Abertawe Bro Morgannwg University v Morgan (Jurisdictional Points: Extension of time: just and equitable) [2016] UKEAT 0320_15_0803

EAT
Abertawe Bro Morgannwg University v Morgan (Jurisdictional Points: Extension of time: just and equitable)
[2016] UKEAT 0320_15_0803 · 2016-03-08
[1]This is yet another piece of intractable litigation involving an NHS member of staff with health problems, extended absences from work and numerous complaints against her employers.[2]The Abertawe Bro Morgannwg University Local Health Board appeals against a Judgment of the Employment Tribunal sitting in Cardiff (Employment Judge Beard and members) promulgated on 20 March 2015. That Judgment followed a remission by the EAT (Langstaff P and members) on 18 February 2014 after hearing an appeal against a Judgment of the Tribunal promulgated on 28 March 2013, which itself followed a six day hearing in January and February 2013. Background[3]The Claimant started work for the Board in January 2007 as a Psychiatric Nurse Therapist. Twenty years before that she had herself spent a year as a psychiatric in-patient suffering from severe depression. Though controlled to some extent by medication, that condition constituted a disability for the purposes of the Equality Act 2010 .[4]There was an incident in October 2008 involving the Claimant’s manager Wendy Anthony which the Tribunal found to amount to harassment related to the Claimant’s disability.[5]The Claimant went off work because of depression from 17 July 2010. Apart from one day in another role in July 2011 she did not work again until her dismissal on 15 December 2011.[6]While off work, on 27 September 2010 the Claimant raised various complaints about her treatment by the Board informally at a meeting with Laura Keighan, a HR advisor. The Tribunal found that the way these were dealt with by Ms Keighan amounted to harassment related to disability. Further, at a meeting on 8 February 2011 Ms Keighan laughed when the Claimant was talking about disability rights: the Tribunal also found that this specific incident amounted to harassment related to disability. Thereafter Ms Keighan was on maternity leave and dropped out of the picture. The Claimant raised a written grievance about these matters on 19 May 2011 but (as I understand the Tribunal’s findings) she did not receive a full response to her grievance until May 2012, several months after her dismissal.[7]In April 2011 the Occupational Health Doctor, Dr Tidely, advised that he would support the Claimant’s transfer to different work.[8]On 26 July 2011 the Claimant attended a placement at Neath Port Talbot Hospital but it did not work out. The Tribunal record that Dr Tidely was not asked beforehand about the suitability of the placement or any adjustments that ought to have been made in relation to it.[9]Dr Tidely saw the Claimant on 9 August 2011 and advised by letter of 15 August 2011 that she was currently unfit to work and that he would review the position in 2-3 months. He saw her again on 26 October 2011 and expressed the view that she was not fit for re-deployment and that she might seek ill-health retirement.[10]The Claimant was dismissed on 15 December 2011. The Employment Tribunal found that the dismissal was on the grounds that she was incapable of work because of ill health and that it was fair. The Tribunal Proceedings to Date[11]On 14 March 2012 the Claimant presented a claim form to the Tribunal making claims of disability discrimination (including breach of the duty to make reasonable adjustments), harassment, and unfair dismissal.[12]Following the hearing in January and February 2013 the Tribunal upheld various claims, including those of harassment arising from the conduct of Ms Anthony and Ms Keighan and the reasonable adjustments claim. On the latter claim, the Tribunal found (in effect) that the Board should have re-deployed the Claimant to a suitable post in line with Dr Tidely’s advice and that they should have consulted the doctor about additional measures to phase her return to work at the time of the attempted re-deployment in late July. In one compendious paragraph the Tribunal noted that all these claims were outside the normal three month time limit but decided that it would be just and equitable to extend time.