Appeal No. UKEAT/0306/12/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 28 January 2013
                                                                                Judgment handed down on 15 March 2013

Before
HIS HONOUR JEFFREY BURKE QC
MR M CLANCY
MRS M V McARTHUR FCIPD

MR D CYPRIEN	APPELLANT

BRADFORD GRAMMAR SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS RACHEL MELLOR
(of Counsel)
Instructed by:
Stachiw Bashir Green Solicitors
The Old Bank Building
656 Great Horton Road
Bradford
BD7 4AA	
For the Respondent	MR ANDREW WASTALL
(of Counsel)
Instructed by:
Lyons Davidson Solicitors
St Martins House
Britannia Street
Leeds
LS1 2DZ	

SUMMARY
DISABILITY DISCRIMINATION – Exclusions/jurisdictions
JURISDICTIONAL POINTS – Claim in time and effective date of termination

The Employment Tribunal found that the Respondent had failed to make two reasonable adjustments for the Claimant’s disability but that (1) the Claimant had not presented his claim within the primary time limit and (2) it was not just and equitable to extend time.

(1)	There was no deliberate act or omission on the part of the Respondent.  When did time begin to run in the case of a continuing negligent omission?  The answer to that question is – time begins to run from the point at which the employer can reasonably be expected to have taken the step which was omitted.  Matuszowicz v Kingston upon Hull Council (2009, Court of Appeal) followed.  The ET applied the correct test; and their application of the correct test to the facts was not said to be perverse.

(2)	The ET’s decision on extension of time contained no error or law; the high threshold for perversity had not been crossed.

Appeal dismissed.

HIS HONOUR JEFFREY BURKE QC
Introduction
1.	In this appeal the Claimant before the Employment Tribunal, Mr Cyprien, challenges the dismissal of his claims brought against his employers, Bradford Grammar School, that they had been guilty of disability discrimination towards him.  His claim of constructive unfair dismissal was withdrawn shortly before the hearing before the Employment Tribunal at Leeds, presided over by Employment Judge Lancaster.  In their judgment, sent to the parties on 2 April 2012, the Tribunal found that the Respondent had failed to make two reasonable adjustments for the Claimant’s disability but that the Claimant had not brought his proceedings within the prima facie three month time limit provided by schedule 3 of Disability Discrimination Act 1995 and that it was not just and equitable to extend time.  They therefore dismissed the claim so far as it was based on those adjustments.

2.	There was also a complaint of harassment which the Employment Tribunal rejected on the facts.  There is no appeal against that part of the Tribunal’s decision.

3.	The Claimant now appeals against the decision that the claims were out of time and that it was not just and equitable to extend time.  

4.	In this judgment we will refer to the Appellant as the Claimant, as he was below, and to the Respondent by that title.

The facts
5.	We take the history from the Employment Tribunal’s findings of fact.  The Claimant, then 53, was employed by the Respondent as a caretaker from June 2008.  The Tribunal found that he obtained that employment on the basis of a deliberately misleading application form and with references which were not genuine.  He thereby concealed from the Respondent that he had had a knee replacement operation in the previous year and, as a result, had had significant sickness absence.  On joining the Respondent a number of forms had to be completed; where questions related to his health or any disability, he left the boxes blank.  The Tribunal found, however, that in the first year or so of his employment no difficulties arose.  

6.	However, in September 2009 he began to experience problems with the other knee and had an arthroscopy; he was off work for about a month.  The surgeon diagnosed substantial degenerative deterioration of the knee joint which, the Claimant was told, was incurable; but on his return to work he had no knee problems until 15 December when his knee gave way under him as he climbed some steps.  As a result there was a meeting to risk-assess the Claimant’s position.  He was told that he should not lift heavy loads, should seek assistance when lifting and should take breaks.  The Claimant did not inform the Respondent that he was disabled or that he had an incurable condition.  

