Factual and Procedural Background
The Appellant, the employer, appeals against a decision of the Employment Appeal Tribunal (EAT) which dismissed the employer's appeal against a ruling of an Employment Judge (EJ) at Nottingham. The EJ had held at a pre-hearing review that a disability discrimination claim brought by the Claimant against the employer was presented out of time. However, the EJ exercised his discretion under Schedule 3, Part I, paragraph 3(1) of the Disability Discrimination Act 1995 (DDA) to extend the time for filing the claim on the basis it was "just and equitable" to do so. The employer challenged this extension unsuccessfully at the EAT and now renews the challenge before this court.
The Claimant was employed by the employer as a police officer from 1 April 2001. On 28 March 2008, the Claimant filed a claim alleging unlawful disability discrimination, specifically that the employer failed to make reasonable adjustments to accommodate her disability and enable her to remain employed. The key issue concerns whether the EJ was entitled, as a matter of law, to exercise discretion to extend the time for filing the claim.
The Claimant had lodged a grievance alleging bullying on 31 May 2006, which was investigated and concluded on 10 November 2007, with an offer of a 12-month temporary placement as a reasonable adjustment, which the Claimant refused. The Claimant was signed off sick from 3 August 2007 and placed on half pay on 10 November 2007. The Claimant's position was that by 16 January 2008 her situation was irretrievable and she was facing early retirement. The timing of when the Claimant decided not to return to work was critical to determining whether the claim was in time.
The EJ found that the Claimant's evidence about when she made the decision not to return to work was unreliable due to her mental health issues and concluded that exceptional circumstances existed to justify extending time to allow the claim to proceed.
Legal Issues Presented
- Whether the Employment Judge erred in law in exercising his discretion to extend the time limit for presenting a disability discrimination claim under Schedule 3, Part I, paragraph 3(1) of the Disability Discrimination Act 1995.
- Whether the Employment Appeal Tribunal erred in failing to correct any such error of law.
Arguments of the Parties
Appellant's Arguments
- The Employment Judge applied an incorrect "liberal" approach to the discretion to extend time rather than a strict one, contrary to established legal principles.
- The Employment Judge's reference to a "liberal interpretation" of authorities amounted to an error of law and unlawful exercise of discretion.
- The Employment Appeal Tribunal failed to correct this error and should have dismissed the claim as out of time.
Respondent's Arguments (as interpreted from the judgment)
- The Employment Judge's findings of fact, particularly regarding the Claimant's mental health and its impact on her decision-making, provided a sufficient basis for extending time.
- The reference to a "liberal interpretation" was loose language and did not affect the correctness of the exercise of discretion.
- The discretion under the statute is broad and must be exercised based on the circumstances of the case, which the Employment Judge properly did.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| British Coal Corporation v Keeble [1997] IRLR 336 |
Guidance on factors to consider when exercising discretion to extend time, including length and reasons for delay, promptness of claimant's actions, and steps taken to obtain advice. |
The Employment Judge adopted the checklist from Keeble to guide his discretion, focusing on key factors (a), (d), and (e). The court found this approach appropriate and the findings open to the EJ. |
| Robertson v Bexley Community Services [2003] IRLR 434 |
Emphasises that there is no fixed principle on how generously or sparingly discretion to extend time is exercised; it is a matter of fact and judgment; presumption is against extension unless justified. |
The court relied on Robertson to affirm that the discretion is wide and must be exercised case by case. The EJ's conclusion that exceptional circumstances existed was consistent with this principle. |
| Daniel v Homerton Hospital Trust (unreported, 9 July 2009) |
Confirms that appellate courts will not interfere with the exercise of discretion unless the tribunal erred in principle or was plainly wrong. |
Quoted with approval to support the principle that the Employment Judge’s discretion should not be lightly interfered with absent error of law. |
| DCA v Jones [2008] IRLR 128 |
Approves the Keeble guidelines but emphasises that they are fact-specific and case-specific. |
Used to reinforce that the discretion to extend time depends on the facts of each case and that the EJ applied the correct principles. |
Court's Reasoning and Analysis
The court’s analysis focused on whether the Employment Judge had erred in law in exercising his discretion to extend time under the DDA. The court acknowledged the broad discretion granted by the statute, which must be exercised considering all circumstances and only if it is just and equitable to do so. The Employment Judge had applied established legal guidance from British Coal v Keeble, considering the length and reasons for delay, the claimant’s promptness, and steps taken to obtain advice.
The court found that the Employment Judge’s key factual finding—that the Claimant’s mental ill-health caused her to provide misleading information about the timing of her decision not to return to work—constituted an exceptional circumstance justifying extension of time. Although the Employment Judge’s reference to a "liberal interpretation" was loose language, it did not affect the correctness of the reasoning or the exercise of discretion.
The court emphasized that judicial discretion allows for different reasonable outcomes and that the mere fact that the Employment Judge described his approach as liberal was irrelevant. The court rejected the Appellant’s attempt to characterize the exercise of discretion as unlawful based on editorial commentary or judicial gloss. The court also reaffirmed that appeals challenging the exercise of discretion are to be rare and must identify an error of law or principle to succeed.
Holding and Implications
The court DISMISSED the appeal, upholding the Employment Judge’s decision to extend the time for the Claimant to bring her disability discrimination claim.
The direct effect of this decision is that the Claimant’s claim will be allowed to proceed despite being filed outside the normal three-month time limit. No new precedent was established; rather, the court reinforced the established legal principles governing the exercise of discretion to extend time under the Disability Discrimination Act 1995 and affirmed the limited scope for appellate interference absent error of law.