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United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McGee v. Perth & Kinross Council [2003] UKEAT 0046_02_2003 (20 March 2003)
URL: http://www.bailii.org/uk/cases/UKEAT/2003/0046_02_2003.html
Cite as: [2003] UKEAT 46_2_2003, [2003] UKEAT 0046_02_2003

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BAILII case number: [2003] UKEAT 0046_02_2003
Appeal No. EATS/0046/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF
             At the Tribunal
             On 20 March 2003

Before

THE HONOURABLE LORD JOHNSTON

DR A H BRIDGE

DR W M SPEIRS



ANDREW MCGEE APPELLANT

PERTH & KINROSS COUNCIL RESPONDENT


Transcript of Proceedings

JUDGMENT

© Copyright 2003


    APPEARANCES

     

     

    For the Appellant Miss H Lyle, Solicitor
    Of-
    Messrs Blackadders
    Solicitors
    30/34 Reform Street
    DUNDEE DD1 1RJ




     
    For the Respondents Mrs M McLaren, Solicitor
    Of-
    Perth & Kinross Council
    2 High Street
    PERTH PH1 5PH



     


     

    LORD JOHNSTON:

  1. This is an appeal at the instance of the employee against the refusal of the Employment Tribunal to exercise its discretion in relation to time limits, both in relation to a claim for unfair dismissal and a claim under the Disability Discrimination Act 1995.
  2. In both cases the relevant period is three months, the test in cases of unfair dismissal being one of reasonable practicability, while the test in relation to disability discrimination claims is whether it is just and equitable to allow a relaxation of the time limit. It is not disputed that the application was presented well out of time and, indeed, it was accepted that there was a delay of a further two months subsequent to the expiry of the three-month period for which no adequate explanation could be given.
  3. There was also a separate issue relating to the refusal of the Chairman to grant a review and we will deal with this separately.
  4. Turning first to the decision of the Tribunal which is in the following terms:-
  5. "It is beyond doubt that this complaint was only presented on 18 September 2001 and therefore well beyond the period of three months counting from the effective date of termination on 17 April 2001 which is the relevant date for the commencement of the three month period for both the applicant's unfair dismissal complaint and his disability discrimination complaint in connection with which we understand that the applicant's position inter alia is that the dismissal itself was an act of discrimination. Since the time-bar provisions which relate to unfair dismissal on the one hand, and disability discrimination on the other, differ, we shall deal with the two issues separately, and first of all, with the unfair dismissal complaint. In that connection, section 111 of the Employment Rights Act 1996 provides that complaints of this sort require to be presented within a period of three months from the effective date of termination or, within such further period as is reasonable where the tribunal can be satisfied that it was not reasonably practicable for the complaint to have been presented within the three month period. In the present case, the applicant asserts that he was so ill with stress during the relevant three month period that it was indeed not reasonably practicable for the complaint to have been lodged any sooner than it was. In that connection, the applicant relied upon his own evidence and that of his doctor, Dr Cherry. What the applicant told us was that although initially, following upon the termination of employment on 17 April 2001, he felt that a great weight had been lifted off his shoulders and felt free now that he was away from the cause of his problems, namely, Mr Leiper, a "big black cloud" then came down over him with the result that he said that he locked everything outside – that he used to keep the curtains shut – that he did no household chores and that his wife had to force him to get washed and dressed in the mornings. He also said that when he eventually went to see Mr Glass in August 2001, it was "to see if I had a case" – that he did not know anything about unfair dismissal and had never even thought about that. The applicant's position was broadly supported by the letters at A1, A2 and A3 from Dr Cherry. On the other hand, we had evidence from Mr Berry that in discussions which he had had with the applicant in advance of the dismissal, the applicant had discussed with him the concept of constructive dismissal, a term which Mr Berry said the applicant had used to him but that he knew little about it. Moreover, said Mr Berry, the applicant had also told him that he had consulted with the CAB in Arbroath regarding either his dismissal or his impending dismissal and that he wanted to know from Mr Berry whether UNISON would support him in employment tribunal proceedings. As a result, said Mr Berry, he spoke with the local branch secretary whose view it was that the union would not be prepared to support the applicant because the applicant had been dismissed on ill-health grounds and that the proper procedures had been adopted. Moreover, we note that contrary to the views which Dr Cherry expresses, the applicant was able to meet with the respondents at the lengthy meeting which took place on 8 May 2001 following upon his dismissal and he was also able to correspond with Deirdre Black regarding his bank loan and to speak with John Walker about his missing diaries. In all those circumstances, we do not accept that the applicant's failure to lodge his originating application within the relevant three month period had anything whatever to do with his condition of stress.
    It is clear, contrary to what the applicant told us in the course of his evidence, that he was well aware of the concept of unfair dismissal and that he had taken certain advice about this from the CAB in Arbroath. For reasons of his own, probably because to a large extent he felt relieved that matters had now been brought to a head and that he was now away from the cause of all his troubles, Mr Leiper, the applicant simply did nothing. What was clear was that what then provoked the applicant into activity was when he received Sylvia Middlemiss's report into the applicant's and the complaints of others about Mr Leiper. What the applicant said in examination-in-chief about that was that there was no indication in the report that Mr Leiper would be punished and the applicant felt "cheated" and "aggrieved". It was that sense of injustice, so it appears to us, which then caused the applicant to take the next step, namely, of showing a copy of Sylvia Middlemiss's report to Kate Scott's daughter, which then began the whole process which finally resulted in the presentation of this complaint on 18 September last. However, in the relevant three month period which ended here on 16 July 2001, it is our view that not only was the applicant fully aware of his right to proceed to an employment tribunal, but that he had already taken certain advice about that issue from the CAB office in Arbroath and had asked his union whether or not they would be prepared to support him in employment tribunal proceedings. Moreover, having regard to the business with which he dealt in that three month period, namely, the meeting of 8 May, the correspondence with Deirdre Black, and the contact regarding missing diaries, we cannot be persuaded that the applicant was so unfit as the result of stress that it was that factor which caused him not to present his complaint within that period. In reaching that conclusion, we have taken account of, not only the evidence of the applicant, but also the written evidence of Dr Cherry as set out in A1-A3 where we note that in the opinions expressed in A1 and A3, Dr Cherry understandably uses the cautious word "may" before his opinion. This case is, in many respects, similar to that of Gorman –v- Fife Scottish Omnibuses Limited, an unreported decision of the Employment Appeal Tribunal in Scotland (EAT/1222/98) and we have also taken account of Palmer and Saunders –v- Southend-on-Sea Borough Council 1984 IRLR 119 to which we were referred on both sides as also the case of Shultz –v- Esso Petroleum 1999 IRLR 488 - to which we were referred by Mr Glass. We should just add that even if we had concluded that it had not been reasonably practicable for the applicant to have presented his claim within the three month time period, we would not have been satisfied that the delay in presenting the originating application until 18 September 2001 was reasonable. In particular, as we have already said, the applicant was patently aware from a point prior to the date of his dismissal of his rights, and it was a further two months after the expiry of the three month period before the applicant was in fact lodged. In our view, once an applicant and his advisors are aware that a complaint is late, an application ought to be lodged without delay even if it is simply a "holding" complaint with little specification of what precisely the complaint is.
    We now turn to the disability discrimination complaint and in particular, Schedule 3 of the 1995 Act which, like the unfair dismissal provisions, provides for a period of three months within which complaints require to be lodged (the starting point being the act of discrimination, which as we have already said, appears here to be inter alia the dismissal itself). The 1995 Act differs, however, from the 1996 Act in respect that here, it is not the test of reasonable practicability which has to be applied, but rather whether in all the circumstances of the case it would be just and equitable to extend the three month time limit. In Hutchison –v- Westward Television Limited 1977 ICR 279 (a sex discrimination case), the Employment Appeal Tribunal held that the words "in all the circumstances of the case" refer only to the circumstances relating to why it was that the claim was late. The Tribunal also held that employment tribunals have a wide discretion as to what is "fair in the circumstances" with no need to complicate issues by referring to legal authorities and precedents, and that the nature of the discretion given to employment tribunals means that any decision on what is "just and equitable" is difficult to challenge on appeal. We have already set out the whole background regarding the applicant's delay in presenting his complaint and we can see nothing which supports a conclusion which entitles us to reach a view that it would be just and equitable to allow the applicant's discrimination complaint. In particular, during the course of his submissions, Mr Glass made no specific submission on this issue – he pointed to no particular piece of evidence as supporting the proposition that we ought to exercise our discretion in favour of the applicant. All he said was that the 1995 Act gave us a very wide discretion. With that submission, we agree but, as we have said, it does seem to us that we require to support the use of that discretion with something more than mere sentiment. If, as the Act does, it provides for a three month presentation period, when that period is exceeded by two further months, it appears to us that there has to be some justification shown by an applicant and we can find none here. The result of our conclusion is that we require to refuse this application."

