DISABILITY DISCRIMINATION

Baynton v South West Trains Ltd

EAT: Judge Burke QC, Mrs M V McArthur and Mr D Welch: 22 June 2005

The claimant was dismissed by his employers for reasons of ill-health. The decision to dismiss was upheld on appeal, and, when the claimant's trade union requested the employers to reconsider that decision in the light of further medical evidence, the dismissal was confirmed. The claimant made a claim of disability discrimination contrary to section 5(2) of the Disability Discrimination Act 1995, relying on the employers' failure to make reasonable adjustments pursuant to section 6 both prior to and including the employers' refusal to revoke the decision to dismiss, but due to an oversight of the part of the union's secretarial staff the claim was presented two days after the expiry of the three months, prescribed by paragraph 3(1) of Schedule 3 to the Act, for making the complaint, in so far as it related to the initial decision to dismiss. An employment tribunal concluded that the post-dismissal refusal to revoke the dismissal was a separate episode and there was no "act extending over a period" for the purposes of paragraph 3(3)(b) of Schedule 3 and that, in relation to that refusal, the duty under section 6 did not apply to the claimant as a dismissed employee. The tribunal further held that an oversight by a secretary was an insufficient ground on which to exercise its discretion to extend the time limit for bringing the claim, and the claim was dismissed as being out of time.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) The finding by the employment tribunal that the employers' refusal to revoke the claimant's dismissal was not part of the dismissal process but an extraneous act unconnected with what had gone before was not one with which the appeal tribunal could interfere on the basis of an error of law. Accordingly, that refusal was not the last episode in an "act extending over a period" within paragraph 3(3)(b) of Schedule 3 to the Disability Discrimination Act 1996 and the complaint was, prima facie, out of time.
(2) That discrimination contrary to section 5(2) of the Disability Discrimination Act 1995 might arise after the termination of employment depending on whether the facts alleged were sufficiently proximate to and not too remote from the employment relationship. But, since there was no contractual or other entitlement to further consideration of the dismissal, once the claimant had exhausted all the appeal procedures there was no sufficient proximity to give the tribunal jurisdiction. Moreover, the duty under section 6 to make reasonable adjustments did not arise where the complaint was one of dismissal, and, accordingly, section 6 did not apply to a request by a former employee to his ex-employer to reconsider a decision to dismiss after the employment had terminated.
(3) In considering whether to exercise its discretion under paragraph 3(2) of Schedule 3 to extend time on the ground that it would be just and equitable to do so, the tribunal had failed to balance the absence of any real prejudice caused to the employers by the two-day delay against factors pointing in the other direction and had erred in visiting the failure of the claimant's adviser to act so that the proceedings were commenced in time on the claimant; and that the case would be remitted for reconsideration of whether it would be just and equitable to permit the claimant's claim to proceed in so far as it related to matters arising before the termination of his employment.

The appeal was allowed.

Appearances: Katherine Newton (Thompsons) for the claimant; Lydia Seymour (Kennedys) for the employers.