Appeal No.	EAT/1428/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 December 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR I EZEKIEL
MR S M SPRINGER MBE

MRS M S LINDSAY	APPELLANT

NEW BALANCE ATHLETIC SHOES (UK) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR P LINDSAY
(Representative)	

	MR JUSTICE LINDSAY (PRESIDENT):		We have before us by way of a preliminary hearing the appeal of Mrs Margaret Lindsay in the matter Lindsay v New Balance Athletic Shoes (UK) Ltd. Mrs Lindsay has today appeared by her son, Paul Lindsay, who does not aspire to legal qualification but who has addressed us economically and very sensibly on her behalf.

1.	Mrs Lindsay began to work for the respondent company on 30th June 1997 and worked there until 31st December 1998. On 29th March 1999 she presented an IT1 for unfair dismissal. In Box 4, which says “Please give the dates of your employment”, she said that she was employed from the dates I have mentioned, 30th June 1997 to 31st December 1998, in other words, a period short of the two year continuous period that was in those days required. Box 11, which is headed “Please give details of your complaint” does not contain mention of disability discrimination as such and does not, I think it is fair to say, mention any medical or other condition existing or continuing in any such way as might suggest that it was a claim under the Disability Discrimination Act 1995. 

2.	On two year point, the expanded form of IT1 said:

“Two Year rule.
We ask that this is set aside as we believe it is contrary to European Law. We ask the Tribunal to adjourn the case until the outcome of the European Court of Justice on this matter are known.”

3.	On 14th April 1999 the company put in an IT3 which, it is fair to say, shows no recognition that Mrs Lindsay was actually disabled within the meaning of the 1995 Act or that she was actually making a claim under that Act.

4.	In April 1999, not long after the IT3 (this is to quote from the tribunal’s extended reasons, which we will come on to) the position was as follows:

“6	In April 1999, the applicant received a letter from the Tribunal stating that in view of her length of service (less than two years) the matter would be stayed pending the outcome of the decision of the European Court in R v Secretary of State for Employment, ex p Seymour-Smith and Perez [1999] IRLR 253, which was further considered by the House of Lords in February 2000 (see (2000) IRLR 263). The final effect was to maintain the two year qualifying period (although this was subsequently reduced, as from 1 June 1999 to one year).”

5.	On 9th May 1999 a letter was written on Mrs Lindsay’s behalf, again by her son (and again to take its form from the findings of the tribunal) as follows:

“7	A letter went to all applicants in those cases which had been stayed on account of lack of two years service, and indicating that, subject to any comments they might make, it was proposed that the applications be dismissed. Mr Lindsay replied on 9 May 200, saying:
“Secondly – my mother was dismissed due to joint pains which continue to this day, at the time she was off she was incapable of repetitive movements in her wrists, this affected her in ways such as only being able to turn a car wheel once the car was moving, not being able to sew and other basic activities. She is still affected to this day.
We think that this condition would qualify under the Disability Discrimination Act 1995, apparently a case heard by EAT involving BT decided that as the person involved could not do a list of everyday items such as cut up meat or roast potatoes these were the sort of activities the Disability Act was intended to cover.
As I believe this reduced the requirement for a qualifying period then Mrs Lindsay’s case should be heard.”

	The Employment Tribunal regarded that letter, rightly in our view, as in principle capable of being regarded as a claim under the 1995 Act. In tribunals there is rightly a rather relaxed view as to precisely what is pleaded. We certainly would not want to quarrel with their view that that letter sufficed as such a claim (leaving aside whether it was in or out of time).

6.	On 28th September 2000 there was a hearing at Carlisle under the chairmanship of Mr A Fraser. On 25th October the decision was sent to the parties and it was:

“The unanimous decision of the Tribunal is that:
(1)	The applicant was not continuously employed for a period of not less than 2 years ending with the effective date of termination of her employment.
(2)	She is not entitled to present a complaint of unfair dismissal, and her complaint is therefore dismissed.
(3)	Her complaint cannot be construed as containing a complaint under the Disability Discrimination Act 1995.
(4)	Whilst her letter to the Tribunal dated 9 May 2000 can be accepted as a complaint under that Act, it was not presented before the end of the period of three months beginning when the act complained of was done.
(5)	It would not be just and equitable, in all the circumstances, to consider the complaint.”

7.	On 15th November a Notice of Appeal was signed by Mrs Lindsay’s son on her behalf and on 19th November it was received here at the EAT and Mr Lindsay has put in a skeleton argument. It does not challenge the two year’s continuous service point or that the letter of 9th May was properly to be regarded as a fresh claim rather than merely as an amendment to an earlier one, or that, regarded as a fresh claim, the letter of 9th May was other than outside the three month statutory period. But what Mr Lindsay, on his mother’s behalf, does challenge is the tribunal’s decision that it was not just and equitable to extend time and to consider, therefore, the disability discrimination complaint.

8.	Now the difficulties that a party suffers in this area are well established. See Hutchison v Westward Television [1977] IRLR 69, where, at page 71 Phillips J, giving the judgment of the EAT said:

	“The third thing we have to say about s. 76(5) is this. [The legislation in the 1995 Act is virtually identical.] Because it is such a wide discretion conferred upon an Industrial Tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not have done, or that it failed to take into account facts which it should have done, or , as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it.”

	So it is a difficult task. 

9.	The tribunal cited the correct statutory provisions. They say in their paragraph 12:

“Would it be just and equitable to consider the complaint? Paragraph 3(2) of Schedule 3 goes on to say:
“A tribunal may consider any such complaint which is out of time if, in all the circumstances it considers that it is just and equitable to do so.””

