Appeal No. UKEAT/0139/07/ZT 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 April 2008

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
(SITTING ALONE)

DEPARTMENT OF CONSTITUTIONAL AFFAIRS	APPELLANT

MR D P O’BRIEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J SWIFT
(of Counsel)
Instructed by:
The Treasury Solicitor
(Employment Law Team)
One Kemble Street
London WC2B 4TS	
For the Respondent	MR R DE MELLO
(of Counsel)
Instructed by:
Messrs Browne Jacobson Solicitors
44 Castle Gate
Nottingham NG1 7BJ	

SUMMARY

JURISDICTIONAL POINTS
  Claim in time and effective date of termination
  Extension of time:  just and equitable

Appeal against Chair’s exercise of discretion to extend time for a PTWR claim allowed.  The Chair had asked whether there was a good reason not to extend, rather than whether there was a good reason to do so, and on his findings of fact the reason for delay was an honest, but unreasonable, belief that the applicable time limit expired three months later than it did.  Six weeks of that delay had no other good reason.  Cross-appeal as to date from which time runs in an appeal in respect of non-payment of pension arising out of allegedly discriminatory exclusion from a pension scheme dismissed.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	Time limits are draconian.  However, they are not contrary to Article 6 of the Convention of Human Rights, provided that there is a means of ameliorating the necessary harshness.  A time limit of three months is familiar territory to many of the claims which come before the Employment Tribunal jurisdiction.

2.	In this claim, the harshness of a three‑month cut off, for what might otherwise be a perfectly good claim, is ameliorated by the provision that a Tribunal may hold that it is just and equitable for the claim to proceed, notwithstanding the expiry of the relevant time limit.  However, it is plain from the very nature of time limits that they are intended to have general application, subject only to legitimate exceptions; and it must follow that good reason must be shown for such exceptions.

3.	Thus, in giving judgment in the case of Robertson v Bexley Community Centre [2003] EWCA Civ 576, Auld LJ at paragraph 25 said:
“A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.” 

4.	But that statement comes in the course of a paragraph which needs to be read with paragraphs 23 and 24.  The Court was considering whether or not a panel of this Tribunal was entitled to overturn the decision of an Employment Tribunal which had held that an Applicant was out of time to bring a complaint of race discrimination.

5.	It may be that the statement which I have quoted is comment rather than ratio though Mr Swift, who appears for the Appellant today, contends it is the latter, but it seems to me entirely consistent with general principle.  It seems to me that although the words in which it is cast suggest an absence of jurisdiction, the essence of what Auld LJ was saying (and with which Chadwick LJ and Newman J for their part agreed) was that any delay in bringing proceedings must be justified.  It follows too that the extent of such a period must be justified.  It cannot simply be a case of a time limit having been passed with good reason, and having been passed that no further amount of delay, however short or however long, for good reason or not, is relevant.

6.	Mr Swift points out, and I accept, that if time is extended by order of the Employment Tribunal it is extended to a particular date, albeit in any case this would be the date of the making of the original complaint.

7.	The only issue before me is whether the Tribunal erred in the present case in exercising its jurisdiction to hold that it was just and equitable that the Claimant should be allowed to bring his claim out of time if he brought it on 29 September 2005.

8.	The Tribunal plainly thought that it ought to have been brought within three months of 31 March 2005, which was the date of the Claimant’s retirement from his position, the nature of which is central.  However, he argues by cross-appeal that a later date should have been chosen as the starting point.

9.	Since both parties, through their representatives (Mr Jonathan Swift for the Department, and Mr De Mello for the Claimant) began by considering the possibility that the Tribunal may have been in error in rejecting a later date, I too shall begin by considering that issue.

The context of the claim
10.	The nature of the claim is that it is one brought under the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.  Those regulations in general terms prohibited discrimination against workers upon the ground that they were part-time if it could be shown that they had suffered less favourable treatment than full-time workers.  They came into force on 1 July 2000.

11.	Mr O’Brien was in practice as a barrister initially, and subsequently a distinguished Queen’s Counsel, who for over 20 years sat as a recorder exercising jurisdictions which would otherwise be exercised by full-time salaried circuit or senior circuit judges.  He retired from that appointment on 31 March 2005, hence the date which the Tribunal accepted as the starting point.  He claimed that he ought to have been paid a pension in respect of his service as a recorder on terms commensurate with those on which full-time salaried judges were paid.

