Appeal No. EAT/1106/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR S M SPRINGER MBE

MR B S CHIMA	APPELLANT

WESTINGHOUSE SIGNALS LIMITED 	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D SQUIRES
(of Counsel)
Messrs Russell Jones &
Walker Solicitors
Swinton house
324 Gray's Inn Road
London
WC1X 8DH	
For the Respondent	MR T LINDEN 
(of Counsel)
Engineering Employers Federation
Broadway House
Tothill Street
London
SW1H 9 NQ	

JUDGE PETER CLARK:
1.	This is an appeal by Mr Chima, the Applicant before an Employment Tribunal sitting at Birmingham on 6 July 2000, against that Tribunal’s decision, promulgated with extended reasons on 25 July 2000, dismissing his complaint of disability discrimination on the grounds that it was time-barred and that it would not be just and equitable to extend time.

History
2.	At all relevant times the Appellant was employed by the Respondent as a Design Engineer.  In 1997 he began to experience illness, probably due to stress arising from his work situation.  In the summer of 1998 he took a period of leave to recover from a tonsillectomy.  His recovery took longer than might be expected from the effects of that operation alone.  He managed to attend work for about a month during September/October 1998 but was then off sick again and did not return to work save for a brief 3 day period in January 1999.  The Tribunal accepted that between June 1998 and early October 1999 he was so ill with the effects of work stress that he was not able to concentrate sufficiently to bring to the attention of his advisors his complaint (a) that he had been teased by colleagues about his ability to withstand pressure and that, in June 1998 he had discussed his health problems with his manager requesting assistance, but no assistance or support was provided and (b) that this amounted to unlawful disability discrimination, the last act of discrimination having taken place on 22 October 1998.

3.	In about September/October 1999 the Appellant contacted the DSS and arranged for them to send him an application for incapacity benefit on which he made a backdated claim for benefit.  On 6 October 1999, he met Mrs Pearce, the Respondent’s Human Resources Manager at their Birmingham offices.  They had a long meeting about his future during which he communicated well.  It was left that he would go back to his doctor to find out whether he was likely to be able to return to work in the near future and then revert to the employer.  
On 8 October he contacted an official of his Trade Union, Mr Allen.  The Appellant gave Mr Allen sufficient information to allow that official to conclude that he was suffering from work related stress which might give rise to a potential civil claim for damages for personal injury against his employer.  Mr Allen sent the Appellant the union standard form for completion by members who have a potential personal injury claim.  The Appellant promptly completed and returned the form by 18 October.  

4.	On 18 October, the Appellant contacted Mr Allen by telephone to tell him that he had been advised by his doctor that he would be unable to return to work in the near future.  During that conversation Mr Allen advised the Appellant to inform Mrs Pearce of the position and that he would probably be released on the basis of ill health severance.  Mr Allen made a note that he would have to follow that up with the railways pension scheme.  The Tribunal also found that on that occasion the Appellant probably indicated to Mr Allen that he had lacked support from his managers in connection with his illness.  

5.	On 19 October Mr Allen contacted the union’s solicitors, Russell Jones and Walker, by letter asking them to arrange a meeting with the Appellant in order to discuss the possibility of his bringing a personal injury claim.  There was then a long delay before a meeting was arranged for 30 November. 

6.	Either during that meeting or shortly thereafter the Appellant provided information to these solicitors which led them to conclude that he may have a complaint against the Respondents for disability discrimination.  That view was expressed by the solicitor in a letter to the union dated 22 December 1999.  That letter did not reach Mr Allen, due to the Christmas and New Year break, until early January 2000.  Mr Allen then contacted the solicitors by telephone and completed, on the Appellant’s behalf, a form IT1 complaining of disability discrimination.

7.	That form was presented to the Tribunal by fax on 11 January 2000.  It alleged that the Appellant first knew about his possible claim in June 1998.  The sole allegation of disability discrimination in that form was the lack of assistance from the Appellant’s manager in the month of June 1998.

