Mears Group Plc Vassall (Redundancy : Fairness) [2013] UKEAT 0101_13_1212

EAT

Mears Group Plc Vassall (Redundancy : Fairness)

[2013] UKEAT 0101_13_1212 · 2013-12-12

[44]“ ...decisions of the ET can only be appealed on questions of law, whereas under the CPR the appeal is normally by way of review and the decision of a lower court can be set aside, if it is wrong, or if it is unjust by reason of a serious procedural or other irregularity in the proceedings. In relation to case management the ET has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The ET's decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the EAT should continue to adopt... ”27. Mr Emslie acknowledged, therefore, that he needed to put the case on the basis either that the approach of the Tribunal was flawed in the Wednesbury sense or that its conclusion was perverse, likewise in the Wednesbury sense, i.e. irrational. Mr Emslie sensibly accepted that, taken alone, he could not impugn as erroneous in law the Tribunal’s determination of the issue of whether to admit into evidence the documents in the supplementary bundle or its decision on the scope of the unfair dismissal claim. But, he submitted, the Tribunal had erred in its failure to restrict the issues which it would hear and determine or to postpone the whole hearing if it was not limited to the disability question.

28. I deal, first, with the proposition that the Tribunal erred in approach. Mr Emslie’s case was that the Tribunal had failed to have regard to relevant considerations. Manfully as he tried, both in writing and in oral argument, Mr Emslie was, in my judgment, quite unable to identify any relevant factor or matter to which the Tribunal had manifestly failed to have regard. True it is, as he reminded me, that the Tribunal had expressed itself only shortly as to the reasons for deciding to proceed with the whole case rather than just the disability issue. The reader is reminded of the last sentence of paragraph 6 of the Tribunal’s written Reasons. But, in my assessment of the matter, that gets Mr Emslie no further forward. The Tribunal was there identifying its conclusion. The question is whether it failed to take into account relevant matters that had been urged upon it in the course of submissions, and that is the difficulty. It is quite clear from the account given by Mr Birks in his affidavit, and from the account given by the Judge in her written response, that the issues which were relevant to the question of whether the hearing should be restricted or postponed were fully alive and fully articulated before the Employment Tribunal itself.

29. Mr Emslie, in the alternative, submitted as part of this limb of his case that the structure of the Tribunal’s written Reasons, and the Employment Judge’s response to the affidavit of Mr Birks, demonstrated that the Tribunal had dealt with the questions before them on these preliminary issues in the wrong order. In my judgment, there is nothing in that criticism. This is a case in which the Tribunal heard the argument on all the preliminary issues together. It retired to consider them, and it must be taken to have determined them in the round. The precise sequence in which they are recorded in the written Reasons is, in the view of this Appeal Tribunal, of no weight. This is not a case in which the Employment Tribunal plainly declined to hear argument or evidence on a relevant matter. It did not refuse to hear Mr Birks on such questions as the prejudice which might follow were the applications made by the Mr Vassall to succeed. It is quite plain, in my judgment, that everything material was canvassed, and it is impossible to contend that the Tribunal closed its mind to any particular aspect of the relevant material before it.

30. In those circumstances, Mr Emslie sensibly concentrated his fire on his alternative limb of ground 1, that is to say ‘perversity’. How, he asked, could any reasonable Tribunal, faced with the material before this Employment Tribunal, have not granted an adjournment if it was not prepared to restrict the scope of the hearing? He reminded me again of all the matters that had weighed in support of an adjournment or at least a restriction of the issues. Surely, he submitted, they should have carried the day. But that is not the point. These are not matters for me. They might or might not have persuaded me to adjourn or restrict the hearing. The point is that they failed to persuade a unanimous Employment Tribunal, seized of all the relevant facts, matters and submissions. Parliament has, through the Employment Tribunal Rules and the statutory scheme, conferred case management powers on Employment Tribunals, not on me. It is, in my judgment, impossible to say that in this case the conclusion of the Tribunal manifestly demonstrates that it was acting outside the scope of matters within which a reasonable disagreement is possible. Applying the approach required by Yeboah v Crofton

