Appeal No.	 EAT/775/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MR P A L PARKER CBE

CONTANCE CARROLL COSMETICS PLC	APPELLANT

MRS  C TASKER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr C Sheldon 
(of Counsel)
Messrs Philip Conn & Co.
Solicitors
Lincoln House
1 Brazennose Street
Manchester
M2 5FJ	

HIS HONOUR JUDGE PETER CLARK

1.	On 17 March 1999 the Applicant, Mrs Tasker, presented an originating application to the Liverpool Employment Tribunal contending that she had been unfairly dismissed and discriminated against on the grounds of disability by the Respondents, Constance Carroll Cosmetics Plc, her former employer.  She alleged that her dismissal took effect on 21st December 1998.  On that footing both claims were presented within time.  In response the employer contended, first, that the claims were 3 days out of time, her employment having terminated on 15th December 1998.

2.	That preliminary issue as to limitation came before a full Employment Tribunal sitting at Liverpool under the Chairmanship of Mr E Lloyd Parry on 24th May 1999.  By a decision with extended reasons promulgated on 27th May 1999, the Employment Tribunal found as follows:

i)	it was reasonably practicable for the Appellant to have presented her complaint of unfair dismissal within time for the purpose of Section 111(2)(b) of the Employment Rights Acts 1996.  She herself knew of the 3 months time limit for lodging complaints; she put that matter in the hands of a solicitor who had adequate time to lodge the originating application.  He failed to do so.  Accordingly that complaint was dismissed 

ii)	by a majority, that it was just and equitable to extend time for presentation of the disability discrimination complaint under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995.  They found that she had entrusted the case to a solicitor.  She was not greatly to blame in having let the processing of her complaint to him.  The complaint was only 3 days late, the Respondent suffered no prejudice by enlarging time.  The minority member took a different view, he or she found that knowing of the 3 month time limit, the Applicant did not press her solicitor for action.  There was no excuse for that for which she was herself substantially responsible 

The majority view prevailed and the complaint for disability discrimination was permitted to proceed on its merits.

3.	This is an appeal by the employer against the majority decision on the disability discrimination complaint.  In support of the appeal Mr Sheldon recognised that there is a distinction to be drawn between the reasonable practicability test under Section 1112(b) of the 1996 Act and the just and equitable grounds for extension of time under the discrimination statutes.  The test under the earlier Sex Discrimination Act 1975 and the Race Relations Act 1976 is identical to that contained in Schedule 3 to the 1995 Act.  We observe that that distinction is helpfully identified by Smith in British Coal Corporation –v- Keeble (1997) IRLR 336.  Specifically, whereas the mistake of a skilled advisor, such as a solicitor will not avail the Applicant of a ground for contending that it was not reasonably practicable to present a complaint within time.  Despite reservations as to the correctness of that well established approach Sir Thomas Bingham, M.R was not prepared to depart from it in London International –v- Sen (1993) IRLR 333.

4.	The position is otherwise when considering the just and equitable ground for extension of time under the discrimination legislation.  In Hawkins -v- Ball and Barclays Bank (1996) IRLR 258, a division of this Tribunal presided over by Mr Justice Keene upheld an Employment Tribunal decision to extend time in a sex discrimination case where the reason for delay was the incorrect legal advice given to the Applicant by a solicitor, and that was a relevant factor.  In the circumstances, whilst acknowledging the wide discretion given to Tribunal’s under the discrimination legislation, to decide whether it is just and equitable to extend time, see Hutchison –v- Westward Television Ltd (1977) IRLR 69, Mr Sheldon submits that the majority decision in this case was Wednesbury unreasonable, in that the majority failed to take in to account relevant considerations, alternatively they reached a perverse conclusion.

5.	The relevant factor which the Tribunal majority failed to take in to account he submits, was first that the Respondent would suffer no prejudice.  He argues that there will be prejudice if the claim is allowed to proceed and the Respondent will then have to incur time expense and inconvenience in defending it.  In support of that submission he has referred us to the speech of Lord Diplock in Thompson –v-Brown (1981) 1 WLR 744, 750 (c), where his Lordship said, when considering the forerunner of Section 33 of the Limitation Act 1980, 

“a direction under the Section must therefore always be highly prejudicial to the Defendant, for even if he also has a good defence on the merits he is put to the expenditure of time and energy and money in establishing it, while if, as in the in the instant case, he has no defence as to liability, he has everything to lose if a direction is given under this Section”. 

6.	The short point taken by Mr Sheldon is that on the face of their reasoning, the majority concluded that there will be no prejudice to the Respondents in this case by enlarging time since the complaint was only a few days late.  He submits that that entirely overlooks the prejudice to the Respondents if the matter is allowed to proceed and he adds that this is a case in which the Applicant has a cast iron case in liability against her solicitor for failing to lodge the originating application within time, and that the only issue in a civil claim brought by her against her solicitor is as to the valuation of her claim, that is to say the loss of a chance of succeeding in the underlying action against these Respondents.  We have considered that submission with care and we have concluded that an arguable point is here raised which ought to proceed to a full hearing before this Tribunal.

7.	Secondly, he challenges that finding by the majority that the Applicant was not greatly to blame for having left the conduct of the case in the hands of her solicitor.  He seeks to distinguish the case of Hawkins on the basis that there the delay was caused by incorrect advise given by a solicitor as to the Applicant’s right to bring a claim.  Here the error lay in failing to lodge the claim within time in circumstances where the evidence show that the Applicant herself knew that there was a 3 month time limit.  We do not accept that that is a valid distinction for present purposes; in our view the Employment Tribunal majority were entitled to find as they did on this point, in just the same way as the minority member was entitled to take a different view of the significance of the solicitor’s failure to put in the claim within time.

8.	Finally, as to the perversity argument which is developed at paragraph 15 of Mr Sheldon’s helpful skeleton argument, he relies on the following factors for the proposition that no reasonable Employment Tribunal properly directing itself could conclude that it would be just and equitable to extend time.  Those factors are first that the Applicant knew of the time limit, second, she took no steps to ensure that the time limits were being complied with, thirdly, no explanation or excuse was offered by her for the delay, fourthly, the employer had acted reasonably and promptly in responding to the Respondent’s correspondence over her proposed complaint and finally that the employer would suffer great prejudice if the case was to be permitted to proceed out of time; the first point in this appeal.  We have considered that argument but we have concluded that of itself it is not sufficient to properly ground an appeal.  The perversity threshold is not even arguably crossed in this case in our view.  Accordingly, we will allow this matter to proceed solely on the first point, that is whether the majority were wrong in law in failing to take into account the prejudice suffered by the Respondent in circumstances where this matter was allowed to proceed to a hearing on the merits.  For that limited purpose, we shall direct that the case be listed for 2 hours category C; there will be exchange of skeleton arguments between the parties, copies to be lodged with this Court not less than 14 days before the date fixed for a full appeal hearing.  There are no further directions.