United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0094/15/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 8 February 2016

 

 

 

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

 

 

 

 

 

 

THE SECRETARY OF STATE FOR THE DEPARTMENT OF                           APPELLANT

WORK AND PENSIONS

 

 

 

 

MR T IQBAL                                                                                                        RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR EDMUND BEEVER (of Counsel) Instructed by: Government Legal Department One Kemble Street London WC2B 4TS
For the Respondent	MR JOHN HORAN (of Counsel) Bar Pro Bono Scheme

 

 

SUMMARY

JURISDICTIONAL POINTS - Extension of time: just and equitable

 

The Claimant brought claims under the Equality Act 2010 of indirect disability discrimination and failure to make reasonable adjustments based on the employers’ insistence that he work full-time until 24 April 2012 when they allowed him to work part-time.  He did not start his claims until 17 December 2012.  The Employment Tribunal found the claims were well founded but had to consider the jurisdictional issues raised by section 123 Equality Act.

 

The Employment Tribunal concluded that time began to run on the date of his (fair) dismissal on 21 September 2012 on the basis that there was a “continuing state of affairs” because the “part-time regime” was not permanent.  There was no finding in the Reasons about any request for a permanent “part-time regime” or as to the effect of the part-time regime not being permanent and the conclusion that time began to run on 21 September 2012 was contrary to the Employment Tribunal’s express findings that the discrimination and failure to make reasonable adjustments applied until 24 April 2012.

 

On the question of a just and equitable extension of time, the Employment Tribunal said it would have extended time on the basis of the extreme stress under which the Claimant was labouring after receipt of a letter on 14 May 2012 (notifying him of the investigatory process that ultimately led to his dismissal).  The Employment Tribunal did not have regard in its Reasons to the cause of this extreme stress or its effect on the Claimant’s ability to bring proceedings and the Reasons were therefore inadequate.

 

In the circumstances both issues arising under section 123 Equality Act were remitted to the Employment Tribunal.

HIS HONOUR JUDGE SHANKS

 

1.                  This is an appeal by the employer, the Department of Work & Pensions (“DWP”), against a Decision of Employment Judge Stewart and members sitting in London (Central) sent to the parties on 16 December 2014. 

 

2.                  The Claimant was employed by the DWP from 5 July 1999, latterly as an adviser at the Ealing Jobcentre Plus.  He suffered from depression and anxiety from 2001, and there was no dispute that he was technically disabled under the Disability Discrimination Act 1995 (and latterly the Equality Act 2010 (“EqA”)) from 2009.  This condition made it impossible for him to work full-time and led to extended absences.  He was dismissed on 21 September 2012 in effect for lying during a meeting with a Mrs Sandhu on 19 December 2011 when he said that he had not been doing any “DJing” for a period of four months during sickness absence, which was a statement that was contradicted later on by the radio station he worked for.  His claim for unfair dismissal was itself dismissed.

 

3.                  He also claimed indirect disability discrimination and for a failure to comply with the duty to make reasonable adjustments, in both cases based on the Respondent’s insistence “that the Claimant work full-time hours” (paragraph 1.1(v)).  Those claims were upheld by the Employment Tribunal, but a jurisdictional point also had to be dealt with, because the Respondent had in fact agreed that the Claimant could return to work on a four-day, five-hour shift pattern on 24 April 2012 and he had in fact returned to work successfully on that basis from mid-May until August 2012.  The Claimant’s claim both in respect of the unfair dismissal and in respect of those discrimination claims was not issued until 17 December 2014.  The relevant provisions so far as time limits were concerned was section 123 EqA 2010, which said, so far as relevant:

“(1) Proceedings on a complaint within section 120 [which would include these claims] may not be brought after the end of -

(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable.

…

(3) For the purposes of this section -

(a) conduct extending over a period is to be treated as done at the end of the period;

…”

 

4.                  Having found that the Claimant’s claims of indirect disability discrimination and failure to make reasonable adjustments were well founded, the Tribunal turned to the question of jurisdiction at paragraph 96 in its Judgment.  They cited the fact that the Respondent was contending that the claim was out of time because any discriminatory act had ended on 24 April 2012 or at the latest when the Claimant returned to work in May 2012.  They then turned to the Claimant’s position at paragraph 97, where they said this:

“97. The Claimant contended that he was still on his previous full-time permanent contract up to his dismissal on 20 September 2012, that the part-time regime was informal and that he continued to want, and to seek, a permanent contract for part-time working. …”

 

The Tribunal at paragraph 98 dealt with that submission as follows:

“98. The Tribunal concluded unanimously that the Respondent’s indirect discrimination and failure to make reasonable adjustments in relation to part-time hours, was a continuing state of affairs up to the date of the Claimant’s dismissal because the Claimant’s part-time regime was not permanent.  Mr Gillett told the Tribunal that although it could have become permanent in the end, it was not permanent up to the Claimant’s dismissal because a decision would have been needed in order to make it formal and permanent because the Claimant was actually performing a lower role than that for which his contract provided. …”

