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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Osborne v Royal Brompton & Harefield NHS Trust [2009] UKEAT 0549_08_3103 (31 March 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0549_08_3103.html Cite as: [2009] UKEAT 549_8_3103, [2009] UKEAT 0549_08_3103

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APPEARANCES

 

For the Appellant	MR O'LEARY (Representative)
For the Respondent	MR M EGAN (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN


 


SUMMARY

Adequacy of Reasoning for finding that it was not just and equitable to extend time for the Claimant to bring a claim of disability discrimination.

Given the factual findings and the paucity of reasoning in the conclusions, the appeal was allowed and the matter remitted.


 


THE HONOURABLE MRS JUSTICE COX

1. This is an appeal by the Claimant, Annette Osborne, against the judgment of the Watford Employment Tribunal promulgated on 18 June 2008, in which the Employment Judge, sitting alone, held that there was no jurisdiction to determine her claims of unfair dismissal and disability discrimination. The appeal is in relation only to the decision that it would not be just and equitable to extend time to enable the Claimant to bring her claim of disability discrimination. She does not challenge the decision that there was no jurisdiction to determine her unfair dismissal claim.
2. Today the Claimant appeared with the assistance of Mr O'Leary. The Respondent (the Trust) is represented by Mr Egan of counsel. There was an application to amend the Trust's Answer, which I granted in order that all the issues could be properly considered at this appeal. In the event, despite Mr Egan's able submissions on behalf of the Trust, I formed the clear view that this appeal should be allowed. These are my reasons for that conclusion.

The Relevant Facts

3. The Claimant began her employment with the Trust as a trainee medical technical officer on 1 April 2000. In her ET1 she stated that she became ill not long after she started her employment due to her exposure at work to TB, which caused her to develop a disability (chronic fatigue syndrome). As a result she stopped working on 16 July 2000 and did not return. She claimed that the Trust had paid for medical treatment to aid her recovery and to enable her gradually to return to work pursuant to their sickness and absence policy.
4. However, at the point where she was almost ready to return on a phased basis, she contends that her employment was terminated on the grounds of capability with effect from 31 March 2006. She claimed that she had been unfairly dismissed and, in addition, she claimed that she had been unlawfully discriminated against on the basis of a failure to make reasonable adjustments, and of dismissal on the grounds of her disability.
5. Her ET1 was not, however, presented to the Tribunal until 18 December 2007. She explained the reasons for the delay at section 10 of the ET1 form where she stated that she had instructed an employment law consultant who, she had just found out, did not lodge her claim with the Tribunal. She provided further details in the form as follows:

"I had appointed a representative from the Employment Law Centre who had been advising me from the onset of my illness in 2001 and a consultant represented me at my last appeal in May 2007. The decision to reinstate me or not did not turn out in my favour and the decision to terminate my employment remained the same. At this point my representative (Pat Stanton) advised my employer that it would be lodged with the Tribunal. She advised me in July 2007 that my case was lodged with the Tribunal and I would not hear anything for at least six months as a lull period usually happened. I trusted this advice not having been in any such situation before. However, in November I decided to enquire if there was any news of a hearing and was advised by the Employment Law Centre after many confusing phone calls and me deciding to enquire with the Tribunal if I had a case number, that Pat Stanton had resigned and many other people had been let down, including myself, and she had not lodged my case with yourselves. I therefore would ask that you would accept my claim on these grounds."

6. The Trust, in brief grounds of resistance, raised the question of jurisdiction and, whilst denying her substantive claims, did not respond in detail to them, pending determination of that question. A pre-hearing review to deal with jurisdiction was held at Watford on 8 May 2008 before Employment Judge Mahoney, whose judgment is now the subject of this appeal. At that hearing he heard evidence from the Claimant and Mr O'Leary, her lay representative, and from Mrs Geldard, currently the head of HR at the Trust.
7. It was common ground that the effective date of termination of the Claimant's contract of employment was 31 March 2006. The normal three-month time limit in respect of both claims therefore expired on 30 June 2006. However, before the effective date of determination the Claimant, by letter dated 28 February 2006, had appealed against her dismissal and raised allegations of disability discrimination. Pursuant to Regulation 15 of the Dispute Resolution Regulations 2004, the time limit was therefore extended to 30 September 2006. Her appeals were all unsuccessful.

