ACCURIST WATCHES LTD v MR D WADHER [2009] UKEAT 0102_09_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0102_09_2303Case No Appeal No. UKEAT/0102/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ACCURIST WATCHES LTDAPPELLANTMR D WADHERRESPONDENT
Before
Mr Justice UnderhillDate 23 March 2009
[1]APPEARANCES For the Appellant MR JAMES WYNNE (of Counsel) Instructed by: Messrs Kuit Steinart Levy Solicitors 3 St. Mary's Parsonage Manchester M3 2RD For the Respondent MR LABAN LEAKE (of Counsel) SUMMARY JURISDICTIONAL POINTS: Extension of time: just and equitable Claim for age discrimination presented five weeks out of time – Claimant not giving evidence as to reason for delay but relying on medical reports and other documentary material – Held that Judge entitled to find that it was just and equitable to extend time notwithstanding certain deficiencies in the material before him – Observations on the nature of the evidence which should be put before Tribunals hearing preliminary or interlocutory matters, particularly applications for extensions. THE HONOURABLE MR JUSTICE UNDERHILL The Claimant, who is the respondent to this appeal, is employed by Accurist Watches Ltd, the Appellant, (to which I will refer to as "the company") a watch repairer, remunerated on a piecework basis. On 23 April 2008 he presented a claim form in the Employment Tribunal containing a claim of age discrimination and a claim for breach of contract quantified at just over £16,000. The gist of the latter complaint was that he was contractually entitled to at least 35 hours' work per week but that he had for some time only been given 20 hours' work and had lost earning opportunities accordingly. That was also essentially the background to the age discrimination claim: the Claimant said that he was being given less work than other employees, apparently because of his age (he was born on 8 October 1951 and so is now aged 57). He said in the ET1 "as I was getting older they just wanted to get rid of me". However in this context he also referred to a separate matter, namely a letter which he had received on 20 December 2006 (though it incorporates a memorandum bearing the date 19 December) that gave him a formal warning about the quality of his work. Quite how that letter is said to relate to the age discrimination claim is unclear. The claim form says only "nothing was wrong until they issued me with a letter of warning on 20 th December 2006 which stated that my work was not of good standard". It is clear, however, that the letter was deeply upsetting to him, and much of his subsequent correspondence with the company focused on it. It is not necessary for me for the purpose of this appeal to reach any view about this; but I suspect that the Claimant is to be taken to be alleging that that letter was an act of discrimination in its own right, but that it also initiated or marked the start of the period of discriminatory distribution of work which followed.[2]The Claimant had at the time that he presented his claim been off work from 20 September 2007 suffering from stress, which he attributed to his unfair treatment from the company - including in particular, but by no means exclusively, its alleged failure to deal with his complaints about the warning letter of 20 December 2006. Accordingly any acts complained of, even if they were to be regarded as continuing over a period, must have been done by no later than that date. On that basis his claim was prima facie out of time, since the Employment Equality (Age) Regulations 2006 provide for a primary three-month time limit, and even if that were extended under reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 time would have expired on 20 March 2008, leaving him still five weeks out of time.[3]The issue of time limits fell to be considered by Employment Judge Bedeau sitting alone at Watford on 2 October 2008. He held that it was just and equitable to extend time pursuant to reg. 42 (3) of the 2006 Regulations. This is an appeal against that decision. The company has been represented by Mr James Wynne of counsel and the Claimant by Mr Laban Leake also of counsel. Mr Wynne also appeared below, but on that occasion the Claimant was represented by different counsel – a Mr Gorden. It is perhaps convenient to note at this stage that although on the occasion of this appeal and that hearing the Claimant has been represented by counsel he has generally been acting without legal advice or representation. For a considerable period of time the conduct of his dispute with the company has in practice been in the hands of his son, Mr Kevin Wadher, who is not legally qualified. (I should also say for completeness that the breach of contract claim was dismissed by Judge Bedeau on the same occasion on its withdrawal by the Claimant, Mr Gorden accepting that the Tribunal had no breach of contract jurisdiction given that the Claimant remained in the company's employment.)[4]I should start by setting out the terms of reg. 42 of the 2006 Regulations - although in truth nothing turns on their detailed terms which are in the form familiar from the other discrimination legislation. The relevant provisions are as follows: 1. An employment tribunal shall not consider a complaint under regulation 36 unless it is presented before the tribunal before the end of the period of three months beginning when the act complained of was done 1A. Where the period within which a complaint must be presented in accordance with paragraph 1 is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph 1. 