Mark Shulman, Consultant Solicitor at Keystone Law

**DISCRIMINATION
**
**Post termination discrimination
Can an employee make a protected disclosure after leaving their employment? Yes said the EAT when this novel point arose in [Onyango v Adrian Berkeley T/A Berkeley Solicitors]()** UKEAT/0407/12/ZT.

The Claimant made a protected disclosure after he had left his employment. He then alleged that this disclosure led to a detriment in that he was accused of forgery and dishonesty in turn leading to his being investigated by the Solicitors Regulatory Authority. The ET held that they did not have jurisdiction to hear his claim of suffering detriment because the protected disclosure had been made after his employment terminated. The Claimant appealed.

The EAT referred to the Court of Appeal decision in Woodward v Abbey National [2006] ICR 1436 which decided that a section 47B complaint can rely on post termination detriment. The question in Onyango was whether the protected act (i.e. the protected disclosure itself), may occur after termination of the relevant employment. The EAT had no hesitation in accepting the submission that there is no limitation in the statutory wording to protected disclosures having to be made during the relevant employment.

The EAT's view was that since a detriment may arise post termination, there was no warrant for limiting the disclosure to the duration of the employment. The EAT considered that this construction was also in line with the legislative purpose of protection for whistleblowers.

The Employment Tribunal was therefore wrong to decline jurisdiction to consider the section 47B complaint.

Comment
It is now the case that a protected disclosure can be made:

* during employment with a current employer * during employment with a previous employer (BP plc v Elstone and another * after employment with a current employer has terminated (Onyango

Compromise agreements and confidentiality
The case is also potentially important in the context of post-termination confidentiality clauses, often included in compromise agreements. Section 43J of the Employment Rights Act 1996 says that:

"(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure."

As the definitions of "worker" and "employer" in section 230 of the ERA 1996 include a former worker or former employer, then "any agreement between a worker and his employer" would include a compromise agreement (whether entered into during or after employment). Since a disclosure made after employment ends can be a protected disclosure, this calls into question the extent to which such clauses are enforceable where the purpose or effect of the clause is to silence a potential whistleblower.

One possible solution is the drafting of settlement clauses which require the worker (or former worker) to provide a warranty to the effect that they have no grounds for believing that they are aware of anything which could rise to a protected disclosure. Such an approach might help at a later stage if the worker seeks to raise issues covered by the warranty which would otherwise arguably constitute a protected disclosure. It could be difficult for the worker to assert that the subsequent disclosure was made in good faith and with a reasonable belief of wrongdoing (as required for a protected disclosure), if the worker has already confirmed that they had no knowledge of any such concerns.

Victimisation for age discrimination
Can post-termination victimisation for age discrimination found an action under the Equality Act? No, said the EAT in [Rowstock Ltd & Anor v Jessemey (EHRC Intervening)]() UKEAT/0112/12/DM.

The Claimant reached the age of 65 and was dismissed without the employer following statutory procedures in relation to age-related retirement. After his dismissal, he applied to a recruitment agency but received a very poor reference from the former employer. He claimed post employment age-related victimisation (on the grounds of the reference).

Even though the ET found that the poor reference had been given because of the ET proceedings, they rejected the victimisation claim because they said that s108(7) of the Equality Act 2010 (which deals with discrimination in connection with relationships that have ended), expressly excluded post termination victimisation. Section 108(7) provides:

"But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A."

The Claimant appealed with the Equality and Human Rights Commission ("the Commission") intervening.

The Commission's case at the EAT was that the Equality Act had not been intended to remove any of the protective provisions in the previous legislation. All that had occurred was a recasting. The Act had not been preceded by a White Paper or a Law Commission Report and nothing emanating from the sponsoring Government department suggested that any reduction in its scope was intended. Further, the Explanatory Notes to section 108 of the 2010 Act provided:

"A breach of this section triggers the same enforcement procedures as if the treatment had occurred during the relationship. However, if the treatment which is being challenged constitutes victimisation, it will be dealt with under the victimisation provisions and not under this section."