12.	In his Originating Application he claimed (paragraph 15) that the Respondent:
“… failed to provide the Claimant with pension rights or benefits and denied him the right to join the Judicial Pension Scheme or any similar pension scheme because he was a part-time worker.  In contrast the Respondent has provided and continues to provide full-time Recorders/Judges pension rights or benefits.”

13.	This theme is repeated throughout the Originating Application.

14.	At paragraph 17 it is stated that the Claimant would have qualified for pension rights/benefits during his employment relationship/service with the Respondent but for his part-time status.  It is said that there was a denial to him of the right to those benefits and the failure to provide him with an opportunity to join the Judicial Pension Scheme which resulted in his less favourable treatment.
15.	Paragraph 19 is a complaint of a refusal to allow him access to such a scheme and in paragraph 20 a complaint of a refusal and/or denial of pension rights, leading to a claim for relief at paragraph 29 in which the Claimant sought that the Tribunal should declare that the Claimant has a right to be admitted to the Judicial Pension Scheme in question, with effect from such date as the Tribunal might determine.

16.	He referred at paragraph 30 to loss having been suffered “as a result of denying him the right to join the Judicial Pension Scheme”.

17.	The Judicial Pension Scheme, to which these complaints relate, is statutory.  The Claimant was subject to two such schemes: that under the Judicial Pensions Act of 1981 (the 1981 scheme), and that under the Judicial Pensions & Retirement Act 1993 (the 1993 scheme).

18.	The 1981 scheme provides by Section 5 that a circuit judge might, on the recommendation of the Lord Chancellor, be granted a pension upon certain qualifying requirements.  There is no commensurate position for someone who held a part-time fee-paid appointment such as did the Claimant as a recorder.  The Lord Chancellor, under Section 5, appears to have it at his discretion to grant or withhold a pension to a circuit judge.

19.	Under the 1993 Act, Section 2 provides for a judicial officer’s entitlement to a pension.  By Section 2(1) it is provided:
“Any person to whom this Part applies:

(a)	who retires from qualifying judicial office on or after the day on which he attains the age of 65, and

(b)	who has … at least 5 years’ service in qualifying judicial office, shall be entitled during his life to a pension …” 
20.	Section 1(6) provides that for the purposes of the Act a person shall be regarded as holding or serving in qualifying judicial office at any time when he holds, “on a salaried basis, any one or more of the offices specified in Schedule 1 to this Act …”

21.	Subsection (7) provides, so far as relevant:
“For the purposes of subsection (6) … a person holds an office ‘on a salaried basis’ if and so long as, and to the extent that -

(a)	his service in the office is remunerated by payment of a salary; and

(b)	that salary is not subject to terms which preclude rights to pensions and other benefits accruing by reference to it; 

and the reference in that subsection to an office being held on a salaried basis shall be construed accordingly.” 

22.	In Schedule 1 of the Act is set out those offices which may be qualifying judicial offices.  There is a list of different categories and ranks of judge.  There is no provision within that list for a recorder other than the Recorder of London.

23.	Thus, there are two reasons under the 1993 Act for considering that a person in the position of the Claimant was not entitled to a pension under its terms.  He was, first, not included in those to whom a pension would be paid because he was not salaried in his work as a recorder; he was paid on a fee-paid basis calculated per day.  Secondly, his office was not in the list scheduled to the Act.

24.	If, however, he had been within the Act so that he had been entitled under its terms to a pension, Section 2(6) provides that a pension would be payable at “such intervals, not exceeding three months” as the Treasury might determine.  Thus, if he had been entitled to a pension under the 1993 Act, he would have received the first payment of pension no later than three months after his date of retirement; that is, no later than 30 June 2005.
25.	He claimed that the provisions of the regulations of 2000, to which I have already referred, should have been applicable to someone in his position or, arguably, are applicable.  This depends upon a construction of the regulations and a consideration of case law from the European Court of Justice which assist since the regulations themselves purport to implement Counsel Directive 97/81/EC within the domestic jurisdiction.

26.	He also claimed that the denial of pension was a consequence of indirect discrimination, prohibited by Article 141 of the European Union and the Equal Pay Act 1970 read in combination.  That claim has a time limit of six months which is applicable to it.  His claim was brought within that time limit.  No issue arises as to that claim, about which I shall say very little more.

