The claimant raised a grievance in November 2007, went off sick with depression in February 2008 and her grievance was determined in January 2009 with the additional offer that the claimant could raise further points or ask any questions regarding the investigation. The claimant responded to this letter but the person who heard the grievance maintained that he never received it. There was no further correspondence between the claimant and respondent until January 2010 when the claimant wrote to the respondent complaining that she had heard nothing further about her grievance. The respondent replied, denying receipt of her reply and informing her that her employment had ended. The claimant brought Tribunal proceedings including allegations raising causes of action that pre-dated her dismissal. The respondent took the view that all her claims prior to dismissal were out of time. The EJ had to consider whether the acts complained of were continuing acts and therefore in time, concluding that:

'While the Hendricks case says that lack of contact during sickness could constitute less favourable treatment, it does not say that it must do so.  It appears to the Tribunal that the claimant's only real allegation on the continuing act is that lack of contact and the fact that it relates to previous alleged discriminatory treatment.  The Tribunal cannot see on the facts alleged by the claimant any reasonable prospect of her establishing an on-going situation or state of affairs.  The Tribunal therefore strikes out the claimant's pre dismissal discrimination claims on the grounds that they disclose no reasonable prospect of success under Tribunal Rule 18(7)(b)'.

The claimant appealed.

The EAT allowed the appeal saying that they had no doubt that the EJ had taken too narrow a view of the claimant's case when she reached her conclusions about the lack of contact. It was not purely and simply that the respondent did not contact the claimant; rather it was that, while failing to contact her, the respondent replaced her, removed her possessions and expunged her from its list of staff, waiting until she contacted them to tell her that her employment had ended. What the claimant was arguing amounted to a continuing act extending over a period, and thus was still in time.

__________________

Appeal No. UKEAT/0112/11/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 July 2011

Before

HIS HONOUR JUDGE RICHARDSON (SITTING ALONE)

A (APPELLANT)

(1) DAVID GAME COLLEGE LTD; (2) MR DAVID GAME (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS NAOMI LING (of Counsel)

Instructed by:
William Sturges & Co Solicitors
Alliance House
14-16 Caxton Street
London
SW1H 0QY

For the Respondents
MR SIMON GORTON (One of Her Majesty's Counsel)

Instructed by:
Birkby Lodge
Birkby
Maryport
Cumbria
CA15 6RN

JURISDICTIONAL POINTS – Claim in time and effective date of termination

Time limit in discrimination and whistle blowing claims.

The Employment Judge declared that the Claimant had no reasonable prospect of success in arguing that the pre-dismissal discrimination claims comprise a continuing act/act extending over a period. She so declared because she took the view that the Claimant's only real allegation concerning the period in question was a lack of contact by the Respondent. The Claimant's case was however broader; what she alleged arguably amounted to a continuing act/act extending over a period. Declaration set aside.

1. This is an appeal by the Claimant against a judgment of the Employment Tribunal, Employment Judge Henderson sitting alone at a pre-hearing review dated 22 December 2010. By her judgment, as amended, the Employment Judge declared that the Claimant had, "no reasonable prospect of success in arguing that the pre-dismissal discrimination claims comprised a continuing act/act extending over a period."

1. The Claimant was employed by David Game College Limited ("the First Respondent"). Mr David Game ("the Second Respondent") is the principal of the College which is owned and run by the First Respondent. The Claimant was employed at the college with effect from 1 July 1997. She received promotions successively to Senior Course Co-ordinator and Director of Admissions and Head of GCSE. She last attended work on about 7 February 2008, and was thereafter absent from work on the grounds of stress and depression. It is common ground that her employment has terminated, but the parties are not in agreement as to when and how. The Claimant says that the effective date of termination was 13 January 2010, when she was told that her employment "had ended by reason of prolonged and unexplained absence."

1. It is common ground that on 21 November 2007 the Claimant stated a grievance complaining of a variety of matters arising out of her employment at the college. While she was absent from work the Respondent appointed the principal of an associated college, Dr Ian Moores, to investigate the grievance. In circumstances that it is not necessary to describe in detail in this judgment, he determined the grievance by a written adjudication dated 19 January 2009. In a covering letter he said:

"Even at this late stage, I am willing to receive from you any points that you wish to raise with my findings, or indeed answers to some of the questions posed in my adjudication document that have arisen in the course of my lengthy investigation. However, I would require any statement in writing and sent to me by recorded delivery to arrive here not later than 30 January 2009."

1. The Claimant does not say that she sent a reply by recorded delivery, or that she complied with the deadline of 30 January 2009. She says, however, that she replied by letter dated 16 February 2009 at some length. Dr Moores says that he never received that letter. The Employment Judge noted that the copy letter produced by the Claimant bears an incorrect postcode.

