Appeal No. EAT/1079/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2001

Before
MISS RECORDER SLADE QC
MR D A C LAMBERT
MR P A L PARKER CBE

MR R R SETCHELL	APPELLANT

GARDEN ISLE FROZEN FOODS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or 
on behalf of the Appellant

MISS RECORDER SLADE QC

1	This is the preliminary hearing of an appeal by Mr Setchell from the dismissal by an Employment Tribunal of his claim under the Disability Discrimination Act 1995  by reason of the fact that it was presented out of the statutory time limit for doing so, and by reason of the fact that it was concluded that it was not just and equitable to extend time.  

2	Mr Setchell has not appeared today.  He has sent a message to this Employment Appeal Tribunal that he is unable to attend, but wishes the matter to proceed in his absence.  We will act accordingly.  

3	When it came to the full hearing of the case the Tribunal had before it a claim for unfair dismissal and a claim for discrimination on grounds of disability.  A Tribunal had, prior to the hearing, given leave to amend the Originating Application which was filed on 2 November to claim that the dismissal of the Applicant was on grounds of his disability.  That leave was given on 30 November 1999.  On that occasion, the Respondents were not invited to make representations.  

4	The brief background is as follows: the Applicant before the Tribunal was employed as a cleaner and odd job man.  He complained of various medical conditions.  He had worked on day shifts during his employment until a time when he was notified that his employers were to change to continental shifts, which meant working longer hours on four days a week.  He objected.  The grounds of his objection were that the change to continental shifts would be detrimental to his health.  The company obtained a medical report and the company doctor expressed the view that there was no medical reason why he could not work continental shifts.  
5	The employers agreed to refer the matter to an independent medical practitioner, but the report of that practitioner appears not to have been received before the termination of the Applicant’s employment.  

6	There came a time, about 4 June 1999, when it is said that the Applicant was given notice of dismissal, with an undertaking from the employer that if the report of the independent medical practitioner showed that the Applicant was unfit to work the longer shift, the dismissal would be rescinded.  

7	The findings of the Tribunal are slightly confused about whether or not that medical report was or was not received by the date of expiry of the notice.  From other material, it appears that the report of the independent medical practitioner may not have been received by the expiry of notice on 6 August 1999.  

8	On the admission of the Respondents the Tribunal found that the Applicant was unfairly dismissed.  They proceeded to make an award of compensation.  

9	As far as the claim under the Disability Discrimination Act 1995  that the Applicant had been dismissed by reason of his disability, the Tribunal found that the date of the act complained of was 4 June 1999 when the Applicant was asked to go onto a continental shift and was given notice, not the date when the notice expired.  They therefore concluded that the presentation of the Originating Application was after the time limit for presenting such a claim had expired.  They appeared to have taken as the material date the date of the amendment, 29 November 1999.  We think there may be some argument that, where an amendment of an Originating Application is made, the amendment takes effect from the date of the presentation of the original Originating Application, so that if that were done, the date would be 2 November.

10	We consider that it is arguable that the Tribunal erred in law in holding that the material date of the discriminatory act was 4 June 1999.  Although the Tribunal were at pains in their decision to point out that they asked the Applicant to confirm that the act of discrimination relied on was 4 June, the Applicant has challenged that in his Notice of Appeal, saying in effect that he felt under pressure to agree that that was the material date, when really he says that the date was 6 August.  

11	But perhaps more importantly, in our view, it is arguable whether the Tribunal adopted the correct approach to the issue of whether they should extend time under the just and equitable provision of the legislation.  

12	The Tribunal appear to have directed their minds more to whether it was reasonably practicable to present the claim in time, rather than to whether it was just and equitable to extend time.  We say that by reference to the fact that in paragraph 5 of the decision, they refer to the explanation given by the Applicant for not presenting his discrimination claim in language which, perhaps, would be more appropriate to the reasonably practicable test than the just and equitable test.  

13	Further, they, in our respectful view, may have misunderstood the import of Hutchison v Westward Television Ltd [1977]ICR 279  in that they directed themselves to give a broad assessment of the merits of the claim in coming to their conclusion as to whether time should be extended to hear it.  If that were the case, we consider that there is an arguable point to be made that they misunderstood and misapplied Hutchison.  There are sufficient points which give rise to concern that there may have been misdirections of law in this decision to lead us to the conclusion that this matter should go forward to a full hearing.