	The tribunal then very correctly referred themselves to British Coal Corporation v Keeble [1997] IRLR 337, and Mills & Crown Prosecution Service v Marshall [1988] 494. Then the tribunal goes on to say this:

“12 … One can have some understanding of the applicant’s position, that her claim for unfair dismissal had been stayed for some 12 months. But that perhaps brings one to the main issue, that disability discrimination is a separate jurisdiction of the Tribunal, and not a mere “add-on” to unfair dismissal. Mr Lindsay said that they would have been basing an argument on the Guidance. But, as Mr Healy [instructed by Irwin Mitchell, Solicitors, Birmingham, on behalf of the respondent] said, this was not a case which could be compared with Marshall where the applicant had been unaware of her right to bring a claim (under the Sex Discrimination Act) until the law had been clarified by the European Court in P v S and Cornwall County Council [1996] IRLR 347. The applicant had been well aware of the facts all the time, and only sought to introduce the issue of disability when her unfair dismissal application was going to fail. The three months time limit in the SDA was there for a purpose. Employers should not be under the spectre of litigation indefinitely. There was no valid reason for the delay.”

	We cannot see any error of law in that passage. But then the tribunal goes on in their paragraph 13 to describe a point to which they attached great importance:

“13	Perhaps even more significant, the question of the cogency of the evidence. Were the case to proceed at this stage, the Company would now have to obtain their own medical evidence; something which they could have expected to have undertaken 18 months ago had they been faced with a claim under the DDA. Her medical condition had apparently deteriorated, and for the employers to have to establish these matters as they would have been towards the end of 1998, would in our view, have significantly prejudiced the Company in defending these proceedings. We are not talking about a short delay. It was delay of more than 16 months. It would not therefore be just and equitable to consider the application.”

10.	Mr Lindsay in his skeleton argument says:

“The tribunal does not seem to have taken in to account to what level medical evidence would be required. Our claim is not related to the extent of Mrs Lindsay’s illness, merely that her illness was such that the DDA would apply.”

	But the Employment Tribunal is an experienced body and surely it would have been well aware of the nature and quality of the medical evidence that was needed. We cannot take it that simply because they do not spell that out that they did not have that in mind. But then Mr Lindsay turns to whether the Employment Tribunal considering the difficulties which delay had caused in relation to medical evidence and whether they had had sufficiently in mind that delay was in large part here not attributable to Mrs Lindsay. Remember that on 9th May 1999 she sought to raise the 1995 Act complaint by letter and that the letter has been accepted as being an adequate form for raising the complaint. Now, in the ordinary way, that claim would have, no doubt, been tacked on to her existing IT1 to come on together and that existing IT1 was dated March 1999 and would have probably come on, without the stay, some sort of time such as about September 1999. But, of course, here, the unfair dismissal side of the case had been stayed in April 1999 because of Seymour-Smith. As it transpired, the case did not come before the tribunal until September 2000. So the hearing, even of a preliminary point, was something like a year after when it would probably have been heard had there been no Seymour-Smith stay.

11.	The Employment Tribunal, as we have seen, spoke of the medical evidence and its difficulties á propos a delay of more than 16 months. It is not entirely clear when those 16 months began to run. Presumably, it was the 16 months plus period from the letter of 9th May 1999 to the tribunal hearing on 28th September 2000. It plainly could not be a period of 16 months from the dismissal on 31st December 1998 to the letter of 19th May 1999, as that, of course, is not 16 months. But because of the Seymour-Smith stay none of the delay from 9th May 1999 was attributable to Mrs Lindsay, or at least none of a period of 16 months from 9th May 1999 was attributable to her. The reason for it was the Seymour-Smith stay. There is no suggestion in the extended reasons that the Employment Tribunal had evidence to establish (as opposed to merely supposing this to be the case) that in relation to the collection of medical evidence as to Mrs Lindsay’s position as at the dismissal in December 1998 the respondent was or would be placed in September 2000 in a worse position than it would have been in, say, September 1999 when but for the Seymour-Smith stay, the matter could very well have been heard. Nor, as it seems to us, is there any indication in the extended reasons of evidence that on medical grounds a fair trial could no longer be achieved. The Employment Tribunal plainly regarded the question of medical evidence as “even more significant” and it was a matter to which they attached importance to and, in our view, (of course, at this preliminary stage, all we are concerned about is whether a thing is reasonably arguable) it is arguable that the tribunal took a view as to significant prejudice to the respondent in relation to its ability to examine medical evidence without evidence on that point. They merely, as it seems to us, supposed that to be the case; at any rate, it is arguable that that is the position. Whilst they plainly took into account that delay was not Mrs Lindsay’s fault or was not wholly her fault (because they say “One can have some understanding of the applicant’s position, that her claim for unfair dismissal had been stayed for some 12 months”) it is at least arguable that they failed to take into account that much of the delay was no fault of hers when they came to turn to the effect of delay on medical evidence. Put another way, it could be said that they took into account a 16 month delay in relation to medical evidence without reflecting that it was not her fault. 

12.	So, on balance, we think it is arguable - emphasise that that is all we are dealing with - that this was a flawed exercise of the discretion, in the sense that it took into account matters which it should not have done or failed to take into account matters that it should have done, and accordingly we direct the matter to go to a full hearing, but limited to the question of the exercise of the discretion to extend time.