7.	In February 2010, the Respondent asked all employees to fill out new forms setting out their personal details, for HR purposes.  The Claimant on his form, dated 9 February 2010, said for the first time that he was now registered as disabled.  The Respondent conceded at the hearing that, if they had appreciated what the Claimant had written, they would have revisited the earlier risk assessment; but the forms were not checked, they were simply filed.

8.	On 24 June the Claimant went off work, claiming that that was the result of strenuous tasks in the course of his duties.  The previous night there had been a specific requirement for the night caretaker to move a large quantity of tables which had to be lifted on and off a trolley.  He was still away from work when summoned to a disciplinary hearing on 14 July; the Respondent had discovered what the Tribunal, perhaps somewhat blandly, called “the irregular application process”; but the Claimant resigned on 13 July, the day before the disciplinary hearing; and his employment came to an end as a result on 13 August.  By that time he had not returned to work.  

The Tribunal’s conclusions
9.	The Tribunal found, at paragraphs 18 to 21 of their judgment, that the deteriorating condition of the Claimant’s left knee, albeit not diagnosed until September 2009, had the effect that he was disabled within the meaning of that term in the 1995 Act.  However the Tribunal also found that the Respondents were unaware and could not be expected to have been aware of that disability until they received the Claimant’s form of 9 February 2010 in which he said that he was disabled.

10.	The Tribunal found, at paragraphs 21 to 26, that from 9 February 2010, when the Respondent knew or ought to have known that the Claimant was disabled, they were under a duty to make a reasonable adjustment by altering his work pattern so that he did not have to undertake the task of escorting children to the station which caused particular problems for the Claimant’s knee; and the Tribunal found that, from 24 June, the Respondent ought to have taken steps to arrange the Claimant’s work-load so that he did not have to undertake the lifting tasks which, on 24 June, had forced him to go off work.

11.	These findings are not now contested.  What has been, however, in the forefront of the contest before us is the Tribunal’s approach to the questions whether the Claimant’s claim in respect of the Respondent’s failure to make these two adjustments was in time or, if not, whether it was just and equitable to extend time.  The Claimant’s ET1 was presented on 13 October 2010; so far as the first of the two failures to make adjustments which we have described is concerned, the Tribunal found, at paragraph 22, that the duty to make that adjustment started from 9 February 2010 when they first knew or ought to have known of the disability; the difficulties caused by the Claimant’s child escort duties preceded that date but the duty to make adjustments in respect of them did not arise until the Respondent knew or ought to have known of the disability.  The Tribunal then, at paragraph 23, concluded that the failure of the Respondent to make that adjustment did not result from an act or a deliberate omission but from their negligent failure to read the form of 9 February and thereby to acquire the knowledge which they should have acquired from it.  The Tribunal found, therefore, that there had been no deliberate omission falling within paragraph 3(3)(c) of Schedule 3 of the 1995 Act from which they should calculate the prima facie period of three months within which a claim must be brought, “beginning when the act complained of was done”; as set out in paragraph 3(1).  They concluded that they had to consider, “when the time period expired within which they”(the Respondent) “could reasonably have been expected to do the omitted act if it was to be done” and that that was a question of fact for the Tribunal.  They concluded that, “at the most” i.e. on the most favourable basis to the Claimant, it must have been apparent that the action would reasonably have been taken no more than three months after 9 February, i.e. by May 2010.  Thus, the claim in respect of the first adjustment should have been made by August 2010 if it was to come within the primary time limit.

12.	The Tribunal found that the claim in respect of the second adjustment, which related only to the consequences of what happened on 24 June, should have been presented within three months thereafter: but the ET1 was not presented until 13 October.  Therefore the claim in respect of both adjustments was presented outside the primary three months limit.

