The claimant brought a claim of unfair dismissal 8 months after her dismissal, thus the claim was 5 months out of time. The EJ permitted the claim to proceed on the basis that it was not reasonably practicable for her to submit a claim within the 3 month period by reason of her mental difficulties as evidenced to him both in writing and in her oral testimony, and that the claim was submitted within a reasonable further period. The respondent appealed, saying that the EJ had applied the wrong tests in relation to the further period, in considering whether the claimant would qualify as having a disability and when he considered that the appropriate time to file a claim was when she was sufficiently stable. Other grounds included the submission that the EJ had erred in taking into account the claimant’s reaction to other proceedings against her when considering whether it was reasonably practicable to file her ET claim.

The EAT rejected the appeal. In so far as the EJ had applied the wrong test, he had applied too stringent a test by requiring the claimant to have presented the claim as soon as reasonably practicable rather than within a reasonable time of the expiry of the initial three month period; otherwise, the Judge’s conclusions, although perhaps surprising, were based on findings of fact which were open to him on the evidence.

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Appeal No. UKEAT/0291/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 23 July 2012

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

UNIVERSITY HOSPITALS BRISTOL NHS FOUNDATION TRUST (APPELLANT)

MISS ANTOINETTE WILLIAMS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS S COWEN (of Counsel)
Instructed by:
DAC Beachcroft LLP
Portwall Place
Portwall Lane
Bristol
BS99 7UD

For the Respondent
Debarred

JURISDICTIONAL POINTS – Extension of time: reasonably practicable

The Appellant (Respondent below) maintained that the Employment Judge had applied the wrong test in extending time for an unfair dismissal claim. In so far as he had applied the wrong test, he had applied too stringent a test by requiring the Claimant to have presented the claim as soon as reasonably practicable rather than within a reasonable time of the expiry of the initial three month period; otherwise, the Judge's conclusions, although perhaps surprising, were based on findings of fact which were open to him on the evidence. The appeal was therefore dismissed notwithstanding the non-attendance of the Claimant at the hearing.

1. This is an appeal by a Respondent against the ruling of the Employment Judge given on 14 February 2012 that the Employment Tribunal had jurisdiction to hear an unfair dismissal claim, notwithstanding that it was not presented until eight months after her dismissal on 8 April 2011.

1. The Claimant, who is the Respondent to this appeal, has been debarred from taking any further part in it by an order of 18 July 2012 because she failed to lodge an answer or comply with an unless order dated 10 July 2012. Notwithstanding that she is debarred from taking any further part and that she is not here, it is for the Appellant to persuade me that there is an error of law in the Judge's Judgment before I can allow their appeal.

1. At the Pre-Hearing Review on 14 February 2012, the Employment Judge heard evidence from the Claimant herself and was also shown a bundle of documents by the Respondent. The Claimant was cross-examined by Ms Cowen, who appears also on this appeal, and documents were put to her and submissions were made, although I will come back to precisely at what point in the hearing they were made later.

1. The Judge recited the evidence he had heard and some of the arguments and at paragraphs 21 and 22 of the Judgment he said this:

"21. Accordingly, I decide that it was not reasonably practicable for her to submit a claim within a three-month period, by reason of her mental health difficulties as evidenced to me both in writing and in her oral testimony, and that the claim was submitted within a reasonable further period.

22. Accordingly I permit the claim to proceed even though it is out of time."

1. Ms Cowen appeals against that conclusion. It is fair to say that it is rare for this Tribunal to interfere with such a conclusion, although it will do so if the Employment Tribunal was manifestly wrong. So far as the law is concerned, the words "reasonably practicable" have been considered many times and it is established that they carry the same sense as the words "reasonably feasible" and clear that factors that can make something not reasonably practicable or feasible include illness and include mental illness.

1. It is for the Tribunal to look at all the circumstances, decide what was reasonably practicable and then decide what further period might be reasonable. Its decision on those points is a decision of fact and unless the wrong tests have been applied or the finding is perverse, this Tribunal is not going to interfere.

1. Ms Cowen has made it clear that she is not suggesting that the decision was perverse on the facts but she relies on a number of points as to the correct test. The Tribunal Judge set out the background in paragraph 3 of his Judgment and he says:

"Time may only be extended if it was not reasonably practicable for the claim to be presented in time and then the claim must be presented within such further period as I consider reasonable."

Ms Cowen accepts that that was the right test. A sentence on from that, the Tribunal Judge says this:

"If it was reasonably practicable to put the claim in during that period then I must dismiss the claim. If I decide it was not reasonably practicable to put in the claim within that period, I will strike it out if not submitted promptly as soon as it was possible to do so."