[13]The Board appealed to the EAT. The EAT found that the Tribunal had misunderstood Dr Tidely’s letter of 15 August 2011: contrary to the Tribunal’s understanding, the doctor was saying that at that stage the Claimant was unfit for work of any kind. It followed that the reasonable adjustments claim in so far as it related to the period after the end of July 2011 was unsupportable and to that extent the Tribunal’s decision had to be reversed. In relation to the period April to August 2011 the EAT remitted the case to the Tribunal to decide whether any “…postulated redeployment would [my emphasis] have avoided …” the disadvantage of not being able to work in her current post as a psychiatric nurse therapist. The EAT also found that the Tribunal had erred in its decision to extend time in relation to the reasonable adjustments claim and the harassment claims because(a) it should have considered the question in relation to each claim separately and(b) it had not considered the reason for the claims being submitted late; these matters were also remitted to the Tribunal. The EAT directed that no further evidence should be given on the remitted hearing.[14]The Tribunal held a hearing on 9 February 2015 at which it received representations from Mr Roberts for the Claimant and Mr Allsop for the Board (who were also counsel before the EAT on both hearings). On the surviving reasonable adjustments claim, the Tribunal in effect found that there were roles available in the period April to August 2011 which could have been offered to the Claimant and which could have enabled her to return to work and that the claim (subject to the time bar point) was therefore well founded, though no specific role was identified by the Tribunal; I was told that the parties were agreed that the Tribunal had approached the issue in the right way notwithstanding the terms of the EAT’s remission and that any question of how matters would or might in fact have turned out after April 2011 will be for the remedies hearing (which is still to take place of course); in any event there is no appeal against that part of the Tribunal decision. The Tribunal also extended time for the reasonable adjustments claim. On the harassment claims, the Tribunal decided not to extend time in relation to the Anthony harassment claim (which related back to October 2008) but extended time in relation to the Keighan harassment claim. The Tribunal also found in the context of another remitted questions that the Anthony harassment claim failed on the merits.[15]The Board appeals against the Tribunal’s decision that the reasonable adjustments claim for the period April to August 2011 was well founded on the basis that it cannot stand with the Tribunal’s findings as to when time began to run for that claim (the first ground of appeal) and against the Tribunal’s exercise of it discretion to extend time in relation to that claim (the second and third grounds of appeal) and the Keighan harassment claim (the fourth and fifth grounds of appeal). The Legal Framework[16]The relevant duty to make reasonable adjustments is defined by section 20(3) of the Equality Act 2010 ; it is a duty:
“… where a provision, criterion or practice of [an employer] puts a disabled [employee] at a substantial disadvantage … in comparison with [employees] who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
It is well established that in order to comply with that duty it may be necessary for an employer to transfer a disabled employee who cannot do her current job to a suitable alternative post (see the fourth example in paragraph 6.33 of Equality and Human Rights Commission’s Code of Practice on Employment ). Section 21(2) provides that a failure to comply with the duty amounts to discrimination against the disabled employee.[17]The provision in relation to time limits for all types of complaints brought before the Employment Tribunal under the Equality Act 2010 is section 123. It is always important to have regard to its precise terms:
“(1) [Such a complaint] 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 is 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.”