13.	The Tribunal then considered whether it was just and equitable to extend time, at paragraphs 31 to 35 of their judgment.  Their decision can be summarised as follows: i) they directed themselves to have regard to the checklist of factors to be considered in the context of whether it was just and equitable to extend time limits set out in British Coal v Keeble [1997] IRLR 336; 2) they said that time did not begin to run until 24 June (although their earlier findings in relation to the first adjustment would indicate an earlier date, in May) and that the delay of three weeks was not great; but no reason for that delay had been put before the Tribunal; 3) the Claimant raised his complaints of discrimination for the first time in his resignation letter of 13 July; the reason why he did so then was to forestall the disciplinary process, to make the assertions that the Respondents were not seeking genuinely to investigate concerns as to the manner in which he had obtained his job but were trying to dismiss him because he was disabled and in order to create a foundation for a constructive dismissal case; 4) the cogency of the evidence would not be affected by the delay; the Respondents were not prejudiced as a result; 5) the Claimant did not act promptly when he knew of a possible cause of action.  His case was that he had been subject to discrimination from September 2009, but he had taken no steps to assert his claim either internally or externally until his resignation letter in July 2010; he was aware of the need to get a claim in promptly and did so in the case of his abortive constructive dismissal claim.

14.	Accordingly, the Tribunal at paragraph 35 said:

“So, although with some misgiving, given the failures by the Respondent to do what they should have done in this case, we can see no reason why it would be just and equitable to extend the time limit.  Time limits for Tribunal are short, there is no presumption that they will be extended.  There are factors that have to be considered and when we do consider them in this particular case we hold that the claim is out of time notwithstanding that it would in fact have had merit.  So the claim for disability discrimination is dismissed.”

When did time begin to run
15.	The Claimant’s first ground of appeal attacks the Tribunal’s conclusions on the basis that they erred in law in finding that the starting date for the three month period in which to put forward a claim was February 2010 and that that period ended in May 2010 or on 24 June; the Tribunal should have found, it was submitted, that that period had not expired until the Claimant’s employment came to end on 14 August 2010 - in which case, of course, his claims would have been in time.

16.	It is necessary to set out the relevant statutory provisions, namely paragraph 3 of Schedule 3 to the 1995 Act, in full.  That paragraph provides:

“3(1) 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.
(2) 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.
(3) For the purposes of sub-paragraph (1)
(a) where an unlawful act is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
	(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(4)	In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission.
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.”

17.	Both parties accept that the Tribunal were entitled to decide that there was no deliberate omission which must be treated as done when the Respondent decided upon it.  The Claimant’s case is put forward by Ms Mellor on his behalf on the basis that the Respondent’s negligent omission in relation to the first adjustment can, therefore, not be taken to have been completed in May 2010 or June 2010; the failure to adjust the Claimant’s duties so as to avoid the physical burdens involved in escorting the children to the station was continuing throughout the relevant period from February 2010 until the Claimant’s employment came to an end.

18.	For the sake of clarity we should add that this part of the appeal relates only to the first failure to make adjustments; Ms Mellor made it clear that she did not criticise the Tribunal’s approach to the primary time limit in respect of the second adjustment.

19.	Ms Mellor further submits that an argument based on the Claimant’s absence from work from 24 June - that the duty must have stopped then because he was no longer at work - or based on his resignation on 13 July cannot avail the Respondent in the absence of a finding that the Claimant would not have returned to work even if the adjustments to which we have referred had been made.

20.	On behalf of the Respondent Mr Wastall submits that the Tribunal correctly directed themselves in paragraph 23 and that, having done so, their conclusion as to when the three month period expired was a decision on fact which is not criticised as perverse and which should not be vulnerable to appeal.  The Tribunal, he submits, were entitled to conclude that there came a time when it would and should have been expected by the Claimant that the adjustment in question would be done; in the case of the railway station adjustment, that point must have been reached earlier than three months before 13 October.

21.	Section 68(1) of the 1995 Act provides that “act includes a deliberate omission”; but there is no expressed statutory provision relating to a negligent omission.  What then is the limitation provision where there has been a negligent but no deliberate omission?  Is it that the omission must be treated as continuing until it can no longer be said to continue because the requisite adjustment is made or the employment ends or, perhaps fortuitously, a change or reorganisation has the effect that the offending duties no longer need to be undertaken?  Or is it that time runs from the moment when the duty to make the adjustment begins?  Or is the answer that the right point is somewhere in between?

