Chouafi v London United Busways Ltd.

When deciding whether to extend the statutory time limit for an employment claim, the tribunal must assess all the evidence and decide for itself whether the relevant statutory test is met. Medical opinion is an important factor, but it does not determine the issue. The tribunal may weigh it against the claimant’s conduct, documentary evidence and unexplained inconsistencies. A claimant’s absence from the hearing is relevant insofar as it leaves potentially material matters unproved or unexplained. An appellate court may interfere only for an error of law, including perversity. Where the evidence leaves the tribunal in genuine doubt about whether the claim could reasonably have been presented in time, the claimant has failed to establish the basis for an extension.

The claimant, a bus driver, was dismissed on 21 January 2004 because of his medical condition. He later brought complaints of unfair dismissal and disability discrimination outside the primary three-month limitation periods. The Employment Tribunal accepted that it was not reasonably practicable for him to present a claim while he was an in-patient, but refused to extend time for the subsequent period. It relied on the limited medical evidence, the absence of evidence from the claimant, and two coherent letters written after his discharge.

The Employment Appeal Tribunal upheld that decision. The claimant appealed to the Court of Appeal, alleging that the tribunal had irrationally rejected uncontradicted medical evidence and had allowed his absence from the hearing to dominate its assessment. The central issue was whether the tribunal’s refusal to extend time disclosed an error of law or was perverse.

1. Appeal dismissed unanimously. The Employment Tribunal had applied the correct statutory approach, and the Employment Appeal Tribunal was right to uphold its decision.
2. Under section 111 of the Employment Rights Act 1996, the tribunal had to decide whether it was reasonably practicable for the unfair-dismissal complaint to have been presented within the primary three-month period. The disability-discrimination test under Schedule 3 to the Disability Discrimination Act 1995 was wider, being whether it was just and equitable to admit the claim, but the claimant accepted that the difference made no practical difference in this case.
3. The tribunal was entitled to take Dr Jolly’s opinion into account without treating it as determinative. The assessment was for the tribunal. It was entitled to consider the absence of evidence about the claimant’s condition after discharge, the two rational pension letters written during the relevant period, and the unexplained ability to obtain legal advice on 18 May while allegedly being unable to do so earlier.
4. The claimant’s absence from the hearing was not treated as an independent reason for refusing an extension. It mattered because evidence which might have explained those matters was not given. That was a rational evidential assessment.
5. On the material before it, the tribunal could reasonably conclude that the claimant had not established that his medical condition prevented a timely claim. The Court of Appeal could intervene only for an error of law under section 21(1) of the Employment Tribunals Act 1996, and perversity had not been shown. The appeal was dismissed.

1. Court of Appeal (Civil Division) — [2006] EWCA Civ 689: appeal dismissed.
2. Employment Appeal Tribunal — decision dated 5 September 2005: upheld the Employment Tribunal’s decision.
3. Employment Tribunal — decision dated 6 October 2004: refused to admit the out-of-time complaints.