Appeal No. EAT/445/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 26 September 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D NORMAN
MRS R A VICKERS

MR J W EKBLOM	APPELLANT

COMMISSIONERS OF INLAND REVENUE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	Mr A Short
Appearing under the 
Employment Law Appeal
Advice Scheme 	

JUDGE PETER CLARK

1	The Appellant, Mr Ekblom, was employed by the Respondents, Commissioners of the Inland Revenue, from 26 August until 26 October 1999.  On 21 August 2000 he presented an Originating Application to the Liverpool Employment Tribunal complaining of unfair dismissal and unlawful disability discrimination.  

2	At a preliminary hearing held on 6 February 2001, before an Employment Tribunal chaired by Mr E T Connolly, the Appellant formally abandoned his unfair dismissal claim, he not having completed the required qualifying service of one year’s continuous employment.  The remaining issue was whether or not it was just and equitable for the disability discrimination claim to proceed, notwithstanding that it had been lodged well outside the primary three months limitation period, provided for in paragraph 3 of Schedule 3 to the Disability Discrimination Act 1995.  

3	By a Decision with Extended Reasons promulgated on 7 March the Tribunal declined to extend time.  In reaching that conclusion they took into account the following factual history:

(1)  During his employment the Appellant was a member of a recognised trade union, PCSU.  Following his dismissal he contacted the union, stating that he believed his dismissal was unfair and that it was contrary to the Disability Discrimination Act.  He is a registered disabled person.  He also contacted the Respondents’ Human Resources Group with a view to the Respondents reinstating him.  

(2)  Thereafter PCSU corresponded with the Respondent, but on 10 February 2000, by letter, the Respondents made it clear that they would not take the Appellant back.  That information was then communicated to the Appellant by his union.

(3)  In May/early June the Appellant contacted a disability helpline and thereafter ACAS, who advised him to see a solicitor.  He did so and in a letter dated 9 June 2000 the solicitor gave the Appellant advice about his proposed disability discrimination claim and advised him about the three month time limit.  The Appellant had not been aware of the time limit shortly after his dismissal.  He, the solicitor, also required funds to pursue an action which the Appellant, then unemployed, did not possess.  Accordingly he went back to his union for funding, but the union was not prepared to provide financial support.

(4)  At that time the Appellant took a conscious decision, the Tribunal found, not to pursue an Employment Tribunal claim, but to seek the help of his local Member of Parliament in order to persuade the Respondents to change their mind and reinstate him.  The MP corresponded with the Respondents’ Human Resources Group but without success.  He informed the Appellant that he had been unsuccessful by a letter dated 8 August.

(5)  The Appellant then contacted the Disability Discrimination Helpline again and, on their advice, finally presented his Originating Application to the Tribunal on 21 August.  

4	Having reviewed that history, and having taken the view that the prejudice to the Respondents by extending time would be considerable and greater than that to the Appellant, in refusing to do so, the Tribunal concluded that it would not be just and equitable to extend time on the particular facts of this case.  

5	Against that decision Mr Ekblom now appeals, and at this preliminary hearing he has had the advantage of representation by Mr Short, of Counsel, under the ELAAS pro bono scheme.  Mr Short has sought and received permission to amend the Notice of Appeal to take three points.  

6	The first ground advanced is that the Tribunal failed to consider whether or not a fair trial of the Appellant’s complaint was possible, notwithstanding the delay in instituting proceedings.  In support of that submission, he relies upon the decision of the EAT, Mr Justice Morison presiding, in Mills and Crown Prosecution Service v Marshall [1998] IRLR 494.  That was a case in which the Applicant, a transsexual, was unaware of her right to bring a sex discrimination complaint until after the decision of the European Court of Justice in P & S.  When she instituted proceedings for unlawful sex discrimination the complaint was well out of time.  An Employment Tribunal applying the just and equitable principle, to be found in the Disability Discrimination Act as well as in the Sex Discrimination Act, extended time.  It was against that decision that the Respondent below appealed.  The appeal was dismissed.  

7	In the course of his judgment, the former President referred to, at paragraphs 21 and 22, the question of whether or not a fair trial is possible, as being a relevant factor in the Tribunal’s consideration.  We think that that case should be viewed in its context.  That was an appeal against a decision by an Employment Tribunal extending time under the just and equitable formula.  Before doing so, it is plainly relevant for the Tribunal to consider whether or not a fair trial is possible, balancing the interests of the respondent with those of the applicant.  

8	In the present case, the Tribunal came to the conclusion, unlike the case of Mills v Marshall that here the Appellant was well aware of his right to bring a claim under the Disability Discrimination Act, from very shortly after termination of his employment.

9	In these circumstances, it seems to us that the Tribunal were entitled to approach the case on the basis of his state of knowledge, the steps which he had taken during the period between dismissal and presentation of the claim which nevertheless resulted in his not starting the proceedings until the limitation period had long since expired.  

10	We bear in mind the well established principle referred to by Mr Justice Morison in Mills v Marshall that Tribunals have a very wide discretion in deciding whether or not to extend time.  In our judgment, the first point taken by Mr Short in the amended Grounds of Appeal is not made out.  We think the Tribunal did not fall into error in failing to refer specifically to the question of whether or not a fair trial was possible.  

11	The two further points taken in the amended notice concern the Tribunal’s finding at paragraph 11 of their Reasons that the prejudice suffered by the Respondent would be considerable and greater than that suffered by the Applicant.  It is of course true that the Applicant suffers prejudice in that he is not able to pursue his complaint if an extension of time is not granted.  By the same token, if an extension is granted, then the Respondent loses the limitation defence.  It seems to us that the Tribunal bore in mind that these cases must be dealt with swiftly, that is why Parliament has laid down the three months primary limitation period, and that any further delay will inevitably cause prejudice to the parties and in particular, the respondent to the claim in dealing with it.  

12	In all the circumstances, we have concluded that no arguable point of law is made out in this appeal, and consequently, it must be dismissed at this preliminary hearing stage.