8.	Together with the originating application was a covering letter from Mr Allen, explaining that it was only after the Appellant was seen by the solicitors that the present claim came to light.  

The Statutory Time Limit
9.	Section 8(1) DDA 1995 provides that a complaint of unlawful disability discrimination may be presented to an Industrial Tribunal (now an Employment Tribunal).

Schedule 3 to the DDA provides:
(1)	An Industrial Tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of 3 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.

10.	The just and equitable escape clause in Schedule 3 DDA reflects the similar provisions in the Sex Discrimination Act 1975 (section 76(5)) and Race Relations Act 1976 (section 68(6)).

The Tribunal Decision
11.	The Tribunal found that the complaint was made outside the primary limitation period.  Notwithstanding that the form IT1 alleged discrimination in June 1998, the Tribunal proceeded on the basis that the last act of discrimination complained of took place on 22 October 1998.  Thus the primary limitation period expired on 21 January 1999.

12.	The issue before them was whether it was nevertheless just and equitable to extend time in all the circumstances of the case.

13.	In approaching that question they considered that principles developed in relation to the equivalent Sex Discrimination Act provision (section 76(5)) applied equally to a case of disability discrimination and directed themselves that they had a wide discretion relating to the circumstances surrounding the presentation of the complaint rather than the nature of the case itself.  Hutchison v. Westward Television Limited (1977) IRLR 69.

14.	It also appears that they directed themselves to the relevant passage in Harvey on Industrial Relations and Employment Law; see currently in particular section L, at paragraph 559 which sets out 7 factors to be considered.  In particular, they paid attention to the approach of Mrs Justice Janet Smith in British Coal Corporation v. Keeble (No 2) (1997) IRLR 336, paragraphs 8 – 9, where the Judge endorsed an earlier EAT suggestion in that case that Employment Tribunal should adopt as a check list, the factors mentioned in section 33(3) of the Limitation Act 1980 where a court is considering the exercise of its discretion whether to allow a personal injury claim to proceed out of time.  Those factors are subsumed in the 7 factors set out in the passage in Harvey to which we have referred.

15.	The Tribunal, setting out their reasoning at paragraphs 13 – 14 of their decision leading to their conclusion that it would not be just and equitable to extend time on the facts of this case, considered the following points in (summary form):
(1)	there would be considerable prejudice to the Respondent if the case were allowed to proceed.  The Appellant was relying on events taking place between 1997 and October 1998.  By the time the case came to trial 2 years would have elapsed.  Such a delay would make life difficult for the Respondent in establishing the evidence they needed to rebut the Appellant’s claims.
(2)	The question as to whether the Appellant had a remedy elsewhere was speculative.
(3)	There was no conduct on the part of the Respondent which had contributed to the delay.
(4)	That the Appellant was guilty of some delay, particularly from 8 – 18 October 1999 in informing Mr Allen of his primary discrimination case, that of lack of support by his manager.
(5)	The length of time by which the claim was out of time, that was on the Tribunal’s findings, from 22 January 2000 to 11 January 2001, almost 1 year.
(6)	The medical condition of the Appellant, which prevented him from instructing advisors between June 1998 and early October 1999
(7)	The extent to which he sought advice, which advice the Tribunal found, was given very slowly indeed, bearing in mind the extent to which the claim was already out of time.

16.	Bearing all these factors in mind the Tribunal concluded that it was not just and equitable to extend time and so dismissed the complaint.  

The Appeal
17.	Mr Squires takes two points in this appeal.  We shall deal first with the perversity ground.
The principal submission made is that there was no evidence to support the Tribunal’s finding that the Respondent would suffer prejudice if the complaint was allowed to proceed.  Their finding at paragraph 13 of their reasons is summarised under the first factor set out above.

18.	Mr Squires points out that, as appears from a letter to the EAT from the Chairman of the Tribunal, Mr Rostant, dated 8 March 2001.

“There was no evidence given relating to prejudice to be suffered by the respondents.  Hence, he contends, his submission is unassailable.”