1. There was no further correspondence or contact between the parties until 5 January 2010, when the Claimant wrote to the Second Respondent. She complained that she had heard nothing further from him or from Dr Moores. She said:

"During the time that I have waited on you for a response and resolution to the situation, you have terminated my salary; taken over my office; appointed another staff member for my position and job role; removed me from all staff lists, literature and material. You have completely wiped me out without a single word to me. Although I continue to officially remain employed by David Game College, you have continuously failed in your duty of care to me […]."

1. It was in response to this letter that Dr Moores wrote on 13 January denying receipt of any reply from her and saying that her employment had ended.

1. In April 2010 the Claimant brought Tribunal proceedings. She alleged causes of action relating to or arising upon her dismissal with which I am not directly concerned on this appeal. She also, however, raised causes of action that pre-dated her dismissal. The ones with which I am concerned are (1) race discrimination, (2) sexual harassment, (3) discrimination on grounds of religion and belief, and (4) detriment by reason of making protected disclosures. Some of her complaints long pre-dated her dismissal. For the most part, the allegations pre-date 7 February 2008, the date when she last attended work. However, she also complained about the manner in which the grievance procedure was conducted. Her claim form then said:

"55. After 8 months since his appointment, Mr Moores [sic] completed his investigation into the Claimant's grievance on 19 January 2009. He rejected all of the Claimant's complaints. He refused to deal with a vast number of the Claimant's grievances altogether. The Claimant then responded to the grievance outcome by letter dated 16 February 2009, to which she did not receive a response.

56. The Claimant was severely unwell in 2009, as a direct result of the unlawful treatment received from the First and Second Respondent's [sic]. During this time, the Respondents took over her office, forcing open and emptying her drawers of personal property, appointed another staff member to her position and removed her from staff lists, literature and material. They failed to contact the Claimant at all."

1. The list of issues prepared on the Claimant's behalf, which built upon the claim form and on Further and Better Particulars, stated:

"55. Failing to respond to C's letter of 16 February 2009 (R2)

Sexual harassment, race discrimination, religious belief discrimination, whistleblowing

56. Failing to contact C at all after 16 February 2009 (R2)

Sexual harassment, race discrimination, religious belief discrimination, whistleblowing

57. Without contacting C, taking over her office (Gul Chagani in April 2008), forcing open and emptying her drawers of personal property (in/around November 2009), appointing another staff member to her position (Eny Ahn appointed in 2009) and removing her from staff lists, literature and material (between April 2008 and 2009) (R2)

Sexual harassment, race discrimination, religious belief discrimination, whistleblowing"

1. To similar effect was a witness statement of the Claimant prepared for Tribunal proceedings.

1. The Respondents took the view that all claims prior to dismissal were out of time. The case management discussion order dated 18 August 2010 provided for a pre-hearing review to determine, among other things, whether the claim should be struck out on the grounds that it has no reasonable prospect of success by reason of the application of relevant statutory time limits.

1. I am told that the order made at the case management discussion by Employment Judge Tayler was made after argument between the parties. There was debate today as to precisely its effect as regards time claims. Was the pre-hearing review to apply Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96 principles, to which I will return, or some other principles? How was it to apply if an issue arose as to whether there should be a just and equitable extension? There was no appeal by the Respondent against Employment Judge Tayler's case management discussion order, but no unanimity as to what tests ought to be applied as a result of it.

1. At the pre-hearing review, the Employment Judge received evidence from the Claimant and Dr Moores. She noted the evidence of Dr Moores that he did not receive the letter dated 16 February; she also noted the incorrect postcode. She did not make any finding as to whether the letter had been sent by the Claimant or received by the Respondent. It is possible that she felt inhibited in doing so by the nature of the hearing that was taking place. Her reasoning was as follows:

"8. The Respondents say that the Claimant is out of time to bring any discrimination claims pre dismissal. The Claimant says that there is a continuing act from Jan/February 2009 to January 2010. The Claimant cites the case of Hendricks which specifically said that the fact that an employee was 'off sick' did not necessarily rule out the possibility of continuing discrimination against her. Such claims could extend to less favourable treatment in the contact made with her and also in the lack of contact made with her.

9. The Hendricks case also said that in considering whether there was an act extending over a period, a Tribunal should focus on the substance of the complaints in relation to an ongoing situation or a continuing state of affairs to indicate discriminatory treatment. The Claimant's submissions also pointed out that where a PHR is held to determine whether or not there is a continuing act the test is whether the Claimant had made out a prima facie case for the incidents to be treated collectively as a continuing act: Lyfar v Brighton and Sussex Hospitals NHS Trust [2006] EWCA Civ 1548.

10. In this PHR we are one step further back, namely does the Claimant have a reasonable prospect of success in making out that prima facie case?

