Price v Transport For London (Practice and Procedure : Bias, misconduct and procedural irregularity) [2011] UKEAT 0005_11_0605

EAT
Price v Transport For London (Practice and Procedure : Bias, misconduct and procedural irregularity)
[2011] UKEAT 0005_11_0605 · 2011-05-06
[1]Mrs Price appeals from the decision of an Employment Tribunal sitting at London (Central) entered in the register on 6 October 2010, which struck out her claim under the Disability Discrimination Act 1995 of failing to make reasonable adjustments. The Employment Tribunal held that the claim was not lodged in time and that it was not just and equitable to extend time in order that it could be heard. The Tribunal also dismissed a claim for unfair dismissal, but there is no appeal against that decision. Introduction[2]The sole ground of appeal is the challenge to the decision of the Employment Tribunal that it was not just and equitable to extend time in order that the reasonable adjustments claim could be heard. The basis of that appeal is set out in the grounds of appeal at paragraph (7)(e). Paragraph (7)(d) is said to be related but in reality it is paragraph (7)(e) which raises the point. This reads as follows:
“The Tribunal, having decided that the period of omission [to make reasonable adjustments] ended immediately prior to 28 January 2009 with the ‘CD assertion’, failed to give the Claimant the opportunity to make submissions, in the context of that decision, on whether it would be just and equitable to permit that part of the claim to proceed. The Tribunal had invited submissions on the just and equitable issue at the end of the evidence. The Claimant’s submission at that time was that the question of applying the just and equitable proviso did not arise because the period of omission had continued to the date of the Claimant’s dismissal 2 days before proceedings had been issued. When this submission was made the Claimant did not know, and could not have foreseen, that the Tribunal would hold that the period of the omission had ended in January 2009, 9 months before the issue of the proceedings.”
The facts[3]The relevant facts briefly stated are as follows. The Appellant was employed from 12 January 2004 until her dismissal on 2 October 2009 as a Revenue Protection Inspector on buses. It was her responsibility to check passengers’ tickets and to check for any breach of discipline by drivers. In the course of her duties she had to generate reports using a template. She had some difficulty writing and reading documents. On 20 September 2005 she had a dyslexia screening test and on 18 May 2006 she had a dyslexia assessment by Kim Brown, a consultant engaged by the Respondent. In her report of 18 May 2006 Ms Brown expressed the opinion that the Appellant was dyslexic.[4]The Employment Tribunal found that the report made recommendations for adjustments which would assist the Appellant. One of these was that she should have a screen reader. It was also said that voice recognition software can benefit some dyslexic writers.[5]An occupational health doctor cast some doubt on whether the Appellant was in fact dyslexic. The Employment Tribunal found that because of her absences from work for other reasons, obtaining the software had not been central to the Appellant’s thinking. On 20 December 2007 the Appellant saw another medical member of the Respondent’s Occupational Health team. A Dr Burdzick pointed out in her report that the reasonable adjustments that Kim Brown had mentioned were required. She also mentioned the Appellant’s ongoing depression.[6]The Appellant also applied for Government funding for the aides which had been recommended. As a result, some funding was made available. A Mr Docherty of Jobcentre Plus sent to the Respondent and the Appellant a report setting out the reasonable adjustment aides for which funding would be available.[7]The Employment Tribunal found that “the provision of the recommended software got stuck in a bureaucratic quagmire”. There was a delay in providing the software. On 3 October 2008 the Appellant lodged a grievance which the Employment Tribunal referred to by a page number in their Judgment in which it appears that she raised the failure to provide her with equipment. Eventually the software was made available to the Appellant.[8]On 8 December 2008 the Employment Tribunal record that the Appellant felt that she needed training to operate both software applications; Dragon Dictate NaturallySpeaking and a Texthelp Read & Write Gold. The Employment Tribunal held at paragraph 59 of their decision:
“After delivery of the software, the Claimant raised the question of training from time to time and in particular she raised it with Mr Linn (who was her superior) and also with her managers at ‘check points’.”