[18]Although the wording of the section, and in particular that of sub-section 123(1)(b), is markedly different to those of its statutory predecessors [1] , no-one, so far as I am aware, has suggested that the correct approach in relation to claims presented after the initial three month period has changed. It is for the Claimant to persuade the Tribunal to exercise a judicial discretion to allow the claim to proceed (or to “extend time” as it is habitually described) and the Tribunal will do so if persuaded that, taking account of all relevant circumstances, it is “just and equitable” to do so. The relevant circumstances are always likely to include:(1) the length of the delay in presenting the claim;(2) the reason(s) that the Claimant did not present the claim within the initial three months and during any subsequent period of delay and (though this is usually implicit) how good (or acceptable) the reason(s) are; and(3) the prejudice that each party will suffer as a consequence of a decision to extend or not to extend time.[19]As with the exercise of any discretion by the Tribunal the EAT can only interfere if the Tribunal takes into account some circumstance which was irrelevant (or “improper”) or fails to take into account something which it ought to have taken into account or if it reaches a decision which is “so far beyond what any reasonable tribunal … could have decided that [the EAT] are entitled to reject it as perverse” (see Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 at 782) or, I would add, if inadequate reasons are given (i.e. the judgment is not Meek compliant). The Reasonable Adjustments Claim: First Ground of Appeal[20]The Tribunal concluded that the reasonable adjustments claim relating to the period April to August 2011 was well founded: that necessarily involved a finding that the Board was in breach of the duty to make reasonable adjustments at some stage during the period 1 April to 31 July 2011, i.e. that it ought to have taken steps to re-deploy the Claimant during that period. However, when considering whether to extend time the Tribunal said this at paragraphs 9.65 to 9.7:
“9.5. … the claimant would, within a month or so of the beginning of April, have been in a position to realise that the [Board] had not, swiftly engaged in the process of making adjustments. However it is also the case that the [Board] appeared to be engaged in some process of identifying different roles for the claimant. 9.6. The [Board] would have a reasonable time in which to deal with the process of making adjustments. However at some point it would become clear to the claimant probably by June/July 2011 that the [Board] was restricting its approach to redeployment. Firstly by not using the redeployment register and secondly by not searching outside the mental health directorate. … 9.7. Therefore in terms of reasonable adjustments we judge that time begins to run by no later than the beginning of August 2011. On that basis the claimant’s claim should have been presented by 31 st October 2011. …”
In its first ground of appeal the Board says in effect that the conclusion that the claim was well founded cannot stand with the findings at paragraphs 9.5 to 9.7: if time did not begin to run until 1 August 2011 there can be no failure to comply with the duty to make reasonable adjustments until that date and the reasonable adjustments claim must fail.[21]I do not think there is anything in this ground of appeal. First, the date when time begins to run for the purposes of section 123(1)(a) is conceptually different to the date when the duty to make reasonable adjustments is first breached, notwithstanding that section 123(4)(b) may lead to the same result on a given set of facts. Second, in any event, at paragraphs 9.5 to 9.7 the Tribunal were (rightly or wrongly) looking at the matter from the point of view of the Claimant, which was not strictly relevant for the purposes of section 123(1)(a), and the Tribunal actually concluded (again, rightly or wrongly) that time began to run “… by no later than the beginning of August 2011”, which I take to mean “on a date before 1 August 2011”. I can therefore see no inconsistency between what the Tribunal say at paragraphs 9.5 to 9.7 and the finding that the reasonable adjustments claim was well founded.[22]I should record in this context that I have considered the Court of Appeal decision in Kingston upon Hull City Council v Matuszowicz [2009] ICR 1170 to which Mr Allsop referred me. I note that the Court of Appeal in that case was considering differently worded provisions in the Disability Discrimination Act 1995 (i.e. those at paragraphs 3(1), (3) and (4) of Schedule 3 to the 1995 Act ), but in any event it does not seem to me that the decision assists the Board at all. First, it is clear that the Court of Appeal in Matuszowicz were only considering the question of whether the reasonable adjustments claim in that case was “out of time” and were not considering the issue raised by the Board in this case. And, second, as far as I can tell, the decision on the facts was that time began to run on 1 August 2006 in respect of a claim for a breach of the duty to make reasonable adjustments which itself dated back to August 2005 (see paragraph 25 at 1179): there was no suggestion as far as I can see that the fact that time began to run on 1 August 2006 meant that there could be no liability in respect of the period August 2005 to 31 July 2006. The Extension of Time for the Reasonable Adjustments Claim: Second and Third Grounds of Appeal[23]The Tribunal dealt with the extension of time for the reasonable adjustments claim in paragraph 9 of the Reasons. At paragraph 9.7 they concluded, as I have already mentioned above, that time began to run “… no later than the beginning of August 2011” which meant, they said, that the claim should have been presented by 31 October 2011 and was therefore 5½ months late.

