Department of Constitutional Affairs v Jones

The discretion to extend the time for a disability-discrimination complaint is wide, but an extension is exceptional. The claimant must show that, in all the circumstances, it is just and equitable to extend time.

The Keeble factors are useful, non-exhaustive guidance. Their relevance depends on the facts, and a tribunal need not address a factor which is not pertinent to its factual findings.

A claimant’s genuine inability, because of mental illness, to acknowledge a disability may justify a short extension when combined with other material circumstances. It does not create any general entitlement for claimants with mental-health problems to delay a claim.

The respondent, a magistrates’ courts chief executive, was dismissed following disciplinary proceedings conducted while medical evidence stated that he was unfit to attend. He presented timely claims for unfair dismissal and breach of contract, but did not present a disability-discrimination complaint until July 2005.

The Employment Tribunal held that the disability complaint was out of time but extended time under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995. The Employment Appeal Tribunal dismissed the Department’s appeal. The Department appealed to the Court of Appeal, challenging only the extension of time.

1. Appeal dismissed. Pill LJ, with whom Lloyd LJ and Lewison J agreed, held that the Employment Tribunal was entitled to extend time for the disability-discrimination complaint.

2. Paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995 conferred a wide discretion. However, following Robertson v Bexley Community Centre [2003] EWCA Civ 536, time limits are applied strictly. An extension is the exception, and the claimant must satisfy the tribunal that it is just and equitable. An appellate court may interfere with the exercise of that discretion only for an error of principle or where the decision is plainly wrong.

3. The Keeble guidance was not a rigid checklist. The tribunal had considered the relevant matters: the modest delay, the limited effect upon the cogency of evidence, the overlap with the timely unfair-dismissal claim, and the prejudice to the Department. It was entitled to regard promptness and the obtaining of legal advice as not separately pertinent after making its central factual finding.

4. The tribunal conscientiously found that the respondent had genuinely been reluctant to accept that his mental illness amounted to a disability. The disciplinary process had been accelerated so that his dismissal, and thus the limitation period, occurred while he was medically unfit and before he was ready to acknowledge that status. That finding, together with the uncertainty whether the condition would satisfy the statutory long-term requirement, the Department’s own challenge to disability, and the respondent’s other misfortunes, justified the modest extension. The court stressed that mental-health problems do not ordinarily entitle a claimant to delay; the result depended on this combination of facts.

• Court of Appeal (Civil Division) — dismissed the Department’s appeal and upheld the extension of time: [2007] EWCA Civ 894.
• Employment Appeal Tribunal — dismissed the Department’s appeal from the Employment Tribunal on 24 November 2006.
• Employment Tribunal, Shrewsbury — held the disability-discrimination complaint out of time but extended time under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995 on 22 May 2006.