ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE RICHARDSON)
Cardiff Civil Justice Centre
Park Lane
Cardiff, CF10
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE LLOYD
MR JUSTICE LEWISON
DEPARTMENT OF CONSTITUTIONAL AFFAIRS
Appellant/Appellant
-v-
JOHN GRANT JONES
Respondent/Respondent
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MR PAUL GOTT (instructed by Treasury Solicitors, London WC2B 4TS) appeared on behalf of the Appellant
MR NIGEL GRUNDY (instructed by Mr J F McMahon, The Old Blue Bell, 17 West Street, Moulton, Northampton NN3 7SB) appeared on behalf of the Respondent
J U D G M E N T
LORD JUSTICE PILL: This is an appeal by the Department for Constitutional Affairs, now the Ministry of Justice, against a decision of the Employment Appeal Tribunal handed down on 24th November 2006, His Honour Judge Richardson sitting alone. The judge dismissed an appeal by the Ministry from a decision of an Employment Tribunal held at Shrewsbury, the Chairman sitting alone, and handed down on 22nd May 2006. The judgment of the Chairman was: (1) the amendment presented on 5th July and the discrimination disability complaint presented on 15th July 2005 were presented out of time; (2) the tribunal extends time under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995 for the hearing of the substantive Disability Discrimination Act 1995 complaint; (3) the claimant had a disability as defined in section 1 of the 1995 Act in respect of that complaint.
The issue is as to whether the extension of time should have been granted. There is no challenge before this court to the finding of the Chairman that the claimant, Mr JG Jones ("the respondent"), had a disability.
The respondent had been appointed chief executive of the North Wales Magistrates' Courts Committee ("the committee") in 1995, having commenced employment as a justices' clerk in 1977. He had been awarded an OBE for his services to magistrates' courts.
The respondent was suspended from work on 28th July 2004 because of allegations of serious financial irregularities. In September 2004 he was diagnosed by his general practitioner as suffering from anxiety and depression. An investigation interview was cancelled because of that medical condition and rescheduled for a date in October 2004. On 2nd October he broke his leg. He did not attend the October investigating interview because of his medical condition. On 18th October the committee established a grievance sub-committee and disciplinary sub-committee. The respondent requested that matters be put on hold while the grievance was dealt with. He was told that there would be disciplinary and grievance hearings on 22nd November 2004. Dr Evans supplied a certificate that the respondent was not fit to attend the hearing on that date because of a depressive illness and a broken ankle. The committee obtained its own medical advice and Dr Oliver came to the same conclusion. The hearings were postponed until 14th January 2005.
Before that date both Dr Evans and Dr Oliver, for the committee, reported that the respondent was unfit for interview and/or discipline. On 8th January 2005 Dr Carter diagnosed severe depression and severe anxiety, and recommended that the respondent should refrain from doing work in connection with the committee and with his suspension. Dr Evans expressed a similar opinion in relation to unfitness to attend hearings.
On the respondent's behalf, solicitors requested the adjournment of the hearings. The respondent's wife made a similar request by letter. The hearings nevertheless took place in late January 2005. It was found that the respondent had been guilty of gross misconduct and he was dismissed.
The respondent lodged an appeal against that finding. The first appeal date in January was adjourned. A further adjournment was sought, but the appeal hearing proceeded on 28th February 2005 in the absence of the respondent. The appeal was unsuccessful.
On 21st March the committee reported the respondent to the Law Society. On 4th April the police, having been notified of the finding, raided the respondent's home where he was present with his wife and two children.
The committee ceased to exist on 31st March 2005 and was succeeded for present purposes by the Department for Constitutional Affairs. The first of the respondent's claims to the Employment Tribunal was made on 8th April 2005. It alleged unfair dismissal and breach of contract. On 2nd June a complaint was made of unlawful deductions from wages and breach of the Working Time Regulations.
On 5th July 2005 an application was made in relation to disability discrimination. That was made both by fresh application and by application to amend the earlier claims. That distinction is not material for present purposes. There was a subsequent claim for pension loss which it is accepted is parasitical upon the disability discrimination claim, and there has also been a subsequent claim for victimisation and harassment.
It is submitted by the appellants that the disability claim was out of time. That is not disputed. It is further submitted that an extension of time should not have been granted. Schedule 3, Part I of the 1995 Act provides:
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.