 

5.                  Notwithstanding that the Tribunal found for the Claimant on that basis, it is undeniable that nowhere else in the Judgment are there any factual findings about any request for a permanent contractual change to hours or as to the effect that failing to give that permanent change might have had on the Claimant.  The only recorded fact as to the effect of his return to work on a part-time basis in mid-May was that it was a positive development.  Paragraph 63 says:

“63. The Tribunal noted that from his return to work in mid-May, through to August 2012, the Claimant had been working very well under the 20 hours per week, shorter days regime put in place by Mr Pandit, with regular breaks and some administration time allocated in the afternoons so that the Claimant was not overwhelmed by his duties and in a Floor Manager role.  He had had virtually no absences and both Mr Pandit and Mr Gillett told the Tribunal that it was working very well.”

 

Quite apart from that, it is clear from the Reasons that the Employment Tribunal expressly found that the relevant discrimination and failure to make adjustments only applied for the period up to 24 April 2012 or possibly up to the Claimant’s return to work in May.  The Judgment of the Tribunal itself at page 2 in the bundle, paragraph 3, says:

“3. The Claimant’s complaint that he suffered indirect discrimination, within the meaning of section 19 of the Equality Act 2010, is well founded and succeeds in respect only of the Respondent’s provision, criterion or practice of insisting that the Claimant work full-time contractual hours until 24 April 2012.”

 

And, so far as the section 20 (failure to make reasonable adjustments) claim is concerned, the Tribunal said in the body of the Reasons at paragraph 95:

“95. The Respondent therefore failed in its duty to make the reasonable adjustment of permitting him 5 hour days, up to four days a week, from 5 December 2011 when the Claimant made the request, allowing a reasonable time thereafter for its consideration, through 10 January when it was refused, until 24 April, when it was agreed. …”

 

6.                  The conclusion at paragraph 98 of the Reasons therefore appears to have no underlying factual basis and to be inconsistent with the earlier findings at paragraph 3 of the Judgment and paragraph 95 of the Reasons and accordingly to be wrong in law.  In the circumstances the issue of when time started to run for the claims of indirect disability discrimination and failure to make reasonable adjustments will need to be remitted to the Employment Tribunal.

 

7.                  Assuming the decision on when time starts to run goes in the DWP’s favour on the remission, that still leaves, of course, the question of whether time should be extended under section 123(1)(b).  So far as this is concerned, the Claimant, as recorded in paragraph 97 of the Judgment, contended that it would be just and equitable to extend time because of his mental state due to his disability and his lack of knowledge and legal advice.  The Employment Tribunal’s decision as to that is also in paragraph 98, and the Tribunal said this:

“98. … Should it have been necessary to consider the matter of extending time, the Tribunal would have been minded to do so on just and equitable grounds on the basis of the Claimant’s mental state, consequent upon his disability, and the extreme stress under which he was labouring from 14 May 2012 when he received the first notification letter from Ms de Jesus of her investigatory process.”

 

The notification letter from Ms de Jesus of 14 May 2012 related to the matters that ultimately led to the Claimant’s fair (as the Tribunal found) dismissal.  There is no mention in the Reasons of any lack of knowledge or advice, as the Claimant had put forward, and that is perhaps not surprising, since it is clear on the documents that the Claimant did have legal assistance before his return to work in May 2012.

 

8.                  So far as the extreme stress is concerned, apart from the fact that it appears to arise from the receipt of the notification letter about the investigatory process, there is no indication from the Tribunal of what the effect of the stress was in relation to bringing the proceedings in time.  Mr Beever, for the Appellant employer, has frankly accepted that there was no forensic prejudice to the employer in proceeding to hear the claims, and it is also noteworthy - one cannot ignore the fact - that the Tribunal, having heard all the evidence, decided that they were well founded.  Although an Employment Tribunal has a wide discretion in relation to section 123(1)(b) and can take into account any relevant factor, it is, however, normally necessary for the Tribunal to consider the reason for the delay in bringing the proceedings as a first step in considering whether it is just and equitable to allow the claim to proceed out of time.

 

9.                  It seems to me that by failing to analyse how the extreme stress was caused and what effect it had on the Claimant’s ability to bring his claim within three months, the Employment Tribunal has given inadequate reasons to support an extension of time.  In saying that, I inevitably take account of the fact that after 14 May 2012 the Claimant was able to work and was able to launch an appeal and later a claim of unfair dismissal arising from his dismissal in September 2012 and that those were facts to which the Tribunal does not allude, that obviously called for some analysis of how the stress had prevented the Claimant from bringing the claims for indirect discrimination and failure to make adjustments. 

 

10.              I therefore allow the appeal in relation to the question whether it was just and equitable to allow the claims to proceed and remit that question to the Employment Tribunal too. 

 

11.              The remittal should I think be to the same Employment Tribunal that heard the case if possible.  That Tribunal should consider any submissions made by the parties in the light of this decision but should not receive any further evidence.