The Tribunal's Judgment

8. After hearing evidence the Employment Judge found that the Claimant had on 24 April 2006 engaged a firm of employment law consultants to act on her behalf in respect of these claims. In May 2006 a compromise agreement was entered into between the Claimant and the Respondent in relation to outstanding pay when she was advised by a solicitor. Although the Claimant had appealed on 28 February 2006 the first appeal date was not fixed until 10 November 2006 mainly because the Claimant was making an ill-health benefit application. The appeal hearing was adjourned because Mr O'Leary could not be present and the Claimant indicated that she would prefer not to proceed on her own. The appeal was eventually heard on 27 February 2007 and was dismissed. A further appeal was then lodged which was heard on 8 May 2007 that appeal was also unsuccessful.
9. Despite assurances from her employment law consultants they failed to present a claim to the Tribunal and, after much prevarication, informed the Claimant by a letter dated 14 November 2007 that the case worker involved had left them, taking the case with her and that no claim had been presented to the Tribunal. The Claimant's claims were lodged a little over a month after receiving this letter.
10. The Employment Judge then found as follows at paragraphs 4.7 to 4.9:

"4.7 The original dismissal on 15 February 2006 was by the HR Director, Mr Vickers. He left the employment of the Respondent in March 2008. The head of Workforce Planning/HR Business Partner who supported the management case at the final appeal was Mr Owusu-Afriye. He left the employment of the Respondent in the summer of 2007 and his whereabouts were unknown. However, Mrs Williams-Pollet, then HR Business Partner, who was aware of the whole history of this matter, is still employed by the Respondent. The Claimant only worked for 3.1/2 [months] before she went on sick leave and had been off work for nearly 6 years before she was dismissed. During that time she was on 80 per cent, which was paid for by the Respondent. This was an entitlement of the Claimant because her injury had occurred whilst she was on duty in her NHS work and this was a benefit to which all NHS staff were entitled in similar circumstances

4.8 In the decision of Professor Evans, dismissing the first appeal, [he] stated the following:

'You attended a further assessment in occupational health on 22 November 2005. Doctor Graneek states in his report that he received medical reports from St. Bartholomew's Hospital and your Occupational Therapist. His report detailed the view of the latter in that you had commenced a process of simulated activity to build up your strength and stamina to a level when you could embark on a return to work programme initially in an area which was not physically demanding. The report also details his own view that at the point you still remained incapacitated by your symptoms and that despite the fact that you were gradually building up your levels of activity, this was nowhere near the level that would be required of you on even the most rudimentary return to work programme. Your therapist indicated to Dr Graneek that it was likely to take up to March 2006 at the earliest before you could begin such a return to work programme and even then you would not be able to manage more than 1 day a week to begin with. Dr Graneek specifies he was not optimistic about your chances being ready to rehabilitate for even this 1 day a week by March 2006. He goes on to say that if you were at that stage to return by March 2006 the rehabilitation programme will be prolonged and could take many months, or even years, to achieve a successful return to work activity.'

4.9 One factor in the dismissal mentioned by Professor Evans was the continuing financial consequences of paying the Claimant when she was not working."

11. The Claimant alleged that the Trust failed to make a reasonable adjustment by not granting her a phased return to her work of one day a week over a three-month period.
12. At paragraphs 6.4 to 6.8 the Employment Judge directed himself correctly as to the legal principles which apply in relation to time limits, as follows:

"6.4 An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything it considers relevant. However, time limits are exercised strictly in employment cases. When a tribunal considers its discretion to consider a claim out of time on just and equitable grounds, there is no presumption that it should do so unless it can justify failure to exercise its discretion. On the contrary, a tribunal cannot hear a claim unless the Claimant convinces it that it is just and equitable to extend time. The exercise of the discretion is thus the exception rather than the rule (see Robertson v Bexley Community Centre [2003] IRLR 434).