2 … 3 A … tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. Paragraph 4 contains the usual ancillary provisions about the calculation of time, including the case of acts "extending over a period"; but nothing turns on the details of those for present purposes.[5]It is necessary for the purpose of the issues which arise on this appeal that I should set out with some particularity the course which matters took at the hearing. As to that, I directed at an earlier hearing that there should be sequential skeleton arguments and that the company's skeleton argument should include a short statement of what material was before the Tribunal and what took place at the hearing, with a view to the Claimant being able to indicate in his skeleton argument in response any points at which that account was disputed. The account given in Mr Wynne's skeleton argument can be set out as follows:(1) Notice of the hearing was sent to the parties on or around 17 September 2008 listing a pre-hearing review for 10 a.m. on 2 October. By this date the Claimant had already had notification of a hospital appointment for 10:50 a.m. on the same day, but no application was made by him to alter the date of the hearing.(2) The Claimant had previously been ordered to explain "the reasons why [he] did not submit his age discrimination claim by 19th June 2007" - i.e. within six months of the warning letter to which I have referred. He had replied on 15th July:
"The claimant has no knowledge of the law… The claimant did not know what to do previously and while this has now led up to mental health issues by the respondent's negligence. The claimant has never been in a previous situation like this before and did not know what needed to be done previously." (3) The hearing on 2 October did not in fact start until 2 p.m. The Company was represented by Mr Wynne and the Claimant by Mr Gorden. The Claimant himself was not present, but his son was. (4) The Employment Judge invited Mr Wynne to make submissions in support of his case that the Tribunal had no jurisdiction to hear the age discrimination claim. Mr Wynne initially submitted that the ET1 was submitted 16 months after the act complained of, being the letter of 20 December 2006, and that reg. 15 was not engaged, and that the claim was therefore very dramatically out of time. But Mr Gorden said that he was relying on act extending over a period expiring on 20 September 2007. Mr Wynne then indicated that he was content to proceed on that basis, and indeed that the initial time period was extended by the additional three months by virtue of reg. 15; but he submitted that even on that basis the claim was presented five weeks out of time. (5) A discussion then took place between the Judge and Mr Gorden about the evidence that he intended to present. In the course of that discussion the Judge said "
I would have to hear evidence" and also "I would need to consider oral evidence". Mr Gorden said that he would not be presenting any such evidence. The Judge said that that was unusual and bore risks and suggested that he might like to take instructions from the Claimant. There was accordingly a brief adjournment, following which Mr Gorden informed the Judge that he had spoken to the Claimant at home and that he had been earlier in the day to the hospital appointment already referred to and did not wish to come to the Tribunal. It was said that he was not well enough to attend but that he hoped he would have recovered by December when the full hearing was listed. The Judge asked Mr Gorden whether he would like an adjournment so that he could present evidence on another occasion, but Mr Gorden stated that he wished to proceed "on the basis of submissions". (6) Submissions were then made. Following those submissions the Judge asked Mr Gorden whether he wanted to call Mr Kevin Wadher: Mr Gorden said that he did not. Mr Wynne was then asked by the Judge whether he wanted to ask any questions of Mr Wadher: he declined, saying that he was content in a situation where the Claimant had not called him, and that it would in any event be inappropriate for him to cross-examine Mr Wadher now, seeing that submissions had already been made. (7) The Judge then proceeded to give his decision. The company asked for written Reasons.[6]Mr Kevin Wadher, in the skeleton argument which he produced prior to the instruction of Mr Leake, does not address Mr Wynne's account point-by-point, but I can detect no substantial difference in his version of events and that given by Mr Wynne. He does in his Respondent's Answer to the appeal say this:
"The respondents were given on three occasions to call Mr Kevin Wadher (son) to give evidence, but the respondent's representative made the position very clear that they did not want to call Mr Kevin Wadher who was present at the hearing. The respondent's representative was given every opportunity; the claimant himself was unable to give evidence because he was attending a hospital appointment."