(s) for the late presentation of the claim as follows:

“9.8.1. The claimant was too ill to work at all from the period beginning with 1 August 2011 and was, significantly, still very ill by 30 October 2011. That can be seen in the letter from Dr Tidely indicating that the claimant could not work at all. The opinion expressed in this letter lead eventually to the claimant’s dismissal. 9.8.2. At that time the claimant was also required to cope with meetings at work involving the review of her sickness absence. These reviews were unnecessarily going over the same ground as had previously been covered. 9.8.3. In addition the claimant was still awaiting the result of the grievance she had raised. 9.8.3.1. Whilst the grievance did not relate directly to the question of making reasonable adjustments, it was clearly connected to the claimant’s sickness absence. 9.8.3.2. The claimant’s complaints were about the [Board’s] treatment of her in relation to her disability. 9.8.3.3. In our judgment this would make it very difficult for the claimant to disentangle the specific elements of this particular process from those matters dealt with in the absence reviews. 9.8.3.4. That in turn would make it difficult (leaving aside for the present the fact that she was represented) for the claimant to realise that a reasonable adjustments claim needed to be made, as there still seemed to be an attempt to resolve matters internally. 9.8.4. We recognize that the claimant was represented by her Trade Union at this point in time. However those representing the claimant would have had to recognise the limitations caused by the claimant’s health; e.g. the claimant was unable to engage in appeal meetings with the [Board].”
In paragraphs 9.8.5 to 9.8.6.3 the Tribunal dealt with the relative prejudice that would be suffered by the parties. At paragraph 9.8.6.1 they said that if time was not extended:
“9.8.6.1. The claimant … would lose a good claim in circumstances where she had been very ill and had been embroiled in the [Board’s] processes. The claimant was using her limited mental resources in coping with those processes while ill.”
They found that the Board on the other hand would suffer no significant prejudice from the Claimant’s delay in bringing the claim. At paragraph 9.8.6.3 they said that they did not consider that the support of the trade union was in the circumstances “… sufficient to unbalance the equation in the [Board’s] favour”. At paragraph 9.8.6 the Tribunal concluded that “… taking account of those matters [this must be a reference to the length of and reason(s) for the delay] and balancing the likely prejudice” it was just and equitable to extend time for the presentation of the reasonable adjustments claim.[24]The Board say in the second ground of appeal that in deciding to extend time for the reasonable adjustments claim the Tribunal “… failed to place the burden on the Claimant to satisfy it that it was just and equitable …” and in the third ground of appeal that the Tribunal made findings in the Claimant’s favour for which there was no evidence (and that the decision was therefore “perverse”). There are also complaints that the Tribunal failed to properly consider the effect of the support of the trade union when considering the reasons for the delay in starting proceedings (see paragraph 14(b) of the Notice of Appeal) and that the Tribunal failed to weigh in the balance the fact that the reasonable adjustments claim for the period after 1 August 2011 and the Anthony harassment claims had failed (see paragraph 16(d) of the Notice of Appeal).[25]As I have indicated above it is for the Claimant to persuade the Tribunal that it is just and equitable to extend time and in that sense there is clearly a burden on the Claimant; however, it is not a “burden of proof” which needs to be “satisfied” as when a party seeks to prove a fact or circumstance. As I understand it what the Board is really complaining about in the second ground of appeal is the fact that the Tribunal made findings as to the reasons for the late presentation of the claim which it appears to have regarded as acceptable in circumstances where (as is common ground) the Claimant herself gave no evidence as to the reasons for her delay in presenting her claims. The Board say in effect that in those circumstances it was not open to the Tribunal to make any findings on the point (or certainly not findings in the Claimant’s favour).[26]The Board rely in support of this ground of appeal in particular on three statements in the decision of the EAT following the earlier appeal:
“52. … A litigant can hardly hope to satisfy this burden [i.e. the burden of persuading it that it is just and equitable to extend time] unless he provides the answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was. … 55. The issue of time … will require to be determined again by the Tribunal on and following remission, in respect of each claim separately, in the light of all the circumstances but in particular the reasons advanced by the Claimant for not making that claim earlier than she did, and drawing any balance influenced by the supposed strength of the claims in the light of the conclusions reached by the end of the hearing including those on this appeal. … 57. … The Tribunal will wish to consider what reasons, if any, were advanced previously by Ms Morgan for her failure to submit her claims timeously. If no reason was advanced it would be entitled to infer that there was no good reason, and evaluate the question of whether it would be just and equitable to extend time in the light of that consideration. …”