In that passage it is right to say the Judge is applying the wrong test: the test in relation to the further period is as he had put it two sentences before, namely what period was reasonable. However, although he puts it wrongly it is clear that he was proposing a more stringent test so far as the Claimant was concerned than he should have, so if that is the test he has applied it does not help the Respondent.

1. The Judge then recites quite a lot of the evidence given by the Claimant who was, as I say, cross-examined. He also refers to the medical evidence which I have been shown, and then at paragraph 15 he says this:

"In our opening discussion, as in our concluding discussion, Ms Cowen pointed out that the claimant was able to do all these things, so why, she asked, was she not able also to file a claim?"

The things he is there referring to include managing to get alternative accommodation, having lost her job, and managing to get her child into a new school. The Judge goes on at paragraph 17:

"After listening very carefully to the claimant's oral evidence, which was compelling (as Miss Cowen agreed) and considering the matter very carefully, I conclude that this claim is in time. The claimant became visibly distressed at points during giving evidence. All employment judges are accustomed to seeing claimants cry on occasion, and sometimes it is genuine and sometimes it is not. This seemed to me entirely genuine. It is plain that the recollection of these events still causes her great mental difficulty."

He then refers to her mental state and says that in his view it would undoubtedly qualify as a disability. And then at the end of paragraph 18 he says:

"Once the Claimant's mental health was sufficiently stable to permit her to cope with the additional burden of taking on this matter I think that is precisely what she did."

And then at paragraph 19:

"I considered carefully the point that she was able to cope with a set of circumstances that might well have been overwhelming, but were not, and that this necessarily means that she was also able to put in a claim. I do not think it was reasonably practicable for her to do so, or just, to expect that she could do so at any time before she actually did. Plainly the most important thing to cope with is where you are going to live and look after your children, and make sure the home at least has beds tables and chairs in it. If someone's mental health is considerably affected, as the claimant's was, the fact that she was able to devote attention to such essential tasks does not seem to me to be consistent with saying that that is the reason why she should be able to cope with even more. From her evidence she did remarkably well to cope as well as she did. I did not think that means it was reasonably practicable for her to do even more than that which she did. She did all that she could in her life and her mental health was at maximum capacity to do it. More was impossible for her."

1. Ground 1 is that the Judge failed to follow the correct test having set it out correctly. I have already referred to the test that the Judge set out and to his application of it. If anything, as I have already said, the Judge applied too stringent a test in relation to the second period that he had to consider, namely the period after the three months had expired. So insofar as he failed to follow the correct test, it was against the Claimant and that, in my view, does not provide a basis for appealing.

1. Ground 2 is that he used the wrong test in considering whether the Claimant would qualify as having a disability. I have referred to the finding by the Tribunal Judge that her condition would undoubtedly qualify as a disability. It is not clear that he intends to refer to a technical disability under the Disability Discrimination Act. If he did, it was not relevant whether she was disabled in that sense, but it is clear from the whole tenor of paragraph 18 that what the Judge is saying is that in his view, having heard her evidence and seen some evidence from doctors, she was suffering from a very serious mental problem which he would regard as a disability and that that made it not reasonably practicable for her to put in the claim before she did. So, whatever test he applied in relation to disability, it does not seem to me to make any difference.

1. Ground 3 is that he used the wrong test when he considered that the appropriate time to file a claim was when she was sufficiently stable. As I read out, and as I read out a number of times in the course of debate with Ms Cowen, what the Judge said was not just that the Claimant was "sufficiently stable", but that she was sufficiently stable to permit her to cope with the additional burden of presenting an Employment Tribunal claim. Seen in that context, it is quite clear what the words "sufficiently stable" mean and it is quite clear that the Judge has applied his rather too stringent test so far as the latter period is concerned and the right test so far as the first three months is concerned.

1. Ground 4 is that in considering when in light of her mental health the Claimant was able to cope with the Tribunal claim as well as her domestic responsibilities, the Employment Judge (1) misapplied the test of reasonably practicable and/or (2) came to a conclusion on the Claimant's mental health which was not supported by the medical evidence available. So far as ground 4(1) is concerned, I do not see that that adds anything to the other grounds. So far as the medical evidence is concerned, I was shown it and it was at that point in the argument that I became most convinced that what I was dealing with was an attempt to appeal on points of fact. I am not going to go back over the medical evidence; insofar as it did not entirely support the Judge's findings about the Claimant's mental health, there was, as I pointed out, evidence directly from the Claimant which was tested in cross-examination and which persuaded the Judge to reach certain conclusions. The Claimant was capable of giving evidence about her mental state; the Judge was capable of assessing it and coming to a view it. The view he reached about it was within his purview as the finder of fact. Whatever the decision might be, unless it was perverse, it is not one that can be challenged by an appeal to the Employment Appeal Tribunal. So that is all I say about that.