However, that, though differently slanted, is in fact entirely consistent with Mr Wynne's account. I am quite sure that the Judge did not invite Mr Wynne to call Mr Wadher to give evidence in the sense of calling him as his own witness - that would have been entirely inappropriate. Clearly what Mr Wadher is referring to is the suggestion made by the Judge, but declined by Mr Wynne, that he should have the opportunity to cross-examine Mr Wadher. Mr Leake has helpfully confirmed that as he understands it there is indeed no substantial difference between his client's, or rather Mr Kevin Wadher's, recollection of events and that given by Mr Wynne. Mr Wynne himself noted what he thought were a couple of small discrepancies but those are not of any significance for the issues that I have to decide.[7]The important point emerging from all that, is that there was, unusually, neither any witness statement nor any oral evidence before the Tribunal setting out the facts relied on by the Claimant in support of the submission that it was just and equitable to extend time. There was however a bundle of documents which contained arguably relevant material; and Mr Gorden put in two medical reports. I give more detail about this below.[8]The Tribunal's Reasons, which were sent to the parties on 3 November 2008, can be summarised as follows.[9]Paragraphs 1–5 set out certain introductory matters and define the issues. At paragraph 4 the Judge said this: The claimant did not attend the hearing due to a hospital appointment. His counsel, Mr Gorden elected to proceed in his absence because the claimant is not fit and well to give evidence before the tribunal. I did not hear any evidence from either party and consider the matter based on submissions. That is essentially a summary - and a sufficiently accurate summary - of the sequence of events which I have already set out.[10]At paragraphs 6 -10

the Judge set out the relevant facts as follows:

"6. The Claimant commenced employment with the Respondent on the 19 May 2007. His case is that he is contracted to work 20 hours each week. Over the year preceding the presentation of his claim form to this Tribunal, he had not been given a sufficient amount of work on a regular basis and that the written warning dated the 20 December 2006, should be removed from his file and that the Respondent should apologise for their behaviour towards him. 7. He worked up to the 20 September 2007 before going on sick leave. It would appear that after he had received the written warning he had raised concerns about his treatment. I have been referred to a letter dated the 22 August 2007, in which he makes reference to discrimination based on his age, the written warning and insufficiency of work. The Respondent attempted to address his grievance by invoking the internal grievance procedure. Various meetings were held some of which the Claimant did not attend as a result of his mental state. His son entered into correspondence with the Respondent on his behalf and matters from February 2008, took a turn for the worse. 8. A grievance meeting was arranged from the 6 February 2008 but the Claimant was unable to attend. By letter dated the 11 February 2008, sent by the Respondent's solicitors to the Claimant's son, the contents of which was not challenged by the Respondent, it stated that the internal procedure was closed and that the son could take proceedings elsewhere. In the Respondent's response, at paragraph 25, it is stated that another letter dated the 20 February 2008, by the Respondent's solicitor was sent to the son stating that matters have been thoroughly exhausted by way of correspondence and that it would not respond to further letters in the future. 9. Within 9 weeks of the letter of the 20 February the claim form was presented to this Tribunal. 10. I am satisfied that the Claimant has been off work as a result of suffering reactive work related stress and depression. This was not challenged by the Respondent. It is also clear that in correspondence dated the 6 November 2007, from the Claimant's son that the Claimant and his son were contemplating, at the time, the possibility of putting matters before the Tribunal. The letter stated that the Claimant's son was looking forward to receiving any reasonable proposal that the Respondent might have failing that he would have no alternative but to take the matter to the Tribunal. There was, in my view, an attempt to try to resolve matters through the grievance procedure but unfortunately by February of this year all attempts had failed."
At paragraphs 11–13

the Judge set out the parties' submissions as follows:

"11. Mr Wynne made the submission that effectively the last act complained of was the 20 September 2007. That was the date the Claimant last worked for the Respondent although he is still in employment. There was no grievance document lodged but even if there was, that would have extended the time by 6 months, therefore, the time by which the Claimant should have presented his claim form was the 20 March 2008. Accordingly he is still out of time. The prejudice to the Respondent would be having to address matters nearly two years old. There was no good reason given as to why time should be extended on just and equitable grounds. 12. Mr Gorden made the submission that the Claimant did leave on the 20 September 2007 but there were serious attempts thereafter to try to get matters resolved. The Claimant was seeking an apology as well as commitment from the Respondent to provide him with more work. His health had suffered quite drastically notwithstanding the fact that he was trying to pursue matters internally. 13. There was a grievance meeting arranged for the 6 February but the Claimant was unable to attend for a genuine reason namely his mental state at the time. It was only when the 11 February 2008 received that the matter became clear. Any further attempts to resolve matter internally would not be supported. There is no suggestion here that the Claimant was mentally impaired under the Disability Discrimination Act 1995. Mr Gorden invited the Tribunal to bear in mind what had transpired since September 2007 and that I should exercise my discretion to allow the claim to proceed on just and equitable grounds."
