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Court of Appeal deprecates tribunal's reference to commentary on extension of time.
In Chief Constable of Lincolnshire Police v. Caston the Court of Appeal has stressed that whether it is 'just and equitable' to extend the time limit for lodging a claim is a question of fact and judgement for the tribunal. Commentary suggesting that tribunals should adopt a 'liberal' approach to the discretion to extend time was potentially misleading and in any event should have been irrelevant to the employment judge's decision.
On 28 March 2008 C lodged various claims, including that the police force had failed to make reasonable adjustments to accommodate her disability. It was established before the tribunal that C had made a decision to reject the adjustment proposed by the police force shortly after it was offered on 10 November 2007. Time therefore started running from this date, which meant that her claim had been lodged outside the normal three-month time limit. The tribunal considered whether it would be just and equitable to extend the time limit under para 3(2) of Part 1 of Schedule 3 to the Disability Discrimination Act 1995. In concluding that such an extension was just and equitable in light of C's mental problems, the employment judge made reference to the view expressed in a publication entitled 'Employment Court Practice 2007' (ECP) that 'courts have adopted a liberal approach to the extension of time'. The police force appealed, arguing that the tribunal had unlawfully exercised its discretion because it had applied a 'liberal regime' instead of a strict one. Although the EAT agreed that ECP did not accurately state the law, it held that the employment judge had reached a decision that was open to him on the evidence and that the reference to ECP did not mean that he had adopted a wrong approach in law. The police force appealed to the Court Appeal.
The Court of Appeal dismissed the appeal. In the Court's view, when considering if a tribunal was entitled to find it just and equitable to extend time, the question to be asked is whether there was material on which the tribunal could properly exercise its discretion. The tribunal had made findings of fact that, because of her mental ill-health, C had misled her solicitors about the facts needed to establish when time started running. The tribunal's finding that this constituted an exceptional circumstance making it just and equitable to extend time was one open to it on the facts. Different judges may exercise their discretion differently, but it is irrelevant whether the employment judge in question thought he was being liberal or not. The ECP's use of the term 'liberal' was at best a distraction, at worst misleading, but in any event it was irrelevant.
The Court went on to note that the Court of Appeal's decision in Robertson v Bexley Community Centre (Brief 740), to which the tribunal referred, is 'an elegant repetition' of the principles relating to the exercise of judicial discretion. Although Lord Justice Auld there noted that time limits are enforced 'strictly' in employment cases, his judgment emphasises the wide discretion afforded to employment tribunals and the narrow scope for interference from the EAT and appeal courts. Lord Justice Sedley noted that in certain fields, such as the lodging of notices of appeal at the EAT, policy has led to a consistently sparing use of the power to extend time limits. However, this has not happened, and ought not to happen, in relation to the discretion to extend the time in which to bring tribunal proceedings, which should remain a question of fact and judgement for individual tribunals.