27.	When the matter came before the Tribunal it made two relevant findings, which are both in dispute before me.  They appear in paragraph 9 of the Reasons of the Chairman sitting alone at London (Central), which were promulgated on 5 September 2006.  The first conclusion was to the effect that time began to run on 31 March 2005 when the appointment of the Claimant as recorder terminated.  The Chairman rejected a submission that the failure to pay pension on 30 June 2005 was itself an act upon which reliance could be placed.

28.	Firstly, the Chairman recorded that a letter which had been written on 5 July 2005 could not be treated as a discriminatory act so as to set time running from that date.  Secondly, he concluded that although the claim had been brought out of time, it was just and equitable to extend the time from 30 June until the date that the originating application was submitted, 29 September 2005.

29.	Both conclusions are under appeal; the first in the cross appeal, the second in the original appeal.  So, I shall take them in the order which I have indicated.

30.	Before I turn to the detail of the argument as to time limits I should, however, say more about the relevant provisions of the Regulations of 2000.

31.	Regulation 5 sets out what acts are proscribed by those regulations.  They are acts of less favourable treatment as regards the terms of a part-time worker’s contract, or his being subjected to any other detriment, or any act or deliberate failure to act of his employer.  A part‑time worker has therefore to be a worker.  That is defined in Regulation 1 as meaning:

“… an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under-

(a)	a contract of employment; or

(b)	any other contract … whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual.” 

32.	It is common ground that as a judge the Claimant did not work under a contract.

33.	Regulation 12 provides that Crown employment, however, will be classed as employment.

34.	Regulation 17, entitled “holders of judicial offices”, provides:
“These regulations do not apply to any individual in his capacity as the holder of a judicial officer if he is remunerated on a daily fee-paid basis.” 

35.	By Regulation 8 it is provided that a worker may present a complaint, and by subsection (2):
“An Employment Tribunal shall not consider a complaint … unless it is presented before the end of the period of three months beginning … with the date of the less favourable treatment or detriment to which the complaint relates, or where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment ...

(iii)	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.” 

36.	Regulation 8 necessarily refers to a complaint by anyone who considers that they may come within Regulation 5, albeit modified by Regulation 12, and who is not to be excluded under Regulation 17, the start date being the date upon which there is the less favourable treatment or detriment to which the complaint relates.

37.	In paragraph 9.1 of the Tribunal decision the Chairman said this:
“The Claimant’s complaint as in his ET1 concerns exclusion from the Judicial Pension Scheme on grounds of being a part time worker, contrary to the PTWR [an acronym for the 2000 regulations].  He expands on this complaint in paragraphs 15-19 of his Grounds, alleging a failure to provide him with pension rights or benefits and denying him the right to join the JPS because he was a part time worker.  In other words, his complaint relates to the denial of access as a part time worker during his period of appointment as a recorder.  The complaint therefore relates to that period of time when he says he was eligible to and should have been allowed access to the pension scheme as a part time judge.” 

38.	That period plainly ended on 31 March 2005.  The Tribunal has found facts.  Having heard the evidence of the Claimant it recorded that on 13 April 2005 he made a request to address to the Department of Trade & Industry under the Freedom of Information Act.  He was seeking to know why it was that Regulation 17 had been added to an earlier draft of the regulations in which a cognate provision was absent.  It was not until 17 May 2005 that the Department of Trade & Industry replied.

39.	Thereafter, there were further letters which related to the Freedom of Information request which had, in essence, been denied as at 17 May.  I shall come back to those letters later.

40.	On 9 June 2005 the Claimant raised his claim with the Department of Constitutional Affairs, as the Respondent then was.  He asserted a claim under the 2000 Regulations.  He did not then assert a claim under the Equal Pay Act.

41.	The Department replied on 5 July 2005.  That letter is of some importance.  It says, in summary, that the two statutes to which I have referred make provision for those categories of judicial office holders to whom a judicial pension may be paid.  It says that no provision for payment of a pension can be made outside those Acts, and it notes that recorders are not included within those Acts.

42.	Next, it argued that the European Directive on which the 2000 regulations were based was expressed to be applicable to part-time workers who had an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State, referring to Clause 2.1, i.e. it was not for a European-wide definition of employment relationship to apply, but for an individual jurisdiction to define objectively for itself the criteria used to identify such a relationship.

43.	Thirdly, it said that in any event Regulation 17 of the 2000 regulations expressly excluded a person such as the Claimant from the benefit he claimed.