[9]At paragraph 60 the Employment Tribunal continues: “The Claimant specifically referred to not having had her training for the software in a letter of 28 January 2009”.[10]At paragraph 61 the Tribunal held:
“We accept for those purposes that the letter of 28 January 2009 was written on about that date. […] we find from the evidence that by that time the Respondent had made a conscious decision not to provide her with training. […] A decision was made that the Claimant should train herself from the CD rather than attend the training classes. […] On our findings the decision can certainly be dated as having been taken prior to 28 January 2009.”
[11]The Appellant was taken through a disciplinary process in respect of absences from work. On 18 November 2008 she was given a final written warning and she appealed from that final written warning by letters of 28 November 2008 and 16 January 2009.[12]We set out the letter of 28 January 2009 in full because it forms a central part of Mr MacKenzie’s, the Appellant’s representative before us, submissions to us. It is a letter under the name of the Appellant, albeit Mr MacKenzie suggests that it is likely to have been written by someone else, probably her Trade Union representative:
“Dear Mr Gentry Complaint under Disability Discrimination Act 1995 Sect 4A(1) and Discrimination under the Disability and Discrimination Act 1995 Section 4. I wish to raise a formal complaint under the above Regulations. Having been recognised by the company in 2005, as a disabled worker, the company have failed to make reasonable adjustments by way of failing to provide me with the required tools and training for my disability. As such I feel embarrassed and ashamed and believe I am being discriminated against because of my disability. I require a meeting to be convened to discuss at length my concerns and to seek an outcome that will eliminate my feelings of hurt and for TfL to honour its obligations to me under the law.”
[13]The Employment Tribunal found at paragraph 95 of their Judgment having referred to the case of Matuszowicz v Kingston‑upon Hull City Council [2009] IRLR 288 :
“95. […] The unanimous decision of the Court of Appeal was that where a case of this type comes within the wording in paragraph 3 as this one seems to do, that the clock starts ticking when the Respondent ought reasonably to have made the adjustment. And in this case, there is evidence that this was two or three months from the date of Kim Brown’s report and the Claimant is putting it forward as three months which the Tribunal accepts. So regarded as a case where there was an omission to make reasonable adjustments the clock starts on about 18 August 2006. However, we have found that at some point prior to 28 January 2009 a conscious decision was made not to provide the Claimant with training for her software and we have found that this was a failure to make a reasonable adjustment. If this is properly regarded as a fresh cause of action then the clock for a claim in that respect would start at some point prior to 28 January 2009. 96. Either way, it is clear that this claim is out of time and the only way that it can be brought before us is if we find that it is just and equitable for us to hear it. […]”
[14]At paragraph 101 the Tribunal held:
“101. […] On the evidence from the Respondent that we have heard and indeed from the Claimant’s own evidence we find that prior to 28 January 2009 Mr Little told her that she had to rely on the CD and that she was not going to get her training. So she knew at least by that time that her software was not going to be installed properly. […] 102. So at some time prior to 28 January 2009 the Claimant was on notice that she needed, if wanted to press this matter, to bring an Employment Tribunal claim. […] 103. We know that her union drafted her letters for her and we can see from the letters that her union knew of the Dispute Regulation Provisions, the need for a grievance, the 28‑day period and also the need to bring in a Tribunal claim.”