6.5 Errors by a retained adviser are not generally treated as the fault of the Claimant. See Anderson below. This is only one factor to take into account.

6.6 The fact that a Claimant defers presenting a claim while awaiting the outcome of an internal appeal process does not normally constitute a sufficient ground for the delay: see Apelogun-Gabriels v Lambeth London Borough [2002] ICR 713.

6.7 It is appropriate for the Tribunal to form some fairly rough idea as to whether the complaint is a strong complaint or weak complaint (see Hutchison v Westward Television Limited [1977] IRLR 69 and Anderson Anderson v George S. Hall Limited UKEAT/003/05/OA).

6.8 The Tribunal must consider the prejudice which each party would suffer as a result of the decision whether or not to extend time and also to have regard to all the circumstances of the case, in particular to:

6.8.1 the length or the reason for the delay;

6.8.2 the extent to which the cogency of the evidence is likely to be affected by the delay;

6.83 the extent to which the party sued had co-operated with any request for information;

6.8.4 the promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action and

6.8.5 the steps taken by the Claimant to obtain professional advice once he knew of the possibility of taking action."

13. After this detailed reference to the relevant legal principles the Employment Judge's conclusions, set out at paragraphs 7.1 and 7.2, are stated extremely briefly. Paragraph 7.1 deals with the unfair dismissal claim which is not relevant to this appeal, but it is relevant to note that the Employment Judge's conclusion, that it was reasonably practicable for the Claimant to present her unfair dismissal claim to the Tribunal by 30 September 2006 is not accompanied by any analysis of the evidence or any reasoning. At paragraph 7.2, dealing with the disability discrimination claim, he held as follows:

"So far as the claim of disability discrimination by reason of the Claimant's dismissal is concerned, the conclusion of the Tribunal is that it is not just and equitable to extend time in this case. The Tribunal considers this to be a weak complaint and the Respondent is prejudiced by the non-availability of material witnesses whom they no longer employ. The Tribunal, therefore, has no jurisdiction to hear the claim of disability discrimination."

The Appeal

14. By her amended grounds of appeal the Claimant raises, essentially, three complaints. By her first and main ground the Claimant contends that, although the Employment Judge set out at paragraph 6.8 the non-exhaustive list of factors to which he should have regard in considering the prejudice caused to each party by extending or not extending time, he then failed to consider them or to indicate what weight he had attached to them or his reasoning in respect of them when setting out his conclusion at paragraph 7.2.
15. As explained in the case of British Coal Corporation v Keble [1997] IRLR 336, the factors referred to are relevant to the decision to be made. In relation to the length of and reason for delay the errors of an adviser are not to be visited upon the Claimant. Here it was found that the Claimant had not delayed in seeking advice until long after her dismissal, but had been misled by the consultant advising her throughout, whom she trusted and who told her that a claim had been lodged with the Tribunal. When she eventually discovered, in November 2007, that this was not the case she acted promptly to lodge her claim approximately one month later.
16. In response, Mr Egan submits, correctly, that it is important to read the decision as a whole and that there is no legal requirement for a Tribunal always to go through a checklist, see London Borough of Southwark v Afolabi [2003] IRLR 220 at paragraph 33 in the context of limitation. He submits that the Employment Judge had made findings of fact in relation to the relevant factors listed at paragraph 6.8 (see paragraphs 2 and 4) and that he therefore had them in mind. The reason for delay, as the Employment Judge observed, is only one factor to be taken into account and the Employment Judge was plainly aware that this could not be laid at the Claimant's door. The findings of fact on this matter show that the Claimant's evidence as to what had happened was accepted.
17. In Afolabi the Court held at paragraph 33:

"Nor do I accept that the ET erred in not going through the matters listed in section 33(3) of the 1980 Act. I do not feel that it can be elevated into a requirement of the ET to go through such a list in every case provided, of course, that no significant factor has been left out of account by the ET in exercising its discretion."