In summary, the Claimant submitted that the literal words of section 108(7) must have been enacted by a "legislative blunder".

The EAT was satisfied that the effect of the literal words of section 108(7) was to produce a lacuna in the statutory scheme of protection from discrimination, harassment and victimisation which the UK is required by EU legislation to enact. However, the long title of the Equality 2010 Act explained that the legislation was  "…to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; [and] ….to prohibit victimisation in certain circumstances…." (The EAT's emphasis in italics added).

Reference was made to the speech of Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557 that the judicial role is not one geared to amendment of primary statutes:

"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation.

The EAT was unanimously of the view that any interpretation of subsection 108(7) which had the effect of creating a cause of action for post-relationship victimisation  would be an interpretation flying directly in the face of what Parliament has actually enacted. That would represent a "Rubicon which the courts may not cross"

The instant situation was one in which express provision has been made for the post-relationship landscape, but subject to an equally express exception in the case of victimisation. In such a situation, no judicial tool was available to make available a remedy which the words used by Parliament have simply stated was not available.
It followed that the judgment of the ET in rejecting the employee's post-employment victimisation case was upheld and the appeal was dismissed.

Comment
The exclusion of post-employment victimisation from the protection of the Equality Act 2010 does on its face, seem to be a "drafting error". There was no logical reason to remove this protection from the legislation. If the EAT is right and the Equality Act 2010 does not protect against post-employment victimisation, UK law is not compliant with EU law and an amendment to the Act would be required. In those circumstances, if it were not made, the Government could face Francovich claims (i.e. actions in damages for failing to implement EU law properly).

PRACTICE AND PROCEDURE

Time limits
When does the time limit begin to run in the case of a failure to make reasonable adjustments in a disability discrimination claim? This point was considered in the recent case of [Cyprien v Bradford Grammar School]() UKEAT/0306/12/DM.

The Claimant worked as a caretaker at a school. He had had problems with one knee prior to his appointment but had not told the employer, leaving the medical fields blank in his application form. In December 2009 his other knee gave way. There was a meeting to risk assess his position and he was told not to lift heavy loads and take breaks. He did not tell his employer he was disabled.

In February 2010, all employees had to complete a form with their personal details and it was on this form that the Claimant, for the first time, indicated that he had a disability. Nobody in HR actually read the form - it was just filed.

In June 2010 the Claimant went off sick, claiming it was as a result of undertaking strenuous tasks at work. It was then that the employer found out about the misleading application form and invited the Claimant to a disciplinary hearing, but he resigned the day before the hearing, claiming constructive dismissal (a claim which was subsequently withdrawn) and disability discrimination (under the Disability Discrimination Act 1995), both of which claims were rejected at the ET on the grounds that they were out of time.

The disability discrimination claim related to two occasions when the employer should allegedly have made reasonable adjustments. These claims were made in October 2010. The ET found that although the employer had not read the HR form received in February 2010, the latest they would have found out, and made any necessary adjustments, would have been 3 months later (i.e. by May 2010). Therefore the claim on the first failure to make adjustments should have been made by August 2010. The second alleged failure occurred in June when the Claimant went off sick. Therefore, that claim should have been made by September 2010.

The ET found that it would not be just or equitable to extend time and the Claimant appealed to the EAT.

When did time begin to run?
The Disability Discrimination Act 1995 provided that "act includes a deliberate omission", but there was no express statutory provision relating to a negligent omission. What then was the limitation provision where there had been a negligent but not a deliberate omission?

The Court of Appeal in Matuszowicz v Kingston upon Hull City Council [2009] 3 AER 681decided that a negligent omission is to be treated as a deliberate omission as of a given date. That date is the date at which the employer, had it been acting reasonably, would have made the reasonable adjustments. The EAT had no doubt that the approach in Matuszowicz was one which arrived at an artificial date, but there was no escape from the application of the principle. The ET had correctly applied the principle and so the appeal on primary time limit point failed.