[11]The significance of that summary is that – accurately, as Mr Wynne submits - it does not record Mr Gorden making any submission specifically to the effect that the reason for the Claimant's failure to present his claim by 20 March 2008, or in the following five weeks, was his mental condition.[12]At paragraphs 14–20 the Tribunal set out the relevant law. I need not reproduce that in full, but I should note that at para. 19 the Tribunal said this:
"The factors the Tribunal may consider in exercising its discretions are (1) The reasons for and the extent of the delay; (2) Whether the claimant was professionally advised; (3) Whether there were any genuine mistakes based on erroneous information; (4) What prejudice, if any, would be caused by allowing or refusing to allow the claim to proceed and; (5) The merits of the claim."
Although this is not expressly acknowledged, that appears to be a summary of the factors identified in s. 33 of the Limitation Act 1980, which it has been held in this Tribunal may provide by analogy a useful checklist of relevant factors: see, for example, British Coal Corporation v Keeble (EAT/413/94, BAILII: [1995] UKEAT 413_94_0607 ) at para. 10, per Holland J.

The Judge then proceeded to state his conclusions as follows:

"21. I am satisfied that the Claimant did grieve about being discriminated by reason of his age in his letter dated the 22 August 2007 and a meeting was scheduled to take place on the 6 February 2008. Attempts at trying to resolve matters proved unsuccessful. The letters of the 11 and 20 February stated that the internal procedure was closed to the Claimant. He had up to the 20 March 2008 to present his claim and he delayed by five weeks. During that time he was suffering from stress and depression. 22. As regards prejudice likely to be suffered by the Respondent, I bear in mind that it had been actively involved in trying to resolve matters internally. Evidence would still be comparatively fresh in minds of those who participated in that exercise notwithstanding the fact that this matter goes back to December 2006. It would not be difficult for those involved to put their thoughts in writing and to give evidence regarding their conduct. As far as prejudice likely to be suffered to the Claimant if he is not allowed to pursue his claim against the Respondent that will be the end of the matter. He has no other cause of action against the Respondent. 23. As for the merits, I am not in a position to consider this in any great detail save to say both parties have a case which they can put in evidence in due course. 24. The Claimant was not legally represented at the time the claim form was presented to the Tribunal. There was no suggestion that he had been receiving legal advice and assistance up to that point. 25. In relation to prejudice and the reason for the delay and I do find in the Claimant's favour. I will extend time on just and equitable grounds and allow the claim to proceed to a full merits hearing. I, therefore, I refuse the Respondent's application that the claim be struck out."
Mr Wynne submits, and it appears to be correct, that in those paragraphs the Employment Judge was seeking to address the factors which he had identified in paragraph 19, though he does not do so in exactly the same order.[14]The company's grounds of appeal are essentially twofold. First, it is contended that the Judge had heard no evidence of the cause of the delay between 20 March and 23 April 2008 and that it was wrong in principle for him to extend time without having heard any such evidence or having, as Mr Wynne submits he did not, reached any clear conclusion on the explanation for the delay. Secondly, it is contended that it was in any event perverse for the Tribunal to decide to extend time. In that connection a number of particular points are made to which I will return in due course.[15]I start with the first submission. Mr Wynne submits, and I accept, that it is always necessary, in the exercise of the discretion to extend time on the basis that it is just and equitable to do so, for a tribunal to identify the cause of the claimant's failure to bring the claim within the primary time limit. Mr Wynne, however, goes further and submits that in every case the tribunal's finding on that question must be based on witness evidence – that is, typically, evidence set out in a witness statement, supported by a declaration of truth, and in respect of which (absent special circumstances) the respondent has had the opportunity to cross-examine. He concedes that the evidence might sometimes be of a hearsay character but it must nevertheless be given in that form. He relies on rule 3.9 (2) of the Civil Procedure Rules , which, in the context of applications for relief from sanctions, provides that any application for relief must be supported by evidence, which in the CPR means evidence in witness statement form. He says that that rule ought to apply by analogy in cases such as the present.