A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
There is no need to refer to sub-paragraph (3).
It is common ground that the period of three months began to run on 1st March 2005. Disability is defined in section 1 of the 1995 Act:
"... a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
Paragraph 2 of Schedule 1 to the Act provides:
"2(1) The effect of an impairment is a long-term effect if -
it has lasted at least 12 months;
the period for which it lasts is likely to be at least 12 months; ..."
The test to be applied in circumstances such as the present was stated in this court in Robertson v Bexley Community Centre [2003] EWCA Civ 536. In a judgment (with which Chadwick LJ and Newman J agreed) Auld LJ stated at paragraph 24:
"The Tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision. If authority is needed for that proposition, it is to be found in Daniel and Homerton Hospital Trust (unreported, 9th July 1999, CA) in the judgment of Gibson LJ at page 3, where he said:
'The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong.'"
The claim in Robertson was a claim of racial discrimination. At paragraph 25 Auld LJ said:
It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the Tribunal below plainly wrong in this respect."
In Robertson the Employment Appeal Tribunal had overturned the Employment Tribunal's decision on its exercise of discretion. In this court the appeal was allowed and the decision of the Employment Tribunal reinstated.
On behalf of the appellants, Mr Gott submits that the Chairman failed to take relevant matters into account. He further submits that the Chairman's decision was perverse in the circumstances. The need for an extension of time arose because the respondent was not prepared to accept that he was disabled. The general submission is that if a person who is mentally capable makes a decision not to bring a claim within time, he is bound by it. If he ignores advice given to him, then he must take the consequences of delay. It would, it is submitted, be to drive a coach and horses through the protection to which employers are legitimately entitled if a person who is advised that he is disabled but nevertheless fails to bring a claim within three months were permitted to do so subsequently.
Before summarising the submissions made more fully, I refer to the decision of the Chairman which has to be considered in some detail. There is no doubt that the chairman had well in mind representations which had been made on the respondent's behalf before he was dismissed. Reference is made at paragraph 13 of the decision to a letter written by Eversheds solicitors, whom the respondent had consulted, to the appellants. In that letter it was stated:
"We have advised our clients that given his medical position it is likely that he has a 'disability' as defined by the DDA 1995 and that as such not only does MCC [have] a duty not to unlawfully discriminate against him but also has a duty to make reasonable adjustments."
The respondent's union also wrote a letter. That was on 21st January 2005:
"If John is dismissed in light of the disciplinary hearing he will have clear and substantial claims for unfair dismissal, disability discrimination, breach of contract, redundancy payments, statutory and contractual, and loss of pension rights."
The chairman also noted that Mrs Jones, who like the respondent is a solicitor, wrote to the disciplinary panel on 23rd January. In the course of the letter she stated:
"... John is suffering from a disability under the terms of the Disability Discrimination Act."
Not specifically mentioned in the chairman's decision is a paragraph in the appellants' original statement on which reliance is placed by Mr Gott. Paragraph 24:
"The Claimant is a solicitor. He is married to a solicitor (who as his representative asserted that he had a claim under the DDA in January 2005). He employed the services of Eversheds who likewise advised him in January 2005 that he had a DDA claim, but he chose to ignore this. He used the services of his union Prospect, who were of the same view, again in January 2005. The Claimant's failure to bring his claim before July 2005 was not a decision made in ignorance of the DDA, but in full knowledge of it. Any exercise of the discretion of the Tribunal to permit the Claimant to bring a DDA claim would, with respect, be perverse."
That has been the case consistently put forward on behalf of the appellants. There is no doubt that it was well in the mind of the Chairman.
The Chairman commented on the relevance of the committee ceasing to exist on 31st March 2005. He stated that the committee:
"... does not shy from the fact that they wished to complete the disciplinary procedure, including the appeal, before [that date]:
'The panel was conscious of the fact that if the matter was not resolved prior to the creation of the unified court service on 1 April 2005 on which the date the claimant's role in the MWMCC would cease to exist, it would not then be possible to pursue disciplinary proceedings further as the claimant would no longer be employed after that date. If this scenario occurred then the claimant would have been entitled to compensation payments in accordance with the agreed scheme and would have been entitled to damages in respect of his long notice period. However, the panel was of the view that it would clearly undermine confidence in a public body responsible for the administration of justice if it were known that its chief officer had received such significant payments from the public purse at a time when serious allegations of gross misconduct were outstanding against him."