[27]Looking at those statements together and in context I do not think that the President was intending to suggest that if a Claimant gives no direct evidence about why she did not bring her claim sooner a Tribunal is obliged to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason that would inevitably mean that time should not be extended. What he was saying, as I understand it, is that it is always necessary for a Tribunal to make some finding about the reason for the delay in starting a claim (if necessary by drawing inferences, which may well go against a Claimant who gives no evidence about it) and that if the reason is unacceptable it is very unlikely that a Tribunal would decide it was just and equitable to extend time, regardless of all the other circumstances. I do not therefore think there is anything in the second ground of appeal.[28]The third ground of appeal maintains that there was no evidence to support the findings which I have set out above at paragraphs 9.8.3.3, 9.8.3.4, 9.8.4 and 9.8.6.1. Although Mr Allsop described this ground as being based on perversity, it would more properly be described in my view as an appeal based on the contention that the Tribunal had improperly taken into account matters which should not have been taken into account. In any event, I accept Mr Roberts’ submission that the Tribunal had spent many days reading and hearing detailed evidence about the Claimant’s ill health and her dealings with the Board during the relevant period and that they were entitled in those circumstances to draw inferences (or “reach common sense conclusions” as Judges habitually explain the concept to juries) about how those matters would have impacted on her ability to bring a claim in the Tribunal. It is fair to say that the Tribunal’s findings as to the reasons for the Claimant’s delay could have been clearer, in particular in relation to the role of the trade union, and indeed that it would have been better if they had considered the period 1 August to 30 October 2011 and the subsequent period of delay separately as enjoined by the EAT at paragraph 52, but I do not think that there is any basis for concluding that they have taken something into account which they should not have or that they have reached a conclusion which, although it is generous to the Claimant, is even close to being “perverse” in the proper sense of that term.[29]As for not taking into account the failure of the reasonable adjustments claim in respect of the period from 1 August 2011 or the failure of the Wendy Anthony harassment claim, the Tribunal in my view rightly followed the EAT’s direction (in paragraph 55) to consider whether to extend time in respect of each claim separately; particularly in a case where a Tribunal has heard and determined a series of claims on the merits, it does not seem to me that the weakness (or, I should say, complete failure) of other claims could be relevant to the decision to extend time in respect of a claim which is otherwise well founded. The Extension of Time for the Keighan Harassment Claims: Fourth and Fifth Grounds of Appeal[30]It appears to be common ground that time started to run for these claims on 8 February 2011 and that they should therefore have been presented by 7 May 2011 rather than 14 March 2012 when they were in fact presented. The Tribunal dealt with the issue of extending time at paragraphs 15 to 17 of their Reasons. At paragraphs 15 and 16 the Tribunal recorded in a somewhat muddled way various factual matters, unchallenged evidence from the Claimant and arguments advanced by the parties. At paragraphs 15.1.1 to 15.1.4 they referred to the Claimant’s grievances from September 2010 and how the Board responded to them and at paragraph 15.1.5 they said:
“15.1.5. Over the period in question the claimant had considerable and developing ill health. All of this evidence clearly establishes reasons why the claimant could be significantly disadvantaged in presenting a complaint within the required time limit.”
At paragraph 16 the Tribunal recorded the Claimant’s unchallenged evidence that she had decided to appeal her dismissal on 15 December 2011 but that she was too unwell during that period to attend any hearings and was not able to lodge the appeal until 16 April 2012. Paragraph 17 appears to contain the essential reasons for the decision to extend time. The Tribunal said that in their Judgment the Claimant:
“17. … has demonstrated an evidential basis upon which the tribunal can come to a conclusion as to her reason for not presenting her complaint until March 2012. 17.1. That evidential basis includes: 17.1.1. The extent of the claimant’s illness as it developed up to her dismissal. 17.1.2. The attempts to resolve matters internally via the grievance process. 17.1.3. The delays in that grievance process some of which can be laid at the door of the [Board] and are without explanation. 17.1.4. The state of the claimant’s health after her dismissal on 15 December [2011].”