[2002] EWCA Civ 794

, it is not possible to say that an overwhelming case has been made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, could have reached. In my judgment, this is a case that does not enable one to say that the conclusion of the Tribunal was such that it must have ‘taken leave of its senses’. It follows that this ground of appeal must fail. (2) The time limit point

31. The Employment Tribunal was satisfied that Mr Vassall’s claim for discrimination by reason of failure to make reasonable adjustments was out of time. It proceeded on the basis that time had begun to run at the latest on 8 April 2011 (see written Reasons paragraph 115) and that accordingly the claim should have been presented no later than 7 July 2011 (see paragraph 116). The claim had in fact not been presented until 12 October 2011. The Tribunal, however, decided that it had a discretion to exercise as to whether to extend time from 7 July to 12 October 2011. It decided that it would be ‘just and equitable’ to grant such an extension and, having done so, it therefore entertained the reasonable adjustments claim on its merits and came to the conclusions that I have recounted at the outset of this Judgment.

32. The ground of appeal advanced by Mears is straightforward. It is said that, in order to properly exercise the discretion as to extension of time, the Employment Tribunal first needed to direct itself correctly to the relevant start date. If it got the identification of the start date wrong, as Mears submitted it did, then its exercise of discretion cannot stand. That being the nature of the ground of appeal, I turn to the statutory provisions.

33. The text of Chapter 3 of the Equality Act 2010 is headed “Employment Tribunals”, and that chapter contains a series of what might be described as generic sections intended to set general rules applicable to the various types of complaint that might be made to an Employment Tribunal, arising under the various disparate aspects of the Equality Act 2010. Section 123 deals with time limits, and it is these terms:

“(1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.” 34. Mr Emslie submitted that section 123 governed both aspects of the Tribunal’s essential approach to this question of the reasonable adjustments claim and the time limits for bringing it. That is to say, it fixed the time limit (see the provisions of subsections (1), (3) and (4)) and it included the discretion to extend time if the time limit was exceeded (see section 123(1)(b)). I agree with those submissions. Further, Mr Emslie submitted that, in a reasonable adjustments case, one was concerned not with action but with failure to act, that is to say failure to make the reasonable adjustment, or, to put it another way, one was concerned with omission rather than action or conduct. Again, I agree with those submissions. 35. Against that context, one turns to subsection (3) of section 123 to identify the applicable approach to ascertaining the time from which the requirement to present a claim begins to run. Reasonable adjustment cases not being cases of ‘conduct’, but being cases of ‘failure’ to do something, the applicable provision is subsection 123(1)(b). That provides, as set out above, that a failure to do something is to be treated as occurring when the person in question decided on it. That is to say, time runs from when a person, in the present context an employer, decides not to make a reasonable adjustment. Of course, in many cases, there can be no precise identification of when an employer made such a decision. It is for that reason that subsection (4) has been included because it sets a time limit running even in the absence of evidence as to when a person expressly decided to not do something. These are complex provisions as to when time begins to run. Fortunately for this Appeal Tribunal and for the Employment Tribunals on the front line, the provisions of what are now section 123 have been helpfully considered by the Court of Appeal in Matuszowicz v Kingston Upon Hull City Council [2009] EWCA Civ 22 , reported at [2009] IRLR 288 . The Court of Appeal was there concerned with the predecessor provisions of section 123, but the wording is almost identical. In the IRLR, after an explanation of the relevant facts and of the correct approach to section 123, the headnote continues in these terms: “That analysis leads clearly to the conclusions that in the context of the legislation and of the duty to make reasonable adjustments, even if the employer was not deliberately failing to comply with the duty and the omission to comply with it was due to lack of diligence or competence or any other than conscious refusal it is to be treated as having decided upon it at what is in one sense an artificial date. Certainly it may not be a date that is readily apparent either to the employer or to the employee. The date is imposed for the purpose of starting time running under the enforcement provisions.” 36. For his part, Sedley LJ gave a short Judgment, which is summarised in the headnote in this way: “Claimants and their advisors need to be prepared once a potentially discriminatory omission has been brought to the employer’s attention to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission.” 37. Mr Emslie’s first and most straightforward submission was that the Employment Tribunal had simply failed to direct itself at all in accordance with the statutory provision or the guidance upon it offered by the Court of Appeal. He reminded me that the Tribunal in setting out what they believed to be the relevant law did not set out section 123. Moreover, it is not even mentioned in the relevant part of the written Reasons dealing with the extension of time. There is no reference at all to the decision of the Court of Appeal in the leading case, and nor is there any discussion of the principles which guided the Court of Appeal and which provide so much assistance to Employment Tribunals. Those submissions, in my judgment, beat the air unless it can be demonstrated that the failure to set out the statute and refer to the relevant authority actually made any material difference. 38. One turns again then to the terms of the written Reasons. Mr Emslie submitted that the terms of the written Reasons are themselves revealing. Had the Tribunal had regard to the statute, it would have been concentrating on the employer’s “failure to do something” or alternatively an “omission”

