discrimination claim was out of time as time ran from the date the employer made it clear no further adjustment could be made and not from the date of termination of employment. ET further held it would not extend time. Held: the decision as to the time limit was correct and the ET was entitled not to extend time. HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at Cardiff on 17 February 2006 by which the Tribunal (Dr Rachel Davies, sitting alone) held that the Tribunal had no jurisdiction to here the Claimant's claim for disability discrimination on the ground that it was out of time and it would not be just and equitable to extend time.[2]The factual background was as follows: the Appellant was employed by the Respondent as a fulltime machine operator/packer at its Hengoed factory from 16 October 1998. In about August 2000 she experienced pain and difficulty in using her right arm and shoulder. She reported the matter to her manager and it was recorded. In September 2003 she took sickness absence because of the pain.[3]On her return to work in November 2003 the Respondents varied the tasks within her existing duties, but she was unable to cope with the job and requested that her hours be reduced. The Respondents complied with this request and changed her to a part-time day shift (although this apparently caused some problems with other workers). The Appellant continued to suffer pain and was then offered alternative work as a cleaner at a lower rate of pay. The Respondents say there was no other suitable employment. Their administration workforce was too small to absorb additional staff and the only other type of employment was as a forklift truck driver. The Appellant did not consider cleaning duties suitable both because of the nature of the work and because of the lower rate of pay. She went on sick leave from 14 November 2003. She remained absent for 18 months and never returned to work. She resigned on 16 May 2005.[4]She complained that during the 18 months sickness absence the Respondents did not contact her regularly. They say that when she went off sick they specifically asked her to notify them if her condition improved, and that by the written terms of her employment she was required to keep them informed as to any progress, and any prospective date of return to work. The Respondents say that the intention was not to put pressure on her by constant enquiry on their part. An added complication was that the Appellant commenced proceedings against the Respondents for damages for personal injury arising out of her RSI.[5]On 15 March 2005 her consultant recommended that she look for alternative employment. On 23 March Mrs Humphries, through her solicitors, wrote to the Respondent's solicitors noting that she was still employed by the Respondents despite the fact there was no suitable employment available and asking the Respondent's intentions "in this regard". The Respondents' solicitors replied on 11 April 2005 saying that the only job available was the cleaning job which she had refused, but that it was still open to her. The Appellant says that she viewed this act as "the final straw", and she decided to resign, which she did by letter dated 16 May 2005. The Respondents responded the next day suggesting that before she did so she attend a meeting to discuss her medical issues and potential workable solutions. On 1 June the Appellant replied making it clear her letter of resignation constituted her grievance. There followed a grievance meeting at which her complaint was not upheld and further correspondence but nothing was achieved. The complaint was presented to the Tribunal office on 15 November 2005.[6]Before the Employment Tribunal on the question whether the application was in time counsel for the Appellant argued that there was a continuing failure on the part of the Respondents to make contact, to send the Appellant for a medical assessment, to make adjustments and to consider alternative employment right up the date of her resignation. The Tribunal rejected that submission holding that "a failure to act is a non-act or in other words an omission. To become an "act" for the purposes of paragraph 3(1) of Schedule 3 it must be a "deliberate omission" within the meaning of paragraph 3(3)(c), done "when decided upon". The Tribunal had earlier noted the terms of paragraph 3(4) which provides:
"(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission -(a) when he does an act inconsistent with doing the omitted act…."