[16]I do not accept that submission. I agree with Mr Wynne that in any case where findings of fact need to be made for the purpose of a discretionary decision - including but not limited to decisions about the reasons for delay in the context of a time point - it will always be good practice for the parties to adduce evidence in the form of a witness statement (with the possibility of cross-examination where appropriate) setting out any facts on which they wish to rely. Parties who fail to take that course will run the risk that they are simply unable to prove matters on the basis of which the tribunal could be invited to exercise the discretion in question. It is clear that the Judge was aware that that was the usual and desirable course; he specifically drew Mr Gorden's attentions to the risks of proceeding without witness evidence. But I can see no basis in the Employment Tribunal Rules for making it an absolute requirement that evidence be adduced in that form. The practice of the employment tribunals generally has been to eschew evidential formalities, and although the provisions have changed over the years there remains a reflection of that in rule 14.2 of the current Rules (albeit that that is concerned with a more particular point). In my view a tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question – that is, in a case like the present, as to the explanation for the delay. Such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.[17]I was referred in this connection to the decision of this Tribunal (Beatson J. sitting alone) in Outokumpo Stainless Ltd v Law UKEAT/0119/07, BAILII: [2007] UKEAT 0199_07_0410 ). That was a case in which a claimant was seeking an extension of time but the employment tribunal had heard no evidence from him as to the reason for his delay. Beatson J described that omission as "troubling" (see para. 17) and went on to say this at para. 18:
"Where a claimant does not put evidence before a tribunal in support of his application explaining his delay and saying why an extension should be granted now, how can the tribunal be convinced that it is just and equitable to extend time?"
I entirely agree with and endorse that observation insofar as it makes it clear that there must be evidence before the tribunal. But Beatson J. was not concerned with the question of the form that that evidence must take, and I do not read his observations as in any way insisting on the evidence taking the form of a witness statement.[18]I would not want, by my rejection of Mr Wynne's submission on this point, to be taken as encouraging parties on interlocutory applications of this kind to take a relaxed approach to how the necessary evidence is put before the tribunal or to rely on wholly indirect or informal evidence of the kind to which I have referred. On the contrary, I repeat that the submission of a witness statement will always be good practice; and it may often, depending on the nature of the matters to be relied on, be essential. Tribunals may rightly be unwilling to draw inferences as to the cause of, or justification for, any delay in circumstances where direct evidence could and should have been supplied.[19]I turn to Mr Wynne's second submission. It is not altogether easy to identify from the Reasons what the Employment Judge in this case found that the explanation for the delay in presenting the claim was. But if he is to be taken as having made any finding on the point it must have been one or both of the two matters found in paragraph 21 - namely(a) the fact that the Claimant had been pursuing an internal grievance process and(b) the fact that he was "suffering from stress and depression".[20]As to factor (a), Mr Wynne submits that that is incapable of explaining the delay beyond 20 February 2008, when, as the Tribunal had already found, the Claimant was told definitively that internal processes were closed. I accept that submission. The Claimant had at that stage another month before the expiry of the extended primary time limit. That was ample time to bring proceedings - yet he did not do so in that period or for five weeks thereafter. This factor was thus incapable of explaining the crucial delay. It was not, however, inappropriate for the Judge to mention it, since if the Claimant was justified in having waited at least until mid -February before commencing proceedings that would be a relevant part of his overall discretionary decision.[21]As to factor (b), there was plenty of material from which the Judge could conclude that the Claimant was indeed suffering from stress and depression from at least September 2007 onwards. He had gone off work for that reason. He had submitted sick notes regularly from that date. It is common ground that at least one of those sick notes was before the Tribunal. (Mr Leake tells me, on instructions from Mr Kevin Wadher, that in fact all of the sick notes in question were put before the Tribunal. That seems to be rather more likely than Mr Wynne's recollection that it was only one; but nothing turns on that difference since the Judge would have been entitled to infer that all the sick notes were in broadly similar terms. They have in fact been put before me and that is indeed the case. They refer variously to "reactive stress", "work-related extreme stress" and "reactive anxiety/depression".) It was also clear from the documents that the Claimant had said that he was unable to attend the so-called grievance appeal in February 2009 because he was too ill to do so, and it is clear from the context that that is a reference to his mental condition. Further, Mr Gorden put before the Judge two psychiatric reports - the first, dated 4 September 2008, from a psychiatric SHO, and the second, dated 26 September 2008, from a consultant psychiatrist. These clearly showed that the Claimant was at those dates suffering from a moderate to severe depression. It is true that they do not purport to describe his condition six months previously, but the entire history (as reported by them) makes it reasonable to infer that the Claimant had indeed been suffering from that depression, though not possibly at the same level of severity, for very many months.