18. The essential words in that citation, in my view, are those which follow the proviso. I would add that the usefulness of a checklist is that it ensures that significant factors are taken into account, and are not overlooked at the crucial, decision-making stage.
19. In my judgment, there is merit in the Claimant's criticisms in this case. In circumstances where the evidence established that the Claimant was disadvantaged by her representative, through no fault of her own, and where the Employment Judge recognised that this was one factor to be taken into account, there is no clear finding to this effect in the conclusions and nothing to indicate that this factor was taken into account at all in considering whether it would be just and equitable to extend time. Nor is there anything to show that the Employment Judge took into account, at the crucial stage, the fact that the Claimant had acted promptly in originally seeking advice regarding her potential claim, or that she had acted promptly after learning of the consultant's error.
20. As Mr Egan recognises, these are all factors to be weighed in the balance, together with those which were referred to at paragraph 7.2, in deciding whether it would be just and equitable to extend time. Whilst Mr Egan is right in submitting that the judgment should be read as a whole and that the Employment Judge was plainly aware of the need to have regard to these factors and of their relevance in this case, given the paucity of his reasoning the reader cannot be confident that, or indeed know the extent to which, they were in fact weighed in the balance at this decision-making stage. In circumstances where the reason for the delay and the promptness with which the Claimant had acted were factors which weighed considerably in the Claimant's favour, the reasoning of the Employment Judge in my judgment fails the Meek test (Meek v Birmingham City Council [1987] IRLR 250. See too English v Emery Reimbold & Strick Ltd [2002] IRLR 710, where the principles governing the necessity for an adequately reasoned decision were also referred to. It follows that I therefore accept the criticisms made in the Claimant's second, Meek ground of appeal, that the reasoning for the conclusion arrived at was wholly inadequate.
21. The third ground of appeal relates to the conclusion that the Trust would be prejudiced by the non-availability of material witnesses no longer in its employ. The factual findings relating to this conclusion are set out at paragraph 4.7 of the judgment, to which I have already referred. However, given that the HR business partner, Mrs Williams-Pollet, was found expressly to have been present throughout and to be "aware of the whole history of this matter" it is difficult to understand the reasoning process which led to the Employment Judge's conclusion in this respect.
22. Mr Owusu-Afriye appears to have been involved only at the appeal against dismissal stage and not, therefore, concerned directly with those matters which were relevant to the claim of disability discrimination. The only other person named as having left the Trust was Mr Vickers, but the Employment Judge seems not to have engaged with the extent to which his departure, given the continued availability of Mrs Williams-Pollet, adversely affected the cogency of the Respondent's evidence or their ability properly to defend the claim. Under this head too the submission that the Employment Judge failed to take relevant factors into account, or alternatively that the reasoning does not pass the Meek test is sustained.
23. In my judgment and for these reasons this appeal must succeed on these grounds, but I shall mention briefly the further ground of appeal, namely that the Employment Judge failed to give reasons for his conclusion that the Claimant's complaint was weak one. Since this ground of appeal raised only a Meek point, under the Burns-Barke procedure the Employment Judge was invited to provide his reasons for this finding. I agree with Mr Egan that this defect has plainly since been remedied, for the purposes of this appeal, by the provision of supplemental written reasons. I emphasise, however, that I make no comment upon the merits of the reasoning provided, other than in relation to its effect on this ground of appeal. There is, therefore, no need to deal in any further detail with these matters since I am allowing the appeal on the other grounds.
24. The Claimant contends that the only conclusion that the Employment Judge could have come to was that it was just and equitable to extend time and to allow her disability discrimination claim to proceed. She therefore invites me to substitute such a finding, having allowed the appeal. Mr O'Leary explained in his observations in support of this that the Claimant is most anxious for her case to be dealt with on its merits.
25. This request, however, I cannot accede to. The decision as to whether or not time should be extended is one which requires the hearing and analysis of evidence and the weighing in the balance of the various factors and the respective degrees of prejudice that would be caused to each party, depending on the decision made.
26. Thus, in my judgment, the matter must now be remitted to the Employment Tribunal for a fresh determination as to jurisdiction to determine the Claimant's disability claim. In view of the delay that has already occurred, it would be in everyone's interests for this matter to be dealt with as soon as possible, though I accept that that will depend inevitably upon the listing arrangements at the Employment Tribunal.