Department of Constitutional Affairs v Jones
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE LLOYD,MR JUSTICE LEWISON |
| Judgment Date | 18 July 2007 |
| Neutral Citation | [2007] EWCA Civ 894 |
| Docket Number | A2/2006/2625 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2007 |
[2007] EWCA Civ 894
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE RICHARDSON)
Cardiff Civil Justice Centre
Park Lane
Cardiff, CF10
Lord Justice Pill
Lord Justice Lloyd
Mr Justice Lewison
A2/2006/2625
MR PAUL GOTT (instructed by Treasury Solicitors, London WC2B 4TS) appeared on behalf of the Appellant
MR NIGEL GRUNDY (instructed by Mr J F McMahon, The Old Blue Bell, 17 West Street, Moulton, Northampton NN3 7SB) appeared on behalf of the Respondent
J U D G M E N T
This is an appeal by the Department for Constitutional Affairs, now the Ministry of Justice, against a decision of the Employment Appeal Tribunal handed down on 24th November 2006, His Honour Judge Richardson sitting alone. The judge dismissed an appeal by the Ministry from a decision of an Employment Tribunal held at Shrewsbury, the Chairman sitting alone, and handed down on 22nd May 2006. The judgment of the Chairman was: (1) the amendment presented on 5th July and the discrimination disability complaint presented on 15th July 2005 were presented out of time; (2) the tribunal extends time under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995 for the hearing of the substantive Disability Discrimination Act 1995 complaint; (3) the claimant had a disability as defined in section 1 of the 1995 Act in respect of that complaint.
The issue is as to whether the extension of time should have been granted. There is no challenge before this court to the finding of the Chairman that the claimant, Mr JG Jones (“the respondent”), had a disability.
The respondent had been appointed chief executive of the North Wales Magistrates' Courts Committee (“the committee”) in 1995, having commenced employment as a justices' clerk in 1977. He had been awarded an OBE for his services to magistrates' courts.
The respondent was suspended from work on 28th July 2004 because of allegations of serious financial irregularities. In September 2004 he was diagnosed by his general practitioner as suffering from anxiety and depression. An investigation interview was cancelled because of that medical condition and rescheduled for a date in October 2004. On 2nd October he broke his leg. He did not attend the October investigating interview because of his medical condition. On 18th October the committee established a grievance sub-committee and disciplinary sub-committee. The respondent requested that matters be put on hold while the grievance was dealt with. He was told that there would be disciplinary and grievance hearings on 22nd November 2004. Dr Evans supplied a certificate that the respondent was not fit to attend the hearing on that date because of a depressive illness and a broken ankle. The committee obtained its own medical advice and Dr Oliver came to the same conclusion. The hearings were postponed until 14th January 2005.
Before that date both Dr Evans and Dr Oliver, for the committee, reported that the respondent was unfit for interview and/or discipline. On 8th January 2005 Dr Carter diagnosed severe depression and severe anxiety, and recommended that the respondent should refrain from doing work in connection with the committee and with his suspension. Dr Evans expressed a similar opinion in relation to unfitness to attend hearings.
On the respondent's behalf, solicitors requested the adjournment of the hearings. The respondent's wife made a similar request by letter. The hearings nevertheless took place in late January 2005. It was found that the respondent had been guilty of gross misconduct and he was dismissed.
The respondent lodged an appeal against that finding. The first appeal date in January was adjourned. A further adjournment was sought, but the appeal hearing proceeded on 28th February 2005 in the absence of the respondent. The appeal was unsuccessful.
On 21st March the committee reported the respondent to the Law Society. On 4th April the police, having been notified of the finding, raided the respondent's home where he was present with his wife and two children.
The committee ceased to exist on 31st March 2005 and was succeeded for present purposes by the Department for Constitutional Affairs. The first of the respondent's claims to the Employment Tribunal was made on 8th April 2005. It alleged unfair dismissal and breach of contract. On 2nd June a complaint was made of unlawful deductions from wages and breach of the Working Time Regulations.
On 5th July 2005 an application was made in relation to disability discrimination. That was made both by fresh application and by application to amend the earlier claims. That distinction is not material for present purposes. There was a subsequent claim for pension loss which it is accepted is parasitical upon the disability discrimination claim, and there has also been a subsequent claim for victimisation and harassment.
It is submitted by the appellants that the disability claim was out of time. That is not disputed. It is further submitted that an extension of time should not have been granted. Schedule 3, Part I of the 1995 Act provides:
“(1) An employment tribunal shall not consider a complaint under section 17A or 25(8) unless it is presented before the end of the period of three 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.”
There is no need to refer to sub-paragraph (3).
It is common ground that the period of three months began to run on 1st March 2005. Disability is defined in section 1 of the 1995 Act:
“… a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”
Paragraph 2 of Schedule 1 to the Act provides:
“2(1) The effect of an impairment is a long-term effect if -
(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; …”
The test to be applied in circumstances such as the present was stated in this court in Robertson v Bexley Community Centre [2003] EWCA Civ 536. In a judgment (with which Chadwick LJ and Newman J agreed) Auld LJ stated at paragraph 24:
“The Tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision. If authority is needed for that proposition, it is to be found in ( Daniel and Homerton Hospital Trust unreported, 9th July 1999, CA) in the judgment of Gibson LJ at page 3, where he said:
'The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong.'”
The claim in Robertson was a claim of racial discrimination. At paragraph 25 Auld LJ said:
“25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the Tribunal below plainly wrong in this respect.”
In Robertson the Employment Appeal Tribunal had overturned the Employment Tribunal's decision on its exercise of discretion. In this court the appeal was allowed and the decision of the Employment Tribunal reinstated.
On behalf of the appellants, Mr Gott submits that the Chairman failed to take relevant matters into account. He further submits that the Chairman's decision was perverse in the circumstances. The need for an extension of time arose because the respondent was not prepared to accept that he was disabled. The general submission is that if a person who is mentally capable makes a decision not to bring a claim within time, he is bound by it. If he ignores advice given to him, then he must take the consequences of delay. It would, it is submitted, be to drive a coach and horses through the protection to which employers are legitimately entitled if a person who is advised that he is disabled but nevertheless fails to bring a claim within three months were permitted to do so subsequently.
Before summarising the submissions made more fully, I refer to the decision of the Chairman which has to be considered in some detail. There is no doubt that the chairman had well in mind representations which had been made on the respondent's behalf before he was dismissed. Reference is made at paragraph 13 of the decision to a letter written by Eversheds solicitors, whom the respondent had consulted, to the appellants. In that letter it was stated:
“We have advised our clients...
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