44.	On those three bases, the Department said the Claimant was not entitled to a judicial pension.

45.	The Tribunal found that thereafter, at an unspecified date, the Claimant had consulted Eleanor Sharpston (a then QC) and she had advised.  The substance of some of that advice was put before the Tribunal, although not its detail.

46.	The same was true of the substance, but not the detail, of advice which the Claimant had received from the Bar Council to whom, in the October prior to his retirement, he had raised the possibility that he might be entitled to a pension as a part-time worker if he were not to be discriminated against as such.

47.	The Tribunal found that they had advised him of two different expiry dates, the Bar Council apparently saying that he had a six-month period, and Eleanor Sharpston saying that the time limit would run from 5 July when the letter rejecting his claim was written.

48.	On 21 July 2005 the Claimant wrote to the Department to argue the case against the points which had been made in that letter.  There was a terse response on 29 July, with nothing further to add to the response of 5 July.

49.	On 7 August the Claimant wrote again to the Department, saying that unless he heard from the Department to the contrary he would assume that the designation of the appropriate defendant was the Department of Constitutional Affairs and that the Treasury Solicitor would accept service.  He did not hear to the contrary.

50.	Against this background the Tribunal resolved the first issue, as I have indicated, by accepting that the time period began on 31 March.  The Chairman amplified his reasoning in paragraph 9.1 in these terms:

“The failure to pay pension on 30 June 2005 or on any later date is simply a consequence of that decision to exclude him from access to the pension scheme.  The act of discrimination complained of, denial of access to the scheme while a recorder, must be distinguished from the consequences of that act, a failure to pay him pension.

The letter of 5 July 2005 does not in itself constitute a discriminatory act, or at least not one complained of in the ET1.  Even if the letter was a discriminatory act, it would not in itself give rise to the right to a declaratory judgment of entitlement to access to the JPS.” 

51.	In the course of argument before me, Mr De Mello was inclined to advance his cross‑appeal with rather less enthusiasm than he sought to resist the appeal itself.  He accepted that it may be because of the statutory provisions that the cross‑appeal was, he was at one stage inclined to say, demolished, but at least difficult.  Nonetheless, he was entitled to a reasoned decision, and asks for one.

52.	He takes two points: first, the Tribunal was wrong to regard the payment of pension as a consequence of denial to access to the pension scheme and thus entirely predicated upon an earlier act of discrimination and constituting no separate act in itself.  Secondly, he argues that the letter of 5 July 2005 is a freestanding act of discrimination.

53.	As to the first of those arguments, he submits that post-employment benefits such as pension rights arise out of the employment relationship; they accrue inevitably after the employment relationship terminates in the sense of an ongoing relationship of work on the one hand and pay for that work on the other.  He draws attention to Rhys-Harper v Relaxation Group Plc [2003] UKHL 33 and, in particular, to paragraphs 36, 37, 44, 45 and 114 of the speeches of their Lordships; that the right to payment of pension arises out of an employment relationship.

54.	The potential difficulty he has is whether it can be said that an employment relationship was recognised in domestic law.  It is well‑recognised that a judge is not an employee.  For him to have an employment relationship depends, it may be, upon the current law as to whether an office‑holder exercising judicial functions is in an employment relationship with those who benefit from his services.

55.	There is a possible argument to that effect based on the decision of the Court of Appeal in Northern Ireland in Perceval-Price & Others v Department of Economic Development [2000] IRLR 380, but the current state of domestic law is represented by Christie v The Department for Constitutional Affairs [2007] ICR 1553, a decision of Elias J as President of this Tribunal.

56.	In that he accepted that a distinction might be drawn between cases such as Perceval‑Price which depended upon the operation of Article 141 which has direct effect and cases in which the definition “worker” falls to be construed in other contexts.

57.	Relying upon Article 2.1 of the Directive and the opinion of the Advocate General in Wippel v Peek & Cloppenburg GMBH & Co [2004] ECR I-9483, he concluded that there was no autonomous concept of worker in community law to inform the proper construction of the regulations, and that therefore upon the basis of the regulations themselves a judicial office holder could not be said to be in an employment relationship.

58.	I accept, first, that the Employment Tribunal was right to hold that the payment of pension was a consequence of inclusion in, or for that matter exclusion (non-payment being exclusion) from a pension scheme.  But if one were to ask, as Mr Swift rhetorically put it, why have I not been paid a pension payment, the answer would be because you are not entitled to it.  No question of discretion would come into it under the 1993 scheme.  It might come into it under the 1981 scheme, but the regulations upon which any claim was based in this case came into effect in July 2000.