[15]The Employment Tribunal set out at length the factors which they took into account in considering whether it was just and equitable for time to be extended in favour of the Claimant so that her claim could be heard. Amongst the matters which the Tribunal took into account were that she was off sick for a considerable period of time, that she had complained about not receiving training for her software, that she had assistance from her union in drafting letters and that although she was off work for an injury for a period, she would, in their words, at least have had time to think about bringing a Tribunal claim and get advice on it. Indeed, no complaint is made by Mr MacKenzie about the matters that were taken into account. The Tribunal, having taken into account all the matters which they have set out and which we have not listed in extenso , came to the view that it was not just and equitable to hear the claim. The submissions of the parties[16]Mr MacKenzie challenges the decision of the Tribunal that it would not extend time on a just and equitable basis. He relies on the sole ground of appeal that the Employment Tribunal erred in failing to draw attention to the reliance which they proposed to make on the letter of 28 January 2009 in determining that it was at some point before that date that the Claimant would have been aware that the training, which was the subject of her reasonable adjustment claim, was not going to be provided to her.[17]There were originally other grounds of appeal and they are not pursued. The only other one which is referred to is that at (7)(d), but in reality it is subsumed in (e) as it does not challenge the primary limitation period point.[18]Mr MacKenzie contends that in failing to draw the parties’ attention to the reliance which the Tribunal would place on 28 January 2009, the Appellant has been prejudiced. He contends that if the significance that was to be placed on that letter had been brought to the parties’ attention he would have made additional submissions on whether it was just and equitable to extend time. He contends that those submissions would have, or would have been likely, to have affected the outcome of the Tribunal’s decision as to whether it was just and equitable to extend time.[19]Mr MacKenzie contends that reliance on the 28 January 2009 letter was a material difference in the way that the case had been approached. It had not been approached in that way by either party; neither party had said it there was a continuing act that came to an end at some time determined by reference to the 28 January 2009 letter.[20]He submitted that if the significance of the 28 January 2009 letter had been drawn to the parties’ attention he would have raised the following matters. First, because of her dyslexia the Appellant did not understand the need to put in a claim within the time limit. In this respect, he relies on a report on the Claimant’s dyslexia, which was prepared by a Mr Greaves on 23 July 2010. In that regard, when invited to point out the passages on which reliance was placed to support this contention, he referred to poor phonological awareness and poor decoding and sequencing, and other matters which are set out in paragraphs 8.28, 8.29 and 8.30 of the report. He also relied upon the report of Ms Brown of 18 May 2006.[21]Second, he contends that he had drawn to the attention of the Tribunal the fact that the Appellant continued to protest about the lack of provision of training. In this regard he drew attention to the notes of a meeting which took place on 15 June 2009, attended by the Appellant, by Mark Little and by the Appellant’s Trade Union representative. The Trade Union representative’s note of that meeting includes a note:
“Ways to take this forward (ML) 1) Software training & Dictaphone → Speak to SL & DA. […]”
[22]Also Mr MacKenzie drew attention to a letter of October 2009 appealing against her dismissal in which one of the matters she raises is: “The chair has been unhappy with my continual and repetitive requests to fully comply with the reasonable adjustments under The DDA”.[23]Further, in a note of an appeal hearing against dismissal on 26 October 2009, Mr MacKenzie draws attention to the note that the Appellant had said: “I got given Read & Write, Dragon Software and a Thesaurus, what was left off was a Dictaphone, strategic training and training for software was not provided”.[24]Third, Mr MacKenzie says that if he had been alerted to the significance to be placed by the Tribunal on the letter of 28 January 2009, he would have drawn attention to the reaction after that date of the Respondent to the Appellant’s complaints about failure to provide her with the training on software. Notes of the meeting of 15 June 2009 taken by the Trade Union representative indicated that the Respondents were going to do something about the Appellant’s complaint. Accordingly, it is said by Mr MacKenzie that if this argument had been placed before the Employment Tribunal in the context of whether it was just and equitable to grant an extension of time for presenting the claim, it would have made a material difference. An extension would have been granted, or it would have been likely to have been granted.[25]Mr Grant, for the Respondent, contends that the Employment Tribunal did not err in law or act unfairly in not drawing their intention or their view of the letter of 28 January 2009 to the parties’ attention. There was an issue between the parties regarding the just and equitable extension. The Appellant’s representative had to deal with the entire period of delay up to the date of the presentation of the ET1. The question of time limits and of just and equitable extension was not a new issue. Further, it is said that if the matter has specifically been drawn to the parties’ attention the matters advanced now on behalf of the Appellant by Mr MacKenzie would not have made any difference to the outcome.[26]The Employment Appeal Tribunal drew to the parties’ attention the case of Stanley Cole (Wainfleet) Ltd v Sheridan [2003] EWCA Civ 1048 . They invited submissions from the parties on that case. That was a case in the Court of Appeal which considered the scope of the test to be applied to determine whether a failure by a court or Tribunal to alert advocates to a material significant and relevant authority is such that an appeal on that ground should succeed.[27]In the course of giving Judgment in that case, Ward LJ at paragraph 34 said:
“[…] The hearing will not have been unfair if it has caused no substantial prejudice to the party claiming to be aggrieved.”
