The issues of whether a Claimant's complaints had been presented in time and, if not, whether it was just and equitable to extend time, could not be ascertained at a pre-hearing review without full facts and were to be considered at a full merits hearing.

 

The appellant employee (S) appealed against a decision at a pre-hearing review that his claims for failure of the respondent NHS trust (N) to make reasonable adjustments for his disability were out of time.

 

S's first claim form alleged that he was a disabled person and that N had failed in its statutory duty to make reasonable adjustments. The employment judge had held that claims about those matters up to the last day S was at work before going on sick leave, were presented a little over a month out of time. As S had been aware of the time limit and had been able to prepare a detailed grievance, much of which had been copied into the ET1, it was not considered just and equitable to extend time. S's second and third ET1s had raised different matters in relation to possible redeployment, delays in the grievance process, refusal to pay temporary injury allowance, and statutory sick pay and were held to have been presented in time.

 

S submitted that, given the judge had heard evidence only from S rather than at a full merits hearing, she was unable to identify actual or assumed facts from which to decide whether S's complaints had been presented in time and it had been an error of law not to defer consideration of time limit issues until all the evidence had been heard. In order to determine the limitation issue, the judge should have made findings of fact about when N had come under a duty to make reasonable adjustments, and when it had failed to do so.

 

HELD: The judge had erred in concluding, without finding as a fact, that S would not have remained or returned to work if adjustments had been made and that N ceased to be under an obligation to make reasonable adjustments for S when he went on sick leave. That error undermined the basis of her decision that the claims in S's first ET1 of acts or omissions prior to when he went on sick leave were presented out of time. S had been asserting a continuing omission by N to make reasonable adjustments and, in deciding whether the claims were presented in time, it was material to determine whether it was that very failure which had kept S away from work, Home Office v Collins [2005] EWCA Civ 598 and NCH Scotland v McHugh distinguished because the applicants had been either unwilling (Collins), or unable (McHugh), to return to work (see para.30 of judgment). The same error vitiated the decision that it was not just and equitable to extend time for presentation of the complaints, as the length of delay was material to the exercise of the discretion whether to extend time (para.31). The issues of whether, and if so which of, S's complaints in the first ET1 had been presented in time, and whether it was just and equitable to extend time, fell to be considered at a full merits hearing.

 

Appeal allowed