. A reasonable adjustments case is not a case about the employer’s acts. Nevertheless, says Mr Emslie, it is plain that that is how the Tribunal approached it. See the reference to “the Respondent’s act” at paragraph 160 and the reference to “an act” continuing, in paragraph 190. Identifying the correct start date for the running of the time limit is by no means easy in the light of section 123 and even with the benefit of the Court of Appeal’s guidance. 39. Take the facts of the present case. They are about the alleged failure of an employer to make a reasonable adjustment to help an employee who, by reason of his disabilities, was in difficulty using a PDA device. It is uncontroversial that the Tribunal found that the employers were first asked by Mr Vassall for such assistance in August 2010. There was an omission to do anything. Mr Emslie submits that one approach open for the Tribunal was to take August 2010 as the appropriate trigger date, but, he submitted, the Tribunal might have been indulgent and permitted the employer a suitable period in which to respond to the request and make the necessary adjustment. In this case, Mr Vassall went on long-term sick leave on 24 November 2010. So, submitted Mr Emslie, by that point the employer had done nothing, despite repeated requests, for a period of some three months. That, he submitted, must have triggered the running of the time limit. Even if that was wrong, Mr Emslie indicated that any Tribunal, properly directing itself to the statutory provisions, would have had regard to the possibility that in this particular case, on any view, the time limit had been triggered in January 2011. He took me, for the purpose of that submission, to paragraph 35 of the Tribunal’s written Reasons, which contains this finding of fact in relation to the position as at January 2011: “The Claimant refused this or any other meeting. The reason he gave was that he had sought help for so long and the Respondent had failed; accordingly he had lost trust in the Respondent...” 40. On any view, submits Mr Emslie, if a Tribunal applies section 123 and the decision of the Court of Appeal, time must be taken to have started running in January, not on the later April 2011 date alighted upon by the Tribunal. 41. For her part, Ms Jones contended that there had been no error of law. The Tribunal had, she submitted, been entitled to treat this as a case of continuing failure: that is to say, an omission occurring over a continuing period which had only come to an end in April 2011. True it is that the Tribunal deal with that matter in paragraph 119 but they only do so after they have exercised their discretion as to an extension of time. That strikes one in reading the written Reasons as being something of an afterthought. It is telling, in particular, because in the case of Matuszowicz , the Court of Appeal had had to concern itself with the situation where an employer is faced with a contention by the employee that the failure to make reasonable adjustments can be treated as running over a period. 42. Ms Jones further sought to uphold the reasoning of the Employment Tribunal. She reminded me that in August 2010, when he first made his request, Mr Vassall was a transferring employee, but then that is a feature also of the case considered by the Court of Appeal. It is submitted by Ms Jones that Mr Vassall acted as soon as was reasonably proper and that no omission on his part should speak against him, at least none before the start date identified by the Employment Tribunal in April 2011. My assessment of Ms Jones’ submissions were much to the effect that she could not deal head-on with the commencement of time limit point, but was largely addressing my attention to what might justify an extension of time once the start date had been identified. 43. Having heard and carefully considered those respective submissions, I am quite satisfied that the Employment Tribunal did not direct itself according to law. The Employment Tribunal, faced with this difficult question about the appropriate date from which discrimination for failure to make reasonable adjustments should be treated as starting, ought to have stood fast by the provisions of section 123(3) and (4). This Tribunal failed to even mention them. It failed to explain how it was applying the statutory rubric to the facts it found. It failed to refer to the decision in Matuszowicz or make any reference to the principles it contained. I am satisfied that had those matters been taken into account by the Tribunal, it is possible, and the Appellant need establish no more than that, that the Tribunal would have reached a different decision as to the correct start time for a complaint to be presented and would in consequence potentially have reached a different decision as to whether or not time should be extended, having regard in particular to the total extent of delay. 