The Tribunal then considered the relative prejudice to the parties and said that if time was not extended the Claimant would not be able to pursue a well founded claim. They then referred again to the fact the Claimant was pursuing an internal grievance and that she was not provided with the outcome until May 2012 and at paragraph 17.3.4 they said this:
“17.3.4. We accept that pursuing a grievance alone is not a reason for us to conclude that time should be extended. However, where the claimant is properly pursuing internal processes with a real intention that matters be resolved and with delay caused by ill health and by the [Board] for reasons which are not explained, those are matters properly to be put in the balance.”
They then concluded at paragraph 18 that in all the circumstances it would be just and equitable to extend time.[31]In the fourth ground of appeal the Board raise the same general point about failing to place the burden on the Claimant in relation to this decision as they do in relation to the extension of time on the reasonable adjustments claim. For the reasons given above I do not think there is anything in this point.[32]Under the fourth ground of appeal a number of points are also raised at paragraph 20 of the Notice of Appeal. In paragraphs 20(a) and (b) the Board say that the Tribunal have not in paragraphs 15.1.5, 16 and 17 made any finding as to why the Claimant was actually unable to present her claim at any stage after 8 February 2011; there was no need for the Tribunal to find that the Claimant was actually unable (which I understand to mean “completely unable”) to present a claim during the relevant period: the Tribunal was required to find the reason(s) why she did not present the claim in time and take into account its view of how good those reason(s) were. At paragraph 20(c) the Board complain that it is not adequate for the Claimant “… to merely demonstrate an evidential basis …” for reason(s) for not presenting her claim until March 2012 as the Tribunal stated at paragraph 17; I am confident that the Tribunal were there using a somewhat unfortunate turn of phrase and that what they meant was that the reasons set out were established by the evidence.[33]The fifth ground of appeal is again put as one of perversity and the specific points relied on are set out at paragraph 22 of the Notice of Appeal. Paragraph 22(a) complains that the Tribunal failed to make any finding about when the claim should have been presented; I agree that it would have been better if the Tribunal had spelled this out but it is clear from the paragraphs 15 to 17 that they had well in mind that time began to run in February 2011, not least because at paragraph 17.2 they record that there was some prejudice to the Board “… in the delay between February 2011 and March 2012.” Paragraphs 22(b) and (c) complain in effect that the Tribunal has failed to take into account the fact that the Claimant was able to present a written grievance on 19 May 2011 and to take steps to seek re-deployment between April and August 2011; again, it is clear the Tribunal must have had these matters in mind, but they do not necessarily undermine the conclusion that the reason for the delay in the presentation of the claim was a combination of her ill health and the fact that she was having to deal with other things. Paragraphs 22(d) and (e) state that Ms Keighan’s last involvement in the matter was in February 2011 and that the Tribunal failed to take into account that there was no harassment of the Claimant thereafter; the Tribunal took into account the fact that the Board were partly responsible for the delay in the grievance procedure after February 2011 but they did not suggest anywhere that this amounted to harassment and I do not see that there was any need to say positively that it did not amount to harassment.[34]Overall, while I think that (again) the Tribunal could have expressed its reasons in a far better way and that the decision to extend time in relation to this claim was even more generous than in relation to the reasonable adjustments claim, I do not think that the Tribunal took into account any matters which they should not have or reached a conclusion which can be described as “perverse” and accordingly there is no basis for interfering with the exercise of the Tribunal’s discretion. Disposal[35]For all those reasons I dismiss the Board’s appeal in its entirety.[36]I hope the parties can now rapidly proceed to a remedies hearing to consider(a) what compensation the Claimant should receive for her treatment by Ms Keighan and(b) how things would or might have turned out differently if the Board had complied with its duty to make reasonable adjustments between April and August 2011 and what compensation she should receive for its failure to do so. It seems to me just unacceptable that a case like this should take more than four years to reach a resolution. [1] For example paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995 says:
“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.”