does being forced to complete an ill-health retirement form amount to harassment?
This was considered in the matter of Secretary of State for Justice v Mr Alan Johnson.
Mr Johnson commenced working as a prison officer on 4 July 1990. While working he attended the scene of the murder of one of the prisoners. The sight of which, he stated, would haunt him for the rest of his life. Mr Johnson brought a claim (amongst other things) in the Employment Tribunal in 2013 that his employer had harassed him by making him complete an ill-health retirement form when he stated he did not want medical retirement. This employment claim was stayed while he pursed his claim for personal injury.
Several years later, Mr Johnson succeeded in his claim in the Employment Tribunal. The Tribunal found that by compelling him to complete the application form for ill-health retirement the Respondent had subjected Mr Johnson to harassment.
The Respondent appealed against the decision. The EAT, allowing the appeal, held that the Tribunal had erred in law. The Tribunal failed to make specific findings in its judgment about the conduct that constituted the harassment and whether that harassment extended beyond 20 February 2013 (which was the date Mr Johnson submitted the application for ill-health retirement) to no later than September 2020. The Tribunal also failed to consider whether it was just and equitable to extend the usual three month time limit and consider the effect that extending the time limit would have on the Respondent’s ability to defend the claim. The matter was sent back to the Tribunal to determine these points.
The EAT said that the Tribunal should consider the decision of the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation. Here, Lord Justice Underhill’s view was that when considering whether it is just and equitable to extend time or not, it is not necessary to consider all of the factors listed in section 33 of the Limitation Act (often referred to as the Keeble factors) as a checklist. Instead it should consider the length and the reasons for the delay and this can include the effect that the extension of time would have on the Respondent defending the claim.
This case update was written by Jo Sinclair, Solicitor at didlaw.