22.	These questions were considered, seemingly for the first time, in Matuszowicz v Kingston upon Hull City Council [2009] 3 AER 681.  In that case there was a negligent failure on the part of the employers to make adjustments so as to enable a one-armed employee to open the doors at his workplace.  The Employment Tribunal plumped for the continuing omission approach and refused to dismiss or strike out a claim under the 1995 Act which was brought 14 months after the omission began.  The Employment Appeal Tribunal took the opposite approach; HHJ McMullen QC decided that time ran from the commencement of the omission, the failure to make adjustments being regarded as an act.  The Court of Appeal chose middle ground.  Lloyd LJ, with whom Jacob and Sedley LJJ agreed, said, at paragraphs 14 to 21 of his judgment:

“14. The possibility of an omission being something which ought to be subject to anti-discrimination legislation had been considered in the previous legislation and is the subject of express provision which has been copied in the 1995 Act. Thus in section 68(1) of the 1995 Act, "act" is defined as including a "deliberate omission". So far so good; that provision may well not give rise to any particular problems in relation to the other anti-discrimination regimes. In relation to the 1995 Act, however, the duty to make reasonable adjustments does give rise to the possibility that there may be inadvertent and non-deliberate omissions on the part of the employer which are breaches of the duty to make reasonable adjustments and therefore acts of discrimination. No problem arises in relation to the definition of acts of discrimination in this respect. The problem arises when one considers the provisions defining the period within which proceedings must be brought. Those are to be found in paragraph 3 of Schedule 3 to the 1995 Act. It is as follows: 
‘(1) 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.
(2) 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.
(3) For the purposes of sub-paragraph (1)
(a) where an unlawful act is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
15. The provisions of paragraph 3(3)(c) and paragraph 3(4) pose a question on which, so far as I am aware, there is as yet no authority. The question is whether the effect of paragraph 3(4) is to treat as a deliberate omission something which, but for that paragraph, could not properly be described as deliberate. In terms of identifying an act of discrimination giving rise to a substantive remedy it is unnecessary to consider whether an omission to comply with the duty to make reasonable adjustments is deliberate or not. Either the duty is complied with or it is not. The classification of the omission, if it is an omission, becomes necessary only for the purposes of the time limit under paragraph 3 of Schedule 3. Mr Toms for the appellants submitted that it would be wrong to read the paragraph as dealing with anything other than that which is properly described as a deliberate omission, in that it defines and restricts the ability of a claimant to complain about something which, whether deliberate or not, may be an act of discrimination. As such, he submitted, it ought not to be construed more narrowly than is necessary or appropriate. In particular, he argued that it would be surprising, to say the least, if in a case in which the employer had been failing, but not deliberately, to comply with its duty to make reasonable adjustments, and in which that failure was continuing, an artificial date might be imposed by reference to which a complaint had to be started within a three month period, at a time when the duty was still being broken. 
16. Mr Siddall, on the other hand, submitted that the purpose of paragraph 3 of Schedule 3 is to define a starting point for the period of three months within which complaints can be presented, and that it would be bizarre for the paragraph to overlook what might be one of the more major categories of complaint of breach of the duties imposed by the Act. Furthermore, he submitted that a true reading of paragraph 3(4) can only lead to the conclusion that, in the circumstances described in that sub-paragraph, something which may not be truly a deliberate omission is to be treated as a deliberate omission as from a particular date. 
17. The text of paragraph 3 of Schedule 3 appears, in substantially identical form, in other anti-discrimination legislation. In those cases it probably gives rise to no particular issue, or at any rate not to the issue that we have to consider, because inadvertent omissions will not be acts of discrimination. In the present case it is a real issue and it might have been better if the language of the paragraph had been adapted to the 1995 Act so as to fit more easily with the wider scope of acts of discrimination under that Act. Be that as it may, we have to construe the words of the Act as they stand. 
18. Paragraph 3(1) takes as its starting point the time when the relevant "act" is "done". This requires supplementary provisions in a number of respects. One of those is how it applies to the category of acts that consists of omissions. 
19. Paragraph 3(3)(c) supplies this, in terms of deliberate omissions, and takes as the relevant moment the time when the person in question decided upon the omission. Clearly that cannot readily apply to an omission which happened through inadvertence and was not in fact decided upon. However sub-paragraph (4), while it allows for evidence as to when the person in question did decide on the deliberate omission, goes on to define, in the absence of such evidence, when the person is to be taken as having decided upon the omission. There are two alternatives. The first, when he does an act inconsistent with doing the omitted act, is fairly self explanatory. It may or may not be the case that, by doing the inconsistent act, the person in question realised that he was irrevocably omitting to do the omitted act, but it is fair in that situation to treat him as having made a deliberate omission because it is no longer open to him thereafter to do the omitted act. It is understandable that time should run from that moment. 
20. The second option, however, is not so self explanatory. It presupposes that the person in question has carried on for a time without doing anything inconsistent with doing the omitted act, and it then requires consideration of the period within which he might reasonably have been expected do the omitted act if it was to be done. In terms of the duty to make reasonable adjustments that seems to require an inquiry as to when, if the employer had been acting reasonably, it would have made the reasonable adjustments. Necessarily, the employer has not made the reasonable adjustments, since otherwise the complaint would not arise, but it has done nothing inconsistent with making them in future, since otherwise the matter would be within paragraph 3(4)(a). In this case, however, the person in question is to be treated as having decided upon the omission as a deliberate omission at the time when he might reasonably have been expected to have done the thing omitted. That is by no means a straightforward enquiry and it is certainly not an enquiry that is at all the same as enquiring whether he did in fact decide upon doing it at that time. 
21. This analysis seems to me to lead clearly to the conclusion that, in the context of this legislation and of the duty to make reasonable adjustments, even if the employer was not deliberately failing to comply with the duty, and the omission to comply with it was due to lack of diligence, or competence, or any reason other than conscious refusal, it is to be treated as having decided upon it at what is in one sense an artificial date. Certainly it may not be a date that is readily apparent either to employer or to employee. The date is imposed for the purposes of starting time running under the enforcement provisions of the 1995 Act. I therefore accept Mr Siddall's submission for the respondent that the regime created by Schedule 3 paragraph 3 applies not only to that which is objectively a deliberate omission but also to that which is not truly a deliberate omission but is treated as one, as of a given date, for the purposes of this paragraph.”