59.	It is indeed not difficult to see that any other result would have undesirable practical consequences which might suggest the argument was misplaced.  Thus, if the Claimant’s submissions were correct, a Claimant might bring a claim alleging exclusion from, or non‑inclusion in, a pension scheme even if 20 or 30 years or so had passed since the last date of his employment or appointment.  He would allege that an instalment was due, since he was alleging an on-going right to receive it.  He would say that that date of the failure to pay it was the date from which time ran.  He would never be out of time, even if the cause of his non-payment was a decision receding into the mists of time.

60.	Secondly, and independently, it seems to me that the Department were in no position to pay a pension to the Defendant without amendment of the statutory provision which underlay the payment and authorised it, as indeed was stated in the letter of 5 July.

61.	The argument thus cannot be as to payment of a sum as to which there was, on the face of it, no right in statute, but rather that the statute itself was incompatible in some way, or should be subject to interpretation in some way, as to permit such a payment to be made and the Claimant to be included in the scheme in a way which it is plain from the statutory provisions he was not.

The letter of 5 July 2005
62.	It is said that that is a freestanding decision.  I conclude that the Tribunal were right to deal with that letter as the Tribunal did.

63.	First, the Chairman identified the way in which the complaint had been put to the Tribunal.  That complaint was of a denial of access to the pension scheme.  It was not a complaint that on 5 July 2005 the Claimant’s contentions had been rejected by the exercise of any independent discretion on the part of the Department.  When the Chairman said that it was not an act complained of in the ET1 he was, in my view, stating what is plain from consideration of the provisions I have already set out above.

64.	Although Mr De Mello suggested that paragraph 18 might be read so as to provide for a claim for the benefits as opposed to access to the scheme, it seems to me that the only fair reading of the originating application as a whole is as the Chairman characterised it and, plainly, that was how he understood it and how it was dealt with before him.

65.	Secondly, and in any event, I consider that the letter of 5 July 2005 did not purport to do more than set out the statutory basis upon which individuals could be paid and that that did not extend so far as the Claimant.  That, it seems to me, indicates again that the real complaint here is one of non-inclusion in the statutory provisions.

66.	I turn then to the appeal.  The reasons for holding that it was just and equitable to extend time are set out in paragraphs 9.2 to 9.4 of the decision.  In paragraph 9.2 the Chairman began by saying that he should look at a number of different factors, as identified in British Coal Corporation v Keeble [1997] IRLR 336.  That is a decision of this Tribunal, at paragraph 8 of which are listed five particular features which ought to be considered by a Tribunal in looking at all the circumstances of the case as directed to by the statutory provision to see whether to extend time.

67.	That guidance was accepted by this Tribunal, Smith J presiding.  It is not inconsistent with Robertson, though if it were Robertson is the superior authority and paragraph 25 of that case contains a statement of general principle.

68.	The Chairman then, first, dealt with the legal advice which the Claimant had had from both Ms Sharpston and the Bar Counsel.  He said of the Claimant:

“… the fact is that when faced with conflicting advice on time limits, he did not investigate for himself, and he was in a position to do so I find, to see what the true position was.  Thus he cannot claim to place reasonable reliance on the legal advice.” 

69.	This is a finding that he was not entitled to delay because of the legal advice which he had received that the time limit was to expire (whether on 30 September or 5 October).

70.	The Chairman continued:

“Further, there was no evidence from the Claimant that he relied on what the DCA or the DTI told him.  In fact the reverse is true.  He had looked at the Directive and the Regulations, he had legal knowledge and experience, and he knew from his own professional experience about the implementation of EC Directives into UK law.” 

71.	In a subsequent passage the Chairman repeated that the Claimant was not misled by anything which the DCA or DTI had done.  Why then with that background did the Chairman extend time?  One would look to see what reason was advanced for the delay and which he accepted, but what the Chairman said was this:

“However … there are a number of important factors that in the end persuade me that I should exercise my discretion to extend time in this case.  … the Claimant did not immediately issue proceedings, but regarded these as something of a last resort, which is a proper view to take.  He tried to resolve the matter by tackling the Respondent himself, by letter of grievance (in effect) dated 9 June 2005.  That was a reasonable approach to take.  Because of the delay in response to that letter, nearly four weeks, he then was in fact out of time with regard to his complaint.  This to some extent mitigates that further period of delay from late July, when he received the last letter from the DCA, until late September, when he issued proceedings, because he was already out of time and further delay was not going to alter that position.” 

