A claimant may be allowed to bring a disability discrimination claim late when he had not been prompt to act because of his state of mind.
In Dept of Constitutional Affairs v Jones the Court of Appeal has agreed with the EAT and the employment tribunal that an applicant may be allowed an extension of time to file a claim under the Disability Discrimination Act (DDA) where the extra time was needed because at the relevant time he was not prepared to accept that he was suffering from a disability (in this case, mental illness).
The employee was suspended from work as a result of allegations of serious financial irregularities. He was invited to a disciplinary interview but obtained a doctor’s certificate to the effect that he was unfit to attend because of a depressive illness and because he had broken his ankle. The hearing proceeded in his absence. He was found guilty of gross misconduct and dismissed. He initially decided not to admit to himself or others that he was suffering from a disability. He filed claims for unfair dismissal and breach of contract. Later, some five weeks after the relevant three-month time limit had expired, he filed a claim of disability discrimination. The employer argued that his DDA claim was time-barred. The tribunal had to consider the promptness (or lack of it) with which the claimant had acted. He had known that he could bring such a claim before the date of his dismissal – his wife, his solicitor and his union had all suggested it to him. The delay had only arisen because of his own failure to accept that he was disabled.
The tribunal, with whom the EAT agreed, decided that in these particular circumstances, it was prepared to extend the time limit in his favour.
Relevant factors were the fact that for the purposes of the DDA, the disability must be shown to have existed for 12 months and at the time of the employee's dismissal it was not clear whether he fulfilled this requirement; the employers, though knowing of his illness, had hurried the dismissal process thus bringing forward the relevant deadline; and the employers had also disputed whether he was disabled at all.
Points to note:
- The specific facts of the case were very relevant here where the key issue was the claimant’s state of mind (Contrast the unfair dismissal case of Northumberland CC v Thompson – see below). Usually the fact that the claimant has taken legal advice promptly will be enough to suggest that he or she should have filed any claim within the 3 month time limit.
- Even though the engagement of the statutory dispute resolution procedures (not relevant in this case) may operate to extend time limits, employers should appreciate that tribunal claims are liable to be struck out if filed late i.e. disposed of without the employer being required to defend its actions at all. It is important to take advice as soon as any claim is received to see whether any technical point on time limits may arise.