[22]However, Mr Wynne submits that the relevant question was not simply whether the Claimant was suffering from a mental illness – as to which, as I have said, there was ample evidence – but whether that illness explained the delay in bringing proceedings between mid-February (when the grievance procedure was concluded) and mid-April. He submits that the Judge never actually addressed that question or, therefore, made any finding on it. He submits that that is the less surprising because he was never actually asked to do so. As already noted, he says that Mr Gorden did not in fact ever put forward the Claimant's illness or mental condition as a specific reason for the delay in those crucial two months. It was, he says, referred to more generally as, in effect, an in misericordiam reason for exercising a discretion in his favour. (As to this, the evidence about precisely how Mr Gorden framed his submissions is less than ideal, because Mr Wynne in his skeleton argument does not actually spell out the point which I have just made: he simply refers to and endorses the Judge's summary of the submissions, which are to the effect which I have already given. That means that Mr Wadher in response was not alerted to the particular point being made. However, I am prepared to accept Mr Wynne's characterisation of Mr Gorden's submissions, which is reflected in the way in which they were summarised by the Tribunal.) Further, even if the point was - so to speak - in play, Mr Wynne submits that the material before the Judge did not permit him to infer or conclude that it was the Claimant's ill-health which was the cause of the delay. The crucial point is that, self-evidently, his illness was not sufficient to prevent him from bringing proceedings in April 2008 – so, Mr Wynne submits, it could hardly explain his failure to do so in March. The position might be different if the evidence focused specifically on the Claimant's ill-health in the crucial period and established that it was particularly bad at that time; but it does not do so - it is wholly general in character. Mr Wynne also points out that the only place where the question of the reason for the delay was expressly addressed in any material which was before the Judge was in the answer given pursuant to the order of the Tribunal to which I have referred at para. 5 (2) above. He points out that in that answer the explanation given has nothing to do with the Claimant's health but simply refers to ignorance of the time limits. That is, strictly speaking, directed to a different date, but it must be doubtful whether the Claimant's son who was no doubt responsible for answering the question, was making any distinction between different time periods.[23]I have not found this an easy question and I have been impressed by Mr Wynne's succinct and cogent submissions. The Judge was entitled, as I have already held, to have regard to the general material showing that the Claimant was suffering from a mental illness so far as that was relevant; but there is force in Mr Wynne's point that it was not relevant, because it did not address the crucial question of the explanation for the actual delay with which the Judge was concerned. As to the way in which the case was put by Mr Gorden, tribunals are not confined to deciding cases in accordance with the precise way in which submissions are put by the parties; but in circumstances where the Claimant had previously put forward a different reason, and Mr Gorden did not explicitly advance ill-health during the crucial weeks as the factor on which he was relying, there must be a doubt whether the Judge was focusing on the key question of whether "stress and depression" actually represented the real reason for the delay in that period.[24]The question is made the more difficult because the Judge expressed himself in such a summary and imprecise fashion. I am all for succinctness, but that is not incompatible with a tribunal identifying specifically and accurately the question which it is addressing and the reasons for its answer. I do not regard it as useful for a tribunal simply to go briefly through a checklist of factors such as that provided by s. 33 (3) of the 1980 Act. It is in my view always good practice, having conducted such an exercise, to stand back and identify what in the end have been the decisive factors in the conclusion which the tribunal has reached.[25]But in the end, having said all that and doing my best to read the Reasons fairly, I have come to the conclusion that the right reading is that the Judge did indeed intend to find that the explanation for the delay in question was the Claimant's "stress and depression". I think that that is necessarily to be inferred, in particular from the juxtaposition of the last two sentences of paragraph 21 of the Reasons, supported also by the first sentence of paragraph 25. I further consider that that was a conclusion to which he was entitled to come. As I have said, there was ample evidence that the Claimant was indeed suffering from stress and depression during that period. That fact was clearly referred to and relied on by his counsel at the hearing: Mr Gorden did after all put in the two psychiatric reports to which I have referred. In