72.	Thus the first reason for extending time is attempting resolution of his grievance without the last resort of proceedings.  That reason, however, took him up and until 5 July 2005.

73.	The date is extended in paragraph 9.3 where the Chairman stated:

“The reason for the delay until 29 July 2005 was because the Claimant was trying to resolve his claim without resorting to litigation.”

74.	The Chairman went on in paragraph 9.3 to make these points: first, that the Respondent could point to no prejudice by reason of the delay in issuing proceedings save the windfall jurisdictional defence, whereas striking out the Claimant’s claim would cause the Claimant substantial prejudice and the loss of the central part of his claim.  The Chairman recognised the fact that the evidence was not going to be affected by the delay in any respect.  Thus, he said, the length of delay was not particularly relevant, nor was it very great.

75.	He illustrated, as I see it, that last point by noting that in other jurisdictions which the Tribunal exercises a period of three months may be extended for a further three months in order to allow grievances to be taken and explored without having to resort to litigation.  However, since Mr Swift makes a point about it, I shall set out in full what is said:
“Indeed, it is interesting to note that if the Claimant had been bringing another type of discrimination claim (and a claim under the PTWR is a discrimination claim) such as sex or race discrimination, then his claim would be in time, under section 32 of the Employment Act 2002 and regulation 15 of the Dispute Regulations 2004.” 

76.	Mr Swift complains that the Chairman was here taking into account something he was not entitled to do.  I confess, I cannot read this passage as he does as introducing an irrelevant consideration.  I read it merely as illustrating and emphasising the Chairman’s main point, which is that the length of the delay was not that great and, indeed, the length and reasons for the delay is the first of the checklist which derives from Keeble.

77.	The Chairman continued:

“Further, if the Respondent is taken to be the government as a whole, then they contributed to the delay.  The DTI did not respond to the Claimant’s enquiries for five weeks and then refused disclosure under the Freedom of Information Act.  The DCA also delayed their responses and may well have presented somewhat inaccurate information in their interpretation of the law [and it sets out what that was].” 

78.	But he went on to say in the following paragraph, 9.4, that the Claimant was not misled by the Respondent nor discouraged from taking legal action and, to the contrary, never accepted the Respondent’s view of the law.  This appears to be a reference to any possible misstatement by the Department.  Mr Swift complains that this is no reason which could possibly be used to extend time.  That is because on the facts which the Tribunal had already found, as I have recited, the refusal by the Department of Trade & Industry came on 17 May 2005.  That was well before 29 July 2005, the delay until which was explained and, in the Tribunal’s view, justified by attempting to avoid litigation.  It did not therefore have any independent, nor could it have made any independent, or additional, contribution to the overall delay.

79.	That being the case it is unnecessary, in my view, to resolve a further complaint made by Mr Swift that this paragraph assumes that the DCA and the DTI may both be regarded as arms of the Crown, whereas in his view the Tribunal should properly have regarded them as distinct bodies.  It seems to me there are some difficulties that Mr Swift may face with that submission but, as I say, it is unnecessary for me for the present purposes to resolve it because I accept that insofar as the Tribunal took into account in paragraph 9.3 the slowness of the DTI responding to the Claimant’s inquiries, it cannot attempt to answer why it was that the Claimant, after 29 July 2005, did not bring his claim until 29 September.

80.	The apparent gap between 29 July 2005 and 29 September 2005 left by paragraphs 9.2 and 9.3 was highlighted to HHJ McMullen QC sitting in this Tribunal, who directed that the Tribunal under the authorities of Burns and Barke clarify their reasoning.  He ordered, on 9 January 2007, that the Chairman should answer the question whether he made findings and whether he considered the period up to 29 September 2005 and, if so, what were his reasons for concluding, if he did, that it was just to extend time up to that date.  

81.	On 22 January the Chairman responded.  Paragraph 2 of his response repeats and amplifies the findings of the Tribunal about the advice which the Claimant had received.  He, however, adds that after 29 July the Claimant consulted Ms Sharpston.  Her oral advice was that time ran from 5 July.  The Claimant, however, had read Regulation 8 and as the Chairman saw it, was, or should have been, aware of the three‑month time limit.  He did not, as I see it, retract from his earlier decision, nor could he have done, that the Claimant could not claim to place reasonable reliance on the legal advice.