23.	Thus, a negligent omission is to be treated as a deliberate omission as of a given date; and that date is the date at which the employer, had he been acting reasonably, would have made the reasonable adjustments.

24.	We cannot avoid saying that, at first blush, that is not a construction of paragraph 3 of Schedule 3 of the 1995 Act which comes readily to mind when the words of the schedule are considered; paragraph 3(4) appears on the face of it only to apply to a deliberate omission rather than a negligent omission; and it is clear that the Court of Appeal were sensitive to the difficulties that the approach which was adopted might cause for parties; see in particular the judgment of Sedley LJ at paragraph 36; but it is understandable that a line has to be drawn somewhere and that the extreme solutions adopted in Matuszowicz by the Employment Tribunal on the one hand and the Employment Appeal Tribunal on the other, could be seen to have created equal but opposite difficulties.

25.	In any event we are bound by the decision of the Court of Appeal in Matuszowicz; Ms Mellor, with clarity, sustained her argument that this was a case of a continuing omission; but so was Matuszowicz.  The effect of that decision is that, although the negligent omission is continuing, once three months have passed from the date on which the Tribunal determine on the facts that, if the employer had been acting reasonably, he would have made the reasonable adjustments, the primary time limit has expired albeit the negligent omission is continuing.  If the claim is brought in time, then the continuing nature of the omission will, of course, should liability be established, be relevant to compensation.