  6. In this respect, Miss Lyle, appearing for the appellant, submitted that the Tribunal had misdirected itself in relation to the evidence, not least with regard to the medical evidence which was presented in written form, suggesting that the real reason for the delay for the application was the medical state of the appellant.
  7. For the reasons given by the Tribunal and supported by Mrs McLaren, appearing for the respondents, we have no hesitation in rejecting this approach. As this Tribunal said in Gorman v Fife Scottish Omnibuses EAT/1222/98, the rôle of this Tribunal in appeals of this type is very limited. The issue is, essentially, one of fact for the Tribunal of first instance and, if the reasoning that accompanies its conclusions can be rationally supported, this Tribunal will not interfere. It is perfectly clear to us in this case that the Tribunal consider that any medical state or illness suffered by the appellant was nothing to the point when it came to the reasons for not presenting the application timeously. The real cause was his sense of injustice in the sense that he understood or was concerned that the person who he was blaming for his stress, his line manager, was not being disciplined. Furthermore, we are impressed with the emphasis that the Tribunal placed upon the further delay after, on any view of the matter, the appellant must have been aware of his rights having consulted a solicitor before any action was taken in relation to presenting an application.
  8. The appeal on this point, therefore, must fail.
  9. With regard to the issue of review, this turns on the fact that the Tribunal found that the appellant had sought advice from the Angus Citizens' Advice Bureau well before the application was made. Miss Lyle sought to submit that further investigation had revealed that this was not so but, it has to be pointed out, that Mrs McLaren also made investigation subsequent to the hearing and received information which might suggest that the consultation with the bureau had taken place but simply no record had been kept of it. Be that as it may, it is entirely competent for a Chairman sitting alone to determine whether a review should take place and to reject it competently if the reasoning accompanying the rejection is sound. In this particular case we have no hesitation in adhering to that position. The issue over the CAB was entirely incidental to the main substance of the Tribunal's decision.
  10. In these circumstances this appeal is also refused.


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