82.	Mr De Mello himself accepted that the characterisation of the period from 29 July until 30 September was of one in which the Claimant honestly but unreasonably believed that the time limit did not expire until that latter date.  The Chairman went on to record the letter written on 7 August, and then at paragraph 4 said this:

“… the actual date on which the claim was presented is not irrelevant, as the Notice of Appeal (paragraph 13) states I appear to suggest.  However, I took the view that having reasonably waited for a week or so for a reply to his letter of 7 August, the Claimant’s presentation of his claim some 6 weeks later, having in his mind the end of September as the last date on which he could prudently submit that claim, was not a fact that should prevent me from exercising my discretion to extend time.  I weighed all the factors and circumstances in the equation, including the significant fact of absence of prejudice to the Respondent.  I came to the conclusion that it was just and equitable to extend time to 29 September, and that the case should be heard on its merits.”

83.	Mr Swift submits that in exercising a discretion to extend time a Court on appeal should be slow to interfere with a Tribunal’s decision.  However, it is entitled to do so he submits if the Tribunal has taken into account a consideration which it should not take into account, has left out a consideration which it should have taken into account, or has reached a decision which is on the face of it so unreasonable that it is not open properly to a Tribunal.  Here, he says, this Tribunal has done just that.

84.	He argues that at paragraph 9.2, to which I now return, in its closing words the Chairman has done two things: first, he has recognised that the delay in response to the letter of 9 June 2005 by the Department had “to some extent” mitigated delay after late July, that is to say, it did not explain the whole period of that delay.  Secondly, he says that the reason why the Chairman held it to mitigate it even to that limited extent was flawed.  It is “because he was already out of time and further delay was not going to alter that position”.  Those were not the Claimant’s reasons.  The Claimant did not think he was out of time.  He had an honest though unreasonable belief that he was within it.  This is therefore the Tribunal’s conclusion.  It can be characterised as saying that once there is some delay the extent of it does not matter.  Thus read, it is in error.

85.	Next, he says that the approach taken is not an approach in which the Chairman is convinced by the Claimant that there is a good reason to extend time, as would be required by paragraph 25 of Robertson.  Rather, it is that the Chairman could not find any reason not to extend the time, which is the converse of the Robertson approach. 

86.	He points out that the Tribunal had been satisfied up to the end of July.  In his response of 22 January 2007 the Chairman appears to accept that it was not unreasonable for the Claimant to write to the Department on 7 August 2005 and to wait perhaps a week or so for his reply.  That leaves a period of six weeks.  The Chairman dealt with that at paragraph 4, as I have recited, by saying that that delay was “not a fact which would prevent me from exercising my discretion to extend time”.  That is the wrong approach.  The approach should be, says Mr Swift, to look for a convincing and cogent reason why it is just and equitable to extend the time, not for an absence of reason not to do so.

87.	The reference to there being no prejudice may well be true, but an absence of prejudice is in itself no reason for not being subject to a time limit.  The point may be demonstrated by considering a claim which is one day out of time.  There may be no prejudice, but it is out of time.  In principle, there needs to be some explanation as to why it is out of time if the Tribunal is to consider that it is just and equitable to extend it.  The first of the Keeble checklist is the length of, and reasons for - and I stress those last three words - the delay.

88.	For the Respondent, Mr De Mello submits that the Chairman was entitled to take the approach he did.  He submits that the Employment Tribunal Chairman had looked at, and applied, the checklist from Keeble, that there was here no prejudice, there was possibly misleading commentary from the Department or Departments concerned, the delay was not considerable, and much of the delay was specifically explained.

89.	It might be said in support of his submissions that where some period of delay is explained there must be a reasonable latitude beyond that within which a Claimant may make his claim if, for instance, he is waiting for a reply to a letter.  It cannot be expected that he should wait only until return of post.

90.	Mr Swift’s response to that latter point is that here the delay, which was unexplained otherwise, was one of six weeks, which is half the period of three months, which is the primary limitation period and that is even after allowing for the letter of August and time to respond to it, which surfaced only when the Chairman was asked whether he did consider what had happened in the period from July until September.