19.	By those words we understand the Chairman to mean that the Respondent led no evidence, through Mrs Pearce, the only witness called on their behalf, of actual prejudice in the sense of a potential witness who had died, or had left the country or matters of that sort.

20.	However that is not the end of the matter.  The chronology, which we have earlier set out, was a matter of record.  At the Tribunal the Appellant raised an additional complaint to that contained in his form IT1.  It was that he had been teased by fellow workers, not then named and identified, about his inability to cope and that continued until October 1998.  We see the force of Mr Linden’s submission that, on the basis of observations by Lord Justice Peter Gibson in Chapman v. Simon (1994) IRLR 124, paragraph 42 and by Lord Justice Balcombe in that case at paragraph 33(2), subsequently adopted by Lord Justice Sedley in Anya v. Oxford University (2001) IRLR 377, paragraph 9, the Tribunal were seized only of the matters raised in the Originating Application itself.  However, the Tribunal were prepared to entertain the enlarged case advanced by Mr Squires on the basis of the Appellant’s witness statement, thus advancing the relevant date for time beginning to run from June until October 1998, and in these circumstances we accept that the Tribunal was entitled to look at that enlarged case as it appeared from the Appellant’s evidence and to infer that the passage of time would cause difficulties for the Respondent in defending that claim.  Accordingly we reject the submission that there was no evidence to support the Tribunal’s findings.

21.	More generally, it seems to us, the Tribunal took into account all relevant factors in reaching a permissible conclusion that in the exercise of their wide discretion they did not consider it just and equitable in all the circumstances of the case to extend time.  We therefore reject the perversity ground of appeal.

22.	Secondly, Mr Squires advances an ingenious argument to this effect.  Although this case was decided before the Human Rights Act 1998 came into force and thus the Act cannot be relied on directly, see Pearce v. Governing Body of Mayfield School (2001) IRLR 669 (Court of Appeal), following House of Lords Authority in R v. Lambert, the Appellant has a constitutional right to access to the Courts at Common Law which is at least as wide as the protection derived from Article 6 and 14 of the European Convention on Human Rights, and thus he may, by extension, rely upon those rights in this case.  Further that the Tribunal ought to have allowed 3 months from the time that he regained his capacity to instruct advisers in order to put him on a level basis with non-disabled Applicants but they failed to do so.  Thus, their exercise of discretion in this case breached his constitutional right of access to the Courts.

23.	Mr Linden advances three answers to those submissions, each of which we accept.  It was therefore unnecessary to hear his arguments addressed to the Human Rights Act itself.  They are first, that the case was not put in this way by Mr Squires below; he ought not to be allowed to take the point for the first time on appeal, particularly where further findings of fact are necessary.  Kumchyk v. Derby City Council (1978) ICR 1116 and more recently Glenmie v. Independent Magazines (UK) Ltd (1999) IRLR 719 (Court of Appeal).  Secondly, on the findings of fact actually made by the Employment Tribunal the Appellant recovered his capacity on the 6th or at the latest 8 October 1999.  Thus the complaint was presented outside the revised 3 month time limit contended for by Mr Squires.  

24.	Thirdly, the authority relied on by Mr Squires for the proposition that the common law constitutional right to access to the courts is as great or greater than the rights bestowed by Article 6 and 14 ECHR, namely the R v. The Lord Chancellor ex-parte Witham (1998) QB 575 does not in fact support the proposition on the facts of this case.  In giving the judgment of the court in Witham, Mr Justice Laws said (page 585):

“In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice unless it is specifically so permitted by parliament and this is the meaning of the constitutional right.”  

25.	In the present case Parliament has provided for a limitation period (3 months), subject to the Tribunal’s discretion to extend time where it considers it just and equitable to do so.  That is what happened here.  The Tribunal declined to extend time.  They were entitled to reach that conclusion, in our judgment.  No error of law is made out; consequently this appeal must be dismissed. `