26.	We revert to paragraph 23 of the Tribunal’s judgment.  In that paragraph, although we are told that Matuszowicz was not referred to before the Tribunal, the Tribunal applied precisely the correct test and, having done so, correctly said that the answer to the application to that test was one of fact.  Their factual conclusion is not said to have been perverse and must stand.  There is a possible source of confusion in that, in paragraph 23, the Tribunal identified the time at which the primary time limit expired as May 2010; but in paragraph 31, in dealing with the just and equitable extension, they appear to describe it as 24 June.  The Tribunal may, in the latter paragraph, have mistakenly been referring only to the second adjustment or they may have overstated the position in favour of the Claimant at that point in their judgment; but their conclusion in paragraph 23, where they were specifically addressing the primary time limit, is clear.

27.	In the light of the above analysis it is unnecessary to consider whether the Respondent’s duty to make the adjustments continued during the period when the Claimant was off work and after he had handed in his resignation.  In Olenloa v North West London Hospitals NHS Trust (the EAT, (EAT/0599/11), Slade J sitting alone) held that the Tribunal had erred in concluding that the obligation to make reasonable adjustments ceased when the employee had gone on sick leave without finding as a fact that he would not have remained or returned to work even if such adjustments had been made; and if relevant the same point could be made in this case; but it is not relevant for the reasons we have set out.

28.	We have no doubt that the approach in Matuszowicz has properly been described as one which arrives at an artificial date; but there is, before us, no escape from the application of the principle therein set out.  The Tribunal correctly applied that principle and the appeal, in so far as it seeks to attack the Tribunal’s conclusion on primary time limits, fails.

Just & equitable
29.	Ms Mellor puts her case fairly and squarely on perversity in her criticism of the Tribunal’s conclusion as to whether time should be extended on the basis that it was just and equitable to do so.  In the Notice of Appeal, perversity is the third of the three grounds which are there set out; the first is that the Tribunal erred in finding that the Claimant must have been generally aware of time limits and the need to present his claim in time; the second is that the Tribunal erred in finding that the Claimant did not act promptly.  However, in her submissions Ms Mellor told us that neither of those two grounds would be sufficient to get her home and that they set out arguments which contributed to her perversity case rather than standing as freestanding grounds of appeal.  

30.	There is a wealth of authority that the Tribunal have a wide discretion in reaching their decision on this issue and that an appellate court will not interfere with the exercise of that discretion unless it is shown that the Tribunal erred in principle or was plainly wrong, see for example Robertson v Bexley Community Centre [2003] IRLR 434.  

31.	The latest of these decisions is Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327.  In his judgment in that case, the precise facts of which need not be set out, Wall LJ said at paragraph 19:

“19. Speaking for myself and with all possible respect to Mr. Rose, it seems to me that this appeal is another attempt to hi-jack a very simple issue by means of editorial comment, supposed judicial gloss and lawyers' sophistication. The editors of the Employment Law Practice (the ELP) have expressed an opinion. No doubt that opinion is genuinely held and based on their collective experience (although their use of the phrase "a review of the authorities" would suggest a more scientific analysis). It is, however, in my judgment irrelevant. What is "liberal" to A may seem authoritarian to B. What passed for "liberal" in 1950 may well seem reactionary today. At best, therefore, the use of such a term is a distraction: at worst, it is misleading.”

32.	At paragraph 25 Wall LJ said:

“25. This paragraph has, in turn, been latched onto by commentators as offering "guidance" as to how the judgment under the "just and equitable" provisions of the Race Relations Act and DDA fall to be exercised. In my judgment, however, it is, in essence, an elegant repetition of well established principles relating to the exercise of a judicial discretion. What the case does, in my judgment, is to emphasise the wide discretion which the ET has - see the dictum of Gibson LJ cited above – and articulate the limited basis upon which the EAT and the court can interfere. Similarly, DCA v Jones [2008] IRLR 128 approves the Keeble guidelines, but emphasises that they are fact / case specific – see per Pill LJ at paragraph 50.”