[28]Mr MacKenzie submitted that in this case there is substantial prejudice because the three submissions which he outlined would have made a material difference and he had been deprived of making those points because the Tribunal failed to draw attention to the significance which they attached to the letter of 28 January 2009. Mr Grant says that the letter does not affect matters; all three points raised by Mr MacKenzie could have been made. Also, in any event, they would not have affected the result. On this single point of appeal it is contended that the Tribunal did not err in law, nor did they act perversely in acting as they did. Discussion and Conclusion[29]The relevant statutory provisions.

(a) provides:

“Where - (a) a provision, criterion or practice applied by or on behalf of an employer, […] places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”
[30]Schedule 3, Part 1:
“3(1) An Employment Tribunal shall not consider a complaint under section 17A 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. (3) For the purposes of sub‑paragraph (1) - […] (b) any act extending over a period shall be treated as done at the end of that period, and (c) a deliberate omission shall be treated as done when the person in question decided upon it.”
[31]The issue of whether the complaint under the Disability Discrimination Act was presented in time was always going to be in issue. The primary contention on behalf of the Appellant was that there was a continuing act until the date of dismissal. The parties were well aware that if that contention were to fail then the only way in which the Tribunal would have jurisdiction to entertain the appeal would be if they determined that it was just and equitable to extend time.[32]The Appellant lodged her ET1 on 4 October 2009, two days after her dismissal. Before us there was no challenge to the findings of the Employment Tribunal or their approach, save in the respects that we have outlined and those which are set out in the Notice of Appeal at (7)(e).[33]Since the question of whether it was just and equitable to extend time was going to be an important issue between the parties, they were well aware of it and had proper opportunity to address all relevant issues. Mr Grant rightly says that the three points made by Mr MacKenzie, which he says now would have been drawn to the Tribunal’s attention if they had made clear the weight they were going to attach to the 28 January 2009 letter, could have been made in any event.[34]In our judgment the question of whether there should be a just and equitable extension of time had to address the justice of doing that for the entirety of the period of delay in presentation of a complaint. The letter of 28 January 2009 was placed in evidence before the Employment Tribunal; it was there to be dealt with. In our judgment it was not incumbent on the Employment Tribunal to alert parties to the weight that they attributed to each piece of evidence, since the issue of whether there should be a just and equitable extension was plainly for them to consider. The parties were well aware of it.[35]In any event, applying Stanley Cole (Wainfleet) Ltd , we hold that there was no substantial prejudice caused to the Appellant by the failure of the Tribunal to alert the parties to the weight that they were going to be attaching to the letter of 28 January 2009. In our judgment none of the three matters advanced before us by Mr MacKenzie, which he says would have been advanced by him before the Employment Tribunal, would have made any difference to the outcome.[36]As for the first matter, the contention that the Claimant’s dyslexia was a matter which precluded or inhibited her from formulating and presenting a claim, we note that she had available to her, as recorded by the Employment Tribunal, the assistance of a Trade Union representative. However, more importantly, it must be observed that her dyslexia was not an inhibitor on her presenting a properly reasoned complaint to an Employment Tribunal complaining after her dismissal which was lodged two days after her dismissal.[37]In our judgment the first factor relied upon would make no difference to the outcome. As for the second and third factors relied on, they are two sides of the same coin. The second is that the Claimant continued to protest against failure to provide her with training and software, and third is the reaction of the Respondent to those complaints - an indication that those complaints would be looked into.[38]In our judgment those matters would not reasonably have affected the Judgment of a Tribunal as to whether it was just and equitable to extend time. This was a case in which there had unfortunately been a prolonged period of time in which recommended steps had not been taken by the Respondents, to provide recommended software. There had been continued complaints about this. The reaction of the Respondent did not result, unfortunately, in any satisfactory outcome until 8 December 2008.[39]Having regard to all the facts and circumstances of the case, the fact the Claimant had protested after the 28 January 2009 letter and that the Respondent had not reacted to those protests, in our judgment is immaterial to the question of whether a just and equitable extension of time to present a complaint should be granted. There were no inhibitors on presenting that complaint nor was there any firm assurance given that the matter complained would be redressed shortly.[40]There being no further challenge to any other aspect of this Tribunal’s Judgment, we dismiss this appeal.