The Chairman commented:
"The timing was thus critical for the respondent."
The Chairman referred to the case of Robertson and the case of British Coal Corporation v Keeble [1997] IRLR 336, to which reference will be made later.
The Chairman was plainly uneasy about the decision which had to be made, which was found to be a difficult one:
However, there have been times during this three-day hearing when I have felt very uneasy about the possibility of this having occurred in this case. The only oral evidence, on the time points, was given by Mr Jones and Mrs Jones. I specifically questioned Mr Jones, myself, on two points. He replied that he had been unaware of the fact that the DDA claim could lead to uncapped compensation, as distinct from an unfair dismissal claim (£55,000). He also said that at no stage had he consciously and expressly declined or refused to go ahead with a disability discrimination claim, when that option had been explicitly raised with him."
The Chairman cited the written statement of the respondent:
At the outset I simply claimed unfair dismissal. That was in the middle of April not long before the end of the three month period following my dismissal. At that time it was difficult for me to give instructions to my solicitors. Arrangements were made for him to receive all the paperwork from Malcolm Marsh. He went through the papers and drew up the unfair dismissal claim but no claim for disability discrimination was put in because at that time I did not want to accept that status in the sense of it being long term. In January 2005 Dr Carter had put the opinion that my continuing treatment would provide a remedy and get me back to good health. I was fifty nine years of age. I had worked for over thirty years in the local magistrates courts in the most senior position. I was well known in the local community. I was reluctant to have the label of disability particularly on the basis of mental illness.
But three months after submitting my unfair dismissal claim my doctors could see that my condition was getting no better. By then I had been ill with mental illness for almost a year. I then accepted that I was probably a person disabled for the purposes of the Act and so the disability discrimination claim was submitted."
The Chairman commented:
"I find the claimant's oral replies to myself, and the contents of this witness statement extremely hard to reconcile."
The Chairman went on consider the letters, already cited, from the union, the solicitors and Mrs Jones, all three specifically mentioning disability discrimination. He repeated that the situation made him uneasy:
"It is one of the hard factors in this case that the difficulty of determining whether the disability was likely to last for twelve months and whether it is just and equitable to extend time have intermeshed in a complex way, and it has been difficult to find clear evidence, from the claimant, on which to base the ultimate decisions."
The Chairman considered the conduct of the committee in conducting the appeal hearings in the respondent's absence. He considered the history of the mental illness. He referred to the several problems which the respondent had at the relevant time:
In the New Year's Honours 2004, he was awarded the OBE in recognition of his service to the Magistrates Courts. Subsequent to his dismissal in January the respondent submitted an application to the Honours Unit with a view to forfeiture of that honour."
Later in the paragraph:
"In the claimant's eyes the worst event was when the police raided his home while he was there with Mrs Jones and their two children. The police had a search warrant. They took computers away with them. That was in the early evening of 4 April, coincidentally just before his unfair dismissal claim was presented to the Tribunal."
The Chairman referred to the Law Society proceedings. He concluded:
"It is clear from his [the respondent's] evidence at the hearing that these three incidents have taken a heavy toll on his mental state. I am bound to accept that as a fact. He frequently returned to them, alluding to them several times, but mostly to the police incident on 4 April."
Reference was made to the fractured ankle, which the Chairman said "obviously aggravated his depression".
Following further analysis, the Chairman stated at paragraph 36:
"I accept that Mr Jones has been genuinely reluctant to acknowledge the existence of a disability based on mental impairment."
At paragraph 38 he stated:
"Claim number (3) the disability discrimination claim has been defended very fully by the respondent, in their Response, not only on these procedural grounds and on the grounds that the claimant's disability, if it was such, was not long term in order to qualify. On that basis I consider it would be just and equitable to extend time for claim number (3), the Disability Discrimination Act claim."