[7]The decision continued with the following passage:
"15. There was no evidence one way or the other to establish that an omission was or was not decided upon. Paragraph 3(4) of Schedule 3 therefore applies. 16 If [the Appellant's] argument is that the act of offering cleaning work in the letter of April 2005 was "inconsistent with doing the omitted act" of taking reasonable steps to make adjustments, she is accepting that the date of the letter is the date on which the Respondents are "taken to decide upon an omission"
. The last act complained of would therefore be April 2005. 17. If her argument is that the act of making of the offer was not "inconsistent with doing the omitted act" she is accepting that the offer was consistent with doing it and that reasonable steps to make adjustments were being taken as at the date of the letter, thus ending any previous continuing act on that date. 18. Either way the date of the last act complained of would be April 2005. 19. I find that if there were any "deliberate" omissions to make adjustments, to make contact, to consider a medical report or to consider alternative employment, these all came to an end in April 2005 when the letter was sent. I find that the last act complained of was April 2005. The complaint was not presented until 15 November 2005 and was therefore out of time."[8]The first point taken by the Appellant was that the decision was so difficult to read and poorly explained that it fell foul of the Tribunal's duty to provide adequate and intelligible reasons, so that the parties could not tell why they had won or lost. Reference was made to English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 , Meek v Birmingham City Council [1987] IRLR 250 , and Anya v University of Oxford [2001] IRLR 377 , esp at 381 to establish the Tribunal's duty in that regard.[9]The complaints made were(i) that paragraphs 16 to 18 of the decision (set out above) were obscure,(ii) that the facts found were difficult to identify, in particular as to whether the various acts of alleged discrimination took place and if so when, and(iii) that the cases of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 and Southampton City College v Randall [2006] IRLR 18 which had been cited below were not referred to in the decision.[10]Counsel for the Respondent replied that the decision was quite clear enough: the parties could see that the Tribunal was finding that time ran from April 2003 when the letter of 11 April was sent, because at that point the discrimination by omission which was alleged crystallised. If there were any discrimination as was alleged the Respondents were to be taken to have decided upon it by the letter which was "an act inconsistent with doing the omitted act." So far as findings of fact were concerned, the Tribunal made the necessary findings for the purpose of the preliminary point, and so far as the failure to refer to authorities which had been cited, there was no obligation on the Tribunal to refer to every authority cited and the cases of Hendricks and Southampton City College were irrelevant to the decision in the light of the Tribunal's other findings.[11]In my judgment the submissions on behalf of the Respondents are correct.[12]The decision of the Tribunal makes it clear at paragraph 12 that as at October/November 2003 there had been no failure to offer adjustments. The contrary had not been suggested in the Appellant's claim, though there was a rather odd suggestion in the course of argument that she might have been offered a job as a forklift truck driver. The oddity of the suggestion lies in that(a) there was no evidence she was qualified for that post and(b) one of her complaints in her ET1 was that as a result of RSI she had great difficulty in driving. The complaint lay in no further adjustments having been made or offered by the time of the April letter (as was common ground) and no further adjustments being made thereafter. Whether the Appellant could prove that the omission or failure of the Respondents to make or offer further adjustments amounted to disability discrimination would have been a matter for the substantive hearing. The facts which the Tribunal had to find for the purposes of deciding whether the claim was in time related in the circumstances of the case to whether or not the April letter was "an act inconsistent with the doing of the omitted act" and so to be taken as evidence that the Respondents had decided upon the omission at that date.[13]The Tribunal made the necessary findings of fact to reach a conclusion on that point. It is true that paragraphs 16 to 18 are not models of clarity but when one reads on to paragraph 19 the basis of the Tribunal's conclusion is clear. Having made these findings of fact there was no reason for the Tribunal to refer to either of the cases cited. There is no obligation on a tribunal to refer to every case cited to it, whether or not those cases are relevant to its decision.[14]It follows that the first ground of appeal fails.[15]Allied to the first ground of appeal was a further ground that the Tribunal had erred in law in that it had not specifically asked for submissions as to the interpretation of Schedule 3, para 3(4)(a) of the 1975 Act and had failed to consider para 3(4)(b). As to the first of these points, the argument before the Tribunal centred on para 3(3). Para 3(4) is a sub-paragraph providing guidance as to the application of para 3(3). It is not incumbent on the Tribunal to ask for assistance on every part of every paragraph cited. It is for counsel to make submissions as to the relevant law. This is not a case, such those posited in Hereford and Worcester CC v Neale [1986] IRLR 175 at para 54, where a tribunal relies on matters which occur to it after the hearing. Here the interpretation of the paragraph was central to the whole argument.