Conclusions
91.	The decision of a Tribunal is entitled to great respect.  This is so particularly when it exercises a discretion.  It may only be interfered with if a wrong approach has been taken or material considerations wrongly taken into account.  When looking at the extension of time, however, it is important to understand what reason is given for the lapse of time.  If there is no good reason then it seems to me to be unlikely that it will ever be just and equitable to extend time.

92.	Here, I accept Mr Swift’s submissions that the Chairman in saying what he did in paragraph 4 of his letter of 22 January 2007, that he was in effect looking for facts that should prevent him from exercising his discretion to extend time, was applying the wrong test.  He should have been looking rather for reasons that might persuade him to extend time (see Robertson, paragraph 25).

93.	I accept that there was here an unexplained delay from mid August until 29 September.  There was an explanation; the Claimant thought he was in time, but that explanation was specifically held to be an unreasonable one.  No other explanation it seems was advanced or considered.

94.	Indeed, when the Chairman was specifically asked to consider the period up to 29 September 2005 he dealt specifically only with the period of time up until about 14 or 15 August.  I do not suggest that if a claim had been lodged within a few days of that latter date that one would have said that a decision to extend time would by virtue of those two or three days have been a wrongful exercise of discretion, but I accept Mr Swift’s point that in the context of a three‑month time limit the Chairman here was dealing with a considerable period of time.

95.	Finally, I accept that the Chairman appeared to take into account paragraph 9.3, the tardiness of a response from the DTI which when one considers the dates did not begin to explain any of the period of delay which is critical, namely that beyond the expiry of the time limit.

96.	It remains for me simply to say that so far as principle is concerned, the approach must be to examine not just whether an application is out of time, but the extent of the delay; that indeed is what Keeble says.  The extent of delay therefore matters.

97.	The expression at the end of paragraph 9.2 that “further delay is not going to alter the position” is an unhappy expression if by it the Chairman meant to indicate that it did not matter quite how much delay then took place because once there was some delay that was all that was relevant.  However, recognising that that may simply be an inelegance of expression, I prefer to base my reasoning in accepting and allowing this appeal upon the other points which I have identified.

98.	As to the consequence of this appeal, I am urged by Mr De Mello to remit.  Mr Swift submits that in a case such as this there is here no shortage of finding of fact; that on the facts which have been found by the Tribunal there is no explanation which has been advanced for a delay between mid August and 29 September other than a reason which though honest was not one which the Tribunal accepted as reasonable.

99.	If, therefore, the matter went back to a Tribunal it would be bound to find, if the evidence were no different, that the period of six weeks had been a period in which there was no reasonable explanation for delay.  That being the case a Tribunal could not, as it seems to me, properly exercise their discretion to hold that it was just and equitable to extend time for the whole of that period.

100.	It follows that I should exercise the powers here of this Tribunal and determine that there is no jurisdiction to consider the claim as being out of time, subject only to the issue of appeal to which I shall turn in a moment.

101.	I add only this:  that there is no reason here to think that there would be further evidence, which by reason of the misguided approach of the Tribunal Chair, was not put before the Tribunal and recorded.  Indeed, the specific invitation to him to address the period from July to 29 September militates against there having been any evidence which is not set out.

102.	As to permission to appeal, I have been asked to give permission to appeal one conclusion only,  that is my conclusion that the cross‑appeal should be dismissed.  Mr De Mello frankly says this is for tactical reasons;  it is because it would help to resolve that appeal to be able to argue that the decision in Christie was wrongly decided.  It is plainly arguable that that decision was wrongly decided because the Court of Appeal, I am told, gave leave to argue that it was, upon three grounds.  It must have appeared to the Lord Justice concerned that there was an argument with reasonable prospects of success or some other compelling reason the appeal should be heard.  I do not know which of those two it was.

103.	However, whether this is the appropriate case to determine that issue may be in some doubt.  I have some sympathy with the application for leave to appeal because if it is not granted then this Claimant, who may turn out to have a well-founded case in its substance, may have proved unable to pursue it in practice.  Secondly, I acknowledge that there are a number of cases which raise the “Christie” point which have yet to be decided.  They are all at Tribunal stage, and it may be that early resolution assists.  But my decision on the first point was based on more than simply the Christie point.
104.	Accordingly, it seems to me the Court of Appeal itself is in the best position to determine whether or not in this case permission to appeal should be granted, and I for my part decline to do so, but with those words of explanation which may assist Mr De Mello in any application he wishes to make.  Permission to appeal is refused.  The reasons are those set out in my judgment.