my judgment it is over-analytical for Mr Wynne to rely on the fact (as I am prepared to accept that it is) that Mr Gorden did not spell out that he was relying on that evidence as the explanation for the delay, rather than as some more general discretionary factor for the Judge to bear in mind. Whether or not he spelt that out, the Judge apparently understood that to be the submission; and looking at it as a matter of common sense that seems to me to have been a reasonable understanding. It would frankly be surprising if it was not a part of the Claimant's case that the delay was caused by the stress and depression about which he was adducing evidence. There remains the point that the evidence in question is not specifically directed to the period between February and April 2008 and does not explicitly explain why, if the Claimant was well enough to initiate proceedings in April, he was not well enough to do so in March. I think, however, that that is too black-and-white an approach. Depression is simply not like that. There is nothing surprising in its effect being to delay and impair decision-making without making it altogether impossible. Mr Wynne made the point that since the bulk of the work was being done by Mr Kevin Wadher nothing was required of the Claimant himself save his signature on the form. But that does not seem to me the right approach. This was the Claimant's litigation, not his son's, and he had to be fully on board with the decision to bring proceedings.[26]In my view, therefore, despite the deficiencies of the Reasons I ought to conclude that the Judge did reach a decision on the explanation for the delay – namely that it was the result of the stress and depression from which the Claimant was suffering - and that it was one to which he was entitled to come.[27]Having got to that point, the rest of the case becomes easier. Mr Wynne's alternative submission is based on perversity. He makes the following points at paragraph 2.1 of the Amended Grounds of Appeal: 2.1.1. The Claimant had visited solicitors on several occasions during the six months before the limitation period ran out, and in correspondence with the Respondent referred to his "advisors"; 2.1.2. The Claimant had repeatedly threatened to bring a claim before the Employment Tribunal during the six months before the limitation period ran out; 2.1.3. The Respondent conducted a grievance meeting and scheduled an appeal hearing which the Claimant did not attend following which the Respondent instructed the Claimant that the internal processes were exhausted, leaving the Claimant over a month to bring the proceedings he had already threatened on several occasions; 2.1.4. On 18 February 2008 the Claimant demanded compensation within 14 days failing which proceedings would be instituted; 2.1.5. The Claimant had threatened the Respondent that it would be liable for the Claimant's legal costs if it did not compensate the Claimant; 2.1.6. The Claimant had instructed the Respondent that the Claimant's son was dealing with the issues on his behalf, who did so apparently without impediment.[28]Mr Wynne very fairly accepts in his skeleton argument that paragraph 2.1.1 is overstated: there was no evidence that the Claimant had visited solicitors on several occasions during the period he identifies. (There was reference to his having legal advisers during that period, but that has been explained by Mr Wadher as being a reference simply to the Citizens Advice Bureau.) Subject to that qualification, the six points that Mr Wynne makes in the Grounds of Appeal are all perfectly good points, and if I had been in the position of the Employment Judge I dare say I might have been sufficiently impressed by them to take a different view. But they are not such that only one view was possible. As has been often repeated, provided tribunals direct themselves correctly that the presumption is against an extension of time and that it is for the Claimant to show good reasons why exceptionally time should be extended in their favour (see, classically, Robertson v Bexley Community Centre [2003] IRLR 434 ), they have a broad discretion with which this Tribunal should be slow to interfere. What plainly happened in the present case, on the basis of the findings that I have already reached, is that the Judge regarded the fact that the Claimant's mental condition made it difficult for him to reach a decision to issue proceedings, having regard also to the fact that he was unrepresented and to the absence of any prejudice to the company, was sufficient to justify the conclusion that it was just and equitable to extend time. That is just the sort of discretionary judgment with which should be left to the Tribunal.[29]Mr Wynne also challenges the Tribunal's reference, at paragraph. 22, to the fact that the Claimant will suffer prejudice if he is not allowed to pursue his claim because "that will be the end of the matter". He says that that will be so in every case. I agree with that, but I do not read the Judge as having attached any particular weight to that truism. He was simply, in keeping with the (with respect) somewhat mechanistic approach that he was following, going through the checklist factors and identifying the prejudice on both sides.[30]The conclusion must therefore be that despite the impressive arguments of Mr Wynne no error of law has been demonstrated in the Judge's decision, and this appeal must be dismissed.

Cited in 1 later judgment