The Chairman again referred to Keeble and stated:
"The question of making reasonable adjustments can be a more refined question than whether it was procedurally fair to carry on with the disciplinary hearing despite medical evidence that the claimant was not fit at the time but could have become fit, but not until after 31 March. If the respondent had found a way to accede to that request to delay the disciplinary procedure, but not until the claimant was fully recovered, and still unfit to attend, I consider it is likely that a full claim for disability discrimination would have been presented in the first place, well within time. By then the claimant would then have been more inclined to accept his condition. At the time of the presentation of claim (1) [that is the unfair dismissal] the claimant, and his advisors, were thinking in terms of his mental state as being an effect rather than a cause of the disciplinary measures taken against him, (hence the mention of a claim for personal injuries in claim (1))."
The Chairman then expressed his conclusions:
This has, as I mentioned, been a very difficult decision to make because I remain uneasy about the circumstances in which Mr McMahon [that is the respondent's solicitor] did not mention a Disability Discrimination Act complaint in the first claim. If the claimant was really that unwilling to acknowledge his state as a disabled person why did three people put forward correspondence in January specifically citing the Disability Discrimination Act? True, the claimant had a distant relationship with Eversheds who had been instructed by his friend, Malcolm Marsh. True, the claimant had a relatively distant relationship with Mr Alan Leighton [the union representative] whom he never met and with whom he had only corresponded by email and telephone calls. But when one of the three people is his own wife, who was with him throughout, it is surprising. I spent much of the hearing wondering if the reason put forward by the claimant, and on his behalf, was in fact a genuine reason. But that is all subject to legal professional privilege and could not be probed further than it was. The problem then was that the only witness is a witness who puts himself before the Tribunal as a person whose memory and concentration is substantially impaired. From his evidence it was hard to find conclusive facts one way or the other, other than that he has been generally exhibiting classic symptoms of depressive illness in his daily life, which is supported by medical evidence, and not really contradicted. I do, however, accept as true that the claimant was reluctant to acknowledge that he was so mentally ill as to be 'disabled'. That is neither uncommon nor surprising.
What has finally persuaded me to exercise my discretion in the claimant's favour is that it would seem to be a double disadvantage for him to have been dismissed before he was ready to attend the proceedings. This set a time limit running which expired before he was ready to admit to himself and others that he was a person with a disability. This is what I consider makes the case an exception to the general rule (Robertson). Even if I were right in my uneasy suspicion that Mr McMahon had simply missed the point in April, the claimant's reluctance to admit to disability was a strong factor in this."
Reference was made to other considerations which always apply when extensions of time are required, before the Chairman stated at paragraph 45:
"Taking a broad view I consider it would not be just or equitable for this claim not to be heard."
The Chairman then referred, at paragraph 47, to what he described as the Keeble factors. It is more convenient to read that paragraph when considering the appellants' submission on that point.
In my judgment what emerges from the Chairman's decision is, first, that he was very conscientious in his approach to the evidence. He was frank in the difficulty he faced and the doubts he expressed, and he clearly had agonised (the word used in the course of argument) before reaching the decision he did.
Secondly, the reason for his decision is a plain one. It is that stated in the last but one sentence of paragraph 43 and again in paragraph 44. The respondent was reluctant to acknowledge that he was so mentally ill as to be disabled. The dismissal set a time limit running, which expired before he was ready to admit to himself and to others that he was a person with a disability. The double disadvantage (to which the Chairman referred in paragraph 34) is, first, that because of his ill-health the respondent was unable to appear at the disciplinary hearings. Secondly, the appellants' insistence on proceeding with them before 31st March and while the respondent was, on their own medical evidence, unfit to attend meant that time began to run a good deal sooner than it otherwise would and, I would add, than would normally have been expected in circumstances such as these. The reason for expediting the proceedings has been stated. I do not criticise it as such, but it did represent a disadvantage to the respondent, for the reasons given by the Chairman.
The Employment Appeal Tribunal upheld the decision of the Chairman. Reference was made to possible confusion in the Chairman's reasoning. It was stated that the reasoning was discursive in nature and would have been easier to follow if the judgment had been structured more carefully. However, the Employment Appeal Tribunal added, and entirely justifiably in my view, at paragraph 61:
"Speaking for myself, I regard the Chairman's reasoning as dealing openly with what he regarded as a difficult issue of fact for him to determine."
