Chouafi v London United Busways Ltd.

LORD JUSTICE JACOB: This is an appeal given by the “reluctant” permission of Sedley LJ. It is from the decision of the Employment Appeal Tribunal of 5 September 2005, itself upholding the decision of the Employment Tribunal of 6 October 2004. The appellant was a bus driver, employed by the respondents from April 1998 to 21 January 2004; on that latter date he was dismissed on the grounds of his medical condition. That medical condition was diagnosed in October 2003 as severe depression and from that point onwards he had not come to work and various sick notes had been provided. Nine days later the appellant was so ill he had to be admitted to the psychiatric ward at Charing Cross Hospital. He was kept in until 9 March 2004 and continued to attend the hospital as a day patient for six to seven weeks thereafter.

He had to make his application for unfair dismissal or his complaint for dismissal on the grounds of disability within three months from the date of his dismissal. The relevant provisions for unfair dismissal are section 111 of Employment Right’s Act 1996. This provides as follows:

“1)

A complaint may be presented to an [Employment Tribunal] engaged by an employer by any person who was unfairly dismissed by the employer.

“2)

Subject to subsection 3 an [Employment Tribunal] shall not consider a complaint under this section unless it is presented to the Tribunal (a) before the end of the period of three months beginning with the effective date of termination or (b) that within such further periods that a tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.”

So in this case there are two periods to be considered: the three months starting from the date of dismissal and the, in effect, three-week period which elapsed thereafter. So far as disability discrimination is concerned the provision is largely the same but not exactly so. The Disability Discrimination Act 1995, schedule 3, provides as follows:

“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 is considered that it is just and equitable to do so.”

The difference between the two statutory provisions is that, for disability, the out of time test is whether it is “just and equitable” to admit the claim, whereas for unfair dismissal it is whether it was “reasonably practicable”. In the present case, in the end, Mr Ali accepted that although the disability test might be wider, it would not make any difference.

There is no dispute but that this court can only disturb the decision below if there is an error of law; see section 21(1) of the Employment Tribunal’s Act 1996. It was therefore incumbent on Mr Ali, as he well recognised, to identify the error of law which was made originally by the Employment Tribunal. He did so; he said that the tribunal made two errors of law. Firstly, it rejected uncontradicted medical evidence without good reason and, secondly, it allowed the absence of his client at the hearing or at least the absence of any evidence from his client to dominate the decision making process. In effect he was submitting that one or other or both of these errors are so serious that the decision of the tribunal was perverse, one that no reasonable tribunal could reach.

The principal medical evidence relied upon was from a Dr Jolly, who had been the treating doctor of the appellant. He wrote a short letter that was before the tribunal; it is written to the solicitors for the appellant. It says as follows:

“Thank you for your letter of 20 August 2004. I am afraid that I am unable to prepare a full psychiatric report on Mr Chouafi by 27 August 2004. I can confirm however that Mr Chouafi was admitted to Charing Cross Hospital under my care on 30 January 2004 to 9 March 2004. At the time he was suffering from a severe depressive disorder with some psychotic features. Thereafter he has been followed up regularly in the outpatient clinic. In my opinion his mental disorder, Depressive Disorder, was of such degree in longevity as to preclude him against appealing against the dismissal decision within 14 days and further to render him unable to seek legal advice on making a claim within the time limit of three months, less a day, from his dismissal on 21 January 2004.”

We do not know exactly what question Dr Jolly was asked because the letter of 20 August 2004 was not exhibited. We do not know quite what Dr Jolly thought was necessary for Mr Chouafi to seek medical evidence. All we have and all the tribunal had is this short opinion. Mr Ali points out that it is backed up other medical evidence, for instance the evidence of a letter of Dr Patel, who was the bus company’s doctor who had examined Mr Chouafi, and the documents from the social worker. Neither of these really add anything to the letter of Dr Jolly.

The tribunal also knew that the appellant had written two entirely coherent and rational letters about his pension shortly after his discharge from hospital, made within the three-month period that he could apply to the Employment Tribunal as of right. Whether Dr Jolly knew about those letters, the tribunal was not told.

I have I think fairly summarised all the evidence which was put before the tribunal, and it was upon that evidence that it reached a decision. It began by considering the unfair dismissal time period and no complaint is made of its approach at the outset. What is said is that it so wrongly assessed the evidence and that no reasonable tribunal would have come to the conclusion that it did. Its reasons are set out in paragraph 4, 5 and 6. The key parts read as follows:

“It was accepted by both parties that during the period 30 January 2004 to 9 March 2004, whilst the applicant was in Charing Cross Hospital, it would not have been reasonably practical for him to lodge his application with the tribunal or take legal advice. However the tribunal were presented with no factual evidence as to the applicant’s condition or state of mind following his discharge from hospital and during the period when he was outpatient. We were pointed to a discharge letter, dated 9 March from the Charing Cross Hospital, which indicted a list of several drugs that had been prescribed for the applicant. Again the applicant representative was unable to present us with any evidence of the effect of these drugs and the applicant’s medical conditions or as to any side effects of these drugs. Mr Ali referred us to a letter from the applicant’s consultant psychiatrist, Dr Jolly, dated 24 August 2004. In this letter Dr Jolly gives his opinion that the applicant’s condition was such that it would not preclude him from appealing against the dismissal decision within 14 days [shortly after he had been dismissed and an internal appeal] and would render him unable to seek legal advice on making a claim within the time limit of three months from his dismissal on 21 January 2004. That may well be Dr Jolly’s opinion, however no evidence was available from the applicant as to his state of mind during this period, nor does Dr Jolly’s letter explain why the applicant was able to on 18 May to take legal advice when he would apparently be unable to do so on 20 April 2004.”

I can see no fault in that reasoning. The tribunal have taken into account Dr Jolly’s opinion. They are not dismissing it or considering it of no weight. They are taking it into account as one of the factors they must make in their own assessment, an assessment that was for them and not for Dr Jolly. The tribunal then went on to refer to the two rational letters I have mentioned. The tribunal points out that if the applicant had been there he could have explained how he was in a position to write these rational letters but not in a position to give rational instructions to a solicitor. That seems to me to be an entirely fair point, the sort of weighing job which a tribunal of this kind must do.

Mr Ali’s second point, namely that the tribunal supposedly paid too much attention to the fact that the applicant was not present, seems to me to without foundation. The tribunal was not saying that his application to the tribunal should not be admitted out of time because he did not turn up to the hearing; it was saying because he did not turn up to the hearing a whole lot of matters which could have been proved were not proved or were left completely unexplained. That is part of the rational weighing process of a tribunal of this kind again.

There may be an explanation as to why, for example, he was in a position to write the letters that he did but was unable to give instructions to a lawyer. He may have been in a position to explain why he was in a position to give instructions when he did on about 20 May but not before, but he did not. The tribunal has to, in the end, make up its mind as to whether a case for admitting a claim out of time is made out. If an applicant does not make it out and a tribunal is left in a complete state of doubt, the decision must follow from that. That is all that I think happened in this case.

I have some sympathy indeed with the appellant’s medical condition but I do not think he established that it was by reasons of his medical condition that the claim could not be brought before the time that it was or, to be more precise, that he established that the decision of the Employment Tribunal to that effect was perverse.

I would dismiss this appeal.

LADY JUSTICE SMITH: I agree.

LORD JUSTICE AULD: I also agree. The appeal is therefore dismissed.