33.	Longmore LJ, agreeing with Wall LJ said at paragraph 29:

“29. I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still.”

34.	Sedley LJ said, at paragraph 32:

“32. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it. That, albeit discursively, is what the EJ did here, notwithstanding his passing distraction by a textbook comment of doubtful relevance or weight.”

35.	It is necessary to add that the threshold for establishing perversity is a high one; perversity must be overwhelmingly established; see Yeboah v Crofton [2002] EWCA Civ 794:

“93. Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34.”

36.	Ms Mellor firstly, in support of her perversity argument, drew our attention to references in Matuszowicz and Olenloa to the difficulties which a claimant can face in identifying the time limit which should apply in the case of a negligent omission.  She pointed out that Olenloa was decided after the hearing before the Tribunal in this case and Matuszowicz was not drawn to the Tribunal’s attention.  However, it does not seem to have been the Claimant’s case that he did not know what the time limits were; in his ET1 he said that the failure to make adjustments dated from September 2009; the Tribunal may not have had their attention drawn specifically to the passages in authority on which Ms Mellor relied; but they could not have been unaware of the difficulties of identifying the precise date on which the time limit began to run or expired; and they said, in paragraph 35, that they were reaching their conclusion with some misgiving.  

37.	The Tribunal did say at paragraph 31 that the Claimant must have been generally aware of time limits in relation to his unfair dismissal claim because he brought that claim within two months of the expiry of his notice and, at paragraph 34, that they had no direct evidence as to when the Claimant sought legal advice, but he was clearly generally aware of the need to get in a claim promptly.  Ms Mellor submits that those conclusions were not based on any evidence.  Mr Wastall points out that the Claimant was giving evidence for about three-quarters of the day and that the Tribunal had adequate opportunity to make an assessment of what he knew.

38.	In our judgment, the Tribunal did not make any error in these areas.  The Tribunal were entitled to rely on their impressions of the Claimant which they gained from his giving evidence and from the nature of the case as a whole; he may not have been aware of the precise time limit; but the Tribunal’s finding that he was aware that there were time limits was a relevant consideration when they came to look at the whole picture in deciding whether it was just and equitable to extend time.

39.	Ms Mellor further submits that the Tribunal did not anywhere set out that declining to grant the extension of time sought was prejudicial to the Claimant.  That, she submits, was obviously a material factor.  It is correct that the Tribunal do not expressly refer to that factor; but it was not necessary to state it; it is obvious to any Tribunal that, if an extension to the time limit is not granted, that decision is fatal to the Claimant’s claim which would, but for an extension, be barred for want of jurisdiction.  The Tribunal are not to be said to have been in error of law or to have acted perversely in reaching a conclusion against a Claimant on the issue of extension if they fail to record the prejudice which follows to a claimant from the refusal of such an extension.  Ms Mellor in her skeleton argument criticises the Tribunal for their conclusion that the Claimant failed to act promptly.  She did not seek to put much stress on that in the course of her oral submissions; the Tribunal were entitled on the evidence to reach the conclusion that the Claimant had not acted promptly, particularly when the contents of his ET1 in which he claims that there was a failure to make adjustments from September 2009 are considered.

40.	In our judgment, the arguments which are put forward in favour of perversity do not overwhelmingly demonstrate that the Tribunal reached a conclusion which no reasonable Tribunal could have reached; we have no doubt that the Tribunal were entitled to reach the conclusion that they did, particularly in the light of what they said about the Claimant’s motives for complaining of a failure to make adjustments at all.  It is not necessary to go further into that; Ms Mellor did not suggest that that was not a material factor; it clearly was and the Tribunal were entitled to regard it as an important factor in their decision-making task.

Conclusion
41.	For these reasons this appeal fails and must be dismissed.