1. Ground 5 is that the Employment Judge erred in taking into account the Claimant's reaction to other proceedings against her when considering whether it was reasonably practicable to file her ET claim. The other proceedings were proceedings to prevent her carrying on her profession to which she did not respond at all because she told the Tribunal she just was not in a fit state to do so. It seems to me that that was something that the Employment Judge was perfectly entitled to bring into account in assessing both her mental state and her capabilities and it was something that he was entitled to look to when he decided that she was not capable of putting in an Employment Tribunal claim, and I fail to understand what the ground of appeal really amounts to.

1. Ground 6 was that the Employment Judge erred (1) by not giving judgment as to the date on which it was first "possible to do so" (i.e. file the ET1) and (2) failed to give reasons as to why he considered this was the first reasonable and practicable opportunity to do so. I am slightly puzzled by that. He did give judgment about the date when it was first possible for her to make a claim and he did give reasons. The date when he considered that it was first possible for her to make a claim was the date when she did so on his finding. As I have said a number of times, that was a more stringent test than he needed to apply but nevertheless, however surprising, it was his finding that she was not capable of presenting it until she in fact did.

1. Those are the grounds of appeal. I should mention two points that have concerned me a little bit. One is that in paragraph 19 the Judge said in a sentence I have already read:

"I do not think that it was reasonably practicable for her to do so, or just, to expect that she could do so at any time before she actually did."

I was concerned about the words "or just" which indicate that the Judge might have been applying the wrong test. Justice and equity are not the test in the context of extensions of time in unfair dismissal claims. However, he applies really two tests in that sentence, one is the excessively stringent one that I have already mentioned, the other is an insufficiently stringent one, namely justice; but in the context of the whole Judgment and a number of other statements which he makes, in particular the final five words of paragraph 19 of the Judgment which say "More was impossible for her" it seems to me clear that the words "or just" were really excess verbiage and do not indicate that the Judge actually went wrong in that respect.

1. The point that concerned me more, and seemed to me was potentially one of real substance, was that the Judge at the end of the Claimant's evidence immediately said:

"I will give a full written decision, not just a synopsis. When I read the papers I initially thought that this hearing would last ten minutes."

And I interpose to say it is clear that the Judge thought that the hearing would go against the Claimant and then he went on:

"However, the Claimant's evidence is compelling and so I am going to allow the claim to continue."

At that point Ms Cowen, no doubt rather surprised and taken aback, said to the Judge: "Sir, I have not yet had the opportunity to make my submissions on the Respondent's case" **to which the Judge said "You can certainly try and persuade otherwise. You are welcome to try and change my mind but do you not agree Claimant's witness evidence was compelling?" and Ms Cowen agreed that her story was compelling, and then the Judge said, "Looking at the papers, it looked like the Claimant would have a real uphill struggle to convince me to allow her claim to continue as there was no evidence about debilitation and she was also walking six miles" and then he talks further about her evidence. And then he asks Ms Cowen, "Have I got any point of this analysis wrong?" and Ms Cowen was able, by way really of a question and answer session perhaps, rather like the one that we have had, to make her points.

1. But what she said today in the course of the appeal was it was all very well to be able to make her points but because the Judge had already indicated in front of the Claimant, who was a litigant in person who had just given her evidence, that he was going to allow her claim to proceed, nothing that she, Ms Cowen, said was going to make any difference because the Judge had already "boxed himself into a corner".

1. I was concerned about that point but it seems to me that, as I initially said, Judges are entitled to make comments about what they are thinking at a particular point in the story, they are allowed to make comments about people's evidence and to say it is compelling and so on, and they should not be discouraged from doing that, provided the Judge then corrected his error by hearing Ms Cowen and taking her points on board and dealing with them. I think one has to trust the Judge to do that exercise conscientiously and one cannot assume that for fear of letting down a litigant in person after a few minutes or even half an hour, that he is not robust enough to go back on an indication.

1. Looking at the Judgment, and in particular paragraphs 15, 18 and 19, it is perfectly clear that the Judge took account of Ms Cowen's submissions, dealt with them and gave reasons why he did not accept them and I am satisfied that that as a discrete ground does not succeed either.

1. So, perhaps surprisingly, again the Claimant seems to have succeeded even though she was not here on this occasion because she told the Tribunal that she was, and I quote her email: "Physically, emotionally and mentally unable to attend the hearing today" **and that due to her mental health and lack of legal support she said she was unable to pursue the case. Notwithstanding that, as I say, she has succeeded on this appeal which I dismiss. It may be that the case does not go to a full hearing in the Employment Tribunal because of what the Claimant has said in the email that I have just quoted, but that is for another day.