[16]As to the Tribunal's failure to consider para 3(4)(b), that part of the paragraph did not fall for consideration in the light of the Tribunal's application of para 3(4)(a).[17]The next attack on the decision was on the basis that the tribunal made inconsistent findings of fact and law. Those assertions centred on an assertion that the Tribunal failed to appreciate that the Appellant was making allegations of failure to make adjustments in October 2003 and that the Tribunal attributed to the Appellant concessions of fact that were not correct.[18]The errors alleged to relate to findings in respect of the period October/November 2003, and not to any later period. Assuming that there were errors such as are asserted, they were irrelevant to the Tribunal's conclusion and did not affect the decision. They cannot therefore invalidate the decision. The finding which was decisive of the issue before the Tribunal was the finding which led the Tribunal to hold that the Claimant had three months from the letter of 11 April to begin proceedings and it is clear that the Tribunal was accepting that as at that date the Appellant was (rightly or wrongly) asserting a failure to make reasonable adjustments.[19]This leads to the substantial point raised in the appeal. The Appellant's submission was that there was a continuing obligation on the Respondents right up to the date of the Appellant's resignation to monitor her condition, seek advice and assistance from external agencies, seek to devise a new post for her, and to backdate her sick pay and/or to protect her pay. Whether the submission as to the failure in any of those respects was correct was not a matter for decision on the hearing of the preliminary point. What was relevant (and was accepted) was the submission that the duty was a continuing duty.[20]It was submitted for the Appellant that, given the Respondents' obligation to identify and make reasonable adjustments continued until the end of the Appellant's employment, the Tribunal erred in holding that "the last act complained of was April 2005": ie the sending of the letter of 11 April and that time ran from that date. It was said that since the Appellant's employment continued until her resignation in May the limitation period only started to run in May. If that is a correct submission, the application was in time and the Tribunal's decision was incorrect.[21]The Appellant's case is that the Respondents' continuing failure to offer alternative employment other than as a cleaner or to take any of the other steps suggested was a continuing act and not an omission. It was said that the "act" was continuing to employ the Appellant in circumstances where the arrangements or premises in place put her at a substantial disadvantage. Since the Respondents were guilty of a continuing act in failing to make adjustments followed, it was said, that the act was to be treated at the end of the period (ie the date of termination of employment).[22]It was submitted that to hold otherwise produced an absurdity in that any claim for failure to make reasonable adjustments could only succeed if the failure was "deliberate" which would impose a requirement of motive on section 6 of the Act.[23]Alternatively, the Appellant submitted, the sending of the letter of 11 April was not "an act inconsistent with the doing of the omitted act" so the Tribunal was wrong to apply paragraph 3(4)(a). The Tribunal should, it was said, have applied paragraph 3(4)(b) so that time would only have started to run when the Respondents "might reasonably have been expected to do the omitted act". This was said to be the date of termination of the Appellant's employment.[24]In my judgment neither of these points is a good one. The failure to make adjustments is an omission. The Respondents are omitting to do what (on the Appellant's case) they are obliged to do. They are not doing any act, continuing or otherwise. As is made clear by Southampton City College v Randall [2006] IRLR 18 a proper assessment of what is required to eliminate the disabled person's disadvantage is a necessary part of the duty of reasonable adjustment, since the duty cannot be complied unless the employer makes a proper assessment. If there had (as the Appellant contends) been no proper assessment by 11 April, it is clear from the letter that there was not going to be one thereafter. That is sufficient to bring paragraph 3(4)(a) into play.[25]There is no requirement of motive in paragraph 3(3) and (4) as is suggested by the Claimant. Under paragraph 3(3)(c) the question is whether there has been a decision not to do something. If there has been an inconsistent act, then (in the absence of evidence to the contrary) the paragraph provides that the decision is to be taken as having been made when the inconsistent act is done. If there is no inconsistent act, then the person is taken (to paraphrase) to have decided upon the omission at the end of a reasonable time. Thus, in the absence of evidence to the contrary, if there is no evidence of a deliberate decision, a deliberate decision is imputed to the person.