Comment
Under the Equality Act 2010, where a claim arises out of an omission, in the absence of evidence to the contrary, the employer is to be taken as deciding not to do something when it does an act inconsistent with doing it (or, if there is no inconsistent act, at the expiry of the period in which the employer might reasonably have been expected to do it) (section 123(4)).

*Just and equitable extension
*The ET had directed themselves to the checklist of factors to be considered in the context of whether it was just and equitable to extend time limits mentioned in British Coal v Keeble [1997] IRLR 336. These factors include:

* the length of and reasons for the delay * the extent to which the cogency of the evidence is likely to be affected by the delay * the extent to which the party sued had co-operated with any requests for information * the promptness with which the Claimant acted once they knew of the possibility of taking action * the steps taken by the Claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

The EAT pointed out that there was a wealth of authority that ETs 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 ET erred in principle or was plainly wrong. Yeboah v Crofton [2002] EWCA Civ 794 confirmed that an appeal on the grounds that the ET had reached a perverse decision ought only to succeed where an overwhelming case is made out i.e. that it reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.

The EAT decided that the ET had not make any error in these areas. The ET was 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. Whilst he may not have been aware of the precise time limit, the ET's finding was that he was aware that there were time limits and this was a relevant consideration when they came to look at the whole picture in deciding whether it was just and equitable to extend time.

The Claimant's appeal was therefore dismissed.

Adviser's error
Can an error by the Claimant's solicitor excuse a late unfair dismissal claim to the ET? No said the EAT in [El Kholy v Rentokil Initial Facilities Services (UK) Ltd]() UKEAT/0472/12/LA.

The Claimant was dismissed on 4 October 2011. He sought advice from a solicitor to help him with an internal appeal against his dismissal. He was finally informed on 6 January 2012 that his appeal was unsuccessful. Another solicitor then lodged his ET1 on 23 January which was out of time (as his claim for unfair dismissal should have been lodged on 3 January 2012).

The EJ refused to extend time holding that the Claimant had failed to establish that it was not reasonably practicable for his complaint of unfair dismissal to be presented before the end of the period of three months beginning with the effective date of termination.

Section 111(2)(b) of the Employment Rights Act 1996 provides that an ET may consider a claim (even if it is outside the 3-month deadline) provided that it is "within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

The Claimant appealed, submitting that:

* s111 of the ERA 1996 required a more generous application of the test of practicability because, since the judgment in Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379, the legislation has been amended to introduce the word "reasonably" before "practicable" * Dedman was distinguishable from the Claimant's case in that Mr Dedman knew of his right to bring a claim for unfair dismissal but was unaware of the time limit for doing so. In El Kholy, the Claimant was unaware of his right to bring such claim * the employee's state of mind was material in determining whether it was not reasonably practicable to bring an unfair dismissal claim in time (Wall's Meat Co Ltd v Khan [1978] IRLR 499).

The EAT decided that:

* the effect of the addition of the word "reasonably" in section 111 had already been decided. The case authorities did not support a departure from Dedman i.e. "If a man engages skilled advisers to act for him – and they mistake the time limit and present it too late – he is out. His remedy is against them" * the case of Marks and Spencer plc v Williams-Ryan [2005] IRLR 562 had reviewed the previous case authorities on reasonable practicability in circumstances in which a Claimant is ignorant of his rights to claim unfair dismissal and has consulted an adviser. The ignorance or mistaken belief of a complainant can only be regarded as rendering it not reasonably practicable to present a complaint in time if that ignorance or mistaken belief is itself reasonable * in Khan, Lord Denning MR had referred to Dedman and the effect of fault by an adviser which applied (i) whether the Claimant was ignorant of his right to bring a complaint for unfair dismissal or (ii) when he was ignorant of the time limit for doing so. Ignorance by a Claimant of their rights – or ignorance of the time limit – is not just cause or excuse for a late claim, unless it appears that he or his advisers could not reasonably be expected to have been aware of them.

Accordingly, despite "carefully developed arguments", the Claimant's appeal was dismissed.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.