11. The Claimant's submissions cited the cases of North Glamorgan NHS Trust v Ezsias [2007] ICR 1126 CA and UKEAT/0705/05 and Anyamu v South Bank Students Union [2001] IRLR 303 in relation to considerations for the Tribunal on strike out applications. The Tribunal note the recommendations made in these cases.

12. However, the Tribunal notes that in this case there is no substantial dispute on the fact that there was no contact at all between the parties from Jan/Feb 2009 (at the latest) to Jan 2010. The Claimant says that it was the very lack of contact that must be taken as the continuing act.

13. While the Hendricks case says that lack of contact during sickness could constitute less favourable treatment, it does not say that it must do so. It appears to the Tribunal that the Claimant's only real allegation on the continuing act is that lack of contact and the fact that it relates to previous alleged discriminatory treatment. The Tribunal cannot see on the facts alleged by the Claimant any reasonable prospect of her establishing an on-going situation or state of affairs. The Tribunal therefore strikes out the Claimant's pre dismissal discrimination claims on the grounds that they disclose no reasonable prospect of success under Tribunal Rule 18(7)(b).

14. The Claimant will therefore have to make a separate application to ask the Tribunal to use its discretion to extend the time limit to bring such claims on just and equitable grounds – if she so chooses."

1. The effect of the Employment Judge's decision is to rule out the Claimant's argument that her complaints are in time, leaving her to an argument yet to be decided that it is just and equitable to extend time. The Employment Judge at first struck out the discrimination claims (perhaps because of the form of the case management discussion order), but it was common ground that all that was intended was that a declaration should be made unless and until the question of just and equitable extension had been considered; and the Employment Judge amended her order accordingly. I would add that the Employment Judge referred to "discrimination claims" in her Judgment, but it is common ground that it was also intended to encompass whistleblowing claims.

1. On behalf of the Claimant, Ms Ling argues that the Employment Judge construed her case far too narrowly in saying that lack of contact alone was the continuing act relied on. She took me to the pleadings, the statement of issues and the statement of the Claimant to which I have referred. She submitted that lack of contact during a period of absence could amount to or contribute to a continuing act; she relied upon Hendricks. She submitted also that the Employment Judge had given no real reasons on this point, in particular for rejecting the argument that failure to contact the Claimant while off sick could contribute to an act extending over a period. She submitted that failure to contact an employee during sickness absence could be part of such an act, especially where it denoted a complete failure to manage sickness absence or where the circumstances called for the employer to contact the employee. She argued that the Employment Judge erred in law in this respect, and also erred in law in failing to find or note that the second Respondent was effectively behind all the actions taken by the first Respondent.

1. On behalf of the Respondents, Mr Simon Gorton QC argues that the Employment Judge applied correct legal principles both as regards the approach to what may constitute an act extending over a period and as regards striking out. Hendricks is not authority for the proposition that a failure to keep in contact with an employee may amount to an act extending over a period. He argues that the Employment Judge correctly understood the case being made on the Claimant's behalf, and that the Employment Judge's reasoning, although admittedly brief, was not susceptible to appeal.

1. Section 68 of the Race Relations Act 1976, so far as relevant, provided as follows:

"Period within which proceedings to be brought

(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(7) For the purposes of this section—

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(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;

and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, 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."

1. Cognate provisions were found in the Sex Discrimination Act 1975 (section 76) and in the Employment Equality, Religion or Belief Regulations 2003 (Regulation 34). All these provisions have since been repealed and replaced by the Equality Act 2010 (see section 123).

1. As regards whistleblowing, section 48(3 4) of the Employment Rights Act 1996 provides as follows:

"(3) An industrial tribunal shall not consider a complaint under this section unless it is presented—

(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) 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.

(4) For the purposes of subsection (3)—

(a) where an act extends over a period, the "date of the act" means the last day of that period, and

(b) a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done."

1. In Hendricks the Claimant, a police officer with 11 years of service, presented a complaint setting out many specific allegations of discrimination involving a large number of officers. She had been off work for more than a year before presenting her complaint. She complained, however, of less favourable treatment in the contact made with her, and also of a lack of contact made with her, during her absence. The Tribunal took the view that the acts or omissions of which she complained amounted to a continuing act. The Appeal Tribunal reversed that decision. The Court of Appeal restored the decision of the Tribunal, holding that on the material before it the Tribunal was entitled to make a preliminary decision that it had jurisdiction to consider the allegations of discrimination (see Mummery LJ at paragraph 48). He continued, in a passage that has often been cited and applied:

"48. On the evidential material before it, the tribunal was entitled to make a preliminary decision that it has jurisdiction to consider the allegations of discrimination made by Miss Hendricks. The fact that she was off sick from March 1999 and was absent from the working environment does not necessarily rule out the possibility of continuing discrimination against her, for which the Commissioner may be held legally responsible. Miss Hendricks has not resigned nor has she been dismissed form the Service. She remains a serving officer entitled to the protection of Part II of the Discrimination Acts. Her complaints are not confined to less favourable treatment of her in the working environment from which she was absent after March 1999. They extend to less favourable treatment of Miss Hendricks in the contact made with her by those in the Service (and also in the lack of contact made with her) in the course of her continuing relationship with the Metropolitan Police Service: she is still a serving officer, despite her physical absence from the workplace. She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period.' I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism,' 'a prevailing way of life,' a 'generalised policy of discrimination,' or 'climate' or 'culture' of unlawful discrimination.

49. At the end of the day Miss Hendricks may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no 'act extending over a period' for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the Service in matters of race and sex discrimination. It is, however, too soon to say that the complaints have been brought too late."

1. A similar approach can be seen in Arthur v London Eastern Railway Ltd [2007] ICR 193, a case decided under section 48(3) of the Employment Rights Act 1996, which I have already quoted, where the phrase adopted in the statute is, "a series of similar acts or failures." In the Judgment of Mummery LJ at paragraphs 26 36 there is a valuable exposition of the approach to this question, but it will suffice to quote paragraphs 35 and 36:

"35. In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. We know that they are alleged to have been committed against Mr Arthur. That by itself would hardly make them part of a series or similar. It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find 'motive' a helpful departure from the legislative language according to which the determining factor is whether the act was done 'on the ground' that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure.

36. Ms Seymour objected that, if this was the case, there was no point in having a pre-hearing review to determine time-limit issues in a case such as this. The matter would always have to go to a full hearing. Two points can be made on this submission. First, it is possible to direct a preliminary hearing with evidence relevant to the time limit point. Secondly, I agree that there would be no real point in having a preliminary hearing with evidence, if it was not going to save time and costs. That will often be the case in this sort of situation. Even if it is decided at a pre-hearing review or other preliminary hearing that there is no continuing act or series of similar acts, that will not prevent the complainant from relying evidentially on the pre limitation period acts to prove the acts (or failures) which establish liability. It will in many cases be better to hear all the evidence and then decide the case in the round, including limitation questions, on the basis of all the evidence: see, for example, Hendricks (particularly at paragraphs 48 and 49) regarding the approach to multiple acts alleged to extend over a period."

1. Other cases have been cited to me, including decisions of the Court of Appeal in Lyfar and MA v Merck Sharp & Dohme Ltd [2008] EWCA Civ 1426. These seem to me to be no more than illustrative of the principles that appear in Hendricks and Arthur.

1. I have no doubt that the Employment Judge took too narrow a view of the Claimant's case when she reached her conclusions about the lack of contact. The alleged lack of contact took place in a context set out in the claim form, list of issues and statement to which I have referred. Essentially the Claimant's case as regards this period is that she was ignored and supplanted by the first Respondent. It was not purely and simply that the first Respondent did not contact her; rather, it was that, while failing to contact her, the first Respondent replaced her, removed her possessions and expunged her from its list of staff, waiting until she made contact to inform her that her employment had "ended".

1. I think it is important to have regard to the employment reality of the situation. Where an employee is absent from work through certified ill-health, it is not the general practice of employers, and it is certainly not good employment practice, to refrain from any inquiry, replace the employee and say after the event that the employment has ended. If this is what occurred, I think it is arguable that it amounted to an act extending over a period, or a series of acts or failures. The usual practice is to stay in touch with the employee and manage the question whether employment should continue through the use of an absence policy or procedure.

1. I therefore do not consider that the Employment Judge was justified in declaring, for the reasons she gave, that the Claimant had no reasonable prospect of success in arguing that the pre-dismissal discrimination claims comprise a continuing act/act extending over a period.

1. The Employment Judge may have been misled by relying only upon a summary of the Claimant's case in Ms Ling's skeleton argument. Ms Ling's summary was, as the Employment Judge observed, a helpful one, but it was a part of a skeleton argument designed to deal with a whole range of points, not all of which are before me, which were potentially in issue at that hearing. It was not a substitute for the claim form and the list of issues; these make it plain that the allegation was that the Respondents did not contact her and supplanted her.

1. It follows that the Employment Judge's declaration must be set aside. The question is what should happen next. I have reached the conclusion that the best way in which I can remain loyal to the order of Employment Judge Tayler, which was not appealed, and ensure that this case is progressed appropriately, is to direct that the matter be remitted for consideration by Employment Judge Taylor at a case management discussion. He will be able to take the matter forward from there. He will no doubt listen to submissions from the parties as to whether, in the light of what has occurred, there is any further scope for a pre-hearing review.