[26]It is, in any event, doubtful if paragraph 3(4)(b) had been applicable it would have assisted the Appellant, since it might well have been held that the paragraph would have produced an earlier date, given that there had been no movement for well over a year before the April letter.[27]In my judgment the Tribunal was correct in holding(i) that paragraph 3(4)(a) was applicable and(ii) that as a result the proceedings launched in November were out of time.[28]Having so held the Tribunal went on to hold in the exercise of its judicial discretion that it would not be just and equitable to extend time. It considered(1) its preliminary view of the merits of the case,(2) the fact that the Appellant would be deprived of the opportunity of claiming damages to feelings,(3) the overriding objective of dealing with the case justly. It held that, on a preliminary view, the case had little merit; the possibility of a costs order for extending the substantive hearing by arguing a case of little or no merit outweighed the loss of the chance of an award for damage to feelings, and that the time and expense of arguing the point would be disproportionate.[29]The Tribunal did not expressly refer to the factors set out in section 33(3) of the Limitation Act 1980, which are by analogy relevant in deciding whether or not to extend time.[30]The Appellant complains that essentially the Tribunal relied upon its view of the merits of the claim and failed to take account of any other matters. The decision failed to take account of the extent to which there would be an overlap of evidence between the disability claim and the evidence on the unfair dismissal claim, the fact that the claim was only a short while out of time, that (though there was no finding to this effect and no note of evidence to this effect was produced on appeal) she had only become aware of a possible claim under the Act in early 2005 and that she had then been told her claim would be begun in time. In the circumstances the Tribunal had erred in law and its decision was perverse.[31]For the Respondents it was submitted that the Tribunal correctly directed itself to the question of whether it considered it to be just and equitable to extend time. The Tribunal had a broad discretion to do what it thought just and equitable in the circumstances: Hutchinson v Westward Television Limited [1977] IRLR, and was not required to consider each of the factors set out in section 33 of the Limitation Act 1980: London Borough of Southwark v Afolabi [2003] IRLR 220 CA, per Peter Gibson LJ at para 33. The Appellant did not suggest that any particular factor had special significance and should have been considered. As to the merits, the Tribunal was entitled to take account of the merits of the case as it saw them, see Hutchinson at para 10, The onus was on the Claimant to show the tribunal why time should be extended - "the exercise of discretion is the exception rather than the rule" (see Robertson v Bexley Community Centre [2003] IRLR 434 at paragraph 25, per Auld LJ. The central argument put forward by the Claimant before the Tribunal was that if she did not obtain an extension she could not obtain an injury to feelings award. This was no more than saying that if time was not extended the claim could not be heard, and was circular.[32]The hurdle that an appellant asserting perversity has to clear is a high one. The Tribunal was entitled to take into account its preliminary view of the merits and also the added costs of the substantially extended hearing that would inevitably have been incurred if the disability claim were also to be tried. There is no rule that merely because the facts of the claim in respect of which an extension is sought overlap with those of a claim which is to be tried an extension should be granted.[33]Whilst the Tribunal did not refer explicitly to section 33 of the Limitation Act 1980 it is difficult to believe that it was not in the Tribunal's mind, and no particular part of the section was referred to on appeal as having had special relevance. The onus of showing that time should be extended is on the claimant who seeks the extension to persuade a Tribunal that time should be extended. Something beyond that assertion is required to persuade a tribunal that the 'just and equitable' discretion should be exercised.[34]In the present case there was a brief submission that the Appellant gave evidence (and was cross-examined on her evidence) that she relied upon legal advice and that this is a reason for the extension of time to be granted. There is no finding as such evidence in the Tribunal decision, and no note of any such evidence was produced before me. In the absence of any findings on the point and any note of the evidence in chief and in cross-examination it cannot properly form a basis for disturbing the Tribunal decision.[35]In my judgment the Appellant has not succeeded in showing that the Tribunal failed to take into account matters which it should have taken into account or that it left out of account matters which it should have taken into account. Further the Appellant has failed to show that the Tribunal in refusing to exercise its judicial discretion to extend time has stepped outside the broad ambit within which it could exercise its discretion. The Appellant has failed to show that the Tribunal's exercise of its discretion was perverse.[36]It follows that the appeal will be dismissed.