I echo that approach. As I have said, the Chairman's decision shows every sign of having been conscientious, of having weighed the evidence very carefully and having taken the correct test into account.
I have referred to Mr Gott's general submission on behalf of the appellants. The respondent, it is submitted, had a responsibility for 200 employees, and deliberately and consciously made the decision not to make a claim under the 1995 Act. He did so notwithstanding the medical advice he had received, and the advice which he must have received from solicitors and his union, as well as his wife, because of the terms in which they wrote to the appellants.
Criticism is made of paragraph 38 of the Chairman's decision, which I accept on one reading would involve a finding that it was the full defence of the claim by the appellants that was the "basis" for the decision. However, having regard to the detailed statement of evidence, and of reasons, in my judgment it cannot be right that the Chairman approached the case in that way. He regarded it as a factor that the case for the appellants had been fully put, hence an inference may be drawn that the prejudice to them was insubstantial, but I reject the submission that, in using the expression "on that basis", that factor was crucial to the Chairman's decision. (There has been some dispute in the course of the hearing as to the sequence of events in relation to pleading. The case for disability discrimination had not been fully put, either in original claim or at the time of the Chairman's decision, and good practice requires that it be put. Only after that decision have further points been made which will involve further enquiries by the appellants because of adjustments which it is now claimed they should have made.) In my judgment, the Chairman had this point in mind, but no more than in mind. It was not one he treated as crucial.
The Chairman had in mind questions which customarily are relevant in circumstances such as this. The extent of the delay: it was not a substantial delay in this case. The prejudice to the appellants: there was prejudice, in that if the disability claim can proceed, potential damages are very much greater than the limit which would otherwise have applied. That too was a point which the Chairman had in mind.
A point strenuously argued by Mr Gott is as to the Chairman's treatment of the factors stated in the decision of the Employment Appeal Tribunal (Smith LJ presiding) in Keeble. That statement was under a different statutue, but plainly the Chairman found it relevant in his consideration of the issues. Smith LJ stated, having referred to section 33 of the Limitation Act 1980:
"That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances and in particular, inter alia, to -
the length of and reasons for the delay;
the extent to which the cogency of the evidence is likely to be affected by the delay;
the extent to which the party sued had cooperated with any request for information;
the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;
the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."
The Chairman dealt with it in this way, after he had expressed the general conclusions I have cited:
In considering the Keeble factors [and he had stated at paragraph 40 that he had considered the factors], Mr Gott rightly points out that factors 4 and 5 have not been dealt with by the claimant, but I can see why that might be. The factors are only examples. Not every factor applies in every case. I do not consider factors 4 and 5 to be pertinent on these facts. Factor 1 is prejudice. That I have dealt with in the above analysis. I should add that the extensive factual overlap with the timely unfair dismissal claim militates against prejudice to the respondent. The main prejudice to the respondent is that the stakes in the case are now much larger. Factor 2 is the length of delay and the reasons for it. I have dealt with both above but I should spell out that, on the shortest analysis, the delay is from the end of June to 5 July 2005; that is 5 weeks. Factor 3, is the effect of delay on the cogency of evidence. I consider this to be negligible, both because the delay is short and because the possible issue of disability was there in the respondent's mind at the time of the events themselves, and because they were always going to have to defend a timely unfair dismissal claim based upon the same facts as form the basis of the discrimination claim."
While it has been argued that the other factors have not properly been taken into consideration, I reject that and accept the reasoning of the Chairman. The stress of this submission has been upon the Chairman's finding that factors 4 and 5 are not pertinent.
I have no difficulty at all with factor 5. There is no doubt that the respondent had obtained legal advice. This is not one of those cases where the obtaining of advice has been deferred and that has to be taken into account as a factor. The advice was obtained and the submissions have been made on the basis of the advice that must have been given. That was a relevant factor to be considered in the overall assessment. However, the Chairman was entirely justified in saying that the obtaining of professional advice was not pertinent when the respondent had admitted that he had obtained legal advice.