44. Put shortly, Mr Emslie has demonstrated to my satisfaction that the error made by the Tribunal could have led to a significant difference in ascertaining the start date and/or in the exercise of the Tribunal’s discretion. What then is to be done? There are three alternatives. I could remit the matter to the same Tribunal. I could remit the matter to a different Tribunal. Or I could determine the matter for myself. Both parties, somewhat surprisingly, urged that I should deal with the matter myself. I assume by those submissions that they were intending that first I should apply section 123 and the Matuszowicz test to the relevant facts. That seems to be an inappropriate task for an appellate judge. It is for the front-line Tribunal to determine a commencement date. 45. Further, both parties urged me to exercise my discretion and determine whether it would be just and equitable to extend time once I had ascertained the relevant delay. When asked what materials I should take into account in making that determination, Ms Jones in particular broadly urged that I should take into account virtually everything that had been before the Employment Tribunal and is now before the Employment Appeal Tribunal. 46. Again, I consider, even though that approach was common ground, it to be misguided. This, again, is an exercise of discretion that has been vested in the front-line Tribunal, and unless there is a good reason for them not to exercise it, it should be exercised by that Tribunal rather than by this appellate Tribunal. Mr Emslie urged on me that the recent trend in the appellate jurisdiction was to take decisions where doing so would be expeditious and save the cost and expense to the Tribunal system and to the parties of remitting cases. I agree with the good sense of that proposition where all the factual matters are agreed, and one is simply seeking to apply the relevant law. In the present case, there is much in dispute as to the determination of the correct start date and as to the appropriate features that should weigh in the question of any extension of time. 47. For all those reasons, I shall not take the decision myself. 48. The next question is whether the matter should be remitted to a different Employment Tribunal or the same Employment Tribunal. The more attractive option is, of course, to remit it to the same Tribunal. They, after all, are seized of all the facts and matters and they can determine the issues with the benefit of my Judgment. Although he did not develop his submissions on this point, I took Mr Emslie to be against that approach. No doubt he would have submitted that the Employment Tribunal in this case has already made a decision on extension of time favourable to the Claimant and might therefore be tempted or persuaded to do that again rather than to take a step back in the light of a proper self-direction as to the law. I am quite satisfied that this particular Employment Tribunal can be trusted to consider the matter afresh, having regard to the relevant law contained in section 123 and the guidance contained in the Court of Appeal’s decision in Matuszowicz . It will be for it to ascertain the date from which time started to run and explain its finding by reference to the statutory provisions. It can thereafter address any submissions the parties may wish to make to it as to the relevant exercise of the discretion to extend time. 49. For those reasons, therefore, the appeal against the Judgment in relation to unfair dismissal will be dismissed. The appeal in relation to the Judgment on reasonable adjustments will be allowed. And the question of whether the reasonable adjustments claim is in time will be remitted to the same Employment Tribunal, if such a Tribunal can be assembled and, if not, to a Tribunal suitably assembled by the Regional Tribunal Judge. 50. Mr Emslie applies to me for permission to appeal from my Judgment in relation to ground 1. In doing so, he very eloquently puts again the very matters which I have considered in my Judgment. The challenge is restricted to a perversity challenge in relation to the exercise of case management powers and a discretion. In my judgment, for the reasons I have given, it cannot be said that this Employment Tribunal erred in law, nor can it be said that there is a real prospect of success in an appeal from my own Judgment on the matter.