As to factor 4, in a sense the whole case is about that because it is concerned with the promptness with which the claim has been brought. But in my judgment once the Chairman analysed the situation with the care which he analysed it and once he formed the conclusion, having already stated in paragraphs 40, he had taken the Keeble considerations into account, he was entitled to conclude that factor 4 was not a pertinent one. The paradigm case where factor 4 is important is where there is a plain disability and an applicant fails to take any action knowing of the disability. Here the entire issue was as to the state of mind of the respondent. The Chairman reached his central conclusion that the respondent was not able to admit to himself or to others that he was a disabled person within the meaning of the Act. On that analysis of the situation, it was not pertinent to consider factor 4 as a separate factor in the case.
The guidelines expressed in Keeble are a valuable reminder of factors which may be taken into account. Their relevance depends on the facts of the particular case. The factors which have to be taken into account depend on the facts and the self-directions which need to be given must be tailored to the facts of the case as found. It is inconceivable in my judgment that when he used the word "pertinent" the Chairman, who had reasoned the whole issue very carefully, was saying that the state of mind of the respondent and the reason for the delay was not a relevant factor in the situation.
The more general point made by Mr Gott requires, of course, careful consideration. The mischief which he contemplates, if his appeal fails, is that if it can be an exceptional reason, in the sense used by Auld LJ in Robertson, that an applicant would not acknowledge earlier that he was disabled, it would open a large door to delayed claims which the statute is anxious to avoid in the interests of justice. Where there is an obvious and substantial physical injury, the point will not arise. It may arise when there is a physical injury which is on the margin of being disabling as perceived, or where a mental condition arises.
The particular facts must, however, be considered. In my judgment, the Chairman was justified in reaching the decision he did in the present situation with the combination of circumstances present.
First, there is of course an additional factor in disability discrimination not present when some of the other discretions come to be exercised, and it is that the disability, to come within section 1, must be a 12-month disability as defined in the Act. The 12-month period involved did not expire until after the claim was brought, having regard to the date at which medical evidence first became available of ill-health. Any person with a mental condition has therefore to predict whether he is likely to come within the definition. Of course he can be expected to have regard to medical advice. But this was a respondent of mature years, with a very responsible job, who had expressed in his written statement, which the Chairman cited, the reasons why he did not want to admit to himself or to anyone else that he was not disabled within the meaning of the Act. Having given very careful consideration to the evidence, the Chairman concluded that that unwillingness on his part was the true reason for the delay which occurred.
Secondly, the appellants' own conduct must be considered. They did hurry the process of discipline. They did advance the date of dismissal and thereby the date by which a decision as to whether the respondent had a disability had to be made. They did that in their own interests, and it did have the disadvantage to the respondent which the Chairman accurately analysed.
The third factor is that the appellants themselves disputed that the respondent was a disabled person. In my judgment it is more difficult for them to claim that it was unreasonable for the respondent not to acknowledge his mental illness when they themselves were not prepared to acknowledge a disability. As the Chairman stated at paragraph 50 of his reasons, when considering the second issue before him, which was whether there was a disability:
"The respondent [that is the present appellants] makes two challenges under the definition. They challenge:
the substantial nature of the adverse effect; and
its long term nature."
That stance makes it more difficult for them to argue that it was not just and equitable for time to be extended in the modest way it has been in this case.
Fourthly, the Chairman was entitled to have in mind the series of misfortunes which the respondent suffered. Of course I make no judgment as to the merits of his treatment by the appellants. But from the police raid, to the broken ankle, to the knowledge that disciplinary proceedings were being conducted in an absence of his supported by the appellants' own doctor, factors were operating on his mind which make it more likely to be just and equitable that a modest extension of time should be granted.
On that combination of factors, and particularly the first, I have no doubt that the decision made by the Chairman was one he was entitled to make. I mention again the first point taken on behalf of the appellants that the decision not to bring the claim was a deliberate decision. That question has been considered by the Chairman, and he has expressed the basis on which he decided that an extension of time should be given.
I am far from stating any general principle that a person with mental health problems is entitled to delay as a matter of course in bringing a claim. What I am sure about is that upon the careful consideration given by this Chairman, he was entitled to reach the conclusion he did on the particular facts and combination of circumstances present in this case.
For those reasons, I would dismiss this appeal.
LORD JUSTICE LLOYD: I agree that the appeal should be dismissed for the reasons given by my Lord.
MR JUSTICE LEWISON: I also agree.
ORDER: Appeal dismissed with costs, to be assessed if not agreed.
(Order not part of approved judgment)